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001 United States District Court District of Nevada Las 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 . November 21, 2002 . . . . . . . . . . . . . . . 9:01 a.m. And related cases and parties COURT TRIAL - DAY 4 THE HONORABLE PHILIP M. PRO PRESIDING CHIEF UNITED STATES DISTRICT COURT JUDGE COURT RECORDER: TRANSCRIPTION BY: ERICA DAVIS NORTHWEST TRANSCRIPTS, INC. U.S. District Court Las Vegas Division P.O. Box 35257 Las Vegas, Nevada 89133-5257 (702) 658-9626

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Page 1: United States District Court District of Nevada Las …people.csail.mit.edu/bkph/other/transcript/Symbol...001 United States District Court District of Nevada Las Vegas, Nevada SYMBOL

001

United States District Court District of Nevada

Las 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 . November 21, 2002 . . . . . . . . . . . . . . . 9:01 a.m. And related cases and parties

COURT TRIAL - DAY 4

THE HONORABLE PHILIP M. PRO PRESIDING CHIEF UNITED STATES DISTRICT COURT JUDGE

COURT RECORDER: TRANSCRIPTION BY: ERICA DAVIS NORTHWEST TRANSCRIPTS, INC. U.S. District Court Las Vegas Division P.O. Box 35257 Las Vegas, Nevada 89133-5257 (702) 658-9626

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Proceedings recorded by electronic sound recording, transcript produced by transcription service. APPEARANCES: FOR THE PLAINTIFFS: JESSE J. JENNER, ESQ. STEVEN C. CHERNY, ESQ. ALBERT E. FEY, ESQ. KENNETH B. HERMAN, ESQ. PABLO D. HENDLER, ESQ. JOHN P. HANISH, ESQ. Fish & Neave 1251 Avenue of the Americas New York, New York 10020 ELISSA F. CADISH, ESQ. Hale, Lane, Peek, et al. 2300 West Sahara Avenue, #800 Las Vegas, Nevada 89102 FOR THE DEFENDANTS: GERALD HOSIER, ESQ. 8904 Canyon Springs Drive Las Vegas, Nevada 89117 STEVEN G. LISA, ESQ. 55 West Monroe, Suite 3300 Chicago, Illinois 60603 VICTORIA GRUVER CURTIN, ESQ. LOUIS JAMES HOFFMAN, ESQ. 14614 N. Kierland Blvd., 300 Scottsdale, Arizona 85254

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PROCEEDINGS BEGIN AT 9:01 A.M. 1

THE COURT: All right. Sorry for the delay in getting started. We can 2

have Mr. Silver return to the witness stand and -- 3

THE WITNESS: Good morning, Your Honor. 4

THE COURT: -- good morning -- and proceed with further 5

examination. 6

Mr. Hosier? 7

MR. HOSIER: Just have one preliminary thing. Ms. Curtin would like 8

to -- 9

MS. CURTIN: Your Honor -- 10

THE COURT: Ms. Curtin? 11

MS. CURTIN: -- another housekeeping matter. 12

THE COURT: All right. 13

MS. CURTIN: Your Honor, we received notice last night that plaintiffs 14

intend to call Mr. Steiner tomorrow. And you may recall, we filed a motion in limine 15

to exclude Mr. Steiner, who is their former examiner from the Patent Office, and we 16

would like to renew that motion at this time. 17

THE COURT: We'll take that up later on today. I want to go ahead 18

and finish with this witness, and we'll -- we'll address those matters at a convenient 19

time. 20

MS. CURTIN: That would be grand. Thank you. 21

THE COURT: Okay. Great. Thanks. 22

MR. HOSIER: Our only concern, Your Honor, was just the scheduling 23

of witnesses for them. 24

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THE COURT: Well, if I don't allow Steiner they'll have somebody else. 1

MR. HOSIER: That's what I was hoping. 2

THE COURT: Okay. 3

MR. HOSIER: Thank you, Your Honor. 4

WILLIAM MICHAEL SILVER, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN 5

CROSS-EXAMINATION (Continued) 6

BY MR. HOSIER: 7

Q Good morning, sir. 8

A Good morning. 9

Q The company, Cognex, shipped its first product in May of 1982, did it not? 10

A I couldn't tell you whether it was May, but it was around that time. Sounds -- 11

sounds right. 12

Q And with regard to this change of direction that we talked about and the way 13

you were selling to different customers after '86 or so, in fact, the company recruited 14

a new management team to implement this strategy, correct? 15

A That's basically correct. Yes. 16

Q And the company began shipping its new products to OEMs, system 17

integrators, and what we called yesterday AMEs, in 1987? 18

A Yes, we began shipping products to those companies. 19

Q Now, the 1984 letter to Cognex from Mr. Lemelson that we referred to 20

yesterday, I believe you said you didn't recall seeing that -- 21

THE COURT: Mr. Hosier, I'm sorry. 22

MR. HOSIER: I'm sorry. 23

THE COURT: My recorder is having some difficulty with the recording 24

equipment. 25

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MR. HOSIER: Okay. We can go back and reconstruct. 1

THE COURT: Yeah. Let's let her see what the problem is first. 2

(Pause in the proceedings) 3

THE COURT: Okay. Thank you. 4

(Off-record colloquy) 5

THE COURT: While the court recorder is doing that, I'll share 6

something with you all that, as you know, I mentioned earlier with the little plaque 7

about Lincoln and Gettysburg and this being the anniversary; and I was at 8

Gettysburg recently. But somewhere in the far reaches of my mind I recalled that 9

Lincoln was a President that also held a patent; you probably all knew this, but. I 10

guess I'm -- 11

MR. HOSIER: I think he's the only one that did. 12

THE COURT: I believe he is the only one, yeah. But I verified that 13

last night on the computer. 14

MR. QUINN: Actually, Your Honor, Thomas Jefferson had some 15

patents as well. 16

THE COURT: Does he? Okay. What -- now what did he patent? 17

Lincoln's was to lift boats over shoals -- 18

MR. LISA: Yeah, that one -- 19

THE COURT: -- and I guess it never -- 20

MR. QUINN: -- I knew that one; I don't remember Jefferson's, but 21

Jefferson actually -- 22

THE COURT: Something good like wine or something. 23

(Off-record colloquy while court recorder 24

fixes sound equipment) 25

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COURT RECORDER: So we can go ahead. 1

THE COURT: Oh, okay. Good enough. As long as that can be 2

picked up. 3

MR. HOSIER: Would you like us -- Mr. Silver and I, I'm sure, can 4

recreate the question and answer if need be. 5

COURT RECORDER: I got -- 6

THE COURT: What's the last -- 7

COURT RECORDER: -- you were picked up on a couple other mikes, 8

it was just real soft. So we're okay. 9

MR. HOSIER: So no need to go back? Okay. 10

CROSS-EXAMINATION (Continued) 11

BY MR. HOSIER: 12

Q Maybe I could put this in my pocket. 13

Sir, I was turning to the 1984 letter to Cognex authored by Jerry Lemelson 14

regarding his, then, three patents. Do you recall that? 15

A I recall the question. 16

Q And I believe you said you had not seen that letter? 17

A What I said was, I saw the letter for the first time in August of 2002. 18

Q All right. And you had not seen it at some earlier time, obviously? 19

A That's correct. 20

Q I believe you mentioned yesterday that the company had been unable to find 21

even its financial records from the early '80s; isn't that true? 22

A What I said was that due to a change in computer system in 1986, the 23

records from '81 and '82, and I guess '83, were lost. 24

Q And you made multiple moves of offices in that time period from '84 through 25

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the present, have you not? 1

A If by "multiple" you mean more than one, then yes. 2

Q How many change of offices have you had? 3

A Well, we've moved from Boston to Needham and then to Natick. So, I would 4

-- 5

Q And during the -- 6

A -- say two. 7

Q And do you have any document, so-called document retention policy? 8

A We may now, but if so, I'm not aware of it. 9

Q All right. So it wouldn't surprise you necessarily, given the tumultuous times 10

of the company in '84, '85, '86, multiple moves, that such things as a letter from an 11

independent inventor might be discarded? 12

A Well, first of all, I wouldn't characterize those years as tumultuous. I have no 13

knowledge that that letter was ever received, or really anything about it. 14

Q No knowledge one way or the other? 15

A I like -- as I said, I saw it for the first time in August of 2002. That's all I can 16

tell you about it. 17

Q All right. Now, in fact, you don't purport to be an expert in patents, do you? 18

A I'm not a lawyer, I don't have any legal training, and I don't purport to be an 19

expert, assuming I understand what that means. 20

Q And, in fact, in 1990, you had considerably less exposure to patents than 21

you've had at this point in time, correct? 22

A Yes. 23

Q And Mr. Steir, who was identified on some of the letters yesterday as the 24

legal -- I forget his title, was it director of contracts, international planning, and then 25

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became director of the legal department at Cognex; is that correct? 1

A That sounds correct. I'm not sure when he became that, but that sounds 2

correct. 3

Q Now Mr. Steir is not a lawyer either, is he? 4

A I'm not familiar with Mr. Steir's legal training one way or another. 5

Q Well, you understood that he has only a business degree and has had no law 6

school training whatsoever? 7

A As I said, I'm not familiar with whatever legal training he may or may not 8

have had. 9

Q When is the first time that Cognex had an in-house lawyer of any kind 10

performing a legal function for the company? 11

A Sometime in the 1990s. I couldn't tell you when he started. 12

Q When you say "in the 1990s," about the mid-'90s, late '90s? When, 13

approximately? 14

A I honestly don't recall. 15

Q Now with regard to these letters from customers that were coming in in early 16

'90, you understood they were coming from automotive, electronics and 17

semiconductor companies as well as your customers that supplied product to those 18

industries? 19

A The ones I specifically saw were from semiconductor companies. I couldn't 20

testify as to what other ones came in. 21

Q Well, Shinkawa [phonetic] made product for other than semiconductor, did it 22

not? 23

A Not to my knowledge. I mean, they may have, but not to my knowledge. 24

Q You weren't aware of letters from Fuji, for example? 25

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A Again, my -- well, Fuji is a semiconductor company and my -- to the best of 1

my recollection -- what I remember specifically are letters from semiconductor 2

companies; beyond that, I don't recall. 3

Q Well, you certainly remember automotive companies, correct? 4

A No, I don't. 5

Q There did come a time when you then assisted Ford, as you testified, 6

correct? 7

A Yes. 8

Q Ford is an automotive company, isn't it? 9

A Yes. 10

Q And there came a time when you assisted Motorola, correct? 11

A Yes, that's correct. 12

Q They're an electronics company, aren't they? 13

A Yes, they are. 14

Q So, the top three industries, in fact, in your Plaintiff's Trial Exhibit 3376 that 15

we saw yesterday, you ordered the industries that Cognex serves as automotive, 16

electronics and semiconductor, and so on. Those were the three top industries at 17

the time the company was serving? 18

A That list is not in any particular order. 19

Q Even though it's not alphabetical, it's not in a particular order? 20

A That's correct. 21

Q Well, certainly electronics and semiconductor were among the major 22

industries served by Cognex at that time, correct? 23

A Yes, that's correct. 24

Q And certainly automotive was an industry Cognex served? 25

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A It was, yes. 1

Q And was there a time when the automotive industry seemed like a very 2

promising user of machine vision equipment, and then that promise did not 3

materialize to the extent you had expected? 4

A Did not seem that way to us. 5

Q And what did it seem to you? 6

A It seemed to us that the vision companies that were getting involved in the 7

automotive industry and the -- you're referring to the early '80s -- were making a 8

mistake, and we tended to stay away from them and stick with the companies that 9

I've mentioned. 10

Q All right. So companies that started to try and sell machine vision equipment 11

to the automotive industry in the early '80s you thought were making a mistake 12

because the industry wasn't really ready to receive such equipment? 13

A No, that's not the reason. 14

Q But there was a reason? 15

A Yes, there was. 16

Q Okay. Now I think you said yesterday you had looked at certain of the 17

Lemelson patents, correct? 18

A Yes. I looked at five of them. 19

Q And you never, ever looked at more than five of them? 20

A No, I don't think that's correct. 21

Q Well, up until November of -- excuse me -- I guess it would be until your 22

deposition was taken this year, that was the only ones that you had looked at? 23

A No, I don't think that's correct. 24

THE COURT: Well, what's your recollection as to what other 25

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Lemelson patents, other -- we've talked about the five that were -- or contained or 1

referenced letters in 1991. Between that time and the time of your deposition, what 2

other Lemelson patents do you recall looking at? 3

THE WITNESS: My recollection was that I was informed, at some 4

point after I looked at the original five, that more patents were being issued based 5

on the same specification, and I was a little surprised by that. But I looked at at 6

least one or two of them, I can't recall which ones or when. But I do remember 7

doing that primarily to verify that the specification was indeed the same one that I 8

had read for the five, the first five, which again, all contain the same specification. 9

So, at least I knew, you know, the ballpark that we were dealing with. 10

THE COURT: Would that have been somewhat approximate to '91, 11

'92, then, in that time frame? 12

THE WITNESS: Yeah. Whenever the -- I would say whenever 13

patents started to issue after that. It would have been proximate to that time frame, 14

but I couldn't tell you exactly. 15

THE COURT: Okay. 16

BY MR. HOSIER: 17

Q Let me direct your attention to your deposition given August 9, 2000, marked 18

as Defendant's Trial Exhibit 1659, page 29 and following. 19

A Go ahead. 20

Q Line 4, do you see that, sir? 21

A Yes. 22

Q See if I've got the correct place here. "Have you ever looked at the 23

Lemelson patents?" 24

A Hang on a minute. I'm not following -- 25

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MR. QUINN: Excuse me, Gerry, what page are we on? 1

THE COURT: That's not on page 29. 2

MR. HOSIER: Excuse me, page 30. 3

THE COURT: 30? 4

BY MR. HOSIER: 5

Q I have an excerpt here, and it's line 4 on page 30. Does that start in that 6

fashion? 7

MR. QUINN: No. 8

THE COURT: Yeah. "Have you ever looked at the Lemelson 9

patents?" 10

BY MR. HOSIER: 11

Q "Answer: Yes, I have. 12

"Question: Have you looked -- how many of the patents have you looked at, 13

the Lemelson machine vision patents? 14

"Answer: I've look at five of them. 15

"Question: Have you participated in any studies of the Lemelson patents that 16

issued after 1990? 17

"Answer: I don't recall the dates of issue of the ones that I've looked at. 18

"Question: Well, you said this review you did was in late 1989 through mid-19

1990? 20

"Mr. Quinn: The best he recalls. 21

"Question: The best that you recall. Are there any others you did, any other 22

reviews of Lemelson patents? 23

"Answer: No." 24

"So if patents issued in 1991 or '92, you would not have looked at them, is 25

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that right? 1

"Mr." -- 2

A No, I did not review them. 3

Q "Mr. Quinn: Well -- 4

"The witness: I might have received a copy, but I did not review them." End 5

quotes. 6

Did you give that testimony at that time, sir? 7

A Yes, I did. 8

Q Now, did you participate in any -- in or -- any reviews after 1990 relating to 9

the issue of infringement of the Lemelson patents? 10

A I did not participate in any reviews, no. 11

Q And there were no substantial reviews done after the 1990 time by you, were 12

there? 13

A Not after 1990. 14

Q In fact, you're not aware of any other studies done at Cognex relating to 15

infringement or non-infringement of Lemelson patents after 1990, are you? 16

A I am aware of such reviews, yes. 17

Q Well, you weren't aware of them as of the date of your deposition in August, 18

2000, were you? 19

A I don't see that here. 20

Q Let me direct your attention to page 31, line 15 through line 2 of page -- on 21

page 32. 22

"Question: Well, can you identify any studies that you participated in or 23

reviews that you participated in after 1990 relating to the issue of 24

infringement of Lemelson patents? 25

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"Answer: There were no substantial reviews done after that 1990 time" 1

frame -- "time," excuse me. Period. 2

"Question: By you or by the company? 3

"Answer: By me. And again, that's to the best of my recollection. 4

"Question: Are you aware of whether any other studies were done by others 5

at Cognex relating to infringement or non-infringement of Lemelson patents 6

after 1990? 7

"Answer: I'm not aware of any." 8

Did you give that testimony at that time, sir? 9

A Yes, I did. 10

Q Thank you. 11

Are you familiar with the term "an infringement search"? 12

A I don't think I've heard that term, no. 13

Q Are you aware of any infringement searches or infringement studies being 14

made in connection with Cognex offering any products into the marketplace from 15

1982 through 1990? 16

A I'm not sure I know what you mean by an infringement search. 17

Q Do you know what I mean by an infringement -- excuse me. Do you know 18

what the term "infringement study" means? 19

A Not exactly. No. 20

Q Well, let's see if I can give you definitions and see if that then might be 21

something you have familiarity with under another name, infringement search being 22

a search of issued patents or of patents that have issued which might lead to further 23

patents issuing that would include claims potentially covering a product that a 24

company might plan to offer to market. That is the infringement search. 25

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The study portion of it is taking the results of the search and then analyzing 1

the patents themselves, looking at the file histories in the patent office, determining 2

whether the claims of the issued patents might cover the products, and, secondly, 3

whether looking at the file histories reveals that there might yet be other patents to 4

issue in the chain that had originally -- that originated with an application. 5

Now having said that mouthful, does any of that ring a bell with you? 6

A I don't recall participating in such a thing. And you're talking in the early 7

eighties, mid-eighties? 8

Q From the begin -- origins of the company and with -- in connection with the 9

introduction of any of its products through 1990? 10

A I don't recall participating in such a study or investigation, whatever you 11

called it. 12

Q Do you recall hearing that any such study, search or product clearance, 13

which is another term for it, was ever made at Cognex from its inception through 14

1990? 15

A No, I don't recall. 16

Q Do you recall any such infringement searches, infringement studies or 17

product clearances being made after 1990? 18

A Well, the one I'm familiar with is the one that I understood was done by 19

Quarles & Brady [phonetic] in the 1990s, if that is the kind of thing -- 20

Q Have you ever -- 21

A -- you're talking about. 22

Q Have you personally reviewed that study? 23

A No, I haven't. 24

Q You just understood that something may have been done by that firm? 25

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A I understand something was done, but I did not read their report. 1

Q And you therefore don't know which patents they did it -- made a study of? 2

A I know they studied the Lemelson patents. 3

Q And that's as far as you know, Lemelson patents? 4

A The ones in question in this suit, yeah. Or the ones that were at issue at the 5

time. 6

Q At issue in 1991 or '92? 7

A All of the -- all of these patents have the same specification, and that's the 8

one they would have studied -- the ones they would have studied. 9

Q But of your -- 10

THE COURT: Let -- take -- take me back to 1990, January, '90, '91 11

when you first became aware of these letters that were being sent on behalf of 12

Lemelson to customers of Cognex that made certain representations about 13

infringement, and you then looked at the patents or listed the five patents that were 14

listed. What was your understanding from the lette rs that had been sent to your 15

customers as to what the allegation was, or in what way was Cognex infringing on 16

Lemelson patents? Did it -- did you have a -- did these letters explain, did you have 17

an understanding as to what it was that Cognex product did that infringed on the 18

Lemelson patents? 19

THE WITNESS: Well, the letters did not mention Cognex in any way. 20

They were sent to our customers, and our customers felt that the letters, at least in 21

part, reflected on our products and wanted our -- to know what we thought and what 22

our thinking was, and I, you know, as a result of that, got copies of the patents and 23

read them and tried to understand them and tried to answer those questions as best 24

I could. 25

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THE COURT: Well, what were the -- was there any specification, any 1

identification of the manner in which anything Cognex was doing purportedly 2

infringed upon something protected by a patent that Lemelson had? 3

THE WITNESS: There was nothing specific, there were requests for 4

licenses, you know, to take licenses and statements that, you know, these are 5

fundamental patents or whatever, but there was nothing specific, I had to go try to 6

dig out what I thought that might have been. 7

THE COURT: So, you'd look at one of the first of the five and 8

determine what that covered, and then basically ask yourself, now is there anything 9

we're doing that infringes upon it? 10

THE WITNESS: Well, I -- I confirmed that the five patents had a 11

common specification, which made it a little bit easier, but given the amount of legal 12

experience I had at the time, I sought assistance of counsel to try to figure out, you 13

know, how to make sense of what I was reading. 14

THE COURT: All right. Was the -- you said the specifications. What -15

- just in your own words, what -- what were the specifications that you understood 16

that were in common with these patents? 17

THE WITNESS: They were word for word. The specification part of 18

the patents were word for word. 19

THE COURT: I see. 20

THE WITNESS: The figures were -- you know, they were essentially 21

identical, the only difference were the claims. 22

THE COURT: Okay. Okay. And then in looking at these separate 23

claims in each of the five patents, was there any particular claim contained in any of 24

those that you looked at and puzzled over and went back to basically search your 25

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own products yourself, either mentally or in some other fashion to see whether you 1

overlapped with those patents? 2

THE WITNESS: Not really. I -- you know, I understood how our 3

products worked and I came to what I thought was as clear an understanding of 4

what was being described as I could make of it. The problem I had is knowing the 5

legal principles on which claims should be interpreted 'cause the interpretation was 6

the part that was puzzling me, and that's why I sought assistance of counsel. 7

THE COURT: What did you understand the -- well, that's fine. Go 8

ahead. 9

BY MR. HOSIER: 10

Q Well, you're aware that -- that there is interrogatory answers that we referred 11

to yesterday about when Cognex obtained opinions of counsel on the various 12

patents? You looked at them yesterday? 13

A I don't recall questions about interrogatories. I have no doubt that they exist 14

and that your description of them is fine. 15

Q Well, there's no reference, I will tell you, in the interrogatory answers to any 16

opinions of counsel before 1992? 17

THE COURT: Maybe I just lost track of time. Is that Mr. Smerski [sic], 18

or whatever his name was, that the -- 19

MR. HOSIER: No, this is the Quarles & Brady in August of '92. 20

BY MR. HOSIER: 21

Q Now the counsel that you said you sought assistance, this was this few 22

telephone calls that you had with Mr. Smersineski, you say, in 1990; correct? 23

A I wouldn't characterize it necessarily as few, but, yes, I had conversations 24

with him, and that was different from the Quarles & Brady opinions. 25

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Q And you -- he never supplied you with anything in writing? 1

A I don't recall whether he did or not. 2

Q You never wrote anything other than what you wrote to the customers? 3

A I don't think that's accurate. I -- 4

Q Do you have anything that exists that you ever wrote other than what got 5

embodied in letters to customers? 6

A I wrote things to him that I think are, you know, covered by attorney-client 7

privilege. 8

Q To whom? 9

A Mr. Smersineski. 10

MR. HOSIER: I think there's been a waiver of any of that, Your 11

Honor. 12

THE COURT: Well, let's establish when. When? Was this back in 13

1990, '91? 14

THE WITNESS: In 1990. Yeah. 15

THE COURT: In 1990. All right. And this was in connection with -- or 16

was this in connection with -- okay. Was that in connection with the issue of the five 17

Lemelson patents? 18

THE WITNESS: Yes, it was. 19

THE COURT: Okay. And that's the issue you had anticipated 20

yesterday, Mr. Quinn, with regard to the question. Are these -- was it one letter, 21

multiple letters? 22

THE WITNESS: Again, is this between Cognex and the customers, or 23

between me and my attorney, Mr. Smersineski? 24

THE COURT: Your contact with Mr. Smersineski, and I'm sure I'm 25

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butchering his name, and I apologize to him, in which you consulted with Mr. 1

Smersineski concerning whether -- or sought advisement from Mr. Smersineski 2

concerning the effect of the five Lemelson patents as regards Cognex? 3

You'd indicated yesterday in response to a question from Mr. Quinn, 4

that after looking -- you got the letters from the customers, you looked at the five 5

patents, you thought about it, you consulted with Mr. Smersineski, and you 6

concluded after all of that that there was no infringement, there was no -- no basis 7

to be concerned about the Lemelson letters. So, we're talking about only that. 8

If you talked to Smersineski about something else, that's not what 9

we're talking about, just that. 10

THE WITNESS: I understand. And -- and just so it's clear, when you 11

say "you" concluded, it was my conclusion and I don't -- I couldn't tell you what Mr. 12

Smersineski concluded, but it was my conclusion based on the advice that he gave 13

me. 14

THE COURT: Right. I understand that, yeah, but what Mr. Hosier is 15

talking about is the correspondence and the conversations between the two of you 16

that informed you, that helped you form your conclusion, basically? 17

THE WITNESS: I prepared at least one document that I gave to him 18

under what I assumed would be privilege. 19

THE COURT: Right. All right. And did he give you anything back? 20

THE WITNESS: Nothing that I specifically recall. 21

THE COURT: Okay. And, Mr. Quinn, do you have whatever the 22

document is we're talking about here? 23

MR. QUINN: If we're talking about the -- I think we're talking about the 24

same doc -- we have a document which I think you're talking about, let -- 25

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THE COURT: Okay. 1

MR. QUINN: -- let me put it like that, Your Honor. 2

THE COURT: All right. And you indicated yesterday, of course, your 3

silence on the issue at the time wasn't acquiescence, that there was a waiver, but 4

go ahead and tell me why you think not based upon what the witness had said 5

yesterday? 6

MR. QUINN: I don't believe there was a waiver, Your Honor, because 7

the only thing I elicited from the witness was that they had examined the Lemelson 8

patents and had reached a conclusion. And I asked Mr. Silver what the conclusion 9

was, there was no infringement, and I believe something on the order of the 10

Lemelson patent specification didn't disclose anything that would work. That was 11

the conclusion -- that was Mr. Silver's conclusion. And that's all I asked him. 12

It happens all the time, Your Honor, that patentees send letters to 13

companies saying, you're infringing our patent. The companies go, they examine 14

the patent, they examine their products, they write back and we say, we've 15

examined the patent, we've consulted with counsel, we don't think the patent is 16

valid, we don't think the patent is infringed. As a matter of fact, we have letters in 17

the record here, including one of the documents Mr. Hosier gave to me yesterday 18

as part of his exhibit book for Mr. Silver, Defendant's -- Defendant's Trial Exhibit 19

129, in which Cognex wrote to a customer and said exactly that. We've -- 20

THE COURT: All right. 21

MR. QUINN: -- received the Lemelson patent claim, no infringement, 22

they're not valid, and we've talked to counsel. 23

Now Mr. Hosier, the Lemelson Foundation, you will recall, made a 24

motion, I think in the spring of this year to 25

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-- on the basis of this kind of letter, to pierce the privilege arguing that it was a 1

waiver. And we gave you law at that time which said, you know, when a company 2

just says we've looked at your patent, we've talked to counsel and have reached the 3

conclusion of no infringement or invalidity, that's not a waiver. Thank you. 4

THE COURT: All right. Mr. Hosier, why do you think it is a waiver? 5

MR. HOSIER: Well, because he went beyond that with the nature of 6

the question and the nature of the answer. They were trying to put before the -- 7

THE COURT: Tell me -- tell me how, specifically. 8

MR. HOSIER: He specifically, and I was hoping we had the transcript, 9

but we don't, in order we could get it exactly, but my recollection of it was it's the 10

way Mr. Quinn was seeking to put it was to put before Your Honor that it was, in 11

effect, the conclusion of counsel and the witness that there was no infringement. 12

They were trying to get the benefit of this Court determining that it was a counsel- 13

derived opinion and put that into the record when, in fact, we now even see that it's 14

-- it's communications only one way, and then some telephone conversations, but 15

they were actually overtly relying on that so-called opinion. 16

THE COURT: Is the extension of your argument, though, that any 17

time a witness testifies that, look, I'm confronted with a situation, I analyze it, and 18

I'm telling you I talked to an attorney and after all of that I formed an opinion, X, Y or 19

Z, that that constitutes a waiver of what the attorney advised the client? 20

MR. HOSIER: Obviously, expressing nothing more than in a letter 21

some ultimate conclusion is one thing. They went into the basis for the conclusion, 22

the consultation, all of the underlying activity to seek to take some benefit of it. 23

Now, one, we've established that there is no opinion of any counsel -- 24

THE COURT: Well, I don't think they get any benefit. I don't -- I don't 25

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take anything the witness has said thus far as carrying any weight as to a legal 1

analysis by Mr. Smersineski in any case. That's why I was asking the witness what 2

-- when he read the five patents and the claims and what his understanding was, 3

and I think that's certainly fair game for exploration, but I'm not going to require the 4

witness to disclose the letter or any response specifically as to content from Mr. 5

Smersineski. I think the fact that he consulted him is established, but I don't think 6

that constitutes a waiver. 7

So I'll deny the request for -- to the extent it was a request for the 8

production of the letter, I'll deny that. Go ahead. 9

BY MR. HOSIER: 10

Q Sir, let me direct your attention to Defendant's Trial Exhibit 126A in the book 11

in front of you. 12

A I see it. 13

Q Do you see that there's a company there, Focus Automation Systems? Do 14

you recognize them as a customer of Cognex as of the date of the letter, August 8, 15

1991? 16

A I couldn't tell you whether they were a customer as of that date. 17

Q Do you -- but do you understand they were a customer as of that general 18

time frame? 19

A I couldn't tell you one way or another. 20

Q And you do see that that's a letter on Cognex stationery written by Mr. 21

Schalke, who was then vice president of engineering at Cognex? 22

A Yes. 23

Q And in the first line he's referring to their customer Volkswagen, and then to 24

the Cognex products that Focus Automation was buying? 25

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A That would make it pretty clear they were a customer. Yes. 1

Q Does that then refresh your recollection that, in fact, you were hearing from 2

the automotive industry at Cognex, either directly from automotive companies or 3

indirectly from companies that were these OEM's? 4

A If by you, you mean me, the answer is no. If by you, you mean the company, 5

I don't have any recollection of what the company was doing as of August '91 about 6

this matter. 7

Q Well, even after that date. Started hearing from not only Ford, but other 8

automotive companies, fair to say? 9

A My involvement was strictly in early 1990. Once I reached my personal 10

conclusion, I was not involved in the production of these letters, and I, you know, 11

well, my involvement in the case after that is as I've testified. 12

Q And I think you did agree that you worked with both Ford and Motorola, at 13

least preliminarily in some ways, through Fish & Neave during the course of 14

Lemelson's litigation with Ford and Motorola, correct? 15

A Again, the company did. My involvement was as I testified. 16

Q But you did have some involvement in both of those matters? 17

A My involvement that I recall was with Fish & Neave. I assume -- I guess I 18

don't know exactly what particular client. I guess I had thought it was both of them, 19

but I couldn't tell you that I did Ford and not Motorola, or whatever. I thought it was 20

all one case. 21

Q You thought it was both Ford and Motorola? I think you're right if you do, but 22

is that what you thought? 23

A That's my, you know, recollection. 24

Q Okay. Now, let me direct your attention to Defendant's Trial Exhibit 129. 25

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See that? 1

A Yes, I do. 2

Q Can you see that that's a letter by Mr. Shillman, and you are copied on that 3

letter? 4

A Yes. 5

Q Do you have any reason to believe you didn't receive it 6

-- see it at or about its date? 7

A I have no reason to believe I didn't receive a copy. 8

Q And do you recognize Fuji Machine Manufacturing as a customer as of that 9

date, approximately, of Cognex? 10

A Yes, I do. 11

Q And what did Cognex sell them? 12

A We sold them machine vision systems. 13

Q And for use in what type of product? 14

A Surface mounters. 15

Q And that's something for the electronics industry, correct? 16

A Electronics, semiconductors. Yeah. 17

Q Could you briefly explain for the record what a surface mounter is? 18

A Yes. It's a -- it's a large machine, large piece of capital equipment whose 19

purpose is to attach individual computer chips to a circuit board in the right position 20

so that the electrical connections can be made. 21

Q Are they sometimes referred to as pick-and-place machines? 22

A I believe that's a particular kind of surface mounter. 23

Q And a pick-and-place machine is where a robotic arm picks up a component, 24

orients it so it looks at the machine vision camera, senses the orientation, and then 25

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places the component with a very high level of accuracy on a printed circuit board 1

by using what are called reference marks or fiducials on the board to have the 2

camera or eyes of the computer very accurately locate the component to a accuracy 3

of less than the width of a human hair? 4

A I'm not familiar enough with pick-and-place machines to agree with that 5

characterization. 6

Q Is it generally correct? 7

A Parts of it are, parts of it are not. 8

Q Well, why don't you tell us what you sold to Fuji and how they used it, as best 9

you can recall it? 10

A I'm not -- I was not intimately involved in the Fuji project. As I've said, I have 11

an understanding of how surface mounters work. I couldn't tell you the difference 12

between a pick-and-place machine and a chip shooter, which are all different kinds 13

of surface mounters. I can't tell you that any of them use a robot arm, but I do know 14

that they somehow obtain integrated circuits, and they somehow locate them to high 15

accuracy and attach them to the board. 16

Whether fiducial marks are used, I couldn't tell you, robot arms, whether the 17

parts are moving or the camera is moving. I'm not familiar with any of those details. 18

Q Now, you see that Mr. Shillman was telling Fuji that Mr. Lemelson or his 19

attorneys have contacted virtually every manufacturer of electronic products in the 20

world. See that in the third line of Defendant's Exhibit 129? 21

A 129, the third line or the third paragraph? 22

Q Second paragraph, third line. 23

A Third line. Yes. Yes, I see that. 24

Q Does that refresh your recollection that that was what you understood to be 25

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the case at that point in time? 1

A No, it doesn't. 2

Q Do you have any reason to doubt the accuracy of that statement by Mr. 3

Shillman? 4

A It sounds a little hyperbolic there, but, you know, every manufacturer in the 5

world? I really don't know. I had no involvement at this date. 6

Q Is Mr. Shillman prone to hyperbolic statements? 7

A This one looks that way. 8

Q Now you understood as well that Fuji America was a company that supplied 9

this kind of equipment, capital equipment as you called it, to companies such as 10

Motorola; correct? 11

A I couldn't tell you who Fuji's customers are. 12

Q Let me direct you to exhibit -- to the exhibit you're just looking at, and note in 13

the second paragraph about the 8/4/92 letter. Do you see that reference in Mr. 14

Shillman's letter? 15

A Yes, I see it. 16

Q Now I'll direct your attention to Defendant's Trial Exhibit 971? 17

A I have a 972. I'm looking for 971. 18

MR. QUINN: Gerry, I don't have a 971 either. 19

THE WITNESS: I don't -- 20

MR. HOSIER: Well -- 21

THE WITNESS: -- see a 971. 22

MR. HOSIER: I'm sorry. 23

MR. QUINN: That's all right. 24

THE COURT: Nor do I. I've got 972. It's Polaroid? 25

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BY MR. HOSIER: 1

Q Well, while we're awaiting that, sir, perhaps we can direct your attention to 2

Defendant's Trial Exhibit 171. 3

THE CLERK: 171? 4

MR. HOSIER: 171. 5

THE WITNESS: I see it. 6

BY MR. HOSIER: 7

Q And do you see that Mr. Shillman there is making the statement that "we are 8

increasingly being deluged by our customers for information about Lemelson," and 9

this is as of March 2, '93? 10

A Yes, I see that. 11

Q Does that refresh your recollection that that was, in fact, the case as of that 12

date? 13

A No, it does not. 14

Q Do you have any reason to doubt the accuracy of that statement? 15

A I was not involved at this date and have no knowledge one way or another as 16

to what Mr. Shillman, or what Dr. Shillman, meant. 17

Q Now, in fact, as of 1992, Cognex offered to make its machine vision 18

engineering expertise available to Motorola in order to strengthen its case against 19

Lemelson, did it not? 20

A That's my understanding. 21

Q In fact, did you understand that Cognex, in 1992 and following, was 22

cooperating with Motorola with respect to their litigation by having signed a joint 23

defense agreement with Motorola? 24

A I'm not familiar with that agreement. 25

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Q Did you understand -- even though you're not familiar with it, did you 1

understand that such an agreement had been made? 2

A No. 3

Q Do you have any reason to doubt that it was made? 4

A I don't know anything about it one way or another. 5

Q And there had been meetings, to your understanding, with Motorola's internal 6

and external counsel whereby Cognex was giving technical assistance supportive to 7

Motorola? 8

A The only meeting that I specifically remember is the one with Mr. Jenner 9

where I described Cognex's technology. 10

Q Is Citizen Watch a customer of Cognex? 11

A I couldn't tell you. 12

(Pause in the proceedings) 13

Q Well, let's see. 14

(Pause in the proceedings) 15

Q You did become aware, did you not, that there came a time when Mr. 16

Lemelson started having companies accept licenses under his patents? 17

A Yes, I understand that. 18

Q And you understood that there came to be quite a large number of those 19

companies, did you not? 20

A Yes, I understand that there are many. 21

Q And all during that time, from 1992 unti l the filing of this suit in 1998, that 22

became an ever-increasing, substantial number of licensees under the Lemelson 23

patents, including Ford, Motorola, the companies you were assisting? 24

A I think you would know better than I. 25

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Q Well, you did know that Motorola settled in '94, Ford in '98; that came to your 1

attention, didn't it? 2

A I know that they settled. I don't remember when or under what terms. 3

Q And there were now, you understood, at least to your understanding, 4

hundreds of licensees by 1998 under Lemelson's patents? 5

A That's my understanding. 6

Q What -- what impediment, if any, existed to Cognex filing suit against 7

Lemelson in 1990? 8

A I don't know that there was an impediment. 9

Q Yeah, but Cognex could have filed suit against Lemelson if it had been so 10

inclined in 1990, couldn't it? 11

MR. QUINN: Objection. 12

THE COURT: Yeah. Sustained. 13

(Pause in the proceedings) 14

BY MR. HOSIER: 15

Q Sir, just turn to 971 for a moment just to -- 16

THE COURT: I don't think he had -- 17

MR. HOSIER: Oh, excuse me. 18

THE COURT: -- 971. That's the problem. 19

MR. HOSIER: If I may hand it to you just briefly. 20

MR. QUINN: Charlie, do you have another copy? 21

MR. HOSIER: No, I'm going to make it very brief. Just -- 22

THE COURT: Well, hold on. What is 971? 23

MR. QUINN: What is 971? 24

MR. HOSIER: It's the Plaintiff's -- it's Defendant's Trial Exhibit 971, a 25

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letter from Mr. Dusberger, Intellectual Property trial counsel of Motorola, to Fuji 1

Corporation of America, and it was an attachment of the letter that was 8/24/92 that 2

we had looked at earlier. 3

BY MR. HOSIER: 4

Q Just ask if you recall having seen that document? 5

THE COURT: Had you ever seen that before? 6

MR. HOSIER: In fact, let me ask, let me withdraw -- 7

THE WITNESS: I -- 8

MR. HOSIER: -- that question. 9

THE WITNESS: -- don't recall. 10

THE COURT: Well, hold on. 11

MR. HOSIER: I'll withdraw that. 12

THE WITNESS: I don't recall having seen that. 13

MR. HOSIER: Let me ask you, does that refresh your recollection that 14

Fuji Corporation was supplying equipment to Motorola that included Cognex 15

machine vision? 16

A Well, if the letter says so, then -- 17

THE COURT: Well, no, no, that's not what -- 18

THE WITNESS: -- it's probably true, but I don't -- 19

THE COURT: Do you have any recollection. 20

THE WITNESS: I don't have any recollection of -- 21

THE COURT: Okay. 22

THE WITNESS: -- who's Fuji's customers. 23

THE COURT: Okay. All right. 24

BY MR. HOSIER: 25

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Q Now in fact, to your knowledge, in all of the time period up to the bringing of 1

the suit in this case, Cognex has never made an indemnification payment to any of 2

its customers by reason of any claims of infringement of Lemelson patents, has it? 3

A I'm not aware of any such payment. 4

Q And you'd expect to be aware if there was any significant dollars paid, would 5

you not? 6

A No, I wouldn't expect to be. 7

Q There have been no suits by any customer at any time against Cognex by 8

reason of any indemnification claim related to Lemelson patents, has there? 9

A Not to my knowledge. 10

Q Now, you recall that there was a suit filed by Cognex in September '98 in the 11

Massachusetts District Court; correct? 12

A I understand that that's the case, yes. 13

Q And you knew at that time that Cognex created a litigation defense fund for 14

which it sought contributions from various industry members; correct? 15

A I don't know when I became aware of that fact. 16

Q You did become aware of it though? 17

A Yes. 18

Q And it issued a number of press releases with regard to its litigation; correct? 19

A I don't recall what the communications might have been. 20

Q Well, you did recall that there were press releases that Cognex issued about 21

its lawsuit against Lemelson, do you not? 22

A No, I don't recall. 23

Q Do you recall that it wrote letters to many companies that were either 24

defendants in litigation or others of its customers? 25

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A No, I don't recall. 1

Q Now in connection with that lawsuit, Cognex, in fact, did some other things, 2

did it not, to deal with Mr. Lemelson? 3

A I'm not sure what you're referring to. 4

Q Well, wouldn't it be fair to say at that point in time Mr. Shillman -- let me 5

withdraw that. Let's go back a bit. 6

You did become aware of a relationship that was established between 7

Lemelson and the Massachusetts Institute of Technology, MIT, at some time, did 8

you not? 9

A Yes, I'm aware of a relationship. 10

Q And you understood that about 1994 there became a Lemelson-MIT annual 11

prize for invention, awarding a half million dollars to an inventor each year? 12

A I'm aware of the prize. I couldn't tell you when it was started, but I am aware 13

of it. 14

Q Sometime in the mid-nineties, at least, you became aware of it? 15

A I couldn't tell you when I became aware of it, but I know that there is a prize. 16

Q And you also know that Dr. Lester Thoreau [phonetic] occupies a chair at 17

MIT in the Sloan School [phonetic], the Lemelson chair for innovation and creativity 18

-- innovation and entrepreneurship? 19

A I'm not familiar with that chair. 20

Q Well, you know Dr. Thoreau, world-renowned economist, I assume? 21

A No. 22

Q No? I think he'd be disappointed. And fair to say that you and some others 23

at -- others at Cognex became very unhappy about the relationship between 24

Lemelson and MIT? 25

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A I can't speak to others, I can -- 1

Q Well, you actually knew that Dr. Shillman strongly expressed the view that 2

that relationship should somehow be ended; did you not? 3

A I'm aware that he has that view, yes. 4

Q And, in fact, he elicited your assistance in trying to end that relationship, did 5

he not? 6

A I'm not sure what you mean specifically. 7

Q Well, did he or did he not? 8

A Elicit my assistance? 9

Q Yes. He asked you to do some things for him, did he not? 10

A I don't recall specifically. 11

Q Well, you do recall that there's Dr. Horn and Dr. Grimson at MIT. Do you 12

remember them? 13

A I do. 14

Q And you described them yesterday in your testimony? 15

A I believe I did. 16

Q And, in fact, you told Mr. Shillman that you could contact Dr. Horn and 17

Grimson to get some assistance from them in trying to persuade MIT to end the 18

relationship with Lemelson because "they don't like Lemelson any more than we 19

do." Your words, right? 20

A I recall that. Yes. 21

Q Those were your words, weren't they? 22

A Yes. 23

Q Used in an e-mail to Dr. Shillman? 24

A Yes. 25

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Q And Dr. Horn is going to be the fellow that's going to come in here later on 1

behalf of Cognex and tell the Court why Lemelson's patent isn't so good, right? 2

A He's going to testify on our behalf. Yes. 3

Q And he was one of the guys back years ago that didn't like Lemelson any 4

better than you and Mr. Shillman, correct? 5

A I can't tell you what Horn's state of mind was. That was my opinion. 6

Q Of his state -- 7

A I hadn't -- I hadn't spoken to him about it, he had never mentioned Mr. 8

Lemelson to me. That was my -- my opinion. 9

Q Your view was that Dr. Horn didn't like Lemelson any better than you and Mr. 10

Shillman, right? 11

A That was my view. Yes. 12

Q And to put it charitably, Mr. Shillman didn't like Mr. Lemelson at all, right? 13

A I don't know what Dr. Shillman thought about Mr. Lemelson. I know what he 14

thought about the patents, but I can't tell you what he thought about -- 15

Q And he hasn't -- 16

A -- Mr. Lemelson. 17

Q -- read the patents either, had he? 18

A I don't think so. 19

Q That's what I thought. And, in fact, you know that there were people 20

associated with Cognex in '98 that had relationships with MIT, Mr. DeArbeloff 21

[phonetic]? Remember him? One of the directors of the company? 22

A Not familiar with the name. 23

Q And, again, you're not familiar with Mr. Stata, 24

S-T-A-T-A, a director of the company? 25

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A No, I'm not familiar with him. You mean board of directors? 1

Q Yes. Did -- 2

A I'm not familiar with the name. 3

Q And did you understand that there were efforts to contact the board of 4

overseers at MIT to persuade MIT to end its relationship with Lemelson? 5

A I'm not familiar with that. 6

Q But certainly you are familiar with the fact that Mr. Shillman telephoned and 7

wrote to the provost at MIT, or president, Charles Vest [phonetic], importuning him 8

to end the relationship, correct? 9

A I recall a letter to Mr. Vest. I don't recall the contents. I'm sure you have a 10

copy. 11

Q But you saw that letter, did you not? 12

A Yes, I believe I did. 13

Q Let me direct your attention to Defendant's Exhibit 139. 14

THE COURT: My book stops at 137 and then -- 15

MR. HOSIER: Okay. 16

THE COURT: -- jumps to 170. You say 139? 17

MR. HOSIER: Yes, well, since it does, why don't I just -- that's in the -18

- 19

THE COURT: I don't -- do you have 139? 20

THE WITNESS: I'm afraid I don't. 21

MR. HOSIER: That's in the -- that's in the record in the Shillman 22

deposition, Your Honor, so maybe we'll just leave it at that rather than -- 23

THE COURT: All right. 24

MR. HOSIER: -- go further. 25

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BY MR. HOSIER: 1

Q Now it was also Mr. Shillman said that -- had a plan to undertake getting all 2

of the major companies that they could contact to boycott any giving to MIT unless 3

the relationship with Lemelson was ended. Isn't that true? 4

A I have no recollection of that. 5

Q You do have a recollection of trying to put pressure on MIT to end the 6

relationship with Lemelson -- 7

A Do you mean me -- 8

Q -- correct? 9

A Do you mean me personally or -- 10

Q No. Mr. Shillman and others at -- at Cognex trying to do that and you being 11

made aware of it? 12

A I was aware of some of Mr. Shillman's efforts, but I couldn't tell you if anyone 13

else was involved. 14

Q And among those efforts was to attempt to get companies to have Mr. Vest 15

understand that if he continued the relationship with Mr. Lemelson, not only would 16

the funding of -- well, let me first ask it this way, that you are aware that Cognex and 17

Mr. Shillman in particular refused to follow through on a request for a charitable 18

grant to MIT unless MIT ended its relationship with Lemelson; correct? 19

MR. QUINN: Objection. 20

THE COURT: Restate your question, I'm sorry. 21

BY MR. HOSIER: 22

Q You were aware that Mr. Shillman had told MIT that he was not going to 23

make a charitable grant to them as long as the relationship between Lemelson and 24

MIT continued? 25

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THE COURT: All right. Overruled. If the witness is aware of that he 1

can so testify. 2

THE WITNESS: So, the question is was I aware that Dr. -- Dr. 3

Shillman made a statement to MIT that he wouldn't give them any money unless the 4

relationship was ended? 5

BY MR. HOSIER: 6

Q Yes? 7

A I don't have any specific recollection of that. 8

Q Well, you have a general recollection that that was his position, correct? 9

A Yes. 10

Q And in fact, he wanted to go beyond that and had enlisted staff to contact 11

other companies that contributed to MIT to have them boycott MIT's charitable 12

programs until the relationship with Lemelson was ended? 13

A I'm not familiar with what Bob was doing. 14

Q You understood that that was something that he had at least in planning, 15

correct? 16

A No, I do not recall that. 17

Q That was never mentioned to you? 18

A Not to me. 19

Q And, in fact, you understand that MIT refused to end its relationship with 20

Lemelson, correct? 21

A I know they haven't. I couldn't characterize it other than that. 22

Q And that's despite the efforts of Cognex? 23

A All I know is the prize is still given. 24

Q And how many people at Cognex are MIT alumni? 25

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A Quite a few. 1

Q Can you give us a rough idea? 2

A Twenty, thirty. 3

Q All right. Let's return to the Cognex business. Cognex was on the very 4

leading edge of the machine vision business in the eighties, in your view, was it 5

not? 6

A Yes. 7

Q You spoke somewhat of the benefits of machine vision that accrue to the end 8

user, and you -- could you describe that to the Court in a little more detail? What, if 9

any, economic benefits accrue to a user of machine vision? And let's take first the 10

semiconductor industry. Is it practical to manufacture semiconductors today without 11

the use of machine vision in a multiple -- multitude of places in the process? 12

A It is not practical to manufacture semiconductors today without machine 13

vision. Yes, that's correct. 14

Q In effect, you can't even manufacture a semiconductor if you don't use 15

machine vision; correct? 16

A Yes, that's a fair statement. 17

Q So, it is absolutely vital to that industry that machine vision be used in the 18

manufacturing process; correct? 19

A Yes. 20

Q So, in that sense, the economic benefits to the semiconductor industry of 21

machine vision are virtually infinite. In other words, but for machine vision, it 22

wouldn't be possible to make modern semiconductors? 23

A That's a fair statement. 24

Q Now, would that likewise be true for electronics in order to make miniaturized 25

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electronics? And, in fact, let's maybe go back and review the history a bit. In the 1

old days in electronics on printed circuit boards, you had what are called through-2

the-hole-type components, correct? 3

A Yes. 4

Q And that meant that you had, let's say, a resister with a -- wires out either 5

end, they would be bent, and you would put them literally through a hole in a printed 6

circuit board; correct? 7

A Yes. 8

Q And then the underside of the board would be put in a solder bath and that's 9

the way you would adhere the component to the silvered or pattern, the conductive 10

pattern, on the underside of the board; right? 11

A Yes. 12

Q And a lot of that was actually done manually. In fact, the old days when I 13

worked at Zenith, they had people sitting there literally putting the components into 14

the board, and that was done in the sixties and seventies, was it not? 15

A If that's your testimony, I have no idea. 16

Q You have no idea? 17

A The sixties? I was in junior high school. 18

Q Well, I worked in junior high school, but any event -- I'm sorry, we'll keep on 19

line here. 20

Then there came a time when components were mounted through 21

automation, but the circuit board was indexed to a fixed position. A robotic arm or 22

some sort of mechanism would then move to a fixed position and place the 23

component on the board without use of machine vision; correct? 24

A I have no idea. 25

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Q No idea whatsoever? 1

A No. 2

Q Well, did you understand that there came -- there was a time when there was 3

automation of placing of components on circuit boards that didn't use machine 4

vision? 5

A I am not in any way familiar with the history of manufacturing of -- 6

Q Well, I'm not asking history, did you understand it was just done in the not-7

too-distant past? 8

A I couldn't tell you how it was done without -- 9

Q You do understand now that it's done by use of machine vision-assisted 10

equipment -- 11

A I'm -- 12

Q -- for placing electronic components on printed circuit boards? 13

A I know that most circuit boards are done that way. I couldn't tell you that they 14

all are, but certainly most are. 15

Q And, in fact, from highly-miniaturized circuit boards, that's where you get the 16

great benefit of machine vision, is it not? 17

A I wouldn't characterize it that way, no. 18

Q Well, would it be fair to say that machine vision allows the placement of 19

electronic components on circuit boards with a high degree of accuracy? 20

A That's a fair statement. 21

Q And a much higher degree of accuracy than can be obtained without the use 22

of machine vision? 23

A No, I wouldn't say that. 24

Q But you do understand that most printed circuit boards today, when they are 25

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miniaturized small boards, use machine vision-assisted equipment for the 1

placement of the components on the boards? 2

A Yes, I understand that. 3

Q And that's because it has advantages to the electronics industry; correct? 4

A Yes. 5

Q What are those advantages? 6

A One advantage would be high speed of operation, consistency, flexibility. 7

There are things that can't be made without machine vision, as you say, 8

economically. I mean, they can be made in principle, but -- 9

Q Like what? 10

A Well, anything can be made by humans, but the economics of mass 11

production essentially require that machines be used because it would be too 12

expensive if humans did it. 13

Q And my question when I said "like what," I meant like what in the electronics 14

area demands as a practical matter the use of machine vision? 15

A As an economic matter, you know, virtually all of semiconductor steps require 16

some amount of machine vision. Any high volume production of electronic circuit 17

boards. 18

Q So, every electronics company in the world that would build any kind of, 19

certainly miniaturized, electronics would almost certainly want to use machine 20

vision-assisted electronic equipment; correct? 21

A Certainly if they were mass producing them, yes. 22

Q Have you become aware that virtually every -- that literally every consumer 23

electronics company in the world is licensed under the Lemelson patents? 24

A I don't know one way or another. 25

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Q Now what advantages do -- does machine vision have in the pharmaceutical 1

world? 2

A Quality control. They don't like to ship products that don't look right or that 3

aren't packaged right. They like to make sure that date and lot code is legible. So, 4

increased quality would be an economic advantage of machine vision. 5

Q Well, machine vision, you can literally inspect every single product that the 6

company makes as opposed to, with the human element being there, of just doing 7

some sampling; correct? 8

A I'm not sure what you mean by "literally inspect." 9

Q Well, isn't it a practice in machine vision applications to do quality control 10

inspection on every single product? 11

A That's the typical mode of operation, yes. 12

Q And did you understand that in many industries before, it just wasn't 13

economically feasible or practical to look at every Coke can o r every pharmaceutical 14

bottle or every consumer goods product. You would just have a human look at 15

some small sampling to see if it looked okay and then hope that that was 16

representative? 17

A I can't agree, that's way too broad. I couldn't agree with that. 18

Q Well, are there economic advantages to the pharmaceutical industry from the 19

use of machine vision? 20

A Yes. 21

Q What are they? 22

A Increased quality, verifying date and lot codes, basically increased quality. 23

Q And those you understand to be very important advantages to the industry? 24

A Yes. 25

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Q And is that likewise the case in the consumer products, and medical and 1

packaging and general manufacturing industry that machine vision brings to those 2

industries higher quality, reliability, flexibility? 3

A As a general statement, that's fair, yes. 4

Q And that's become an important part of the manufacturing processes for 5

those industries? 6

A As a general statement that's fair enough. 7

Q Cognex does not use machine vision in making its own products, does it? 8

A Yes, it does. 9

Q And I didn't know that Cognex made its own products. 10

A Well, we have them manufactured by third parties, but we make products, 11

and those products are made using machine vision. 12

Q All right. All right. So, the printed circuit boards that Cognex uses in its 13

products are made with the use of machine vision? 14

A Yes. 15

Q And you find that to be important to Cognex? 16

A Yes. 17

Q And why is that? 18

A Well, we can't ship the products unless we can get circuit boards, and, you 19

know, we make them the way everyone else makes them. 20

Q And that's how? 21

A Well, it starts off with raw silicon and goes through the various processes to 22

produce computer chips. Those are mounted on circuit boards, and machine vision 23

is used throughout that process. 24

Q And machine vision is used in the making of the circuit boards themselves, 25

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correct? 1

A In the assembly of the circuit boards, yes. 2

Q How is it used there? 3

A It's used to guide, to register, to align the boards, guide placement of the 4

whatever devices are used to be mounting boards, probably used to read serial 5

numbers. 6

Q And then after the boards are made, it's used to mount the components on 7

the boards, correct? 8

A Yes. 9

Q Then it's used to inspect the boards after the components are mounted to be 10

sure the components are mounted in the right places and that they are the right 11

components, what, by reading, for example, alphanumeric characters on the 12

components? 13

A I couldn't tell you if that's done or not. 14

Q Well, why don't you tell me what is done after the board is made by way of 15

machine-vision inspection? 16

A I've never seen a Cognex board being manufactured. All I can tell you is I 17

assume we make them the way everyone else does. 18

Q Okay. Tell us how everyone else does. 19

A I'm not a manufacturing guy, but as I testified, computer chips are made 20

using the steps that I was discussing yesterday. They are attached to circuit 21

boards. The boards are soldered, and many of those steps use machine vision. 22

Q And then after it's made is what I was trying to get to, sir. Machine vision is 23

used after it's made as well, right? 24

A I don't have any specific knowledge one way or another. 25

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Q Well, didn't you even produce a product for IBM in which you read the 1

alphanumeric characters on actual components on the circuit boards? Or did I 2

misunderstand your testimony? 3

A We've certainly sold systems that read characters or verify characters. I 4

couldn't tell you whether it was for IBM or just what the application was. 5

Q Well, they were -- those were to read characters on components after they'd 6

been placed on printed circuit boards; correct? 7

A Again, I -- all I know is that we were verifying or reading characters on 8

components. I couldn't tell you when or what company. I just don't recall. 9

Q Now I heard you describe yesterday this software called Search, and that 10

was introduced in '86; is that right? 11

A That's correct. 12

Q And then there was another software version called PatMax? 13

A That's correct. 14

Q Introduced when? 15

A '97. 16

Q Now the DataMan and CheckPoint products worked, in your view, in 17

generally the same way as these later products; is that right? In other words, the 18

features of CheckMan and DataPoint were carried right through and are embodied 19

in even the latest products of Cognex? 20

A Fundamental principles of operation that I described yesterday are carried 21

through. Yes. 22

Q In fact, you filed a declaration in this case in support of Cognex's motion for 23

summary judgment of prosecution laches, did you not? 24

A Do you mean the company filed? 25

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Q No. You personally, a declaration. 1

A I don't recall. I'm sure I did. 2

Q Let me refer you to Defendant's Trial Exhibit 2169, I hope we have that. Is 3

that in your book -- 4

THE COURT: No, it's not. 5

MR. HOSIER: Could we grab that? 6

THE COURT: This seems to be getting into the technology that I 7

thought Mr. Lisa was -- is he not going 8

to -- 9

MR. HOSIER: No, no. It -- well, Your Honor, this is strictly the 10

prosecution laches. It's not into the technology, it's in the fact that they're -- they're 11

asking -- I have some questions would ask him, in effect, that they're asking the 12

Court to view all of their products for purposes of this case as being the same, at 13

least that's my understanding of it, and I'm not -- 14

THE COURT: All right. 15

MR. HOSIER: -- going to get into the technology. 16

THE COURT: Well, let's find the exhibit. How much longer do you 17

have on your portion? 18

MR. HOSIER: A few minutes. 19

THE COURT: Okay. Well, while you find the exhibit, we'll go ahead 20

and take our morning recess for ten minutes and then reconvene and let you wrap 21

up. 22

How long do you think you'll be on cross, Mr. Lisa? 23

MR. LISA: I think I can be done before lunch, Your Honor. 24

THE COURT: Let's -- let's try and -- try and move it quickly so that we 25

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can finish this witness. He'll be on the stand an awful long time, and I want to get to 1

the next one. 2

I pulled the motion as regards Mr. Steiner, Ms. Curtin, that had 3

originally been filed, and I had issued an order on July 10th, so that's why I was a 4

little bit taken aback because I ruled so long ago on that, but I'm familiar now, based 5

upon what I pulled, with the motion. And as I understand it, you're seeking to renew 6

your motion that you had previously filed on June 14th in limine to exclude the 7

testimony of Mr. Steiner? 8

MS. CURTIN: Yes, sir. 9

THE COURT: And what new grounds do you have that weren't -- 10

MS. CURTIN: Well -- 11

THE COURT: -- previously set forth? 12

MS. CURTIN: -- very late in the game we got the deposition of Mr. 13

Steiner, and I'm not blaming anybody for timing, that wasn't intended as a dig at 14

anybody, it just worked out that way. And there were a couple of points that were 15

made quite clear in his deposition that were not quite so clear in the motion, Your 16

Honor, that I think eliminate, really, the proper basis for any testimony by him under 17

Rules 702 and 703. And if I can go through those very briefly, I'd like to do that. 18

THE COURT: Well, you're talking about discrete areas of testimony. 19

As I understood from the earlier motion and response, first of all, he was going to 20

testify generally about the practices and procedures of the U.S. Patent Office, the 21

complexity of and prosecution history of the Lemelson patents for machine vision, in 22

the areas of machine vision and bar code, would explain the process of examination 23

of a patent application and describe what patent examiners do. 24

Now, you're certainly, I take it, objecting to his testimony about 25

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something other than describing the process of patent examination and what patent 1

examiners do, but -- 2

MS. CURTIN: Yes, Your Honor. His testimony is directed to two 3

basic things, if you look at his expert report. One is to state that examiners are 4

expected to comply with the MPEP only to the extent applicable, and the rest of his 5

opinion is based on this notion that they don't actually have to comply, and therefore 6

he can speculate that they did not comply with the requirements of the Manual of 7

Patent Examining Procedure. 8

THE COURT: Okay. Well -- 9

MS. CURTIN: Let me -- 10

THE COURT: -- I'm going to save some time. I'll let him testify and I'll 11

let you object at that point, I think it'll be easier for me to assess it, and I may end up 12

agreeing with you, but I'm not going to exclude his testimony at this point or 13

reconsider the earlier ruling I had made, so we'll hear from him tomorrow, hopefully, 14

and then I'll consider the objections at the time and rule according to my 15

understanding of the arguments then. 16

All right. We'll take ten minutes and reconvene and proceed with 17

further cross. 18

(Court recessed at 10:20 a.m. until 10:36 a.m.) 19

THE COURT: We can continue with Mr. Silver's direct [sic] examination then. 20

MR. JENNER: Your Honor? 21

THE COURT: Find the exhibit? 22

Yes. 23

MR. JENNER: If I may, before we begin, we have a scheduling problem that 24

we need to call to the Court's attention. 25

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THE COURT: All right. 1

MR. JENNER: Given the pace, we have one witness here today -- who is 2

here today and he can't be here tomorrow. He's scheduled to be on a 4:50 plane 3

back to the east coast. That's Mr. Wilder. 4

THE COURT: All right. 5

MR. JENNER: And I'm concerned that we may not get to him in time to get 6

him on and off and I guess what I'm asking is if we can put him on out of order, if 7

necessary, to try to assure that. 8

THE COURT: Sure, yeah. How long would he take? What's the scope of his 9

testimony and how long would he take? 10

MR. JENNER: I'm told that his testimony on direct will be somewhere on the 11

order of an hour, maybe an hour and a half. What the cross is -- 12

THE COURT: Okay. Well, I'm really worried about -- I mean, these 13

witnesses are taking an awful long time, but let's put him on now and -- 14

MR. HOSIE R: I've got about two questions or so here and I'm done and then 15

Mr. Lisa's going to be pretty quick. And if they put him on before Mr. Testa, I don't 16

think there's any question that he'd be out of here. 17

MR. JENNER: That would be a real burden on Mr. Wilder if it doesn't work 18

out that way. 19

THE COURT: Yeah, right, if he can't get to the airport. 20

Let's do this. Go ahead and finish your questions of the witness. 21

MR. HOSIER: I understand. 22

THE COURT: And then we'll break with Mr. Silver and put Mr. Wilder on out 23

of order and then come back and let Mr. Lisa finish his cross. 24

MR. HOSIER: Right. 25

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THE COURT: All right? 1

MR. HOSIER: No problem. 2

THE COURT: Okay. All right, go ahead then. You can wrap up the few you 3

had on the -- 4

MR. HOSIER: Yes. 5

THE COURT: Did you find the exhibit? 6

THE CLERK: Yeah. 7

THE COURT: What's the story on that mike, Erica? Any luck? 8

(Colloquy between Court and Court Recorder) 9

THE COURT: Okay. 10

CROSS-EXAMINATION (Continued) 11

BY MR. HOSIER: 12

Q Now the 2000 Cognex product differed from the Dataman and Checkpoint 13

products, correct? 14

A You had differences, sure. 15

Q And you had said previously that the DataMan and CheckPoint -- and the 16

DataMan and CheckPoint products were effectively identical except intended for 17

different applications? 18

A The DataMan and the original CheckPoint? 19

Q Yes. 20

A Yes, they were essentially identical, but intended for different applications, so 21

they had some software differences. 22

Q Okay. The hardware for the 2000 was completely different than the hardware 23

in the DataMan and CheckPoint products, correct? 24

A Yes. 25

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Q The software was completely different? 1

A Yes. 2

Q It was essentially redesigned from the ground up, correct? 3

A Yes. 4

Q But you kept the conceptual aspects of the DataMan and CheckPoint series in 5

the 2000 product? 6

A Well, I'm not sure what you mean by the conceptual. We kept what we learned 7

about doing machine vision and added new things. 8

Q But you kept much of the successful technology conceptually from the 9

Datapoint -- excuse me, the DataMan and CheckPoint series, correct? 10

A Yes. 11

Q And you kept the algorithms that worked at a conceptual level, but all of the 12

hardware and software was a brand new design? 13

A That's fair. 14

Q And you did file a declaration in this case that we've marked as Defendant's 15

Trial Exhibit 2169, did you not? 16

MR. QUINN: Gerry, do you have a copy of that? 17

THE COURT: And just for the record, counsel, what's the date of that 18

declaration? 19

MR. QUINN: I believe it's July 10, if memory serves, Your Honor. 20

THE COURT: July 10 of 2002? 21

MR. QUINN: Sorry, memory did not serve, July 12th. 22

THE COURT: July 12th, 2002, okay. 23

THE WITNESS: Yes, I recall this. 24

(Pause in the proceedings) 25

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BY MR. HOSIER: 1

Q Do you still view those statements as accurate? 2

A Statements in the declaration? 3

Q Yeah. 4

A I have no reason not to. 5

Q Okay, thank you. 6

THE COURT: All right. 7

MR. HOSIER: No further questions. 8

THE COURT: Thanks. 9

Mr. Silver, we'll ask you to step down then. Sorry to keep you waiting. 10

THE WITNESS: No problem. 11

THE COURT: But we'll get Mr. Wilder on and out of here in time. 12

So who's going to examine Mr. Wilder? 13

MR. HANISH: Mr. John Hanish of Fish & Neave for the plaintiffs, Your Honor. 14

THE COURT: All right. 15

(Pause in the proceedings) 16

THE COURT: You can leave those volumes up there for now, might as well, 17

that Mr. Silver was using in case they're needed again. 18

And I don't know if you have volumes -- Do you have multiple volumes for this 19

witness too or just one? 20

MR. HANISH: No, just one, Your Honor. 21

THE COURT: One, excellent. 22

All right, Mr. Wilder, if you'd please remain standing and be sworn by the 23

Clerk, sir. 24

JOSEPH WILDER, PLAINTIFF'S WITNESS, IS SWORN 25

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THE CLERK: Thank you. Please be seated. 1

Would you please state your full name for the record and spell your last 2

name? 3

THE WITNESS: Joseph Wilder, W-I-L-D-E-R. 4

THE COURT: Great. 5

And, counsel, I apologize, but maybe, for our Recorder and Clerk, 'til we get 6

this -- 7

Did you already have the spelling of counsel's name? 8

MR. HANISH: It's Hanish, H-A-N-I-S-H. 9

THE COURT: Thanks, Mr. Hanish. 10

And you are co-counsel representing plaintiff Symbol or Cognex? 11

MR. HANISH: Both, Your Honor. 12

THE COURT: Both, all right. 13

MR. HANISH: Of Fish & Neave. 14

THE CLERK: Actually, it is on lectern computer. 15

THE COURT: All right, go ahead, Mr. Hanish. 16

MR. HANISH: Good morning, Your Honor. 17

DIRECT EXAMINATION 18

BY MR. HANISH: 19

Q Good morning, Dr. Wilder. 20

A Good morning. 21

Q Dr. Wilder, where do you reside? 22

A I reside at 89 Turhune Road in Princeton, New Jersey. 23

Q And what is your occupation? 24

A I am a research professor at Rutgers University. 25

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Q And what is your title there? 1

A I have several titles. I'm a research professor in the Center for Advanced 2

Information Processing, I'm a member of the graduate faculty of electrical and 3

computer engineering, I'm a visiting professor in electrical and computer 4

engineering and I'm a member of the faculty of the Biomedical Engineering 5

Department. 6

Q And how long have you been at Rutgers? 7

A Since the fall of 1987. 8

Q And how long have you held your various positions at Rutgers? 9

A The first one was in early 1988 and, over the next year or so, I acquired the 10

other titles. 11

Q Okay. And do your responsibilities at Rutgers include both research and 12

training -- and teaching? Sorry. 13

A Well, it's primarily research, but I occasionally give lectures on machine vision in 14

various courses and occasionally I will give a week's course as part of a seminar 15

series at Rutgers. 16

Q And what areas of research do you focus on in your work at Rutgers? 17

A Well, I concentrate on machine vision in areas of pattern recognition, inspection 18

and gauging. 19

Q And, more specifically, if you could define more specific areas of your research. 20

A Yes. There are a number of them. First of all, I do proof of concept studies for 21

various corporations and government agencies, I work in human machine 22

interfaces, I work in biometrics, I also work developing machine vision based 23

biomedical instruments, I work in underlying technologies that span across all of 24

these areas, for example, visual data acquisition, and I also have done some work 25

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0056 WILDER - DIRECT

in detection of explosives, which makes use of a lot of the pattern recognition 1

techniques that we use in machine vision and also some of the 3 -D image 2

processing techniques that we have. 3

Q On what specific problems does your work in explosive detection focus on, 4

suitcase kinds of things or -- 5

A I'm sorry, could you repeat that? 6

Q In your work in explosives detection, what specific problems are you trying to 7

solve? 8

A Okay. Well, there's a technique called coherent x-ray scattering, which is very 9

effective in detecting various kinds of explosives in suitcases, and we did a project 10

in 1993 where we demonstrated -- we finished in '93 or '94 and we demonstrated to 11

the FAA that we could indeed detect explosives very successfully. 12

The project went quiescent for a while until recently and now it's very much 13

alive and there's currently a major corporation involved in airport security that is in 14

the final stages of negotiating a license with Rutgers for our patent in this area and 15

they expect to combine our technique with theirs to give more robust detection of 16

suitcases and airport luggage without too many false alarms. 17

Q Now, Dr. Wilder, earlier you mentioned that you work in biometrics. What is 18

that exactly? 19

A Well, that is making measurements to identify people, to verify that they are who 20

they say they are or if they are a person in a database of individuals that are being 21

monitored. In particular, I've done a lot work in face recognition. 22

Q Okay. And have you published in this area? 23

A Quite a few papers in this area. 24

Q Okay. And, Dr. Wilder, you also mentioned biomedical applications. What 25

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0057 WILDER - DIRECT

specifically did you have in mind? 1

A Well, there have been several of them. One of them in particular that we're 2

working on right now is a remotely operated microscope for use in medical 3

education and pathology. For example, you have a professor and a microscope in 4

the medical school who puts -- completely computer-controlled microscope and he 5

can put a slide under there and operate the microscope through the computer and, 6

at distant locations, there could be a number of students who are watching what 7

he's doing and they see immediately everything that he does with the computer. 8

And, because he knows who's logged in, because they each have an icon, he can 9

call on a student at a distant location and turn control of the microscope over to the 10

student and this microscope -- and the student can perform all of the functions, 11

including the machine vision processing, that's built into the system. 12

Q So your work in that area is currently being applied? 13

A Yes. It's at the point now where it's being factored into the pathology course at 14

the University of Medicine and Dentistry of New Jersey. We're working 15

collaboratively with them. 16

And this is also applicable in some crisis management situations where 17

there's a person at the scene with a microscope testing some blood samples and 18

consulting with a pathologist at a distant location and the pathologist can run the 19

system from -- remotely. 20

Q And have you published in this area? 21

A Yes, we have a couple of publications in this area. 22

Q Okay. And also, Dr. Wilder, you mentioned human machine interfaces. Could 23

you explain what you had in mind? 24

A Well, we've been working for many years on human visual data acquisition, how 25

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people take in visual data, to learn better how to do it with machines, but, more 1

recently, we've been involved in combining various -- for example, gaze and speech 2

so that you can operate a computer without using the mouse or a keyboard. You 3

can interact with it in a very natural way, as though you were talking to somebody 4

else. 5

The system -- You can use your eye as a mouse. Wherever you look on the 6

screen, there's a cursor and the system has automatic speech recognition, 7

language understanding and speech synthesis, so you can talk to the computer, 8

convey what you want to have happen in a very fast and convenient way and get 9

responses. 10

And this is also important -- This is sponsored by the National Science 11

Foundation and by the U.S. Army because, in command and control situations, it's 12

crucial that a person who is absorbing a lot of data, say on the battlefield from 13

databases, sensors, robotic sensors, and people in the field, to be able to absorb all 14

this information and make a very crucial decision quickly and we don't want that 15

person to have to be operating a mouse and a keyboard, putting resources to that. 16

Q Now, in your work over the years, Dr. Wilder, have you been granted any 17

United States patents? 18

A Yes. I believe I have 12 of them. 19

Q And what generally is the subject matter of your patents? 20

A Most of the patents have been directly related to machine vision, although we 21

do have -- and visual sensing, although we have a patent on this recent work in 22

explosive detection. 23

Q And have any of your patents, since you've been at Rutgers, have any of them 24

been licensed? 25

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A Well, just last week I was informed by the university that they had licensed a 1

patent for a new kind of camera that we call a phobiating [phonetic] sensor that I 2

invented with a colleague at DIT some years ago. I think the patent is from 1989. 3

And this is a new kind of camera that can track, for example, missiles or airplanes, 4

moving several hundred times faster than a conventional camera of the same 5

resolution and pixel clock rate. 6

And this was just, as I mentioned, just licensed last week. 7

Q Now you mentioned teaching at Rutgers. What, briefly, are your teaching 8

responsibilities there? 9

A Well, again, I give lectures in people's courses when they want something 10

discussed on machine vision and occasionally I give a week's worth of lectures as 11

part of a course, a seminar course, in biomedical engineering. 12

Q Okay. And do you have your own graduate students in your own laboratory? 13

A Yes, I do. 14

Q And how many do you currently have? 15

A I have three Ph.D. students and three Master students, I believe. 16

Q And if you have it in mind, over the years do you know how many students that 17

you've graduated? 18

A Well, I'm not sure, but I'm pretty sure I had seven Ph.D. that have graduated 19

and ten or 12 Master students. 20

Q Dr. Wilder, are you a member of any scientific organizations? 21

A Yes. I'm a member of IEEE, the Institute of Electrical and Electronic Engineers, 22

and the SPIE, the Society for Photo-optical Instrumentation Engineers. 23

Q And do you have any duties in relation to your membership to those groups? 24

A Well, I chair, frequently chair, sessions at their conferences and I've been on 25

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the program committee of a couple of conferences, several conferences, and I am 1

active to that extent. 2

Q All right. Are you a referee for peer review journals in your field? 3

A Frequently, for a number of different journals, and I also have done a number of 4

book reviews. 5

Q Turning to your educational background, Dr. Wilder, where did you attend 6

college? 7

A My Bachelor's Degree was from the Drexel Institute of Technology, which is 8

now known as Drexel University, my Master's from Brown University and my Ph.D. 9

from the University of Pennsylvania. 10

Q And, if you remember, what years you matriculated from those. 11

A Yes, it was -- Drexel was 1957 in electrical engineering, Brown, 1959, electrical 12

engineering, and the University of Pennsylvania in 1964, electrical engineering. 13

Q Now during your time in Pennsylvania, did you work while you were obtaining 14

your Ph.D.? 15

A Yes. I worked at the David Sarnoff Research Center while I was going for my 16

Ph.D. 17

Q Okay. And what was the, generally, what was the topic of your Ph.D. 18

dissertation? 19

A Well, this is a mouthful, so I have to read it, "Adaptive Control of 20

Communication Systems Based on Sequential Channel Measuring Techniques." 21

THE COURT: Let me ask, Mr. Hanish, I take it that Dr. Wilder's CV is 22

amongst the exhibits in this -- 23

MR. HANISH: Yes. I'm sorry, Dr. Wilder is reading from Plaintiff's 2876. 24

THE COURT: Okay. And I'll certainly receive tha t. I realize there may be a 25

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0061 WILDER - DIRECT

lot contained in there that you want to draw from, but I think it might be helpful to 1

move forward into the, given the time limitations, into the areas that you're going to 2

seek to have him offer testimony based upon his specialized knowledge in the area. 3

MR. HANISH: Yes, Your Honor. We're just about to move through his time 4

at RCA -- 5

THE COURT: Okay. 6

MR. HANISH: -- and then on to his time at EMR Photoelectric. 7

THE COURT: All right. 8

MR. HANISH: Which is the pertinent time period for this matter. 9

BY MR. HANISH: 10

Q How did it come to be that, Dr. Wilder, just briefly, that you did a dissertation on 11

an RCA project? 12

A Well, I was working initially in the area of communication systems at RCA 13

Sarnoff Labs and they sent me to Penn for my Ph.D. on their -- I won their Doctoral 14

Study Award and consequently they allowed me to, when I completed my course 15

work, they allowed me to use a project, a Sarnoff project, as my dissertation topic. 16

Q And the Doctoral Studies Award, was that a competitive award? 17

A Yes, it was. 18

Q And how many folks a year were given such an award? 19

A I think two or three. 20

Q Out of how many? 21

A I think there is something like 350 full professional members of their technical 22

staff. 23

Q Now how long were you at RCA, Dr. Wilder? 24

A For 12 years. 25

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Q Until roughly 1971 or 2? 1

A Yes. 2

Q Just generally, what type of work did you perform at RCA? 3

A Well, after working -- the early work in communication systems, I started 4

working in video systems of various kinds and I worked on efficient light collection 5

for projection television sets. And I also worked on video disk recording and helped 6

determine the type of modulation or the kind of signals that would be most efficient 7

to put on a record in order to put a TV signal in there. 8

Towards the end of my time there, I also became interested in transform 9

coding of images. 10

Q And what is that, Dr. Wilder? 11

A Well, that's basically a technique for taking an image, which is a spacial 12

representation of some part of the real world, and converting it to another domain 13

where what you're looking at is the wrapped rapidity with which things change in the 14

real world so that very large objects and things that don't change will be in one part 15

of the screen, the transformed image, and fine details in another place and the rest 16

of it sort of in between. 17

Q And how does your work on that at RCA relate to your later work in machine 18

vision? 19

A Well, the whole notion of transform coding has the advantage of being able to 20

compress the important information in a picture so that you can use that for efficient 21

pattern recognition. In other words, you can extract out of an image just the 22

information that's necessary in order to make a decision between one thing and -- 23

you know, if you're recognizing is it this or is it that, this is a very efficient way to go 24

about that. 25

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Q Did you receive any patents for your work at RCA? 1

A Yes, I received two patents at Sarnoff Labs on efficient light collection. 2

Q And during -- 3

A Polarized light. 4

Q And during this period when you were at RCA, did you also do any teaching? 5

A Yes. I taught courses at the Polytechnic Institute of Brooklyn. 6

Q And what type of courses? 7

A Well, generally in two areas, electromechanical systems and communications. 8

Q When you left -- 9

THE COURT: I want to make sure I understand. You were talking about the 10

transform coding of images. Are you again talking about a method of filtering out 11

things that you don't need to -- 12

THE WITNESS: Yes. 13

THE COURT: -- identify so that you can identify or -- 14

THE WITNESS: Yeah, that's the end result of it, is it's a way of filtering 15

images, but it also leads into some other techniques for efficiently reducing the 16

crucial piece of information for making -- that you need for making a decision, for 17

example, in pattern recognition when you're trying to do that. And we'll get into that 18

later if you want. 19

THE COURT: Go ahead. 20

BY MR. HANISH: 21

Q When you left RCA, Dr. Wilder, where did you go? 22

A I went to work for a electronic subsidiary of Mars Candy, called Mars Money 23

Systems, along with another colleague from the Sarnoff Labs, and he was the 24

Director of Research and I was the Director of Engineering. 25

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Q And what did you do there for them? 1

A Well, this was a new U.S. subsidiary of a British outfit, part of Mars, that was 2

developing the first electronic coin mechanism for use in vending machines and in 3

transportation systems to replace the old electromechanical systems, which were 4

very unreliable. So this was the first all electronic system. 5

Q So this is for soda machines and coin machines? 6

A Right, exactly, various vending machines. 7

Q No, Dr. Wilder, turning to -- 8

THE COURT: And probably, here, slot machines in Nevada, I would imagine. 9

THE WITNESS: Oh, no doubt. I'm sure. 10

BY MR. HANISH: 11

Q Dr. Wilder, turning to Plaintiff's 2876, which you already have in front of you, 12

and this has already been identified as your CV, did you prepare this document? 13

A Yes, I did. 14

Q And, to your knowledge, is it accurate and up to date? 15

A Yes, as of the date that I prepared it. I have a publication that's been accepted 16

by a journal, the British Journal of Telemedicine, on the telemedicine area, but it's 17

not -- it hasn't appeared yet. 18

Q Now, Dr. Wilder, your CV mentions that, when you left Mars, that you then went 19

on to EMR and you were at EMR from 1974 until 1980. 20

A Yes. 21

Q What was EMR? 22

A Well, EMR was a division of Schlumberger [phonetic]. They were involved 23

primarily in oil well logging and putting sensors down into oil wells to do that kind of 24

exploration and EMR built sensors for putting down -- to be put down in oil wells. 25

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0065 WILDER - DIRECT

And then they started up an activity, several years before I came there, in 1

generally the area of machine vision, which grew out of their sensor technology. 2

Q And what, more specifically, what type of, in the area of machine vision, what 3

type of work did EMR do? 4

A Well, they primarily developed a very, very powerful new kind of camera called 5

the optical data digitizer, which could be applied to many different applications, and 6

they sold them to a number of -- sold quite a few of them mostly to research 7

organizations, like Bell Labs and various government agencies to do, for example, 8

astronomy and -- because it opened up the possibility -- it basically was a computer-9

controlled camera, so it opened up the possibility of doing machine vision activities. 10

Q And, generally, what types of applications were these? 11

A Well, there's, as I mentioned, astronomy and various -- I'm not sure of all the 12

things that were done, because this was all before I came there, but there was one 13

that I am aware -- do recall and that is for medical imaging at the University of 14

Chicago Medical School. And I remember that because one of the first things I did 15

was go out and visit them and see their system in operation. 16

Q And, generally, were these applications known as the Comp Gauge at EMR? 17

A Well, they weren't -- we hadn't thought up the word Comp Gauge by that time, 18

but basically they all had the same kind of components. They had a camera, optics, 19

used various lenses and filters, an illumination source, a computer and various 20

peripheral devices, like translation stages, a teletype for input and output and 21

storage devices and communication could be to various pieces of factory 22

equipment. 23

Q And, if you recall, what type of application did you work on when you first joined 24

EMR? 25

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A Well, the first thing I did was develop, using these same basic components, a 1

general trainable pattern recognition system. 2

Q And could you define pattern recognition? 3

A Well, yes. It's the task of taking in visual data from a -- taking of data from a 4

sensor and extracting information of that so that you could make an intelligent 5

decision. And in the case of recognition, you're trying to decide which one of many 6

things is present, for example. 7

Q And which parts of the pattern recognition system did you work on? 8

A Well, I worked mostly on the optics and the illumination and the algorithms, that 9

is the computer -- you know, the equations and the computer rules that allowed you 10

to extract information from the images, that pre-process the image, prepare it and 11

then extract features from the pre-processed image, and then go into a 12

classification stage or a decision-making stage where you could decide what you 13

had seen. 14

Q Now earlier you mentioned the optical data digitizer or ODD. Was that the 15

camera that you used in your pattern recognition system? 16

A That was the camera that I used in my pattern recognition. 17

Q And what were the attributes of the ODD that made it applicable or particularly 18

good for pattern recognition? 19

A Well, it had a number of fine attributes, but the ones that were most important to 20

me was that it had completely random access scanning, that is, you could go, under 21

computer control or command, you could go to any point in the field of view and 22

read out the brightness level at that point, which was not something you could do 23

with any other camera available at the time. And even today there really are no 24

cameras that can do this kind of random access scanning. 25

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It also had very high resolution. It had 4000 -- basically 4096 by 4096 1

addressable points, which is a very high resolution, which enabled -- which again 2

made it very flexible because, if you're looking for a small object in a large field of 3

view, it wouldn't have to be accurately fixtured. You could search for it very 4

efficiently having this random access scan. You could just go in there and start, 5

once you found something interesting, you could just move around it and locate 6

what you needed. 7

Q Now how was this location done? Was it done manually or was -- can you 8

explain that in more detail? 9

A Well, it was done under computer control. In other words, you put in a general -10

- you wrote a general search algorithm that tells you -- that tells the camera, via the 11

computer, where to start looking and, once you find something, what to do about it. 12

Q Okay. Do you know where the ODD was developed? 13

A The ODD was developed at EMR. 14

Q And do you know who at EMR developed it? 15

A Guy Refitten [phonetic] was the chief developer of it. 16

Q And was it developed there before you arrived? 17

A Oh, yes. 18

Q Now you've mentioned your contributions to this system in the area of optics 19

and illumination. Were there any other areas of the pattern recognition system that 20

you worked on? 21

A Well, of course, I integrated the whole system together, having all the 22

components, and, again, in the area of algorithm development, I focused on -- I 23

developed unique algorithms for pre-processing feature extraction and classification 24

and I also got involved in the testing of the system and in the user interface to the 25

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0068 WILDER - DIRECT

system, to make it easy for anybody to use. 1

Q Now was this again -- These algorithms, were they designed to minimize the 2

area that the system looks at? 3

A Well, basically what it did was tremendously reduce the amount of information 4

that you had to examine because you didn't have to capture the whole image. You 5

only captured the pieces of the image that you were looking at. For example, if you 6

were looking at a string of serial numbers, you could find each serial number and 7

put it in its own box and make a -- and read out just a small pixel array within that -- 8

of that character, say, for example, a 16 by 16 array of points for that character. 9

Q How many different types, if that's the proper way to ask the question, of 10

algorithms did you have to develop in order to make the system work? 11

A Well, there's a long string of them. In the pre-processing stage, there were 12

several steps. The most interesting one that is mentioned in the patent is one 13

where I used ternary quantization rather than binary quantization. Once I captured 14

a character, for example, in an array, I would code all of the up edges by plus ones, 15

the down edges by minus ones and what's in between them by zeros and this was -16

- gave more information about the character than just the binary image, the two-17

level image, and also it was very well matched to the particular transform coding 18

technique that I used in the next stage, that is, I used a particular image transform 19

called the Wash-Adamar [phonetic] Transform, which basically had -- its basis 20

functions went from minus one to plus one, so this was very well matched. They 21

were rectangular functions and was very well matched to this ternary pattern. 22

Q Were there any other algorithms that you had to develop? 23

A Oh, yes. From the -- Once having established that I was going to use this 24

transform coding, and, generally, these kind of transform coding algorithms are fast 25

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0069 WILDER - DIRECT

algorithms so that you can reduce the number of computations, but still the normal 1

transform would -- if you had a 16 by 16 image, visual image, after you transform it 2

you'd have a 16 by 16 array of transform components and I came up with a fast, 3

fast algorithm that could only compute the components that you needed. Usually, 4

the shape of the object is contained in the larger or the medium-size details in the 5

picture and, with just a few high detail things important, then you can throw away a 6

lot of the fine detail which you don't need to make a decision, say is this a 6 or an 8. 7

So I had -- there was a fast, fast algorithm involved here. 8

Q Now, Dr. Wilder, a moment ago you mentioned the patents. If you can turn in 9

your witness binder to Plaintiff's 2878. 10

A Uh-huh. 11

(Pause in the proceedings) 12

Q You'll see that that's a patent in which you're listed as an inventor. Is that the 13

patent that you're referring -- that you've made reference to? 14

A That's correct. 15

Q And if you can just read -- When was this patent application filed? 16

A It was filed October 10th, 1975. 17

Q Okay. And what aspect of the pattern recognition system, just briefly, does 18

your patent there describe? 19

A Well, it covers, as I mentioned, the pre-processing steps and, in particular, 20

among them the ternary quantization. It covers the Wash-Adamar Transform with 21

the fast, fast algorithm and the extraction of features from that Wash-Adamar 22

Transform, so that you have a very -- instead of 256 samples of pieces of 23

information, you had a much smaller number, maybe 16 or 32, depending on how 24

many you needed. 25

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0070 WILDER - DIRECT

And then also there were some unique features of the pattern classification 1

algorithm in which the -- it was a trainable algorithm, that is, the system learned by 2

showing. You would show it a bunch of 1s, a bunch of 2s, a bunch of 3s and the 3

system would learn, by extracting these features from each one, would learn the 4

essence of each character. 5

And, once you had done the preliminary training, we also had an iterative 6

training step where you could send these training samples through again and again 7

and, every time it made a mistake, it would make a small adjustment so it could 8

adjust the boundary lines between classes and then, once it was optimized, you 9

were ready to use it, but also, in most pattern recognition systems, if there's 10

something that's sort of just on the border between one category and another, we 11

usually call that a reject, sort of too close to call, and in our system we would print a 12

question mark on the monitor or the teletype so that a person could look at this thing 13

and do an intervention and type in what that thing was. 14

What was unusual about my system was that most other reject zones were 15

basically narrow bands round this border between the two characters. In our case 16

there was a narrow band when you're very close to the clusters that represent these 17

training populations, but, when you got very far away from both, say you got two 18

classes in both populations, you needed a much -- you had to be -- the reject band 19

would get much wider and you had to be further away. You needed a greater 20

degree of certainty before you would associate it with one class or the other. 21

Q Dr. Wilder, would this system have to be trained by an operator then? Is that 22

how the training would be done? 23

A That's right, you needed -- In other words, you didn't have -- you didn't assume 24

that you had idealized characters. You know, they could be fuzzy stampings, for 25

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0071 WILDER - DIRECT

example, which is what I tested it on, really poor quality characters, so somehow an 1

operator had to feed it a bunch of each of these samples so that it could learn, 2

however poor the quality was, what the typical -- what was typical for that particular 3

class of samples. 4

MR. HANISH: And, Your Honor, plaintiffs would offer Number 2878 into 5

evidence. 6

THE COURT: Yes, I'll receive -- 7

MR. HOFFMAN: No objection. 8

THE COURT: I'll receive 2878. 9

As I indicated previously on these, my inclination, unless there's some 10

objection, and I'll rely on opposing counsel to object, but when they're testified to, 11

rather than having you lay the foundation off of them, -- 12

MR. HANISH: Sure. 13

THE COURT: -- I'll let you go right into the content of them. 14

(Plaintiff's Exhibit No. 2878 admitted) 15

MR. HANISH: Thank you, Your Honor. 16

THE COURT: Patents are a good example. 17

BY MR. HANISH: 18

Q Dr. Wilder, could you turn to Plaintiff's 173 in your witness binder, please? 19

A 173, okay. 20

(Pause in the proceedings) 21

Okay. 22

Q Do you recognize this exhibit? 23

A Yes. 24

Q Just briefly, could you describe what it is? 25

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A This is a very detailed internal report that I described -- in which I gave a lot 1

more detail than what was in the patent, you know, more of -- the equations were 2

there in full and also there was test data and a lot of background material. 3

Q And what is the date on this publication? 4

A April 1975. 5

Q Okay. And does it describe all aspects of the pattern recognition system? 6

A Well, it describes all aspects of the -- primarily of the algorithms, but it has some 7

information relating to the rest of the system, but it concentrates on really what it 8

does and how it works. 9

Q Dr. Wilder, could you turn to Plaintiff's 2877, more towards the back of your 10

witness binder? 11

A Okay. 12

(Pause in the proceedings) 13

Okay. 14

Q And, when you're there, do you recognize this document? 15

A Yes. It's a paper, "Flexible Pattern Recognition Systems for Industrial 16

Applications," that I presented at the International Conference on Advanced Signal 17

Processing. It was in Switzerland, October 16th, 1975. 18

Q And what generally did your paper there describe? 19

A It describes the pattern recognition system we've been talking about, in perhaps 20

a little more detail than the patents, but less than in the internal report. 21

Q Did this paper present experimental results? 22

A Yes, it did. 23

Q And if you -- could you briefly describe those, if you recall what they were? 24

A Yes. Well, we had a set of 50 aluminum disks engraved with five digit numerals 25

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and these are basically stamped. And we had -- basically it was, if you looked at it, 1

it was white on white, but, with the appropriate illumination, it's possible to make 2

these -- trap light in these and make these characters stand out as being black and 3

white to the camera. 4

And we tested the system on these. We trained it and tested it and reported 5

the results and you could see that on a large number of patterns that the system 6

was close to perfect in recognizing them. It had -- I think it made two errors and had 7

two rejects out of quite a few hundred cycles. 8

Q And I believe, if you'll turn to page 3 of that paper, you'll see a diagram there. 9

A Okay. 10

Q If you could just briefly describe for the Court what's shown by that diagram. 11

A Well, there are two diagrams. The first shows the basic components of the 12

system that we've been talking about, a camera, a computer, inputs, outputs, and 13

then the second one talks in a little more detail about the functions that are built into 14

the system, the scanning, the character location, centering, smoothing, 15

quantization, transformation, normalization, which is another detail step, energy 16

normalization was used here, feature ext raction, recognition and it also talks about 17

the training sequence in the dotted lines, how you can -- you train it and form 18

prototypes of each of the classes and then you can modify them by cycling the data 19

through it so you can get an optimum separation between classes. 20

Q And what was the camera, again, that you used in the system? 21

A This was the optical data digitizer with the image dissector that we've been 22

talking about. 23

Q Now I take it that you actually presented this paper at the conference in 24

Switzerland, is that correct? 25

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0074 WILDER - DIRECT

A That is correct. 1

Q Do you recall who attended the conference, what type of scientists? 2

A Well, they were scientists interested basically in signal processing from all over 3

the world. 4

Q And do you recall roughly how many people attended your talk? 5

A I would guess it's approximately 200. 6

Q And were copies of your paper handed out at that time? 7

A Yes. 8

Q And eventually was this also published? 9

A In the proceedings of this conference, yes. 10

Q Okay. Now was the pattern recognition system that you have been describing 11

and that you developed at EMR, was that sold to anyone? 12

A Yes, it was sold to the U.S. Army. 13

Q Do you recall roughly when that was? 14

A Well, it was -- I don't recall the exact dates, but it was some time around this 15

period when we had done -- after we had done our initial tests. 16

Q So this period being roughly 1975? 17

A Right, in that general -- 18

Q Was the system delivered to the Army? 19

A Yes, it was. 20

Q And for what purpose was it used? 21

A Well, the idea was to record the serial numbers on M-16 rifles as part of military 22

gun control. They need to keep track of where their weapons are. 23

And, to get started on the project, they couldn't give me several hundred 24

rifles, so what they did was cut up -- use some cut-up pieces of old World War II M-25

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0075 WILDER - DIRECT

1 rifles, the little piece right behind the gun sight that had the serial number on it. It 1

was a curved surface and they were rusty and worn. And also during World War II 2

the number -- Different manufacturers made these weapons and, since they all had 3

their own fonts and their positioning was not uniform, this was a real challenge for 4

the system and, when the Army came and we demonstrated the system on these 5

old M-1 pieces, they decided it was -- they accepted it and we moved on to the next 6

stage. 7

Q And where did this test of the M-1 rifles occur? 8

A It took place in the Tobyhana Arsenal in Tobyhana, Pennsylvania where they 9

took M-16s and put them on a conveyer belt and put it -- you know, passed them by 10

the camera and the camera read the serial numbers. 11

Q Okay. And the Army paid for this system? 12

A Yes. 13

Q Dr. Wilder, could you turn to Plaintiff's 2879 in your witness binder? 14

A Okay. 15

Q Do you recognize this document? 16

A Yes. 17

Q And what is it, sir? 18

A It's a paper I gave on the system at the 6th Annual Symposium on Automatic 19

Imagery Pattern Recognition at the University of Maryland, June 1st and 2nd, 1976. 20

Q And, just generally, what does this paper describe? 21

A It's a brief summary of what I had given in the Luzon paper with -- there was an 22

additional experiment, recognition experiment, also involved here. 23

Q Okay. Dr. Wilder, if you could turn to the next exhibit, which is Plaintiff's 2880. 24

A Okay. 25

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(Pause in the proceedings) 1

Okay. 2

Q Now do you recognize this document? 3

A Yes. This is a paper I gave at the 8th Annual Automatic Imagery Pattern 4

Recognition Symposium, which was held at the National Bureau of Standards. 5

Q And does the document reflect the date of that presentation? 6

A I don't see the date. 7

THE COURT: Not that I can tell, but -- 8

THE WITNESS: But I think it should be in the back page of my resume. 9

MR. HANISH: Okay. I apologize. 10

THE WITNESS: Yeah. 11

BY MR. HANISH: 12

Q Could you turn to the next exhibit, Dr. Wilder, 2881? 13

A Yes. 14

THE COURT: Let me just ask, in the interest of time, again, unless there's 15

some objection to any of these papers prepared by Dr. Wilder, and I don't think 16

there is, I think we ought to move along. 17

MR. HANISH: Okay. 18

THE COURT: You've indicated that he's got a flight to catch. I'm going to 19

give counsel for the opposing side at least as long as you take to cross-examine 20

and we have a noon -- I have a noon and 12:30 meeting, so I think you want to get 21

right to it. Believe me, I would have asked him about the visual recognition and so 22

forth while he's on the stand, just for the fun of it, but let's get to what you want to 23

elicit from the witness concerning his expertise in the area of machine vision. 24

MR. HANISH: Yes, Your Honor. 25

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BY MR. HANISH: 1

Q Dr. Wilder, these papers at 2880 and the subsequent ones, just generally if you 2

could describe for us what -- 3

A Right. The next three -- This one and the two that follow it basically extended 4

this work to show that I developed two basic things, how to train, test and run the 5

system and I developed a user interface, a friendly interface, so that someone who 6

doesn't know much about this can sit down, the system asks them questions and 7

they type in the answer so they can -- it guides them step by step through it. 8

So, for example, a factory engineer could take this system and install it 9

himself and -- 10

THE COURT: Makes it user friendly and, hence, more marketable too. 11

THE WITNESS: That's right. That's what -- And the later papers show that. 12

BY MR. HANISH: 13

Q Dr. Wilder, could you turn to Plaintiff's 189 in your witness binder? 14

A Yes. 15

(Pause in the proceedings) 16

MR. HANISH: And I guess, Your Honor, while he's looking at -- 17

THE WITNESS: Okay. 18

MR. HANISH: -- for that, the only ones I was going to have him point to there 19

were 2880, 81 and 82, just for the record, were the three. 20

THE COURT: All right. 21

BY MR. HANISH: 22

Q Are you at Plaintiff's 189, Dr. Wilder? 23

A Yes, I am. 24

Q Could you turn to the page there that has the Bate's stamp number 043203? 25

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A Yes. 1

MR. HOFFMAN: I'm sorry, Mr. Hanish, your voice dropped at an 2

inopportune moment. I was wondering, what was the exhibit number? 3

MR. HANISH: Plaintiff's 189. 4

MR. HOFFMAN: Thank you. 5

THE COURT: And ending in 203 on the Bate stamps? 6

MR. HANISH: Yes, that's right. 7

THE COURT: Okay. 8

MR. HANISH: And then, with Your Honor's permission, I'll just put on the 9

ELMO or the PowerPoint a larger version of this and hopefully Dr. Wilder will have a 10

laser pointer at his box. 11

THE COURT: Sure. 12

THE WITNESS: I don't see it. 13

THE COURT: It's on -- Actually, it's on your screen as well, on your monitor, 14

but I think you want him to refer with the laser pointer to the one on the large 15

screen. 16

MR. HANISH: Yeah, if he, you know, will find it helpful. 17

THE COURT: Okay. 18

MR. HANISH: So that he and Your Honor will be looking, when he points out 19

various things, you'll be both on the same page. 20

BY MR. HANISH: 21

Q Now, Dr. Wilder, just what is this that we're looking at? 22

A This is the pattern recognition system. Right here is the optical data digitizer 23

and its lens and here is the turntable that was run by the computer that had the 24

aluminum disks that I used in the initial demonstration of the system. It would 25

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0079 WILDER - DIRECT

increment one at a time, the disks one at a time, under computer control so they 1

would be under the camera. 2

And this is -- You know, these are basic components, a computer, probably a 3

hard disk and tape and teletype. 4

THE COURT: This is the 1975 demonstration. 5

THE WITNESS: Right. 6

THE COURT: Yeah, it looks -- 7

THE WITNESS: Right. So basically those are the -- And there is some 8

lighting, which is probably out of the picture, above the camera that illuminates the 9

disks. 10

BY MR. HANISH: 11

Q Dr. Wilder, if you could turn to the page with Bate's stamp number 043175. 12

A Uh-huh. 13

Q And I'll put that up on the screen here. 14

A Okay. 15

(Pause in the proceedings) 16

Right. 17

Q Just again, is this also a picture of the pattern recognition system that you 18

developed at EMR? 19

A Yes, it is. And there it's being used to read labels on boxes. 20

Q And could you just briefly describe the components of it that we can see in this 21

picture? 22

A Yeah. It's the same basic components we've had all along, a camera, 23

computer, optics illumination, a transport mechanism and various reporting and 24

storage devices. 25

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0080 WILDER - DIRECT

Q Now were the elements of the pattern recognition systems that we've looked at 1

in these two pictures, are they -- is it essentially the same system as the one that 2

you sold to the Army? 3

A Yes. 4

MR. HANISH: I'll just take this off the screen now, Your Honor. 5

THE COURT: All right. 6

BY MR. HANISH: 7

Q Dr. Wilder, we've discussed pattern recognition -- the pattern recognition work 8

at EMR. Were there other applications involving the ODD camera? 9

A Yes, there were a number of inspection and gauging applications that were 10

developed using the same components pretty much. 11

Q Could you define inspection and gauging? 12

A Well, by inspection, it means looking at a part or an object and deciding if its 13

whole, if it has some defect, like a crack or a flaw, and is it positioned where it's 14

supposed to be, for example, if you're looking at components on a printed circuit 15

board, are all the right components in the right place, and this would be what I 16

would call inspection. 17

Q And how is inspection -- And could you define gauging as well? 18

A Yeah, gauging, in general, is to measure dimensions on a part to see if they fall 19

within the required manufacturing tolerances for an industrial part. 20

Q Okay. And how, if at all, is inspection and gauging different from pattern 21

recognition? 22

A Well, they all have the basic underlying pre-processing techniques and imaging 23

techniques, but, in the case of pattern recognition, you want to know is this what -- 24

which one of many possible things is this or is this what you think it is, whereas in 25

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0081 WILDER - DIRECT

inspection and gauging you're saying is this a good part or a bad part. 1

Q Now, during your time at EMR, did EMR ever sell the ODD camera to others 2

that they would then put together into an inspection and gauging system? 3

A Yes, they did, quite a few. 4

Q Do any applications come to mind? 5

A Yes. As I mentioned earlier, I visited the University of Chicago and saw that 6

they had taken the ODD and hooked it up to a microscope with the appropriate 7

illumination and microprocessors and they were using it for pre-screening of tissue 8

samples from pap smears and they were looking at cells, they were counting them, 9

they were measuring them and looking at their motion and they also were doing 10

some basic pattern recognition in deciding -- classifying the results so they could 11

decide whether, I believe, a person is a candidate of -- possibly has cervical cancer. 12

It was a pre-screening device. 13

Q Dr. Wilder, could you turn to Plaintiff's 172 in your witness binder, please? 14

A Uh-huh. 15

(Pause in the proceedings) 16

Okay. 17

Q Do you recognize this document? 18

A Yes. This is a magazine article that I wrote with David Fitzpatrick from -- the 19

magazine, "Industrial Research and Development." 20

Q And can you determine the date of the article? 21

A It says March 1979. 22

Q Okay. And, just generally, what does the article discuss? 23

A Well, it talks about a number of the applications we've been discussing here 24

and how you can use a camera and a computer with the appropriate peripherals to 25

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0082 WILDER - DIRECT

do the kind of inspection and measurement and gauging. 1

Q Could you turn to page 3 of that article, Dr. Wilder? 2

A Okay. 3

Q And you'll see the heading there, "Tissue Cell Systems." 4

A Yes. 5

Q Is that a description of the University of Chicago application you were speaking 6

of earlier? 7

A Yes, it is. 8

Q And, just generally again, do you have in mind what they were using the system 9

for? 10

A Well, pretty much for what I just described for screening for cervical cancer. 11

Q Okay. And did you see the system in operation in Chicago? 12

A Yes, I did. 13

Q And do you recall roughly when that was? 14

A That was very shortly after I joined EMR. 15

Q Okay. 16

A It must have been '74, you know, early '74, whenever I started. 17

Q Dr. Wilder, please turn to the back of your binder, it's Plaintiff's 3361, please. 18

A Uh-huh. 19

(Pause in the proceedings) 20

Okay. 21

Q Do you recognize this document? 22

A This is a paper from a journal that appears to be a report on the work at the 23

University of Chicago based on the system that I saw. 24

Q Okay. And could you turn to page 2? Do you see the photograph on the 25

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0083 WILDER - DIRECT

bottom right-hand corner of page 2? 1

A Yes. 2

Q And could you tell us what that photograph shows? 3

A Well, it shows the optical data digitizer hooked up to a microscope, where 4

obviously there is some kind of illumination source, and there's, in their case, three 5

different microprocessors that are analyzing the data that are captured by the ODD. 6

Q Okay. Now is the system that's shown in that photograph and the one that you 7

saw working at the University of Chicago, is that essentially the same as what later 8

became known in EMR as the Comp Gauge? 9

A Right, it's all the same components that we've been working with all along. 10

Q Now were there in-house, meaning systems completely developed within EMR, 11

that had the same architecture? 12

A Yes, there were. 13

Q And what was the name given to those systems? 14

A Well, I think at some point we started calling this the Comp Gauge. 15

Q And, just generally, what was the Comp Gauge, Dr. Wilder? 16

A It was the components we've been talking about applied to -- generally to tasks 17

in pattern recognition, inspection and gauging. 18

Q Okay. And the components were the same as the ones that you -- 19

A The same, were basically the same. You know, the translation stage might be 20

different from application than, you know, some of these peripheral things, but the 21

heart of the system was the same basic architecture. 22

Q Now, when this system was doing inspection and gauging, what would the 23

system actually capture when it was looking at something, so to speak? 24

A Well, the system would capture an image of what was presented to it when it 25

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0084 WILDER - DIRECT

was told -- when it was instructed to capture that image and it would create a value 1

at every point that it was interrogating that was related to the brightness of that 2

point. So a bright point would have a high value and a dark point would have a low 3

value. 4

Q And what type of signal would that be? 5

A That was an analog signal, a continuously varying signal that was captured by 6

the front end of the camera. 7

Q And what would the Comp Gauge do with that analog signal? 8

A Then it would convert -- it would quantize it into, I believe in that case, 256 gray 9

levels. So there were 256 bands within which that continuous analog brightness 10

signal would be found. It would be found within one of those bands and then it 11

would convert what those -- one of those 256 numbers, band numbers, to a digital 12

code, which would be a sequence of eight zeros and 1s, so it was converted into a 13

digital code that represented that gray level or that brightness level. 14

Q And what would those digital codes represent? 15

A The gray level or the brightness at that particular location in the field of view of 16

the camera. 17

Q Of the image? 18

A Of the image, right. 19

Q And how were -- the dimensions of the image, how was that data put out by the 20

system? 21

A Well, knowing the location and the -- of a point in the image, if you then looked 22

at another point at some distance from that point, and recording the value at that 23

point, and if you knew -- you could then compute the distance between those two 24

points and then convert that into some calibration, such as millimeters or inches, or 25

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0085 WILDER - DIRECT

whatever you were calibrated for, and the camera itself, you know, was -- there was 1

a calibration routine so you could convert the distance between points directly into a 2

measurement. 3

Q Dr. Wilder, specifically what Comp Gauge applications did you work on at EMR 4

that you remember? 5

A Well, there were a number, but the three that stand out are Beck and 6

Dickenson, Bulova and Zenith. 7

Q And what specifically was the purpose of the application you did for Beck and 8

Dickenson? 9

A We were inspecting plastic molded syringes. We were verifying all the 10

dimensions were correct and that the volume of the syringe was correct and we 11

were also looking for flashing on the edges of the syringes, because, any time you 12

de-mold a plastic part, there's always the possibility that you get little jagged pieces 13

that are sticking to it. 14

So we had to look for the jagged flashing and also make sure that the 15

dimensions of the syringe were exactly what they needed to be. 16

Q How was the syringe presented to the viewing system? 17

A It was put on a large Ferris wheel, like a stage, so that, once the syringes were 18

loaded in, they would step around this Ferris wheel one by one until they were in 19

front of the camera, which was looking down on them, and then the camera would 20

capture the image of the syringe and make the -- measure the diameter of the body 21

of the syringe, the taper of the end of the syringe and also look for flashing and 22

make some other measurements. 23

Q What was your specific role in developing this system? 24

A Oh, I should point out one more important thing about the syringe. In order to 25

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0086 WILDER - DIRECT

make sure that the volume was correct, once the other measurements were 1

completed, a cylinder would come out that was -- that just fit inside the syringe and 2

there was a second cylinder with a much smaller diameter that fit through the end of 3

the hole in the end of the syringe. And, if you think of the syringes coming in from 4

the right side of the picture, the little cylinder coming out of the end of the syringe 5

would be at a certain distance out of the cylinder -- out of the syringe and we would 6

then come in from the left and scan a number of times to hit the end of that cylinder 7

and, knowing how far we had come, we would average all those readings to get a 8

very precise measure of the location of that cylinder. And that was directly reflective 9

of the volume of the syringe, which is the crucial thing, are you giving the 10

appropriate dose in the syringe. 11

So that was one of our key measurements. Sorry to -- 12

Q No, it's quite all right. 13

What was your specific role in developing the system for Beck and 14

Dickenson? 15

A Well, I developed the optic illumination for the system and I also developed the 16

gauging algorithms that were used to measure the system and compare it to the 17

various standards they have for accept and reject. 18

Q Did you participate in testing the final system? 19

A Yes, I did. The people from Beck and Dickenson came to our development 20

area, saw the system and we demonstrated it for them and it was a very satisfactory 21

demonstration. In fact, whereas originally the quality control experts, in their quality 22

control lab, were the standard against which this machine was being measured, at 23

the end of the day, after all of our tests, we were the standard. We became the 24

standard against which the quality control experts were being measured, so I was 25

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0087 WILDER - DIRECT

very pleased with that. 1

Q So was the system sold by EMR to Beck and Dickenson? 2

A Yes, it was, and delivered. 3

Q Dr. Wilder, could you please turn back to Plaintiff's 189 in your witness binder? 4

A Uh-huh. Okay. 5

Q And turn to the page Bate's numbered 043180. 6

A Okay. 7

Q And I'll put a copy of that up on the screen again. 8

A If we need the lights off, -- 9

THE COURT: Yeah, let me get those. 10

MR. HANISH: Thank you, Your Honor. 11

// 12

BY MR. HANISH: 13

Q Dr. Wilder, could you just describe for the Court what we're looking at in this 14

photograph? 15

A Yes. I think you can see, right here, is the Ferris wheel that carries the 16

cylinders around under the camera. If you look at the very top there, you can see 17

the ODD peaking down from the top of the picture and these are the -- below are 18

the bins where the good ones and the bad ones were dropped. And there is various 19

other -- 20

THE COURT: Well, in format, not unlike the device we have on the floor on 21

the -- if you see this device, instead of being on its edge, it's -- 22

THE WITNESS: Oh, yes. It could have been -- It could have been horizontal. 23

THE COURT: Either way, yeah. All right. 24

THE WITNESS: You know, this was just the way it was built. 25

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0088 WILDER - DIRECT

And there is cabinets for the computers and the various peripherals of the 1

type you've seen before. 2

BY MR. HANISH: 3

Q So this was the system that was made and was sold to BD? 4

A That's correct. 5

Q Now you've mentioned an application for Bulova as well. 6

A Yeah. 7

Q Just generally, briefly, what was the specific application that you built for them? 8

A Well, there was a -- there's a small plate, a small disk, probably about an inch 9

and a half or two inches in diameter, that's called a fuse plate and it's a component 10

in a missile. I don't know exactly what its function is in the missile, but it has a 11

number of holes and slots and protrusions and various features that had to be 12

measured with extremely high accuracy in order for it to be acceptable and we 13

applied the -- developed a system to make these measurements. It was an ODD 14

that had very high magnification so that it could look at a small portion of the disk at 15

a time. The field of view was very small, which meant that you could get very high 16

accuracy. 17

And so what we did was have it on an x-y stage so that we could move 18

various points on the disk under the camera and extract the measurement. For 19

example, if you were measuring a distance, a linear distance, you would go to 20

where you expected that -- say a point to be, let's say an edge, and you would see -21

- it was originally trained to be right in the middle of the picture. If it was off a little 22

bit on that particular plate, you recorded that measurement and then you moved 23

with this very, very precise table translation stage to the other point at the other end 24

and found the distance between where it was supposed to be and where it actually 25

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0089 WILDER - DIRECT

was and then you combined those two errors plus the table translation, which was 1

extremely accurate, and put all those three pieces of information together to get a 2

very accurate measurement of that distance. 3

And, of course, we found, by taking points around the edges of the holes, we 4

were able to compute the centers of the holes and the center-to-center distance 5

between various holes and all of the important features were able to be measured. 6

Q Now that system that EMR built for Bulova, was that installed? 7

A Yes. 8

Q And did you help install it? 9

A Yes. I was up there doing the installation at their plant on Long Island. 10

Q And it was sold by EMR to Bulova? 11

A Yes. 12

Q And, lastly, I believe you mentioned an application for Zenith. 13

A Yes. This was a system to inspect the precision stampings that go into a color 14

television picture tube gun. They were -- There was a stack of little parts through 15

which the three beams would pass in order to precisely fall on the red, green and 16

blue dots on the shadow mask of the television tube, so these parts had to be just 17

about perfect and they had to be stacked up properly in order -- It wasn't only their 18

silhouette, that is their two-dimensional shape, that had to be analyzed, but also 19

their height and the tilt and a number of things that were -- you had to really do 20

three-dimensional gauging. 21

Q And how did you accomplish that? 22

A Well, we had a system with two cameras, one looking down from the top and 23

one looking in from the side, and we had a laser for illumination for each of those 24

cameras and we had an x stage, a y stage and a z stage and also a theta stage so 25

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0090 WILDER - DIRECT

you could rotate the part as you needed. 1

I should also mention that a feature of this system was that we had a unique 2

optical system that had a five-power magnification for roughly locating parts and 3

then, once it was roughly located, the system would move back to the center and 4

then the optics would flip over and it would go to 50 power, so you could actually 5

measure at very high magnification, but still be able to search for a part at low 6

magnification. 7

Q And, Dr. Wilder, could you turn, again, to Plaintiff's 189 in your witness binder? 8

A Uh-huh. 9

Q And, for the page that's Bate's numbered 043201, -- 10

A I'm sorry? 11

Q 043201. 12

A Yeah, okay. 13

(Pause in the proceedings) 14

THE COURT: Well, that's all right. You've got it up on the screen, so -- 15

THE WITNESS: Yeah. 16

MR. HANISH: Right. 17

BY MR. HANISH: 18

Q If you just want to look. 19

A Yeah, okay. 20

Q Is this the -- 21

A Okay, I'm there. 22

Q Is this the system for Zenith? 23

A Yes, it is. 24

Q Could you just briefly describe what we're looking at, like some of the 25

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0091 WILDER - DIRECT

components of the system? 1

A Yeah. There's a -- I think you can see a camera up there and peaking out here 2

is another camera and these are all the stages that are in there. And this is, of 3

course, the computer and the x,y,z, theta table controllers here and monitors and a 4

key pad so that an operator could run the system. 5

Q Okay, thank you, Dr. Wilder. I can turn this off. 6

Finally, Dr. Wilder, could you turn to Plaintiff's 2883 in your witness binder? 7

A Uh-huh. 8

(Pause in the proceedings) 9

Okay. 10

Q Do you recognize this document? 11

A Yes. This is the instruction manual for the Comp Gauge. 12

Q And for whom was this instruction manual written? 13

A It was written for, I would guess, a factory engineer level person who could -- 14

who would install the system and it had instructions on how to calibrate the system, 15

how to operate it and various measurements could be made with the system. 16

Q Okay. And how -- Well, maybe a better question is when was the information in 17

this manual put together? 18

A Well, it's dated June 1980 and then notice it's Comp Gauge Model 800-7, so 19

this was a -- the Comp Gauge was an evolving product and this was the manual 20

that was probably sent along with the Zenith project, which was one of the later 21

projects in the Comp Gauge series, because it has the most complete set of 22

measuring algorithms in 2 -D and 3-D. 23

So this is probably a late version of the manual. 24

Q And does this Comp Gauge manual, does this reflect and describe the systems 25

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0092 WILDER - DIRECT

that EMR sold to BD, Bulova and Zenith that you've discussed? 1

A Yes. 2

Q Just to finish up, Dr. Wilder, when did you first hear of Jerome Lemelson? 3

A Somewhere in the last year or two I got a call from the Lemelson Foundation 4

asking me to become one of their expert witnesses. 5

Q And I take it you declined to do so? 6

A Yes, I did. 7

Q And why was that? 8

A Well, I -- 9

MR. HOFFMAN: Objection, Your Honor. 10

THE WITNESS: I really did not -- 11

THE COURT: Well, hold on. 12

THE WITNESS: Uh-huh. 13

THE COURT: No, I'll let him answer as to why. 14

MR. HOFFMAN: Okay. 15

THE WITNESS: Yes. Well, I've been in this field for over 30 years and I built 16

and -- designed, built and delivered systems, I've done research, I've been to all the 17

trade shows, I'm constantly up on the literature, both the theoretical and the 18

practical and applied, and in all that time I have never heard of a single -- I've never 19

heard of Lemelson or a single contribution of his to the field, so I didn't feel right 20

about supporting him in going around suing people, people who had been -- you 21

know, done a lot of very serious work, had ideas, developed them, turned them into 22

something real and delivered them. 23

And, as I said, I personally have no knowledge of anything that Mr. Lemelson 24

has done, so I didn't feel right about becoming one of their expert witnesses. 25

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THE COURT: At the point that you were approached by someone on behalf 1

of Lemelson, were you aware of litigation or claims that had occurred previously? Is 2

that something that you'd heard about? 3

THE WITNESS: Well, not really. Well, at about the same time I ran into 4

someone that I knew who was in the machine vision business who said they were 5

being sued by Lemelson and it was, you know, it was -- I don't know whether it was 6

before I got this call or after, but it was very recently, I mean, within the last year or 7

so I would say. 8

THE COURT: All right, fair enough. Fair enough. 9

MR. HANISH: Thank you very much, Dr. Wilder. 10

We have nothing further. 11

THE COURT: All right, thank you. 12

It's about ten minutes to the hour, so let's go ahead and take our noon 13

recess. We'll reconvene at 1:15. 14

And I'll allow counsel for defendants the same period of time. The witness 15

was on the stand about an hour and five minutes, so that's what you'd have, if you 16

really need that long, and I'm hoping that you don't so we can get him off to the 17

airport, all right? 18

THE WITNESS: Thank you very much. 19

THE COURT: All right, we'll see everybody at 1:15 then. 20

(Court recessed at 11:51 a.m. until 1:16 p.m.) 21

THE COURT: All right. Dr. Wilder, you can come on back up if you 22

would please and we'll proceed with cross-23

examination 24

MR. HOFFMAN: Your Honor, may I take a moment? 25

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THE COURT: No, let's wait and finish this witness, and then we'll take 1

up other matters. 2

CROSS-EXAMINATION 3

BY MR. HOFFMAN: 4

Q Good afternoon, Dr. Wilder. 5

A Good afternoon. 6

MR. HOFFMAN: Are you ready, Your Honor? 7

THE COURT: Sure, go ahead. 8

BY MR. HOFFMAN: 9

Q Okay. My name's Louis Hoffman, I'm one of the lawyers for the Lemelson 10

Foundation Partnership. It appears we were actually at Princeton at the same time. 11

A I'm sorry, you'll have to talk a little louder I can't quite hear you. 12

Q I said that it appears we were at Princeton at the same time. 13

A Oh. 14

Q Anyway, you can verify, sir, that EMR sold only four units of the comp gauge 15

products? 16

A No, I can't verify it. I don't know how many units they sold, I really don't. 17

That was -- I was involved in developing them, and not delivering them and making 18

copies. 19

Q There are only four units that you can verify yourself, personally? 20

A Well, there were four that I -- that I probably verified personally. There were 21

a number of others that I worked on while I was there and that -- before I left that 22

were still there while I was -- after I left. I -- they may or may not have been 23

delivered. I really don't -- I really can't say. 24

Q Four units is all you can testify about from your personal knowledge, right? 25

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Do I understand you correctly? 1

A That's -- that's probably correct, yes. 2

Q And with regard to the ODD, EMR sold only one unit of the pattern 3

recognition system tha t used the ODD, the one you mentioned, to the Army. Is that 4

correct? 5

A That's the pattern recognition system, yes. It contained an ODD. 6

Q Understand. Was -- the group of you at EMR were at the leading edge of 7

technology; is that correct? 8

A I'd like to think so. 9

Q Now, the ODD camera you mentioned was also sold as a camera by itself; 10

correct? 11

A That's correct. 12

Q Okay. You don't know -- I'm sorry, the camera -- the ODD camera also was 13

sold for purposes other than the applications that you described, like gauging and 14

inspection that you described as machine vision type? Correct? 15

A To the best of my understanding, that's true. 16

Q You don't know how many ODD cameras were sold for and used by 17

customers for machine vision type applications of the sorts that we just mentioned? 18

A No, I don't. 19

Q By some time in 1980 all of the people working at EMR at the heart of the 20

effort had left EMR; correct? 21

A The key people that I worked with had left by then. 22

Q Had left what? 23

A Had left EMR by then, shortly before I did. 24

Q By 1980? 25

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A Around then, yes. I don't remember the exact dates. 1

Q Also in 1980 the product line of EMR was dropped or discontinued? 2

A I don't have any knowledge of that. 3

Q You mentioned briefly in your direct testimony one of your colleagues at EMR 4

named Gary Fitton. Do you remember mentioning his name? 5

A Yes. 6

Q He was one of the key people at EMR, also? 7

A Yes, he was. 8

Q And Mr. Fitton remained at EMR after you left? 9

A No, he left before I did. 10

Q Was -- were you aware that Mr. Fitton testified that the product line of EMR 11

was dropped or discontinued in 1980? 12

A No, I was not aware of that. 13

Q I'd like to show you some pages of excerpts that have been marked as DTX 14

2107, Defendant's Exhibit 2107 -- 15

THE COURT: All right. 16

BY MR. HOFFMAN: 17

Q -- which is from Mr. Fitton's testimony. 18

A Uh-huh. 19

Q I'd like you to look at pages 76, 77 of that deposition. 20

THE COURT: Let me ask, Counsel. Of course, this witness can't be 21

impeached on what Mr. Fitton said. Are you seeking to refresh his recollection? 22

MR. HOFFMAN: Yes, I was -- 23

THE COURT: He's not really indicated a failure of recollection, he's 24

indicated he -- a lack of awareness. 25

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MR. HOFFMAN: Well, there are -- there are two things. What I -- 1

what I'd like him to do is to read it and see if he would believe that Mr. Fitton -- if he 2

would defer to what Mr. Fitton's, you know, view on this. We -- and I believe he 3

testified also as far as refreshing recollection that he was -- one of my questions is 4

whether Mr. Fitton would in fact be in a position to know whether EMR's product line 5

was discontinued and so forth. So this witness can tell me whether Mr. Fitton's 6

testimony in this regard is going to establish the fact. 7

THE COURT: Well, I -- you know, we'll let Mr. Fitton testify or through 8

deposition offer testimony, but having this witness characterize Mr. Fitton's 9

testimony would be inappropriate and argumentative. I wouldn't allow that. 10

MR. HOFFMAN: No, I -- 11

THE COURT: Do you have any knowledge whatsoever, I'm not -- I'm 12

not talking about what Mr. Fitton knows; but, Dr. Wilder, do you have any 13

knowledge whatsoever about whether the product line you testified to, the -- well, 14

was it referencing the ODD camera? Is that what it was referencing? No. What 15

product line was it that's referenced in this -- 16

MR. HOFFMAN: This is the comp gauge. Well, which is the later of 17

the two products. 18

THE COURT: I'm sorry? 19

MR. HOFFMAN: The comp gauge, which is the later of the two 20

products. 21

THE COURT: All right. Do you have any knowledge as to whether 22

the comp gauge product line of EMR was dropped by the company in 1980? 23

THE WITNESS: I don't have any knowledge of that. 24

THE COURT: Were you at EMR in 1980? 25

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THE WITNESS: I left just about in 1980, I don't remember when in 1

1980, but during that time. I know that I was in Chicago installing the Zenith system 2

just a couple of weeks before I left, so I don't -- you know, things were still in 3

progress when I -- when I left the company, so. 4

THE COURT: All right. 5

BY MR. HOFFMAN: 6

Q You had -- you had some -- 7

MR. HOFFMAN: I'm sorry, Your Honor, I didn't -- were -- 8

THE COURT: Yeah, I'm not going to -- you know, I don't want the 9

witness to be -- it's not going to refresh. It's going in inform him what Mr. Fitton says 10

and what his testimony is, and that's all well and good, but this is not the witness to 11

do that with, so -- 12

MR. HOFFMAN: Right. That's fine, Your Honor. Let me just ask 13

some questions I can ask this witness, then. 14

BY MR. HOFFMAN: 15

Q The products are not being sold by EMR today; correct? 16

A As far as I know, they're not. 17

Q And you had some contact with EMR people after you left EMR, just -- 18

A About a year later the -- B. J. Tucker's replacement, as I testified in -- I -- 19

probably in my deposition, they invited me to lunch to discuss possible new 20

activities in machine vision that they might embark on, and I gave them some free 21

advice about might be -- they might do. 22

Q You don't know if anything came of those efforts; correct? 23

A No, I do not. 24

Q And you do you know that the product line of EMR was dropped or 25

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0099 WILDER - CROSS

discontinued at some point; correct? 1

A Well, I don't have any specific knowledge. I don't know what they do today, 2

really, but it's highly likely that the product line was discontinued. I don't really 3

know. 4

Q Okay. At the times you worked for EMR your company was a part of a unit 5

called Sangamo Westin [phonetic]? I don't know if I pronounced that right. 6

A I always pronounced it Sangamo but I don't -- I don't really know. 7

Q I saw you nodding. I think for the record we need to have you confirm that 8

that company -- EMR was part of Sangamo Westin. 9

A Yes. 10

Q What did Sangamo Westin do aside from EMR? 11

A I don't really know too much about them. I do recall that there are some 12

meters and lab equipment that Sangamo -- that the Westin, at least, manufactured. 13

But I don't know if that was earlier or later. I really don't have much knowledge 14

about what went on there. 15

Q How much revenue did EMR produce with the sales of the five units to which 16

you can personally testify? The one to the Army and -- 17

A I have no idea. 18

Q Let me -- let me finish my question. 19

-- the one to the Army and the four comp gauges? 20

A I have no idea. 21

Q Can you estimate approximately how many times bigger Sangamo Westin 22

was than EMR? 23

A No. 24

Q EMR, I take it, was a very small portion of that unit? 25

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00100 WILDER - CROSS

A I really don't have any strong feel for the corporate structure. I knew that 1

Schlemberger was the parent company and that we were connected perhaps 2

through Westin -- Sangamo Westin to Schlemberger, but I really wasn't cognizant of 3

the whole corporate picture. 4

Q What was your understanding of the size of Schlemberger compared to the 5

size of EMR? 6

A Schlemberger, I -- was my understanding was a large -- a very large 7

company. 8

Q I'd like you to look at Defendant's Exhibit 1032, please? 9

THE COURT: Is 10 -- 1032's not in the manual that was -- 10

MR. HOFFMAN: No, I'm just passing out the cross- exhibits here. 11

One will come up to Your Honor, too. 12

THE COURT: Oh, you -- okay. Thanks. 13

(Pause in the proceedings) 14

BY MR. HOFFMAN: 15

Q Do you recognize this as the letterhead of EMR dating from 1975? 16

A I recognize the letterhead, yes. 17

Q The letter refers to a U.S. patent that ends in '379. Are you aware that that is 18

a patent to Mr. Lemelson? 19

A No, I'm not. 20

MR. HOFFMAN: I don't believe there's any controversy, Your Honor, 21

that it -- that it is the -- the patent that issued from the 1956 application at issue in 22

this case. 23

THE COURT: All right. I'm sure that may be. Is there any objection 24

to 1032, Mr. Hanish? I'm sorry. 25

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00101 WILDER - CROSS

MR. HANISH: Just that it's hearsay, Your Honor. 1

THE COURT: It is hearsay. This witness I'm not sure can lay a 2

foundation. I'm sure there are others that can. 3

MR. HOFFMAN: Your Honor, I'd like to direct your attention to the 4

ancient documents exception to the hearsay rule, which I think overcomes that 5

objection. The authenticity is now established by the witness. That's the easiest 6

way. 7

THE COURT: Well, the -- it is on the letterhead 8

of -- 9

MR. HANISH: Your Honor, the witness has testified, though, that he's 10

not familiar with the document and he never saw it. 11

THE COURT: Correct. No. This witness can't testify to it. I don't -- 12

MR. HOFFMAN: Right. No, he -- this witness can testify to the 13

authenticity. He can establish the foundation to -- 14

THE COURT: Well, he can -- he can establish that it's on the 15

letterhead. He can't -- you know, it's the letterhead. But it's the contents, I think, 16

that the concern is addressed to in the -- 17

MR. HOFFMAN: Right. The hearsay objection is addressed to the 18

contents, and I would respectfully submit, Your Honor, that the -- 19

THE COURT: Well, I'll -- 20

MR. HOFFMAN: -- ancient documents exception -- 21

THE COURT: -- reserve ruling and let you argue it separately. I'm not 22

going to have this -- I certainly would allow you to establish with the witness whether 23

he knew whether this patent '379 was a Lemelson patent, and that's something I'm 24

sure that I can take notice of, so -- 25

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00102 WILDER - CROSS

MR. HOFFMAN: Yeah, no I -- we -- right. That's right, Your Honor, 1

and frankly I don't have further questions of this witness about it, because, as the -- 2

THE COURT: Okay. 3

MR. HOFFMAN: -- opponent said, he has not had personal 4

involvement in this. 5

THE COURT: All right. 6

MR. HOFFMAN: But we do want to get it into evidence, and we can 7

do that by establishing the foundation through our witnesses because this came 8

from Lemelson records, if it's necessary to do so. 9

THE COURT: All right. Fine. That's fine. 10

MR. HOFFMAN: But I felt that it may not necessary to have -- 11

THE COURT: It very well may not be -- 12

MR. HOFFMAN: That if it were -- 13

THE COURT: -- and I'm not going to -- if there's no serious dispute 14

that it's a business record of -- do I understand, Mr. Hanish, and I hate to spend a 15

lot of time while this witness is up here on such stuff, but is there -- you were right, 16

it's hearsay. Do you have some concern about its authenticity and that it is in fact a 17

business record 18

of -- 19

MR. HANISH: Well, we just object in that it's hearsay and they haven't 20

established that anyone has testified that they know what it is. 21

THE COURT: All right. 22

MR. HANISH: Certainly not with this witness. 23

THE COURT: No, this witness cannot. And so you wish to hear from 24

whoever can, then. 25

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MR. HANISH: Exactly, Your Honor. 1

THE COURT: I see. Okay. All right. Well, let's move on. 2

MR. HOFFMAN: Yes. Your Honor, I don't mean to belabor the point, 3

but we would move its -- 4

THE COURT: No, everybody's going to be belaboring, it looks like. 5

And I don't like to belabor it, but we'll do that on a weekend sometime and we'll 6

bring all of the custodians out and Mr. Hanish can -- 7

MR. HOFFMAN: Right. 8

THE COURT: -- tell us on a Saturday or Sunday why, you know, if 9

there's some dispute and all sides can. But let's move on. 10

MR. HOFFMAN: Right. 11

BY MR. HOFFMAN: 12

Q I'd like you to look at another document, DTX 1042. Do I have that -- 13

THE COURT: I don't. 14

BY MR. HOFFMAN: 15

Q Again, you recognize this as the letterhead of your company? 16

A Yes, I do. 17

Q Do you know the author, Paul Gotier [phonetic]? 18

THE COURT: Dale Gotier? 19

THE WITNESS: No, I don't. 20

BY MR. HOFFMAN: 21

Q You don't remember working with Mr. Gotier on another matter at the same 22

time as this letter? 23

A I know that when I wrote my patent applications I sent them to somebody and 24

they wrote up the patents. I don't remember if it was Dale Gotier or somebody else. 25

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00104 WILDER - CROSS

I really can't recall. 1

Q Could you turn in the binder to Plaintiff's Exhibit 2884, please? 2

MR. HANISH: I'm sorry, Louis, what was that number again? 3

MR. HOFFMAN: 2884. 4

THE COURT: 2884? 5

MR. HOFFMAN: I -- 6

THE COURT: I'm afraid I don't have it. 7

(Pause in the proceedings) 8

BY MR. HOFFMAN: 9

Q Do you recall Mr. Gotier was a patent lawyer with EMR? 10

A No, I don't; but if you -- but I see his name on the letterhead -- on the letter 11

there. 12

Q You worked with Mr. -- with a patent attorney in preparing your patents at 13

EMR? 14

A Yes. 15

THE COURT: Do you remember that person's name? 16

THE WITNESS: No, I don't. I don't know that I ever personally saw 17

the person. I mailed things off and got things back. 18

THE COURT: I see. Okay. 19

THE WITNESS: And I really don't recall. 20

THE COURT: All right. 21

BY MR. HOFFMAN: 22

Q Were you aware that the 1980 letter that I just handed you, DTX 1042, 23

addressed Mr. Lemelson's '379 patent that we talked about earlier, as well as two 24

others? 25

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MR. HANISH: Your Honor, we'll just object again on this document on 1

the same grounds, that we haven't 2

established -- 3

THE COURT: Yeah. Sustained. Sustained. And the letter doesn't 4

identify particular patents, 1042 doesn't. Sustained. 5

MR. HOFFMAN: The question was whether the witness was aware 6

that it did. 7

THE COURT: The witness said he wasn't familiar with the letter, so -- 8

MR. HOFFMAN: No, I didn't ask him about the letter, I said, were you 9

aware -- the -- 10

THE COURT: Well, that'll call -- that'll call for hearsay, Counsel. 11

MR. HOFFMAN: Okay. Let me try to rephrase the question to get 12

what I was after. 13

THE COURT: Look, it's obvious, Mr. Hoffman, that -- and I don't 14

know, maybe these things weren't produced in discovery. I take it you all have not 15

had a chance to address these in any context in discovery. And if you have not and 16

indeed we need to have witnesses come in and lay the necessary foundations as 17

custodians of records, we'll indulge in that process. It's laborious, it's time 18

consuming, it's expensive but I'm sure that's -- none of that is a barrier to any of 19

you. 20

Let's move on. But this witness is not a person who can testify about 21

the goings on between Mr. Gotier and Mr. Stempler [phonetic] and Mr. Faber and 22

Mr. McMahan [phonetic]. Those gentleman can, if they're available, I'm sure, or 23

other records can or other people maybe able to; but let's go to something this 24

witness can tell us about. 25

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BY MR. HOFFMAN: 1

Q Who at EMR, Dr. Wilder, was responsible for evaluating patents brought to 2

EMR's attention by outside parties? 3

A I really don't know. 4

Q You were the person who, I believe you testified, integrated the system that 5

became comp gauge? 6

A I was one of the integrators, yes. 7

Q Who else at EMR was technically skilled enough to assist a patent attorney if 8

a request had been made to evaluate infringement claims? 9

A Well, the people I worked with were Gary Fitton, and at some portion of the 10

time I was there an engineer named Dave Fitzpatrick. They helped -- also were 11

involved in integrating the systems. And there are many other people connected 12

with various parts of it, but I don't recall who they were or what their names were. 13

Q Do you know if any of those gentlemen assisted a patent attorney in 14

evaluating any Lemelson patents? 15

A Not to my knowledge. 16

Q You don't know, do you, if EMR or its patent attorney asked anybody to 17

consider or evaluate Lemelson patents; correct? 18

A That is correct. 19

Q Certainly, you were not asked to that? 20

A That is correct. 21

Q Okay. Just to close one point, I've now been handed 2884. I believe it was 22

just put on your podium. Does this refresh your recollection that Dale Gotier worked 23

with you in securing a patent while you were at EMR? 24

A Is his name on here somewhere? 25

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Q Yes, it would be right above the abstract, immediately above the abstract on 1

the right column of the front cover. 2

A Okay. I see that. 3

THE COURT: This appears to be a copy of a patent of -- that you are 4

the inventor of; is that correct? 5

THE WITNESS: This is -- yeah, this is my -- the second of the two 6

patents that I filed when I was at EMR. 7

THE COURT: All right. Issued May 11th, 1982. I'll receive 2884. 8

That's in evidence and that does reflect Mr. Gotier. 9

Does it refresh your recollection as to dealing with him? 10

(Defendant's Exhibit No. 2884 admitted) 11

THE WITNESS: This was quite a long time ago and I know that there 12

obviously was a patent attorney. I have no recollection of how we went about this. 13

THE COURT: Okay. All right. 14

BY MR. HOFFMAN: 15

Q Do you remember working with the patent attorney, whatever his name was, 16

quite closely to prepare your application? 17

A Well, I know that I wrote something up and then he put it into legalese and 18

then I reread it and then we sent it off and then we got it back and, you know, went 19

through -- around a couple times. It's the usual routine. 20

Q Okay. While we have this patent out I would like you to -- I'd like to establish 21

a few facts briefly that would be I believe useful with later witnesses, Your Honor. If 22

you would look at Claim 1 of the patent, which is on column 10, towards the end. 23

The second indented paragraph there talks about illuminating a spot of the work 24

piece surface with a radiant energy beam. Do you see that? 25

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A This is Claim 10 of -- 1

Q No, I'm sorry, column 10, Claim 1. 2

A Oh. Pardon me. 3

THE COURT: You're talking about down about line 32? 4

THE WITNESS: Uh-huh, okay. This is -- 5

MR. HOFFMAN: Yes, Your Honor, lines 31 and 32. 6

THE WITNESS: Line 32, is that it? 7

BY MR. HOFFMAN: 8

Q It talks about illuminating a spot of the work piece surface with a radiant 9

energy beam. Do you see that? 10

A Yes. 11

Q And you are the person involved, I believe you testified, with the illumination 12

system for the product in question? 13

A Yes. 14

Q What was the radiant energy beam that was used in the -- in the product? 15

A Well, I can't recall. It may have been a laser, it may have been some other 16

form of beam; but it was most -- I would say it was most likely a laser, but it could 17

have been something else, as well. 18

Q Do you recall what the radiant energy beam was in the patent? 19

A Oh -- 20

Q Or is that the same answer? 21

A I'm not sure I understand your question. 22

Q I had asked you with respect to the product. I was now going to ask you with 23

respect to the patent, unless it's the same. 24

A Most likely and -- but if -- I would guess that if it was -- I believe we were 25

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00109 WILDER - CROSS

using lasers in the product and we -- it could have been the same, although we 1

didn't specify that it had to be here in the patent. But it needed to be a -- something 2

that could project a spot onto a work surface. 3

Q Okay. If you would turn back, then, to line 2 -- I'm sorry, column 2, line 11. 4

Does that refresh your recollection that it could be either a laser or a noncoherent 5

light beam? 6

A That reinforces what I just said. 7

Q Okay. At -- while we're on column 2, at column 2, 8

line 15, it refers -- I see mention of a vidicon. What was that? 9

A Let's see, says, "Illumination measuring device may be, for example, a solid 10

state array scanner or an image dissector or vidicon device or any similar array-type 11

imaging device which is responsive to the particular type of radiation of the radiant 12

energy source." 13

So that means that it's not restricted to an image dissector or a solid 14

state camera or a vidicon, it could be any number of different imaging sensors. 15

Q My question, sir, is just could you very, very briefly explain what a vidicon is? 16

A A vidicon is a -- basically a conventional television camera tube that scans an 17

electron beam across a charged surface and reads it out and it performs in a raster 18

scan -- sort of a rigid raster scan format. 19

Q Was your product able function with a vidicon? 20

A Yes, our product was able to function with a vidicon. Generally in solving 21

these machine vision problems we let 22

the -- 23

Q You know, I think I have -- 24

A -- appropriate sensor for the problem. 25

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Q Okay. That's fine. I didn't want you to get into too much detail, I just wanted 1

to establish that simple fact. 2

You actually used a vidicon in the product in some embodiments? 3

A No, I didn't. 4

Q How about EMR as a whole? 5

A In the systems that I worked on we did -- I never found the vidicon to be the 6

appropriate sensor for that -- for the applications I worked on. There was always a 7

more appropriate sensor. 8

Q EMR offered it as an option, but you just never had occasion to use it; is that 9

what you're saying? 10

A That's correct. It's an option in their ODD camera. 11

Q And the comp gauge also used a ODD camera in it; correct? 12

A In some embodiments it did. 13

Q At column 4 of the same patent you have in front of you, line 15 through 17, it 14

refers to a solid state array scanner made by GE? 15

A Yes. 16

Q What kind of camera is that? 17

A That was CID-type solid state camera. 18

Q What -- I'm not asking about particular models now; but what categories of 19

solid state array scanners are there? 20

A Well, there are CCD cameras, CID cameras, MOS cameras, there's 21

photodiode arrays of various kinds. There's quite a large number of possible solid 22

state array cameras. 23

Q When you referred to an MOS camera, is that the same as the CMOS 24

camera, C-M-O-S? 25

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A Yes, that's -- 1

Q The solid state camera produced as an output an analog signal; correct? 2

A Yes. 3

Q The output was a -- specifically an analog video signal; correct? 4

A It was an analog signal. Depending on how you define video signal, you 5

could say it is or it isn't. It's an analog signal coming out of a very specialized kind 6

of camera. It was not a television signal. 7

Q I'd like you to turn to -- and this I believe is in the book -- Exhibit 182, please. 8

A Uh-huh. 9

Q That would be PTX, Plaintiff's Trial Exhibit 182. 10

A Okay. 11

Q This is one of the documents that you identified as pertaining to the ODD; 12

correct? 13

A I don't think we identified this during the direct, but it certainly appears to be. 14

Q Could you turn to page 32, please. 15

A Okay. 16

Q About three quarters of the way down that page you see a reference to 17

analog XY video outputs? 18

A Yeah. 19

Q That was -- that video output was the output from what? 20

A "Standard features, storage --" 21

Q I'm sorry, I didn't hear you, sir? 22

A I'm not sure which of the sensors is -- corresponds to the Model 659, but it 23

certainly produced an analog output. And the word "video" is a broad, general term, 24

and certainly it's -- whatever this was, it was a picture signal, it represented the 25

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brightness of a picture. Whether it fits television standards or not I can't tell from 1

looking at this. 2

Q The left column about two thirds of the way down, that product, too, had an 3

analog video output; isn't that correct? 4

A Analog sweep output, yes. 5

Q The next line also refers to an analog video output; correct? 6

A Right. It's a very general term which responds -- which means a scan -- 7

Q Sir, the question is whether it's correct to characterize it as an analog video 8

output. 9

A It really -- it's a very general term. Whether it's correct or not is debatable. 10

You could say that -- if it produces a -- an image you could call it a video output or 11

you could call it -- you could apply a more strict definition that says it has to abide by 12

all the standard television standards to be called a true video output. So it's -- it's 13

open to question. 14

Q Now the ODD was in fact a television camera; correct? 15

A The ODD was an imaging device, a special-purpose imaging device, and it 16

could be programmed to produce a signal -- to produce an image in the same 17

fashion that a standard television camera could do it. That was one of its -- it could 18

be programmed to do that. 19

Q Was it improper to describe it as a television camera? 20

A I would say it's improper to describe it as a television camera. It's a special-21

purpose imaging sensor. 22

Q You know for a fact that EMR did in fact describe the ODD as a television 23

camera; correct? 24

A Oh, they may have. I don't -- I don't know what they called it, but this is my 25

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opinion. 1

Q Well, let's take a look at PTX 165, please. 2

A I don't have it. Yeah. Okay. Thank you. 3

Q What is this document? 4

A I think it's a -- let me leaf through it. Well, the copy is unreadable in -- on the 5

first page, but apparently it's a high-level description of the -- of the ODD. 6

Q Do you recognize it as an EMR document? 7

A Yes. 8

Q I believe the front cover -- I'd just like to read it into the record and the people 9

who have better copies, i.e., our opponents, could perhaps verify the text. I believe 10

it says, "EMR Photoelectric announces a new development in optical data 11

handling." And then in the big letters, "Optical Data Digitizer." 12

A Excuse me, is this the page that I -- it's unreadable here in my copy? 13

Q This is just the front -- I'm talking about the front page. 14

A Oh. 15

Q I was just reading the front cover. Does that sound right to you? 16

A Mine is also unreadable, but I'll take your -- you know, I'll take your word for 17

it. 18

Q Okay. I assume the other side can object. 19

MR. HANISH: Well, the copy that we have here is also unreadable. I 20

don't know if we can dig one out if we needed to or not, but -- 21

MR. HOFFMAN: Yeah, I think that's something we'll probably take 22

care of later. 23

THE COURT: All right. We'll -- all right. Go ahead, we'll address that 24

later when we have a clean copy. 25

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BY MR. HOFFMAN: 1

Q What I -- the page I'd like you to turn to -- what page were you referring to 2

that was unreadable? 3

A It's unreadable. It's page 41293. 4

Q Okay. Why did you turn to that particular page? 5

A Well, that's the first page of text. 6

Q Okay. And that's the page that says, "Technical Description" on the top? 7

A That's correct. 8

Q Are you able to read the second header down on that page? 9

A No, I'm not. 10

Q Let me take a look at your copy. 11

MR. HOFFMAN: If I may approach the witness, Your Honor. 12

THE COURT: Sure. Well, you can just read -- do you have any 13

objection, Mr. Hanish, to receipt of Exhibit 165? That apparently is Plaintiff's Trial 14

Exhibit. I trust you do not. 15

MR. HANISH: I guess just with the caveat that when we -- 16

THE COURT: A readable copy be substituted. 17

MR. HANISH: Yeah. Which we have. The one we're looking at at 18

counsel table is one that the defendant's provided us, but -- 19

THE COURT: All right. 20

MR. HANISH: -- with that caveat. 21

THE COURT: Okay. 22

BY MR. HOFFMAN: 23

Q Okay. 24

A Well, he just handed me his copy, which is a little -- 25

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THE COURT: A little more readable? 1

MR. HOFFMAN: You know we were given, obviously, a copy of 2

plaintiff's and we had to make another generation. 3

THE COURT: Okay. 4

MR. HOFFMAN: I've handed the witness a -- our -- 5

THE COURT: You're directing his attention to the television 6

camera/computer system? 7

MR. HOFFMAN: Correct. 8

THE COURT: All right. 9

BY MR. HOFFMAN: 10

Q Is it a little bit easier for you to read, Dr. Wilder? 11

A Yeah, this is easier for me to read. 12

Q Okay. And in fact EMR called the ODD a television camera; correct? 13

A I see next to "television," if I can read it, it looks like an asterisk there. Is that 14

-- is that the case? 15

Q No, it appears to be just "television camera/computer system," as best we 16

can tell. 17

A No. I mean in the first sentence there it says, "The EMR division of Western 18

Instruments has developed a television camera system" and next to, at the end of 19

"television" it looks like there's a kind of asterisk immediately above the end and to 20

the right. 21

Q I haven't seen that, but if -- in any event, you agree that the camera portion 22

was based on conventional television techniques using conventional components? 23

A Could you repeat that? 24

Q You agree that the camera portion was based on conventional television 25

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techniques utilizing conventional components? 1

A Is that what it says here? 2

Q Well, first of all, is it true? 3

A Well, I would -- first of all, this is a marketing document and I don't, you know, 4

it's not -- I can't verify why somebody used a particular -- 5

Q I didn't ask you to. I asked you to -- whether it was true. 6

A I don't consider it to be a conventional television camera. It's a special-7

purpose imaging device and the -- and whether you use the word television to give 8

people the idea of what it does, I think that's fine. 9

Q How many frames per second was the ODD camera? 10

A Well, again, that depended on the sensor. With the image dissector the 11

frames per second really didn't mean anything, because you were doing random 12

access scanning, using it to pull out particular picture elements, and you could 13

control the rate at which the picture elements would come out. There were -- 14

through the computer you could have it collect more photons or less photons, 15

depending on the amount of signal you needed in order to accurately identify a -- 16

the brightness without -- with the minimum amount of noise required. 17

Q Could you turn to the last page, please, of the document. This is Plaintiff's 18

Exhibit 147. You see in the middle of that a reference to fast scan mode of five 19

frames per second? Can you confirm that that was the scan rate of this -- 20

A Where in -- where in this -- 21

Q Around the middle. 22

A Let's see. "Sensor modulation transfer function." Is it under that? Oh. "Fast 23

scan mode." Okay. 24

Q Can you confirm that it was a five frames per second television camera? 25

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A What they're saying is that the -- when you put the SEC vidicon in the 1

camera you could acquire data at five frames per second. And I can't verify 2

whether that's true or not. I never used -- really worked with the vidicon. But I can 3

image it would be true. 4

Q When it was set up -- when you use the word "fast scan mode" was there 5

also a slow scan mode? 6

A I'm not aware of this. Again, I didn't work with the vidicon. We weren't 7

concerned with the fast scan and slow scan in our applications. 8

Q The previous, just-above paragraph, the maximum time to read out all data 9

points says sixteen seconds to do one scan in sequential scan mode; correct? 10

A Where is this? 11

Q Just above, about two lines above. 12

A "Sixteen seconds in sequential scan mode, hundred and thirty seconds in 13

random access," so -- 14

Q Okay. That's all I needed on that subject. Thank you, Dr. Wilder. 15

A You're welcome. 16

Q Could you turn back to the patent which was PTX 2884, please. 17

A Okay. That's -- oh, wait a minute. Which -- 18

Q The patent. 19

THE COURT: It's setting, it's a loose exhibit, your patent '060. 20

THE WITNESS: Oh, I have it now. Okay. 21

THE COURT: Okay. 22

// 23

BY MR. HOFFMAN: 24

Q Do you have that? 25

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A Yes. 1

Q Would you look at Figure 1 of that patent, please. 2

A Is that the figure on the first page here? 3

Q No, it's on the second page. 4

A Okay. 5

Q I see that a number of elements of that drawing are represented in block 6

diagrammatic form; right? 7

A That's correct. 8

Q The actual electronics including the electrical circuits are not illustrated in 9

detail in that patent; is that right? 10

A That's correct. 11

Q The same is true for the Figure 2 on the next page; true? Again in 12

diagrammatic representation. 13

A I have -- and that's correct. 14

Q Okay. Some of the elements represented as block diagrams are -- on Figure 15

1 are test signal circuits, reference signal circuits, combining circuits, and 16

measurement signal circuits; correct? 17

A Uh-huh. Yes. 18

Q Based on your skill and experience did you consider block diagrams to be 19

adequate to teach one of ordinary skill in the art what each of those blocks 20

represented? 21

A Absolutely. These are all very conventional circuits. Any good electric 22

engineer who knows how to design these circuits could -- would know immediately 23

what to do after reading the patents. I consider the block diagram to be perfectly 24

adequate. 25

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Q They were well known? 1

A Yes. 2

Q It's really not important to give circuit diagrams in this instance, you're 3

saying? 4

A That's my opinion. 5

Q In your experience was it common in patents to illustrate such electronic 6

circuits and devices in block schematic form because people of ordinary skill in the 7

art would understand what they are? 8

A That is my experience. And they might be in a unique combination which 9

would be patentable, but the individual blocks were all well known in the art. 10

Q And that's also true, by the way, for professional literature that you write in 11

your fields? 12

A For the most part that's correct. 13

Q And you followed that -- 14

A Not in every case, but for the most part. 15

Q You followed that practice in your patent, Plaintiff's Exhibit 2884; correct? 16

A Yes. 17

Q And you felt that that was certainly sufficient for anyone who wanted to 18

reproduce this system based on the patent; correct? 19

A That was my opinion. 20

Q In your background, turning to a different topic, you described working as a 21

consultant before going to Rutgers; correct? 22

A Uh-huh. 23

Q Could you please list the companies you worked for during that period of 24

time. 25

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A Actually, immediately before I went to Rutgers I worked on a project for 1

Johnson & Johnson and developed -- designed, developed, and helped to construct 2

a system for inspecting contact lenses for the Vistacon Division of J & J. 3

Q Was that a big project in fact? 4

A I beg your pardon? 5

Q Was that a large project? 6

A Well, it -- I don't know what you mean by large. 7

Q Did you get a lot of money to work on it? Let's put it that way. 8

A No, I -- but it continued for some time, and I also worked on it, as I was 9

entitled to do, as part time while -- during the first year I was at Rutgers to finish it 10

up. 11

Q Do you recall securing certain patents for Johnson & Johnson on that 12

invention? 13

A Yes, I do. 14

Q Do you remember working with a patent attorney named Mark Warfield 15

[phonetic]? 16

A That's possibly his name. What happened is after the project was over J & J 17

requested that we write a patent application because there are a lot of interesting 18

and patentable features in the project, and they assigned an outside patent firm to 19

do -- write the patents. And we wrote the patent application, and they took it from 20

there. 21

Q Do you remember Mr. Warfield as being an in house-patent guy at Johnson 22

& Johnson? 23

A I don't remember. 24

Q Not very good memory for patent attorney names, I'm afraid. 25

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A I mean when it comes to names, my memory's even shorter. 1

Q When did you cease consulting for J & J? 2

A When did I do the consulting? 3

Q When did you cease consulting? When did you fi nish? 4

A I don't remember the exact date. I know that the project was going on -- it 5

started during the summer of 1987 and continued probably for a year or more. I 6

really can't recall when we finished up. 7

Q Did you continue to work with J & J or some lawyer that was designated for -- 8

to work for J & J on the -- on the patents? 9

A Well, I -- at some point we started to have communication with somebody 10

from the outside patent firm, and I think probably that's who we worked with. And it 11

was they who decided how many patents to make out of it and all that sort of stuff. 12

Q What I'm saying is did you continue to work -- to help out and -- or provide 13

input on the patents as it was prosecuted over the years? 14

A Yeah. Basically we had to read what they -- what they wrote and certify that 15

this was true. 16

Q Okay. I'd like to show you the three exhibits, DTX 2146, '7, and '8. To -- 17

THE COURT: Now, are these being provided by your associate? 18

MR. HOFFMAN: Yes, I'm handing them up. 19

THE COURT: Let's get those in front of the witness, then. 20

MR. HOFFMAN: DTX 2146, 2147, and 2148. 21

Your Honor, for -- to avoid the bulk in -- any more bulk than 22

necessary, 2148 I believe is the thickest one, and that's the full copy of the patent. 23

The other two are -- 24

THE COURT: All right. 25

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MR. HOFFMAN: The other two are -- have been pared down because 1

the spec is the same, and so I've left in the several pages including the claims and 2

the front pages. 3

THE COURT: All right. And these all appear to be patents at least in 4

which Dr. Wilder was a co-inventor, so -- 5

BY MR. HOFFMAN: 6

Q Is that correct, Mr. -- Dr. Wilder? 7

A Yes, it is. 8

Q And are these the three patents secured by Johnson & Johnson on your 9

invention? 10

A These are three. There may be a fourth, but I don't recall for sure. I think I 11

have -- there was one that issued more recently, I'm not a hundred -- 12

Q You think there's one that issued after the 2000 one? 13

A I think it's on my -- it's on my resume. You can check that. 14

Q Well, we can check on the resume. I don't recall numbers being listed. Is 15

there a pending application from -- 16

A No pending applications. There was -- there was a patent issued not too 17

long ago, a final one, and I have to -- maybe if we go to my resume. Do you know 18

what number that is? 19

Q Excuse me? 20

THE COURT: Is it something that you need to go into, if there's a 21

fourth one? I mean you -- 22

MR. HOFFMAN: No, I'm -- 23

THE WITNESS: -- make a difference -- 24

MR. HOFFMAN: I'm going to go very quickly through this. 25

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// 1

BY MR. HOFFMAN: 2

Q I wanted to -- if you would look just briefly at the cover page of 2148, you 3

think there's a more -- that that has a number of continuations and divisions and so 4

forth. This is -- you're saying that you believe that there is a more recent one after 5

this? 6

A Well, if you want to take the time to look at my resume, the patents are listed 7

in chronological order. What number is my resume? 8

THE COURT: Exhibit 2876 is the CV and -- 9

THE WITNESS: Okay. And it should be towards the back. Lens 10

inspection system -- 11

THE COURT: '274. 12

THE WITNESS: Yeah, '274. 13

THE COURT: That's this one. 14

THE WITNESS: That's this one? Okay. So then I -- 15

THE COURT: Yeah, 6,154,274. 16

THE WITNESS: Right. And then there were -- there are three others, 17

lens inspection system, lens inspection, and method and system for automatically 18

inspecting ophthalmic lenses. So those three are down a couple items on my list of 19

patents. 20

BY MR. HOFFMAN: 21

Q So you think the fourth one may not have issued yet? 22

A No. The fourth -- that is four, there's four listed here. 23

Q Okay. And this dates back to work that you performed in the early '90s 24

leading to a patent application in 1992; correct? 25

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A Well, again, I don't remember when the project ended but it -- I -- the project 1

began in summer of '87. 2

Q You worked for Rutgers at the Center for Advanced Information Processing; 3

right? 4

A That's correct. 5

Q And the major funding for CAIP, aside from the university, at least from 6

outside the university, is provided by industry memberships with some grants 7

sprinkled in; correct? 8

A Grants from industry membership, grants from industry, and grants from the 9

U.S. Government and the State of New Jersey. 10

Q The -- specifically the New Jersey Commission on Science Technology, 11

which is set up to fund research that might help bring and maintain industry in New 12

Jersey; correct? 13

A That is correct. 14

Q The mission of CAIP is to provide a focus for industry, university interaction 15

in the information technology research; correct? 16

A That is correct. 17

Q And companies become members of CAIP and provide consequential 18

funding; correct? 19

A Yes, that's correct. In fact this led to J & J -- they were sufficiently impressed 20

with me and what -- that to join the CAIP Center after this -- subsequent to this 21

project, and they had me go around the world to talk to various meetings of their 22

management people. There was seminars on new technology that I talked on about 23

machine vision to collections of their -- of plant management in Geneva, Porta Rico, 24

and Hawaii. And I'd say that this contributed to their interest in CAIP as doing this 25

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project. 1

Q And you have close relationships with various companies in industry; 2

correct? 3

A That's correct. 4

Q CAIP has an industry advisory board; right? 5

A Yes. 6

Q And those are -- that is -- has representatives on it from companies who pay 7

to become members; right? 8

A Yes. 9

Q Are you aware that several of -- did you ever learn from any of the members 10

that several of the industry people or the industry companies on your industry 11

advisory board were especially adversarial to Lemelson, including companies like 12

Intel, Texas Instruments or Lucent? 13

A As I said earlier, I had never heard of Lemelson until just recently. 14

Q Yes. I'm talking about just recently. 15

A What? 16

Q I'm talking about just recently. Did you learn that when you were asked to 17

participate in Lemelson? 18

A No. I didn't know anything -- I don't know anything about any relationships 19

between any CAIP member companies and Lemelson. 20

Q All right. You mentioned that you worked with ten or -- ten to a dozen 21

Masters candidates. One of those Master candidates you sent up after graduation 22

to join Cognex; correct? 23

A Right. I gave him a recommendation, they -- and they offered him a job. 24

Q You've never consulted for any individual inventors at any time in your life; 25

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correct? 1

A Individual what? 2

Q Inventors. 3

A I never consulted, but I was an expert witness a couple years ago on -- for an 4

independent inventor who was having his patent, he felt, infringed by a company, 5

that they had taken his ideas. It was a machine vision company. And as an expert 6

witness, I wrote a report, I evaluated the -- this fellow's patent and I evaluated the 7

technology of the company and wrote a report and gave an opinion on that. So that 8

was -- 9

Q Okay. You never met or spoke with Jerry Lemelson, did you? 10

A No. 11

Q And Mr. Lemelson's representatives sent you several Lemelson's patents, at 12

least one when you -- as part of the request? 13

A He sent me a stack of literature, mostly nontechnical, describing him and his 14

life and so forth. And if there was a patent in the pile of stuff I don't know, because I 15

heaved it without -- I didn't go through everything. 16

Q You didn't read the patents? 17

A No. 18

Q In fact, you never read any patent of Mr. Lemelson's? 19

A That's correct. 20

Q You keep up with the field, I believe you mentioned, by going to conferences 21

and monitoring academic papers and so forth? 22

A And industrial -- some of the conferences, especially the SPIE ones, are very 23

practical and they're usually representatives from industry, people who make the 24

hardware, who give papers, and as well as people from academia and the 25

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government. So it's a broad spectrum of activities that go on at these conferences. 1

Q You don't monitor patent literature; correct? 2

A Not as a rule, no. 3

Q You haven't done that at any time in your life? 4

A No. The only -- the only time that I ever have to -- that I ever read patents is 5

when I've put in a patent application and the patent examiner, using key words, 6

pulls out a stack of patents and says, we reject your patent because of this. And 7

then I have to go through, read every one of those and decide, you know, point out 8

to the examiner why this is not appropriate and that's not appropriate. That's much 9

-- as much as I generally have to do with reading patents. 10

Q Yeah. I'm talking about monitoring patents. 11

A No. It's not for me a very efficient way -- 12

Q Let me -- let me -- 13

A -- of keeping up with the -- with what's going on in the field. 14

Q Let me ask you this. Did -- are you familiar with the Official Gazette of the 15

Patent Office? 16

A No, I'm not. 17

Q Okay. 18

A I know -- I've heard of it, but I've never looked at it. 19

Q Okay. Did EMR -- when you were there, do you know whether they did any 20

patent searching? 21

A I don't know whether they did or not. 22

Q Now, you were represented by Fish & Neave in your deposition; correct? 23

A Correct. 24

Q Did you ask for a lawyer, or did someone from Fish & Neave suggest it? 25

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00128 WILDER - CROSS

A Someone in Fish & Neave suggested it. 1

Q And do I understand correctly that you had a document or a letter that was a 2

retention agreement? 3

A I believe it's a verbal agreement. I don't recall a written document. 4

MR. HOFFMAN: Your Honor, we had asked for a retention 5

agreement, understanding it was a document, and had not gotten a response to 6

that. Is, in fact, there a 7

written -- 8

THE COURT: All right. As I understand it, there's no written 9

document articulating any payment for testimony in terms of hours or consulting or -10

- 11

THE WITNESS: Well, there was verbal agreement that I would -- of a 12

-- for a -- to pay me for my time. 13

THE COURT: All right. 14

THE WITNESS: Which I consider to be valuable. 15

THE COURT: Certainly. 16

BY MR. HOFFMAN: 17

Q Was there -- 18

THE COURT: And what's that agreement as you understand it, then? 19

THE WITNESS: Well, it's -- I add up my hours, I send them a invoice, 20

and they pay me. 21

THE COURT: All right. And at what rate per hour? 22

THE WITNESS: $200 an hour. 23

THE COURT: Okay. All right. 24

BY MR. HOFFMAN: 25

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00129 WILDER - CROSS

Q Did -- when you entered into this relationship with Fish & Neave, did Fish & 1

Neave lawyers ask for attorneys' fees? 2

A No. 3

Q Did you -- did Fish & Neave lawyers tell you not to talk to Lemelson attorneys 4

if you received a call? 5

A No, they didn't. 6

Q Did you show your documents relating to EMR to someone at Fish & Neave? 7

A Oh, yes. 8

Q Did Fish & Neave help you look through those documents, or did you look 9

yourself? 10

A Well, I dug them out and I knew roughly what was in them and I gave them to 11

them and we discussed them a couple of times. 12

Q Did you allow them to decide which documents they're interested in? 13

A No, this is the complete set for -- as far as I can tell. 14

Q Did you do a lot of work to look for all the documents for Fish & Neave? 15

A I don't know what you mean by a lot of work. I certainly looked through all 16

the documents that -- and refreshed -- tried to refresh my memory about these 17

things that happened 30 years ago. 18

Q Well, was it a big burden to look through the documents for Fish & Neave? 19

A No, it wasn't a big burden. I didn't spend that much time at it. 20

THE COURT: I don't know, you know, talking about a large amount, a 21

little amount. How many hours have you billed Fish & Neave thus far? 22

THE WITNESS: I don't recall exactly, but it's probably in the order of 23

15 or 16 hours. 24

BY MR. HOFFMAN: 25

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00130 WILDER - CROSS

Q Before your deposition in total you spent less than eight hours? 1

A That's correct. 2

Q And some of that was spending -- speaking with Mr. Fey or other lawyers 3

from Fish & Neave, correct? 4

A No. I think it was probably about seven hours or so. I don't -- I can't recall 5

when I came to the deposition, and that probably put me over eight hours with the 6

deposition. 7

Q So at some point in the middle of the deposition you had spent about eight 8

hours, I believe you testified? 9

A Approximately eight hours. 10

Q Are you -- after you talked to Fish & Neave and looked for documents for 11

them, do you recall receiving a subpoena from Mr. Lemelson or from Lemelson 12

Foundation Partnership? 13

A There was a subpoena that appeared very early in the process, and I don't 14

know who it was from but it -- a subpoena to appear. And I really didn't read it very 15

carefully. I knew that sooner or later I would be appearing -- giving a deposition 16

anyway. 17

Q You -- I'd like to show you two objection letters that were received in 18

response those subpoenas. I'm not sure why, frankly, there were two. It may have 19

been something to do with timing, that's DTX 2144 and '45. I want to ask if you'd 20

ever seen those. 21

THE COURT: You've got about five minutes left on the examination, 22

so I wanted you to be aware of the time on this. 23

MR. HOFFMAN: Yes, I'm on my last topic, Your Honor, and I expect 24

to finish. 25

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00131 WILDER - CROSS

THE COURT: All right. You've got 2144 and 2145 in front of the 1

witness. Thanks. 2

BY MR. HOFFMAN: 3

Q Have you see those documents? 4

A No, I haven't seen the documents. 5

Q Did you ask Fish & Neave to object to the subpoena, or did they raise the 6

subject with you, or did you not talk about it? 7

A Well, I know I had a conversation with them saying, look, I'm not sure I can 8

dig out all the documents in files, I'll have to go up in my attic and through my 9

papers and I'm not sure that I'll find everything. But subsequently I looked through 10

my documents, and I found pretty much everything. And I don't recall if they had 11

found some other documents that I didn't have -- 12

Q Okay. 13

A -- like some of these pictures. 14

Q Sir, I have -- I have limited time. I want to ask you to focus on my question. 15

Did you ask Fish & Neave to object, did they raise the subject, or did you not have a 16

discussion about it? 17

MR. HANISH: I'll just object on the grounds of attorney-client 18

privilege, Your Honor, to the extension -- to the extent Mr. Hoffman's question is 19

getting into discussions, communications between Dr. Wilder and counsel, Fish & 20

Neave. 21

THE COURT: Well, let's do it this way. He could certainly ask 22

whether the witness objected. That's not protected by any privilege. 23

Did you object to producing any documents or to appearing for 24

deposition? 25

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00132 WILDER - CROSS

THE WITNESS: No, I didn't object to appearing at a deposition, and I 1

didn't object in general principle to digging up documents. I wasn't sure how much 2

work it would be to find all my -- the documents in my attic, so I probably 3

complained and grumbled a little bit about that. 4

THE COURT: About having to go dig them up -- 5

THE WITNESS: Yeah. 6

THE COURT: -- or dig them out. All right. 7

BY MR. HOFFMAN: 8

Q Did you object to producing -- to providing documents to Lemelson? 9

A No, I didn't object to providing any documents that I could find. 10

Q Did you believe that it was burdensome to -- that there was excessive burden 11

to produce documents to Lemelson that you had located? 12

A I didn't know, because I hadn't looked yet, how burdensome it would be. 13

Q The -- at least one of those letters is dated after you looked; correct? 14

A The second one. 15

Q The second one is; right? I'm just asking about the date. That is after you 16

had looked; right? 17

A I guess so. I don't remember the date of my deposition, but it might be. 18

Q Date of your deposition was August 29th. 19

A Okay. So -- 20

Q Okay. I think I have my answer. Let me ask the next question. Did you ask 21

Fish & Neave to represent you in the deposition, or did they suggest it? 22

A Well, we discussed it and we agreed that -- they asked if I wanted them to 23

represent me, and I said, sure. 24

Q And you met before the deposition with a Fish & Neave lawyer and talked 25

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00133 WILDER - CROSS

about the subject of your testimony; correct? 1

A Yeah. Very briefly, but we did. 2

Q Excuse me? I didn't hear you. 3

A I said we met briefly. We didn't spend a lot of time preparing, but we did 4

discuss the general outline of what we were going to be talking -- what was at issue. 5

Q And at one point they made an objection and instructed you not to answer, 6

do you recall that, in the deposition? 7

MR. HANISH: We'll object to the extent that if he's going to ask him to 8

recollect things from his deposition that happened, he may as well put the transcript 9

in front of him so he can see it. 10

THE COURT: Well, if he -- if he remembers that. If it only happened 11

once -- 12

Do you remember an occasion in which -- 13

THE WITNESS: Sometime in the deposition there was an objection 14

raised. I don't remember the -- what we were talking about at the time. 15

THE COURT: All right. All right. 16

BY MR. HOFFMAN: 17

Q It's not important what you were talking about. Did you -- did you follow Mr. 18

Fey's instruction not to answer? 19

A I think so. Again, I don't remember what was, you know, what we were 20

talking about then. 21

Q All right. How much time have you spent preparing with Fish & Neave since 22

your deposition? 23

A Not a lot. We had one meeting about a week or so ago for a couple of hours, 24

and then yesterday we went over some things. 25

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00134 WILDER - CROSS

Q What did you talk about? 1

MR. HANISH: I'll just object to this. Attorney- client privilege, getting 2

into the communications between Dr. Wilder and his attorneys at Fish & Neave, and 3

also work product. 4

THE COURT: Yeah. Any response? 5

MR. HOFFMAN: That's fine, Your Honor. I don't want to keep this 6

witness longer than -- 7

THE COURT: Yeah. I'll sustain the objection. Go ahead. 8

BY MR. HOFFMAN: 9

Q You mentioned that you were paid $200 an hour for your time on this case? 10

A That's right. 11

Q How much did you first ask for as your fee? 12

A I think I gave a daily rate. I don't remember what it was. But they said they'd 13

prefer to pay hourly, and I said fine. 14

Q And so you suggested the $200 an hour? 15

A No, they suggested that, and I -- that was fine with me. 16

Q You were paid $200 an hour for -- in connection with collecting the 17

documents; correct? 18

A Yes, everything I did. And I haven't added it all up, but I -- 19

Q The deposition? 20

A Collecting the documents, reviewing the documents, a meeting with them 21

preliminarily, and going to the deposition, so forth. 22

Q Traveling out here today to testify today? 23

A Yeah. 24

Q And testifying today? 25

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00135 WILDER - CROSS

A Well, yeah. I don't know -- haven't -- we haven't -- I haven't decided how 1

much of this travel should be charged. That's really up to them to decide. I 2

reviewed the deposition on the plane, and so I don't know when you start charging 3

in these cases. It's really something that we have to discuss. I don't -- 4

Q You're going to be paid $200 an hour by Cognex and Symbol for your 5

testimony today; correct? 6

MR. HANISH: Objection, Your Honor, I mean we've established that, I 7

think. You know it's -- 8

THE COURT: Well, no. The witness has already answered, yes, he's 9

being $200 an hour and he hasn't totaled the -- 10

MR. HOFFMAN: I just want to make -- clarify that it includes his 11

testimony today here, that's all. 12

THE COURT: I understood him to say it did. 13

You expect to be paid for the time you've spent here on the witness 14

stand? 15

THE WITNESS: Yes. 16

THE COURT: All right. 17

MR. HOFFMAN: That's all I have, Your Honor. 18

THE COURT: All right. Thank you. 19

Any redirect, Mr. Hanish? 20

MR. HANISH: Plaintiffs have no redirect for Mr. Wilder. 21

THE COURT: All right. Great. Thank you, Dr. Wilder, you can be 22

excused, then. 23

THE WITNESS: Thank you very much. 24

THE COURT: Have a safe trip home. 25

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00136 WILDER - CROSS

All right. We can have -- well, Mr. Jenner, you had a matter you 1

wanted to raise before we get back to Mr. Silver's continued cross-examination. 2

MR. JENNER: Yes, Your Honor. I don't know if this is going to be a 3

problem, but I figure better to raise it now than wait. Right at the end of the lunch 4

break Mr. Hosier came by and just wanted to discuss what the schedule was, and 5

I went over with him what we think the rest of the witnesses are for today and 6

tomorrow. And he told me that he thinks that their cross of the remaining witnesses 7

is likely to be on the shorter side, rather than the longer side. 8

THE COURT: Of Mr. Silver you mean that? 9

MR. JENNER: Well, I don't know about Mr. Silver. 10

MR. HOSIER: No; after Mr. Silver. The additional witnesses they're 11

going to put on, Mr. Testa, Mr. Steiner, assuming Mr. Steiner keeps it tight -- 12

THE COURT: Testa and Steiner, okay. 13

MR. JENNER: And Reinhold. 14

MR. HOSIER: -- and Mr. Reinhold. 15

THE COURT: And Reinhold, okay. 16

MR. JENNER: And Laurer. So we have -- we have I'm guessing four 17

witnesses tomorrow which we thought was going to be enough. It may turn out that 18

it is a little bit short. The only thing we can do, given commitments we'd made to 19

people in trying to plan for this about the holiday weekend and all that, there is one 20

witness that we could try to fly down here from Seattle. We will do it as a 21

contingency if the Court wants us to do it. Otherwise, we'd just a soon leave him 22

alone for the weekend and bring him a fter Thanksgiving. So we'll do what the Court 23

would like. 24

THE COURT: Well, I don't have a lot of confidence that we'll get 25

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00137 WILDER - CROSS

through four witnesses at the rate we've been going no matter what. 1

MR. JENNER: I'd just as soon not drag the man down here. 2

THE COURT: Yeah, I'd rather not, too. 3

MR. HOSIER: Well, I think we had agreed that -- I had forgotten 4

about one of the witnesses tomorrow, so when it was three, it didn't seem like we 5

were going to use it. I think with -- 6

THE COURT: Well, let's leave the man in Seattle, and when we finish 7

the four, if we finish the four, we'll stop at that point. 8

MR. HOSIER: I think the only thing that I would just like to alert the 9

Court to, and counsel, is that by tomorrow, again, if -- for this holiday if we can have 10

an idea -- I know who they're going to have as to several witnesses. The real 11

question is -- 12

THE COURT: In what order, yeah. 13

MR. HOSIER: Well, I don't even care about the order, we can -- it 14

would help if we knew the order, but the most important thing now is there's still 15

some twenty-some witnesses on the list. We almost need to know when the end's 16

going to start to appear and how many more percipient witnesses. We know the 17

experts they're going to call and the Seattle witness we know they're going to call, 18

so we've got four of the witnesses in mind. We don't know the order, but 19

the real key is are there any other percipient witnesses, or are they going right to it. 20

That'll give us an estimate of when we're going to get done, and then we've got to 21

get our own schedule moving. 22

THE COURT: All right. Well, why don't you all talk about that tonight, 23

and tomorrow, to the extent you haven't resolved it, we can talk about it on the 24

record. 25

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00138 SILVER - CROSS

MR. HOSIER: Right. 1

THE COURT: All right. Let -- Mr. Silver, come on back up, and we'll 2

proceed with Mr. Lisa's cross-examination of you and then hopefully get you 3

finished, as well, here. 4

MR. LISA: I'm going to try my best, Your Honor. 5

THE COURT: Go ahead. 6

MR. LISA: Thank you. 7

WILLIAM MICHAEL SILVER, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN 8

CROSS-EXAMINATION 9

BY MR. LISA: 10

Q Good afternoon, Mr. Silver. 11

A Good afternoon, Mr. Lisa. 12

Q Let's see if we can remember where we were a little bit ago. 13

THE COURT: Well, actually you hadn't started on -- 14

MR. LISA: Right. That's why I'm trying to remember where we were. 15

// 16

BY MR. LISA: 17

Q During your direct examination you mentioned several times that the Cognex 18

machine vision systems don't require that the camera be at a fixed distance away 19

from the object being inspected. Do you recall that? 20

A I don't recall making that characterization of every system. 21

Q Okay. And in fact you know that for many, many, many applications where 22

the end user needs to have the information in real-world measurements that in fact 23

the Cognex system must have the camera fixed very precisely at a set distance 24

away from the inspected object; right? 25

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00139 SILVER - CROSS

A Let me say it this way. As long as it's clearly understood that we are not 1

talking about a fixed position of the object relative to the camera or in the field of 2

view of the camera or relative to anything else, then it is fair to say that the object 3

has to be at a -- or that we tell our customers that the object is expected to be at a 4

fixed distance from the camera in those applications. 5

Q So let's be clear. Every single Cognex system made, absolutely without 6

doubt, every single one, if it's going to generate real-world measurements to the 7

end user, the camera must be calibrated at a fixed distance from the inspected 8

object; right? 9

A Again, as long as we understand that we're not talking about -- 10

Q Sir, the question was very simple, it said fixed distance. Yes or no? 11

A I think -- I think my previous answer is precise, complete, and unambiguous. 12

Q I think the Court's entitled to an answer. 13

THE COURT: Well, I understand what he said, and I don't -- I don't 14

really think it's confusing. He's -- the witness doesn't want to be drawn into 15

discussions about other kinds of prepositioning, obviously. He's talking about -- 16

you're asking him about the distance of the camera from whatever is being 17

scanned, the object being scanned; and I understood the witness to say, yes, they 18

instruct the customers that the camera must be a fixed distance from the object 19

being scanned. 20

THE WITNESS: In applications where a calibration to the world -- real 21

world is being done and as long as there's no misunderstanding about a position of 22

the object relative to the camera and that it is just distance we're talking about in 23

space, then it is fair to say that we tell our customers that the objects need to be at 24

a fixed distance from the camera. 25

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00140 SILVER - CROSS

BY MR. LISA: 1

Q All right. So when you did your PatMax demonstration and picked up the 2

angle iron and held it closer to the camera and said, see how it doesn't have a fixed 3

distance, that was because you weren't generating real-world numbers; right? 4

A Well, the PatMax system is actually capable of measuring object size and 5

could in fact be used to get real-world information even though the distance has 6

changed. That's a very advanced system, and is quite capable of doing that if the 7

customer chooses to do it that way. 8

Q Sir, in the -- in the example you had for the Court you weren't doing that 9

though; correct? 10

A In the example we saw I was generating pixel coordinates, that's correct. 11

Q Thank you. All right. Now, the reason -- I'm sorry, strike that. 12

And the way in which Cognex instructs its customers to fix the distance 13

between the camera and the object is to do a calibration operation; correct? 14

A Yes, we instruct customers to do a calibration operation. 15

Q Did you explain the calibration operation in your direct examination? 16

A I did not. 17

Q And the reason this calibration is needed is because customers are generally 18

interested in the position of an object in real-world units, like centimeters, and not in 19

camera units, like pixels; right? 20

A Customers -- many customers are, some aren't; but, yes, that's a fair 21

statement. 22

Q Well, in fact they are generally interested in that; right? 23

A Again, depending on what you mean by generally. We could go down 24

specific applications and I can tell you which ones are and which ones aren't, but it's 25

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00141 SILVER - CROSS

certainly fair to say that customers are interested in that. 1

Q All right. And in fact the kind of customer that would require calibration is 2

typically those that involve determining positions or critical dimensions and in fact 3

anything that involves making measurements; right? 4

A It's not true that it involves anything that making measurements. That's not 5

true. 6

Q Certainly you'd agree that anything that involves making measurements is a 7

likely candidate for calibration; correct? 8

A It depends on the measurement. 9

MR. LISA: Could I have the deposition testimony, please. Do you 10

have the exhibit number for that, please? 11

THE CLERK: IT's 1659. 12

BY MR. LISA: 13

Q May I refer you to Exhibit 1659, it'll be volume 1 of your deposition. I think 14

you have an excerpt there, Mr. Silver. 15

A Yes. 16

Q Page 56. 17

MR. LISA: And, Your Honor, there should be an excerpt in your 18

binder. 19

THE COURT: All right. The exhibit number again? 20

MR. LISA: Is 1659. 21

THE COURT: '59, okay. 22

THE CLERK: Is that plaintiff's? 23

THE COURT: I do have it. 24

MR. LISA: No, that's Defendant's Exhibit 1659 25

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00142 SILVER - CROSS

THE COURT: Yeah, Defendant's 1659. I have it. Okay. 1

BY MR. LISA: 2

Q And I refer you to the bottom of page 60, line 25, where you were asked: 3

"What kind o f customer, then, or what type of application would the pixel size 4

calibration be used typically for Cognex customers? 5

"Answer: Typically anything that involves determining positions, critical 6

dimensions, anything that involves making measurements is a likely candid," 7

period. 8

Were you asked those questions? 9

A Excuse me. What line number? Excuse me. What line number? 10

Q Page 60. 11

THE COURT: 60 and 61, starting at the bottom of 60, line 25, 12

question by Mr. Lisa. 13

// 14

BY MR. LISA: 15

Q Were you asked those questions, and did you give those answers -- that 16

answer? 17

A Yes. 18

Q Thank you. So the key is whether you want the measurements in real-world 19

measurements, such as inches or centimeters or feet, as opposed to whether it was 20

pixels, as you showed up on the screen; correct? 21

A Not entirely, no. 22

Q All right. Well, I refer you to the bottom of page 61 and you're asked -- in line 23

14, I asked you: 24

"All of Cognex's systems? 25

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00143 SILVER - CROSS

"Answer: All the systems can operate with or without calibration. 1

"Question: For making real-world dimensions and measurements? 2

"Answer: No. If you want to relate measurements to real-world units, then 3

clearly you must have a calibration. 4

"Question: So that's the key, is whether you want it in real world 5

measurements, inches, centimeters, feet or whatever, as opposed to a 6

relative measurement within the image; is that right? 7

"Answer: Yes." 8

Were you asked those questions and did you give that answer -- those 9

answers? 10

A Yes. 11

Q Now, the fact also is that once a system is calibrated to convert pixels to real-12

world-measurement numbers it can't be moved or it has to be recalibrated; right? 13

A Moved relative to what? 14

Q Moved relative to the distance away from the object being inspected. 15

A And again, as long as we understand that that is distance to the object and 16

not position of the object relative to the camera or in the field of view of the camera, 17

that's a fair statement. 18

Q All right. Well, in fact in many applications, like semiconductor 19

manufacturing, calibration is particularly critical, isn't it? 20

A In many. 21

Q All right. And in fact you showed the Court semiconductor wafers with the 22

tiny minute chips on them; right? 23

A Yes. 24

Q Okay. And particularly in the Silicon Valley area even tremors require the 25

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00144 SILVER - CROSS

semiconductor manufacturers to completely recalibrate their cameras, don't they? 1

A I have no knowledge of what they do -- 2

Q No knowledge of that at all? 3

A If there's a tremor? I have no knowledge of what they would do in that case. 4

Q Certainly if the camera and -- 5

THE COURT: Well, let's just take the device, and I'm sorry, the 6

tailpipe mockup, I forget the number on it, but the camera that is affixed in a certain 7

relationship above or a certain distance above the tailpipes that are going around on 8

the little conveyor, that's a fixed distance between the camera or the sensors and 9

the tailpipes that are going around; correct? 10

THE WITNESS: In the particular setup we have it's approximately 11

fixed given whatever manufacturing tolerances there are in the tailpipes themselves. 12

THE COURT: All right. So that -- it would be calibrated at that -- at 13

that distance; am I correct? 14

THE WITNESS: It would be calibrated if it's an application that 15

requires a robot to pick it up and move it somewhere. As -- if you were just 16

measuring the angle between the screws, for example, that angle doesn't change. 17

That's an example of real world measurement that's not inches, centimeters, feet, 18

the kind of things we've been talking about; but it's an example of a real world 19

measurement that's independent of calibration, because angle is angle. 20

BY MR. LISA: 21

Q All right. But if you wanted to measure the diameter of the hole, you would 22

calibrate it; correct? 23

A With -- it depends. I mean PatMax could do it even without a calibration. 24

But, yes, there are plenty of people who do it with calibration, yes. 25

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00145 SILVER - CROSS

Q Let's back up while we're talking about PatMax. PatMax came out when? 1

A 1997. 2

Q All right. So there's not a single product of Cognex's before 1997 that used 3

PatMax;right? 4

A That's correct. 5

Q All right. So that we're clear, then, what you just stated about what PatMax 6

can do doesn't apply to all the systems sold earlier by Cognex; right? 7

A Doesn't apply to all of them, that's correct. 8

Q Okay. Now, I take it, then -- would you be willing to accept as representative 9

for all of Cognex's systems the Cognex 5000 system which didn't sell PatMax? Do 10

you agree that that's a representative product? 11

A I agree that it was representative for certain things and you'd have to get less 12

hypothetical for me to -- 13

Q Well, I -- let's be direct. I thought you said in your direct that all of the 14

systems had the same fundamental principles; right? 15

A I listed those fundamental principles. 16

Q All right. 17

A Yes. 18

Q Okay. Well, we -- I think what you said, though, is that they all operate the 19

same; right? 20

A I did not say that. 21

Q Well, what differences are there between the 5000 and the 8000? 22

A Well, there are a number of differences in detail. I think the principles of 23

operation I articulated fairly clearly. I could go over that again, but there are 24

detailed differences, and they operate under the same principles, digital images, 25

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statistical signal processing. 1

Q But the fundamental principles are the same; right? 2

A A list of fundamental principles are the same. 3

Q All right. Now, the requirement to calibrate a system to convert pixel data, 4

like 2.3 pixels, to inches, 1.8 inches, is in fact a law of physics, isn't it? 5

A Essentially, I'd more describe it as a law of mathematics, yes. 6

Q Well, all right. Newton -- either way. Is it Newton who developed that 7

relationship, by any chance? 8

A I don't think so. 9

Q Okay. But you do agree it's a law of physics; right? 10

A What I agree is, you know, what I said earlier, that calibration assumes as an 11

ideal a fixed distance. We tell that to our customers. We understand that the real 12

world is never quite like that and we have to deal with that, but that's the ideal. 13

Q All right. By the way, on the 8000 system the PatMax is an option; correct? 14

A That's correct. 15

Q So not even all the 8000 systems that are sold have the PatMax option; 16

correct? 17

A That's correct. 18

Q So the 8000 systems that are sold without the PatMax option use the types 19

of application programs or software that was developed earlier; correct? 20

A That's correct. 21

Q All right. For the record I'd like you to refer to the bottom of your deposition, 22

page 63, line 19, please. 23

A I see that. 24

Q Okay. And actually it began at line 17, it says: 25

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"That's correct. If somebody knocks the stand over, you would do another 1

calibration. 2

"Is that true for each of the Cognex platforms in an application in which the 3

end user is trying to convert to real-world measurements? 4

"Yes. I would describe it more as a law of physics than anything specific to 5

Cognex," period. 6

Do you see that? 7

A Yes. 8

Q And did you -- were you asked those questions and did you give those 9

answers? 10

A Yes. 11

Q Now, just to illustrate what calibration is about, would you agree that this 12

process called pixel size calibration is the simplest form of calibration? 13

A Yes, I would agree. 14

Q All right. And to give the Court just a feeling for what it's like, it would be like 15

taking a ruler and sticking it into the field of view of the camera so that the pixels 16

can be related to some real-world measurement; correct? 17

A Yes. 18

Q All right. Now, you said a few moments ago that it didn't matter -- I'm sorry, 19

strike that -- that although the object and camera are a fixed distance apart where 20

real-world measurements are being made, that the object could move around within 21

the field of view; right? 22

A Well, those weren't my words. You're paraphrasing. 23

Q Well, then I take it you agree that the object has to be fixed at least within a 24

region of interest in the field of view; right? 25

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A I wouldn't use the word "fixed," no. I mean either it's fixed or it isn't. 1

Q Well, it has to appear within a region of interest in the field of view in order to 2

be found; right? 3

A In order to found, yes. But I certainly wouldn't call that fixed. 4

Q All right. Do you know what a region o f interest is? 5

A Yes, I do. 6

Q All right. Is it fair to say that a region of interest is a subset or smaller part of 7

the field of view in which the user expects the object to appear? 8

A Yes, that's fair. 9

Q All right. Did you explain to the Court during your direct examination this 10

concept of a region of interest? 11

A I did not, to my -- I don't recall doing that, no. 12

THE COURT: No, I don't recall it -- 13

MR. LISA: Okay. 14

THE COURT: -- but go ahead if you want to go into that. 15

MR. LISA: Thank you. 16

BY MR. LISA: 17

Q Now, in those situations where the end user is making real-world 18

measurements or wanting real-world measurements and operates with a region of 19

interest, that in fact the object that has to be inspected, in order for the Cognex 20

system to work, must appear within the region of interest; correct? 21

A I wouldn't characterize it as in order for the Cognex system to work. 22

Q In order for the Cognex system to recognize, locate, gauge or identify, it must 23

find what it's looking for inside this subset of a region of interest -- of the field view 24

called a region of interest; right? 25

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A Yes. 1

Q And in fact even within the region of interest Cognex further tells its 2

customers to identify a start pose; right? 3

A I'm not sure what you're referring to. 4

Q Do you know what a start pose is? 5

A I know what it is in, for example, PatMax. I'm not sure what you're referring 6

to. 7

Q Have you heard the term start pose before in Cognex -- 8

A I've written the term in certain context. I'm not sure what you're referring to. 9

Q Well, for example, with the fiducial inspection tool, where you're looking for 10

an alignment mark to say align a wafer, does Cognex instruct its end users to 11

assign parameters, run-time parameters to a start pose function? 12

A I'm not familiar with that. 13

Q I ask you to turn, then, to Defendant's Exhibit 33 which is in -- 14

MR. LISA: Your Honor, should be in the book. I'll hand the witness a 15

copy. Your Honor, I will say one of the problems we're going to have here is a paper 16

-- 17

THE COURT: I think it might be in -- 18

MR. LISA: No. 19

THE COURT: Does he have the same manual? 20

MR. LISA: It's coming right up, Your Honor. 21

BY MR. LISA: 22

Q Do you have Exhibit 33 in front of you, Mr. Silver? 23

A Yes, I do. 24

Q All right. Do you recognize Defendant's Trial 25

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Exhibit 33? 1

A I recognize -- well, I can figure out what it is. I'm not sure that I've ever seen 2

this document before, but -- 3

Q Oh. 4

A -- it's not something I would read. 5

Q Okay. I'll suggest it was marked during your deposition in this case. 6

A I'm sure that -- if you represent that, I'm sure it's true. 7

Q All right. Are you familiar with the SMD application, sir? 8

A At some level, yes. 9

Q Okay. You testified a little bit on direct about the SMD process, right, as one 10

of the stages in electronics assembly? 11

A I don't recall doing so. 12

Q Talked about wafer probing for -- 13

A Yes. 14

Q All right. And is it your understanding that in the SMD operation, which is this 15

surface mount operation where you take electronic pieces and mount them on 16

circuit boards, that in addition to having a region of interest drawn in which the 17

fiducial or object must appear, that in addition there must be a start pose defined? 18

A I'm not familiar with that. 19

Q Explain your understanding of start pose, please. 20

A The way I've used the term in the papers that I've written and particularly on 21

PatMax, and this is also -- well, in those papers the term refers to what you saw 22

during my search demonstration as the starting position for a candidate refinement 23

step. In other words, the -- if you remember the coarse step looked everywhere, 24

and then when we went to the candidate refinement based on hill climbing, there 25

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was a starting pose given to it, you know, as a sort of intermediate step, and that's 1

how I've used the term. 2

Q All right. How about outside of PatMax, sir? What is a start pose? 3

A Individual authors are free to use that term as they see fit. 4

Q All right. So you have no understanding as to what a start pose is outside of 5

the context of PatMax? 6

A I wouldn't say that. What I'm saying is I do not know what they mean in the 7

context of SMD4. 8

Q How about you, sir? Do you have an understanding as to what Cognex 9

indicates or means by the term "start pose" as used in SMD4? 10

A I do not know without reading this manual what they mean by a start pose in 11

this particular product. 12

Q Now, would you agree that the SMD process is one of the more comprehensive 13

processes as far as use of machine vision goes? Are the words used in many 14

different places, even within SMD alone? 15

A I'm not following your question. 16

Q There are several layers of inspections done with the machine vision systems 17

and the SMD operation; right? 18

A Yes, that's true. 19

Q Aligning the wafer board to inspecting fiducials to looking at the individual chips 20

that are -- or circuits that are placed on the board, and even doing a final inspection 21

sometimes; right? 22

A That's fair. 23

Q Okay. And so if the Court were to be walked through the SMD process from 24

start to finish, it would have a very comprehensive view of the manners in -- various 25

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manners in which the Cognex machine vision systems are operated; right? 1

A I don't know that it would be comprehensive. It would be comprehensive for the 2

surface mount application. I don't know that you could characterize it as 3

comprehensive for Cognex. 4

Q So as far as which tools are used, it's not a fair representation of which Cognex 5

tools are used? 6

A Not necessarily, no. 7

Q Why not? 8

A Well, it's one application. There are quite a few tools that have been created 9

just for SMD and for -- and are not used for anything else. 10

Q PatMax is just one application, isn't it? 11

A PatMax is a tool, or at least that's what we call it, an image analysis tool. 12

Q It's just one of many; right? 13

A That's correct. 14

Q All right. Now, Search is something that's been used inside Cognex from 1987 15

to the present; right? 16

A '86. Yes, that's correct. 17

Q And is it your position that you invented normalized correlation, sir? 18

A If by that you mean the mathematical formula, no. 19

Q In fact, correlation was a technique that came out of World War II as far as 20

image analysis goes; right? 21

A I don't know its history in image analysis. 22

Q So you don't know whether it was used in the 1940s and '50s? 23

A I do not know whether it was used in image analysis in the 1940s and '50s. 24

Q Do you know whether normalized correlation came about in the 1950s or not? 25

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A Again, in what context? 1

Q In any context. Normalized correlation in the context of image analysis. 2

A I don't know its history in image analysis. 3

Q And do you know whether or not normalized correlation was a standard process 4

taught in mathematical and science classes at the college levels in the 1960s? 5

A It would have been taught in a course on statistics. 6

Q Or random signal analysis perhaps; right? 7

A I couldn't tell you what that would even -- 8

Q But you would agree it was being taught in the '60s; right? 9

A The mathematical formula was being taught in non-image-analysis context for a 10

long time. 11

Q And in fact this multilevel normalized correlation of doing coarse, medium, and 12

fine resolution, that was being practiced in the 1970s and doing computer image 13

analysis; correct? 14

A I have no idea. 15

Q Okay. So this process of normalized correlation using coarse, intermediate, 16

and fine resolution, you don't know whether that was done before Cognex or not; 17

right? 18

A I know that what we did was a breakthrough by its effect on the industry and by 19

the reaction of people who saw it. 20

Q What I asked, though, is whether it was being done before in computer image 21

analysis. 22

A If by "it" you mean Cognex's Search method, no. 23

Q Okay. Was multilevel normalized correlation being done for computer image 24

analysis before Cognex in the 1970s? 25

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A I wouldn't know. 1

Q All right. Have you heard of the Defense Mapping Agency? 2

A No. 3

Q Now, there was a word you used for the comparison done between the 4

acquired image and the model image that's stored in memory. What was the 5

phrase you used, statistical -- 6

A It's not a comparison, as I've testified. 7

Q It's a statistical -- a measure of statistical similarity, you said; right? 8

A Yes. 9

Q And in your view that's not a comparison? 10

A That's correct. 11

Q Now, do you recognize that the Cognex literature, including its technical 12

descriptions, Web pages and user manuals, refer to that as a comparison? 13

A Wouldn't surprise me. 14

Q Wouldn't surprise you at all; right? 15

A Wouldn't surprise me. 16

Q All right. So do you agree that the Cognex machine vision system descriptions, 17

user guides, and websites in fact refer to normalized correlation as a comparison 18

operation, sir? 19

A Wouldn't surprise me. 20

MR. LISA: All right. Your Honor, we can save a lot of time if I just put 21

a list together -- 22

THE COURT: Sure. 23

MR. LISA: -- of those materials, and instead of dragging it out and 24

showing the witness, he's agreed it's there, I'll provide that to counsel. 25

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THE COURT: All right. Any problem with that, Mr. Quinn? 1

MR. QUINN: No -- excuse me. No problem, Your Honor. 2

MR. LISA: I'll represent that it will be purely the Cognex 3

documentation. 4

THE COURT: Right. Understood. 5

BY MR. LISA: 6

Q Now, going back to the start pose for a moment, are you familiar with how start 7

pose is used in the SMD operation? 8

A As I think I testified earlier, I'm not. 9

Q Do you know whether the start pose is a best guess at the expected position of 10

a device in physical space within the region of interest? 11

A I assume you're reading from the manual, so -- 12

Q I'm just asking you whether you agree with it. 13

A I -- again, I'm not familiar with how this term is used in SMD4. 14

Q If the Cognex machine vision system can't find the expected device body at the 15

expected position, what kind of message is generated? Do you know? 16

MR. QUINN: Objection, Your Honor. 17

THE WITNESS: I don't -- 18

THE COURT: Hold on one second. 19

The objection? 20

MR. QUINN: Hypothetical. I don't know what he's referring to. The 21

witness clearly has no idea what he's referring to. It's calling for gross speculation. 22

THE COURT: Do you -- do you understand what he was requesting 23

with the question? 24

THE WITNESS: Again, Your Honor, I'm not familiar with this 25

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particular -- details of this particular product. I'm not sure what he meant by "a 1

message" or even "not found." I would be surprised if any message was produced if 2

it's not found at the expected position, since the purpose is to find the object over 3

some range. And if it's -- I would assume that it doesn't really care whether it's at 4

the expected position, that it is looking over some, as we have been saying, region 5

of interest. 6

THE COURT: All right. 7

THE WITNESS: So I guess I'm not really familiar with what he's 8

talking about. 9

THE COURT: All right. Restate -- restate your -- 10

MR. LISA: Sure. 11

BY MR. LISA: 12

Q Have you ever heard of a -- the Cognex machine vision systems generating a 13

bad pose error? 14

A No. 15

Q You've never heard that phrase? 16

A No, I have not. 17

Q I'll refer you to Defendant's Trial Exhibit 33. Do you have that one? 18

A Yes, I do. 19

Q Okay. Page 89, please. Actually, you can start at page 61. And I'll just simply 20

ask if you can read there the start pose paragraph and just see if that refreshes your 21

recollection, sir, as to the use of a start pose, for example, in the fiducial inspection 22

tool. 23

A As I've testified, I have no recollection. If you'd like me to read it, that would be 24

different. But I have no recollection. 25

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Q If you don't have a recollection, that's fine. Would you turn the page to what is 1

page 89. 2

MR. LISA: And, Your Honor, I'll represent that these are excerpted, 3

so I will provide a full copy. But this is a very lengthy manual. 4

THE COURT: Yes. All right. 5

BY MR. LISA: 6

Q You see at the bottom, Step 13, "If you get a bad pose error with an error 7

message saying the final pose is not in the range specified by the uncertainty 8

ranges and the initial pose, tool has found a device outside of specified uncertainty 9

ranges." You see that? 10

A Yes, I do. 11

Q Does that refresh your recollection as to what happens when the Cognex 12

machine vision systems can't find the expected body to be inspected within the start 13

pose defined within a region of interest? 14

A Say that again. Within the start pose within the region of interest? 15

Q Correct. 16

A Well, again, I don't have a recollection. But it's apparent from reading this that 17

the vision system has in fact found the object, even though it's outside of that, and 18

knows exactly where it is even though it's outside of the region of interest. It says, 19

"The tool has found a device outside the specified uncertainty ranges," that even 20

though it's outside, it still found it. 21

Q And, of course, the -- at that point would an error message be generated? 22

THE COURT: Well, it says, "If you get a bad pose error with an error 23

message." So that seems pregnant with the idea that you've got an error message. 24

BY MR. LISA: 25

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Q Okay. And there are specified uncertainty ranges; is that right? 1

A That's what it says, yes. 2

Q So the Cognex systems do define uncertainty ranges at which point devices 3

should be found; is that right? 4

A What it sounds like is going on here is that the customer defines uncertainty 5

ranges beyond which the devices won't be placed properly. Cognex finds them 6

even though they're outside that range, but tell the customer, hey, if you try to place 7

this, it's not going to work. That's the way it reads to me. 8

Q Well, I'll refer you up to paragraph 4, then. 9

A Excuse me. What page again? I -- 10

Q Same page. Page 89 of Exhibit 33. 11

A I lost it for a second there. I've got it. Page 89. 12

Q Right. 13

A Okay. I've got it. 14

Q So it's page 89, paragraph 4, where it says, "Occasionally the tool gets 15

confused if too many extraneous features are in the region of interest." 16

MR. LISA: "ROI" is region of interest, Your Honor. 17

BY MR. LISA: 18

Q "It may be able to solve these problems by reducing the uncertainty ranges." 19

Do you see that? 20

A Yes, I do. 21

Q That means you've tightened up the start pose; right? 22

A No, it doesn't. 23

Q So you are familiar with the start pose in this application, sir? 24

A I've testified I don't recall. But in reading this I can figure out what this -- I mean, 25

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I could figure the whole thing out, if you want me to read the entire document. But if 1

I read particular lines, I can figure it out. 2

Q All right. Have you -- 3

MR. QUINN: Your Honor, I'd appreciate it if Mr. Silver read whatever 4

he needs to read in order to be familiar enough to feel he -- competent enough to 5

answer these questions. 6

THE COURT: All right. Well -- 7

MR. LISA: Well, we can put the manual down, and I'll just ask 8

questions based on his recollection, Your Honor. 9

THE COURT: Fine. 10

BY MR. LISA: 11

Q Close the manual, sir. 12

MR. QUINN: Your Honor, I believe the witness has -- or Mr. Silver's 13

testified he doesn't have a recollection about this document, 'cause he's never seen 14

it before. 15

THE COURT: Well, I didn't understand the questions were going to 16

be about the manual. But go ahead. Put a -- let's put a question to the witness, 17

then we'll know what we're -- 18

MR. LISA: Thank you. 19

BY MR. LISA: 20

Q Do you have enough recollection now, sir, or enough understanding of the start 21

pose to recall that in fact Cognex sets uncertainty ranges within a region of interest 22

in which it looks for the specified template or object to be inspected? 23

A I don't agree with that characterization at all. 24

Q Now, you had stated that the Cognex systems -- let's back up a second. 25

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With respect to the region of interest, you do agree, though, that Cognex, 1

including the Insight system, defines portions of the image field or field of view in 2

which it expects objects to be positioned in order to carry out its operations? 3

A I would say that it allows its users to do that if they choose, yes. 4

Q And in fact every tool that Cognex makes, every image processing tool, and 5

every image analysis tool that Cognex has ever made, going back to 1981, with 6

maybe only a tiny number of exceptions, is designed to operate that way; correct? 7

A What do you mean by "that way"? 8

Q The ability to look at only the portion of the field of view you're interested in. 9

A Yes. Every tool that we make allows you to specify what portion of the field of 10

view you'd like to use. 11

Q And that generally speaking, the way customers use Cognex's systems is that 12

the entire image is acquired from the camera and stored in memory and then only 13

the portion that the user is interested in is looked at; is that right? 14

A As a general statement, no. 15

Q All right. Well, I'll refer you to your deposition, page 221, please. 16

MR. LISA: Your Honor, I'm handing the witness the entire volume. 17

THE COURT: All right. 18

MR. LISA: Actually, we have an excerpt for him, as well, so that 19

makes it easier. This is Exhibit 1659, Your Honor, page 221. I'm sorry -- 20

THE COURT: Yeah, I've got it here. Yeah, page 221. 21

THE WITNESS: I have it. 22

BY MR. LISA: 23

Q This is page 220, beginning at line 20. You were asked this question. 24

"In that situation for these three applications, the blob analysis, gray scale, 25

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and PatMax, is the data for the entire image field stored in memory and only 1

part of it looked at, or is only the part that -- or the portion that's been 2

selected stored in the memory? 3

"Answer: Generally speaking, the entire image that is acquired from the 4

camera is stored in some memory, and then only the portion that we're 5

interested in is looked at. That's not guaranteed to apply to every situation, 6

but generally speaking that's the what it was done -- it's done. 7

"Question: Was this, I take it, something that was consciously added as a 8

feature to these three applications by Cognex? 9

"Mr. Quinn: What? 10

"Question: The ability to look at only the portion that you're interested in. 11

"Answer: Every tool that we make, every image processing tool and every 12

image analysis tool that Cognex has ever made, going back to 1981, you 13

know, maybe only a tiny number of exceptions, is designed to operate in this 14

way," period, close quote. 15

Were you asked those questions, and did you give those answers? 16

A Yes. 17

Q Now, during your direct examination you said that Cognex doesn't use 18

cameras; right? 19

A I don't recall saying that. 20

Q All right. You said, "We don't use it in reference to the demo. And I don't 21

remember the number of the demo, I'm sorry." 22

A It's an Insight 4000. 23

Q But you said -- you first said it was a camera, then you said, "Excuse me. We 24

don't use a camera, we use a sensor." Do you recall that? 25

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A That's not what I said. 1

Q It's not? 2

A If you'd like me to tell you what I said, I'd be happy to. 3

Q Please do. 4

A What I said was that that particular system, which is an Insight 4000, does not 5

contain a camera. 6

Q All right. So we can certainly agree, then, that for every other Cognex system 7

what it uses to acquire the images is in fact a camera? 8

A I couldn't say that for every other system. We have some systems that are 9

based on sensors, and some that are based on cameras. 10

Q All right. Which ones are based on sensors, sir? 11

A The Insight family, there are several of them, and at this point I don't even 12

know. The technology's changing so rapidly that I couldn't tell you. I know that the 13

Insight 4000 does, I know the follow-ons do. I don't have a list. 14

Q Okay. So you can't think of anything as you sit here today, except for the 15

Insight 4000, that doesn't use a camera; right? 16

A That's correct. 17

Q All right. And in fact you're certainly aware that there is a significant amount of 18

Cognex technical documentation printed and published by Cognex in which it calls 19

its sensing devices cameras; right? 20

A I agree with that, yes. 21

Q And in fact even for the Insight product, it -- there's published literature on the 22

Insight product that calls its sensing device a camera; right? 23

A There are models of Insight that use cameras, yes. 24

MR. LISA: All right. And, Your Honor, to save some time again, 25

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instead of pulling that out, I'm going to -- 1

THE COURT: That's fine. 2

MR. LISA: -- provide a list to Mr. Quinn, and we'll move that into 3

evidence. 4

BY MR. LISA: 5

Q Now, I think you also testified in direct that the Cognex systems do not sense or 6

determine thresholds; right? 7

A I don't recall saying -- using those exact words, no. 8

Q All right. Well, you would certainly agree that, for example, in detecting edges 9

the Cognex machine vision systems operate by determining or locating pixels with a 10

brightness intensity above a certain threshold value; right? 11

A Sounds like you're reading that from some document. 12

Q I'm just asking if you agree that that's how Cognex systems detect edges, sir. 13

A Read it again, please. 14

Q Sure, "...does so by detecting the transition. The transition between a 15

background and edge is determined by locating a pixel with a brightness intensity 16

above a certain threshold value." 17

A As long as we understand that that's not a fixed or predetermined threshold, 18

yes, that's fair enough. 19

Q But -- but we can agree and the Court can accept that it operates by locating a 20

pixel with a brightness intensity above a certain threshold value; right? 21

A As long as the Court understands that it's not a fixed or predetermined 22

threshold, yes. 23

Q Well, that threshold value can be determined, for example, by calculating an 24

intensity level midway between the intensity of the object and the image and the 25

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intensity of the background; right? 1

A Yes. 2

Q All right. But it is a threshold, and it is looking at intensity; right? 3

A In edge detection there is a threshold. The threshold is not applied to 4

intensities. 5

Q All right. I'm going to ask you to refer to Plaintiff's Trial Exhibit 3008. 6

MR. LISA: This is plaintiff's trial exhibit, Your Honor. 7

MR. QUINN: Could I have a copy, please? 8

THE COURT: 3008 I think is in the manual you just passed up. Yeah. 9

MR. LISA: Well, we have individual copies, Your Honor. 10

THE COURT: All right. 11

MR. LISA: One of the problems we are having, Your Honor, is the 12

paper generation. 13

THE COURT: Sure. 14

MR. LISA: We're copying exhibits over and over again each day, so -- 15

THE COURT: I've got it. It's a copy of a patent, Number '793, in 16

which Mr. Silver is a co-inventor, issued on December 14, 1999. 17

MR. LISA: That is it. 18

THE COURT: And before we get off on that, I want to go back to the 19

nomenclature employed earlier, because I don't want to be confused about sensing 20

device versus camera. 21

Not all sensing devices are cameras, but it seems to me a camera is 22

also a sensing device. Now, I'm probably misusing the term, but in the fields you're 23

dealing with a sensing devices -- or, rather, a sensing device, as you use it, does 24

not include the word "camera," then. 25

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THE WITNESS: The way I use the term is that a sensor is the 1

individual silicon chip -- in fact, you can see it in here -- that translates light into 2

electrical charge. Sometimes you build that chip into a complete stand-alone unit 3

that has some output, and that's a camera. 4

But in a device like Insight, as you can see, the sensor is interfaced 5

directly to the vision system, and there is nothing that you could point to and say, 6

oh, yes, that's -- that's the only distinction I'm making here. 7

THE COURT: All right. Okay. All right. Go ahead. Your patent here, 8

Exhibit 3008. 9

BY MR. LISA: 10

Q So that we're clear in that instance, the camera's in the entire device; right? 11

A Well, again, it's just semantics. My view is that this is not a camera. All we've 12

done is taken the sensor chip and interfaced it directly to the vision system without 13

going to the trouble of building a camera. But, I mean, that's the way I use the term 14

to avoid confusion. 'Cause people look at this and think it's a camera. It looks like 15

one, but it isn't. And that's why I use -- try to make that clear. 16

Q Now, these days people look at pens and they're sometimes cameras, aren't 17

they? 18

A Okay. 19

Q Yes? 20

A I don't know. 21

Q Not seen Internet pen cameras that people use for taking pictures for 22

computers, just plug into your computer? You've not seen that, Mr. Silver? 23

A No, I can't -- 24

Q Pen-size cameras? 25

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A I can't say that I've -- 1

Q Okay. 2

A -- fooled around with that. 3

Q All right. Well, certainly you do tell the Patent Office that the machine vision 4

systems that Cognex makes use a videocamera to generate the image; right? 5

A I'm sure we do, yes. 6

Q Okay. And would it be fair to say that I could identify a large number of Cognex 7

patents issued in your name and others that refer to the sensing device, as Your 8

Honor correctly noted, which is a little bit broader, as a camera; right? 9

A That's fair, yes. 10

MR. LISA: All right. Your Honor, again, to save some time I'm going 11

to suggest that I simply identify a list of Cognex patents and we move it in. 12

THE COURT: That's fine. All right. 13

// 14

BY MR. LISA: 15

Q Now, I'll refer you, sir, to column 4 of this patent. And do you recognize this 16

patent? 17

A Give me -- 18

Q This is Exhibit -- Plaintiff's Trial Exhibit 3008. 19

A Give me a second to -- 20

Q Sure. 21

A -- read the abstract. 22

THE COURT: And you are then focusing on column 4? 23

MR. LISA: Yes, sir. 24

THE COURT: Okay. 25

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BY MR. LISA: 1

Q All right. The first question is, do you recognize the patent? 2

A No. But I'm familiar with the technology, so, yes. 3

Q Well -- 4

A As you wish. 5

Q -- you are a named inventor on the patent; right? 6

A Yes. 7

Q You just don't recall this one issuing? 8

A That's correct. 9

Q Do you recall the subject matter of this patent? 10

A Yes, I do. 11

Q Okay. By the way, let's back up. Turn first to the very first page of the patent. 12

This patent issued December 14th, 1999; correct? 13

A Yes. 14

Q All right. And this is a -- this patent itself, under "Related U.S. Application," do 15

you see that down below, there's earlier patents filed -- patent applications? 16

A Yes, I see that. 17

Q So this patent issued as a continuation of an earlier application filed in 1992; 18

right? 19

A That's what it says, yes. 20

Q Which is itself a continuation of another application; right? 21

A Yes. 22

Q All right. So at the time you were looking at Mr. Lemelson's patents back in the 23

1990 through '93 or '4 time period you understood the process that multiple 24

applications would sometimes be filed to address different inventions in the 25

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specifications of the applications; right? 1

A I don't think I even fully understand the concept of a continuation or a 2

continuation in part today. I mean, I've heard the terms, but if you were to ask me 3

to define continuation in part or continuation, I would struggle. 4

Q All right. Well, you signed an oath in this case saying that this application was a 5

continuation of a continuation in part, correct, by necessity? 6

A Okay. 7

Q Well, do you remember signing an oath? 8

A I remember signing -- what I remember signing are things that say -- you know, 9

you declare that, you know, what you've disclosed is original and all that stuff. I 10

don't know how the prosecution of this stuff is done. 11

Q All right. Do you know if there are any patent applications still pending based 12

on this disclosure? 13

A I don't know. 14

Q Now, if you'd turn to column 4, beginning at lines 10 through 21. Do you see 15

that? 16

A Yes, I see that. 17

Q Now, that column and those line numbers of Plaintiff's Trial Exhibit 3008 18

describes finding a pixel on the edge of an object by starting with a pixel a t the 19

center of a mass; right? 20

A Yes. 21

Q All right. And you showed that up on the screen; right? 22

A I don't think I did, no. 23

Q You didn't show the moving out to get to the edge of a circle on the screen, 24

your animation? 25

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A No. 1

Q So you can find the edge of the circle by starting on the inside of the circle and 2

working out towards the edges? 3

A No. 4

Q Okay. And what this describes here is finding the edge by looking for a 5

threshold value T; correct? 6

A Yes. 7

Q All right. And does this document -- did you intend to be accurate when you 8

wrote that to the Patent Office? 9

A I intended it to be exemplary of how it could be done. 10

Q And in fact it is representative of how edges are detected, right, at Cognex with 11

its machine vision systems? 12

A No. It's representative of what was done in this particular patent. It's 13

completely different than the edge detection that I showed, for example, yesterday. 14

Q So now is this product different from the product you showed yesterday, or this 15

process? 16

A Well, this particular process is different in detail from the detector I showed 17

yesterday, yes. 18

Q So the edge detector you showed yesterday did not measure intensity, in your 19

view? 20

A No. The -- the camera or sensor or whatever you want to call it measures 21

intensity. 22

Q All right. Well -- 23

A The edge detector does not. 24

Q Well, in fact what you did is, if I recall, you pointed to a line on the screen and 25

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you read the numbers across of the intensity levels, and I wrote it down as you read 1

it. It was 2, 3, 4, 2, 3, 4, 3, 2, 4, and 7, and 13. Do you remember pointing to that? 2

A Yeah, yeah. I remember that. Sure. 3

Q And in fact the intensity level was in the range of 2 to 4 on the left; right? 4

Correct? 5

A Yes. 6

Q And when you passed over the edge, it went up to 7 or 13; right? 7

A Yes. 8

Q And that reflects a change of intensity level; right? 9

A Yes, it does. As does the noise reflect a change of intensity level. 10

Q All right. And is it your testimony that you can't use that change in intensity to 11

determine within reasonably defined tolerances the edge? 12

A It's not my testimony that you can't use it. My testimony is about how you use it. 13

Q All right. So you agree that the -- it can be used; right? 14

A If you use statistical pattern recognition techniques, yes. Not if you compare a 15

pixel to its neighbor. 16

Q Well, in this case you see a pixel at 7 and a pixel at 4. One's certainly larger 17

than the other; right? 18

A Yes. 19

Q And is it your testimony that that's not detectable? 20

A That the difference between 7 and 4 is not detectable? 21

Q Correct. 22

A It would depend entirely on, number one, the noise level, the range of apparent 23

brightness, but most of all it would depend upon what method you used to detect it. 24

If you used a bad method, it wouldn't be detectable at all. If you used a good 25

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method, it would be. 1

Q Well, in the example you used the background noise was in the area of 2 to 4 2

was the level of the intensity; right? 3

A Yes. 4

Q And inside the body, right at the edge, it started at 7 and went up to 12 or 13; 5

right? 6

A On that particular line, yes. 7

Q All right. So on that particular line the background noise was at a level below 4; 8

right? 9

A On that particular line of that particular image, yes, that's the case. 10

Q And the body intensity was at 7 or higher; right? 11

A On that particular line of that particular image, that's correct. 12

Q And all that is determined by looking at the intensity; right? 13

A Well, no. You determine that by reading the numbers off the page. You haven't 14

said anything about what a computer might do. 15

Q Well, certainly the camera indicated that; right? The sensor had those values in 16

there, that's what you put on the screen. 17

A Sensor, yes, has those values. Yes. 18

Q All right. And those values are reflective of the intensity of the signal or the 19

reflected image; right? 20

A Yes. 21

Q All right. So on that scan line the background noise was 4 or below, and the 22

body was within two of your pixels at 13; right? 23

A Well -- 24

Q Yes or no? 25

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A No. 1

Q All right. So if we go back and look at that video, the second pixel in on the 2

edge is not going to be at 13? 3

A Mr. Lisa, the problem I'm having is that you are trying to do the machine vision 4

with your brain, knowing where the object and the body is. The computer doesn't 5

know that. You know that, and you're trying to do the machine vision and pretend 6

that the computer is doing that. 7

Q Sir, all I'm asking is whether or not on that particular scan line the background 8

intensity is below -- at 4 or below and within one of your very large pixels the body 9

intensity was above 7, in fact reached 13 at the second pixel. Is that in fact the 10

case? 11

A It's in fact the case that we humans are aware of that, yes. 12

Q Okay. Thank you. I'll ask if you refer to -- if you would refer, please, to 13

Plaintiff's Exhibit -- Trial Exhibit 3245. 14

MR. LISA: This is another Cognex patent, Your Honor, marked by 15

plaintiffs. 16

BY MR. LISA: 17

Q Have you seen this patent before, sir? 18

A Well, I saw it at lunch. Whether I saw it before that, I don't think I have. 19

Q You work pretty closely with Mr. Marion, who's a named inventor; right? 20

A Not recently. Not in the last -- well, I guess I've never really worked closely with 21

him. 22

Q Well, you're listed as a co-inventor with him on patents, aren't you? 23

A Yes. 24

Q Okay. So you know who Mr. Marion is; right? 25

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A Oh, yes, I do. 1

Q Okay. And by the way, you can see on the front page of this, this is another 2

instance in which a -- this patent issued as a continuation of an earlier Cognex 3

patent, right -- application; right? 4

A Yes, I do. 5

Q Okay. Now, do you, after looking at this at lunchtime, have an understanding of 6

what's described in this patent, sir? 7

A No, I don't. 8

Q I'll refer you to columns 19 and 20, please, where there's a Table 1. 9

A I see that. 10

Q And about two thirds of the way down, Table 1, there's a tool category called 11

"Threshold," determine a threshold using image statistics. Do you see that? 12

A Yes, I do. 13

Q And if you look at Table 3 on the next page, you see that there is second and -- 14

in the second line a field of view, 15

FOV 1 and a tool ROI, for region of interest, and it says, "Create a region of interest 16

around the device." Do you see that? 17

A Yes. 18

Q And right beneath that is a tool called CIL, which finds a threshold within the 19

ROI. DO you see that? 20

A Yes, I do. 21

Q And likewise on Table 4 on the next page there's the same thing? 22

A Well, I'll assume it's there, I'm -- rather than waste the time trying to find it. I've 23

got no -- 24

Q You have -- 25

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A Yeah. Sure. 1

Q You have no understanding as to what that's describing? 2

A I have a pretty good understanding in looking at it, yeah. 3

Q All right. So you're able to discuss this patent, are you? 4

A I'm able to discuss what I've just read, which is determine -- what did we say it 5

was? The line that says -- hang on a minute. Where -- where was I reading? 6

Yeah, here. "Use illumination statistics computed to compute a threshold." I would 7

be able to discuss how that might be done or how that is often done at Cognex. 8

Q Okay. That's what you showed on the board, isn't it? 9

A No, I never showed that. 10

Q Okay. What is that? 11

A Again, that's an example of a statistical pattern recognition technique where you 12

use -- if you remember, I testified that we consider pixels in the context of either 13

neighborhoods or of the whole image. And this is basically what's computed in the 14

context. You look at either the neighborhood or the entire image, you do some sort 15

of assessment of the signal and the noise in that region, and then based on that you 16

compute a threshold. And that's what this is all about. 17

Q And what -- in this patent the inventors told the Patent Office that that was 18

determining a threshold; right? 19

A Yes. 20

Q Now, I'd like to refer you to Defendant's Trial Exhibit 2142. 21

MR. LISA: And by the way, Your Honor, I'd like to move these patents 22

that I've just identified into evidence. 23

THE COURT: Any objection to the patents that the witness is co-24

inventor of? 25

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MR. QUINN: Mr. Silver is actually not a co-inventor on -- 1

THE COURT: Well, he's not on this one. This is a Cognex patent that 2

he's not -- 3

MR. LISA: It's clearly a business record, Your Honor. 4

THE COURT: Well, no. I don't think there's any objection to the 5

patent. 6

MR. QUINN: I don't have any problem with it. 7

THE COURT: Yeah. That'll be received. 8

THE CLERK: 3245? 9

THE COURT: Yeah. 10

(Plaintiff's Exhibit No. 3245 admitted) 11

THE COURT: Now, what's the latest one you just referenced? 12

MR. LISA: Exhibit 2142. 13

THE COURT: 2142. 14

MR. LISA: That's defendant's trial exhibit this time. 15

// 16

BY MR. LISA: 17

Q Did I provide that to you already, Mr. Silver? 18

A Excuse me. Which exhibit? 19

Q 2142. 20

A 2142. 21

MR. LISA: Does nobody have that? 22

THE COURT: No. I don't have it. 23

MR. LISA: Then we're just going to skip it. It's one of those that I 24

would have asked to identify on a list anyway, Your Honor, so I'll just move right by 25

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it. 1

THE COURT: Okay. Well, feel free to ask about another one I don't 2

have, then. That's -- we -- 3

MR. LISA: I think we've had enough of that today, so I'm going to 4

move on. 5

BY MR. LISA: 6

Q Now, you gave some testimony about vidicons in your direct examination; right? 7

A Yes. 8

Q Okay. And you certainly agree that there were quite a few manufacturers of 9

vidicons up through the mid-1980s; right? 10

A That sounds right. 11

Q And that at least in the early 1980s the vidicon was a very widely used camera; 12

right? 13

A Yes. That's my experience. 14

Q Okay. And that certainly in the early days of using CCD cameras, the sensors, 15

as you identify them, that you could literally interchange the vidicon and CCD 16

camera; right? 17

A In the early days you could, yes. 18

Q And in fact Cognex did that; right? 19

A I don't recall specifically. 20

Q Well, in fact you could unplug the vidicon, plug the CCD camera in when the 21

RS170 standard was used; right? 22

A I've no reason to dispute that. It sounds right. 23

Q Can you explain what the RS170 standard is, please. 24

A It's a -- it's a standard that's used to define a video signal, one of the many 25

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standards that are -- well, these days there's so many, you know, different video 1

standards, but that's one of them. 2

Q That's one of them that's still being used today; right? 3

A I couldn't tell you if it's still being used today. Things are changing very rapidly. 4

Q Well, how about if I just read a page -- answer in your deposition testimony. It's 5

probably not very controverted. 6

A Yeah. That's the 2000 one? 7

Q Yes. Page 94. 8

"Yes. And by the way, the RS170 standard is still being used today. I don't 9

want to represent it is no longer being used. It is still being used." 10

Do you recall saying that? 11

A As of the year 2000 I think that was accurate. I couldn't tell you today. 12

Q Okay. Fair enough. 13

A So at least up through 2000 in those situations where a CCD camera was 14

generating an RS170 standard, a vidicon could still be used; right? 15

A No. 16

Q You disagree with that? 17

A Yes. 18

Q All right. About what point in time between the mid-1980's or late 1980s, when 19

Cognex was still using vidicons did -- were you no longer able to simply replace 20

them with one another? 21

A I couldn't pick a particular point time. 22

Q Can you give us your best estimate based on your experience working with 23

Cognex and working with vidicons and CCD cameras? 24

A It -- it wouldn't be so much a particular point time as, you know, whether we 25

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designed a frame grabber with compatible signals or what -- you know, I mean, the 1

vidicons, for example, couldn't really be used anytime you wanted accurate 2

dimensional measurements. So in those applications it would have been very early 3

on. In OCR applications that are not so dimension critical it would have been later. 4

So the answer, there is no point in time. It was a transition that proceeded 5

more or less rapidly, depending upon the demands of the customers in terms of 6

price, accuracy, and other features that CCD cameras offered. 7

Q All right. So then, to be clear, there is no clear point in time in which you can 8

identify that the vidicon became inappropriate for use; right? 9

A I couldn't pick one point in time that would be appropriate for all the 10

applications, yes, that's correct. 11

MR. LISA: I think I finally managed to find Defendant's Trial Exhibit 12

2142, Your Honor. 13

THE COURT: Right. 14

BY MR. LISA: 15

Q Mr. Silver, if you would, please, refer to Defendant's Trial Exhibit 2142. 16

A I see it. 17

Q Have you seen this patent before, other than at lunchtime today? 18

A I -- no, in fact, I didn't see this one at lunch, so -- 19

Q All right. I'll note that it issued November 19th, 2002. So we're staying very 20

current. Do you see the date on that? 21

A Yes, I do. 22

Q All right. Do you recognize the inventors of that patent, Exhibit 2142? 23

A I recognize Farabourj Rastami and Edwin Manglinden. 24

Q And they in fact do work at Cognex; right? 25

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A Not -- I know Farabourj no longer does. I couldn't tell you about Edwin. 1

Q But they did at one time; right? 2

A Yes. 3

MR. LISA: Okay. Your Honor, we would move into evidence 4

Defendant's Trial Exhibit 2142. 5

THE COURT: Any objection to 2142? 6

MR. QUINN: I'm sorry, Your Honor. I was distracted for just a 7

moment. 8

THE COURT: Yeah. Any objection to 2142, the patent? 9

MR. QUINN: It's assigned to Cognex. I suppose not, Your Honor. 10

Thank you. 11

THE COURT: All right. That'll be received. 12

(Defendant's Exhibit No. 2142 admitted) 13

BY MR. LISA: 14

Q I'll refer you to column 2, sir, line 19. And it states, quotes, "According to one 15

embodiment the parts are typically held against the belt during movement, using, for 16

example, a vacuum belt. Inspection station includes a CCD camera or equivalent 17

having a triggered electronic shutter or triggered strobe flash, et cetera, et cetera." 18

Do you see that? It's at column 2. 19

A We're on column 2 -- 20

Q Line 19. 21

A Hang on a second. I see that, yes. 22

Q All right. Based on your experience at Cognex can you identify what imaging 23

devices you consider to be an equivalent to a CCD camera? 24

A Well, let's see, we're talking -- and just to correct the record, the issue date of 25

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2002 is not relevant to whether this is current. The filing date I think is more 1

relevant, and that's 1999, before the deposition that was read earlier. 2

At that time CCD cameras were -- I mean, my recollection is at that time they 3

were essentially the only ones we were using. I don't think it -- 4

Q I'm just asking, sir, based on your experience at Cognex what you would 5

consider to be an equivalent to the CCD camera, that's all. 6

A A CMOS camera would be an equivalent. And when I say "equivalent," it 7

depends on what operating characteristics you're interested -- every camera has its 8

own operating characteristics, and in some applications the difference between a 9

CCD and a CMOS is irrelevant, and they'd be equivalent. In other applications they 10

would not be equivalent because the differences matter quite a bit. So you can't 11

really make a general statement like that. 12

Q In a situation where a CCD camera is generating an RS170 output signal, the 13

vidicon is certainly an equivalent; correct? 14

A No. 15

Q Even though it's a drop-in replacement? 16

A It's not equivalent, no. 17

Q Even in those applications where Cognex simply interchanged them with no 18

circuit changes it's not an equivalent? 19

A Well, if we define "equivalent" to be that if you swapped the cameras the vision 20

system would get the same answers, the answer is no, they would not be 21

equivalent. 22

Q Does it perform the same function? 23

A It performs mostly the same function. 24

Q All right. And does it generate an RS170 analog signal? 25

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A When you say "it," you mean? 1

Q Vidicon. 2

A Yes. 3

Q All right. And it does that in accordance with a standard; right? 4

A Yes, that's correct. 5

Q So the vidicon acquires a two-dimensional image, converts a two-dimensional 6

image into an RS170 analog video signal; right? 7

A Yes. 8

Q And that's the exact same thing a CCD camera does in that application of 9

generating an RS170 standard video signal; right? 10

A The standard doesn't say anything about how much geometric distortion is 11

involved in that or anything else. So they're not equivalent for machine vision. 12

They're equivalent in terms of what the signals might, you know, comply with the 13

standard. But in terms of its use as a machine vision, they are certainly not 14

equivalent. 15

Q They were equivalent enough that you at Cognex could drop a vidicon into -- 16

you could simply remove a vidicon and drop in a CCD camera without making any 17

substantial circuit changes; right, sir? 18

A You could do that. That doesn't say that you'd get the same results. 19

Q I'm not saying you can, sir. You actually did do that; right? 20

A I can't personally remember doing that, but I'm more than willing to agree that it 21

was done. 22

Q Thank you. Okay. Sir, I'd like to refer you to Plaintiff's Trial Exhibit 3245 again, 23

please. 24

MR. LISA: I'll need also Defendant's Exhibit 105, please. 25

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Which is too big to bring to you, Your Honor, so -- 1

THE COURT: All right. 2

THE WITNESS: So we're on 3245? 3

BY MR. LISA: 4

Q Yes, please. And I'll refer you to columns 1 and 2, please. 5

MR. LISA: Your Honor, I'm not going to hand you this exhibit. I'll -- 6

THE COURT: I've got the excerpt of 3245, which includes columns 1 7

and 2. 8

BY MR. LISA: 9

Q If you look at columns 1 and 2 of this patent -- and I think you said you reviewed 10

this over lunch; is that right? 11

A I didn't say I reviewed it. I said I saw it. 12

Q Okay. You at least understand that this is describing Cognex's SMD 13

application; right? 14

A Just give me a second. 15

Q Sure. 16

A I -- given the -- what I've -- you know, I don't want to take forever to read this, 17

but I couldn't characterize this as describing the SMD application. 18

Q Does it relate to the SMD application, sir? 19

A My understanding is that it's a technology that can be used in the SMD 20

application, and in that sense it's related. 21

Q What technology is it? Is it a software program? 22

A Yes. 23

Q All right. And I take it that that software program would be stored on some form 24

of computer-readable medium; is that right? 25

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A All software is stored on a computer-readable medium. 1

Q And in fact isn't it correct that even up to the date of this patent, which is June 2

18, 2002, that it would be correct to refer to computer-recorded -- computer-3

readable medium as "physical material including, for example, a disk, a tape, a 4

RAM, a ROM, and so on for storing computer-readable information"? 5

A Within reasonable limits as to what you meant by those things. I mean there 6

are a lot of forms of tapes and disks that certainly aren't computer-readable 7

medium. But if you were to narrowly define those terms to the point where they are 8

computer-readable and contain appropriate signals and codes on them, then yes. 9

Q Well, certainly, then, you're agreeing that it's not uncommon to refer to 10

computer-readable medium as including a disk, a tape, a RAM, a ROM; right? 11

A Pretty uncommon to use the term "tape." I haven't heard that in years. 12

Q Well, I'll refer you to column 3 of your -- of the patent, which again is not your 13

patent, I don't believe, but it is one issued to Cognex, and particularly at column 40. 14

And now -- I'm sorry, column 3, line 40 to 46. It says, "Computer-readable 15

medium," quote, "physical material, including, for example, a disk, a tape, a RAM, a 16

ROM, and so on for storing computer-readable information. A computer- readable 17

medium may comprise one or more data storage media and if plural data storage 18

media are utilized, those media may comprise different types of media," period, 19

close quotes. Do you see that? 20

A Yes, I do. 21

Q All right. So based on your experience at Cognex, you certainly recognize that 22

it was Cognex's position that a computer-readable medium included all of those 23

things; right? 24

A Yes. 25

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Q All right. And in fact if you turn to the claims of this patent, at the back, 29 and 1

30, for example -- 2

MR. QUINN: Could I have it again, Steve, please? 3

MR. LISA: Sure. Columns 29 and 30. 4

BY MR. LISA: 5

Q You'll see that in this case, for example, Claims 19, 20, 21, 22, et cetera, that in 6

fact the terms used by Cognex to define its invention to the Patent Office was this 7

defined term "computer-readable medium." Do you see that? 8

A Yes, I do. 9

Q All right. So in fact -- I'm sorry. Strike that. 10

At what point in time, sir, -- sorry. I'll strike that. 11

Is it still, in your view, proper to refer to computer-readable medium as 12

including a disk, tape, a RAM, a ROM, and so on? 13

A I think it's proper as long as it's clearly understood that not all examples of 14

disks, tapes, and the like are computer readable, but that you can certainly 15

construct a computer-readable medium out of those things if you so choose. 16

Q All right. And a person of ordinary skill in the art would know how to do that; 17

right? 18

A What time are we talking about? 19

Q The time Cognex filed this patent. 20

A Yes. 21

Q Now, has Cognex filed for patent applications on its PatMax program? 22

A Yes, we have. 23

Q And how many patents have issued on the PatMax program? 24

A Two. 25

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Q And you said that -- and those are issued in whose name? 1

A I'm the lead inventor. There are others. 2

Q And when did they issue? 3

A One issued -- they both issued this year. One was May, I think, and one maybe 4

a couple months later. 5

Q And when were they filed? Do you know? 6

A Don't recall. 7

Q Well, it would have been within a year of your first offering something for sale, I 8

assume; right? 9

A Certainly we met the bar dates. 10

Q So can you put an approximate date on it? 11

A The first one was filed '96, late '96, I believe, the one that issued May of this 12

year. 13

Q So you had two issued patents already? 14

A That's correct. 15

Q And how many more pending applications on PatMax? 16

A My -- let's see. There are -- I believe it's three. There are two separate 17

specifications, and three applications. Two of them would therefore have 18

approximately the same specification. 19

Q Because they were filed as continuations? 20

A I don't think. I don't quite -- again, I don't quite understand how it was done. 21

The two were done within a month of each other, so if that -- if that's consistent with 22

it being a continuation -- but I don't think that's the way it was done. 23

Q Well, do you know if the patent applications claim entitlement back to 1996 as 24

an effective filing date? 25

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A I know that some do and some don't. 1

Q All right. And are there still some pending that do? 2

A There are none pending now that claim -- or that have filing dates in 1996. 3

Q Are there some pending now that say they're related to applications that were 4

filed in 1996? 5

A No. Well -- well, what do you mean by "related"? 6

Q Have a statement on the front like you've seen on these patents that I've 7

pointed out to you that it's a continuation or a continuation in part of an application 8

filed back in 1996. 9

A The answer's no. 10

Q They've all issued or not -- or been abandoned? 11

A Let me make sure I understand this. The ones that we filed in 1996 are -- make 12

sure I understand this, look at this picture clearly. The ones that we filed in 1996 13

issued. And now that I think of it, that one has -- just before it issued I believe we 14

filed for -- what maybe -- what maybe you're talking about is a continuation. Which I 15

had forgotten. 16

The other PatMax ones that are pending have filing dates later than that and 17

are not continuations of the earlier ones. 18

Q So if I understand correctly, you did file a form of continuation just before the 19

patent issued? 20

A Yes. 21

Q Now, I'd refer you, please, to Plaintiff's Trial Exhibit 2983. Yeah. I'm sorry. 22

Plaintiff's trial exhibit. Have I not provided you with that yet? 23

A I don't see it. But I've got a lot of papers flying around, so -- 24

Q Okay. 25

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A Thank you. 1

MR. QUINN: May I have a copy, please? 2

MR. LISA: Sure. 3

BY MR. LISA: 4

Q Do you see that you're the sole named inventor of this patent? 5

A Yes, I do. 6

Q And do you recognize this patent? 7

A I'm pretty familiar with the subject matter. 8

MR. LISA: Okay. Your Honor, we'd move into evidence Plaintiff's 9

Trial Exhibit 2983, please. 10

THE COURT: Any objection to 2983, Mr. Quinn? 11

MR. QUINN: No, Your Honor. 12

THE COURT: That'll be received. 13

(Plaintiff's Exhibit No. 2983 admitted) 14

BY MR. LISA: 15

Q Now, do you notice that this has related U.S. application data stated on the 16

front page, as well? You see that? 17

A Yeah. I see it says "Continuation" something, and originally goes back to 18

December 1988. 19

Q Correct. And in fact in this one a patent issued off of the 1994 application; 20

right? 21

A Again, I don't know what "off of" means , but I can see three dates, an '88 date, 22

a '94 date, and then a "issued in 2000." 23

Q Well, there's a Patent Number 5,717,785 cited down there. 24

A Yeah, I see that. 25

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Q Okay. So in this case the patent issued here in 2000 is the second patent in 1

this chain that's issued; correct? 2

A Yes. 3

Q All right. And do you know if there are any patents still pending in this 4

application? 5

A I don't. 6

Q And this -- this patent issued in May 23, 2000, which is 12 years after the 7

original filing; right? 8

A Yes. 9

Q Now, at the very back of this patent, column 7, you'll see there are lines 1 10

through 23, several paragraphs there. Do you see that? 11

A Lines 1 through 23. I see that, yes. 12

Q Of your '379 patent. And in particular it states, for example, column -- at line 1, 13

"Those skilled in the art will appreciate that the embodiments described above are 14

illustrative only, and that other systems in the spirit of the teachings herein fall within 15

the scope of the invention." 16

And down below at column -- at line 20, "These and other such uses, as well 17

as modifications, additions, and deletions of the techniques described herein may 18

fall within the scope of the invention, of which I claim," colon, and then your claims 19

follow. Do you see that? 20

A Yes, I do. 21

Q All right. Why is that -- why did you put that language in this patent application? 22

A I don't know that I -- I put the language in. I think at the time this was filed that 23

would probably have been written by an attorney. 24

Q Well, did you read this when you signed the oath? 25

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A Yes, I did. 1

Q All right. And you certainly intend the claims to include in it whatever proper 2

modifications or additions or deletions may fall within the scope of the invention; 3

right? 4

A Absolutely. 5

Q All right. And would you be surprised to find that this kind of language appears 6

on numerous Cognex patents? 7

A Not at all. 8

MR. LISA: All right. Your Honor, instead of pulling them out, I'm 9

going to propose we just prepare a list and move them into evidence. 10

THE COURT: All right. 11

MR. LISA: If you'll give me a few moments, Your Honor, I may -- I 12

think I have no further questions. Let me just -- 13

THE COURT: All right. That's good. Because I just heard the 14

marshal open the door to the lockup, so he's ready to bring some prisoners in for -- 15

MR. LISA: I'm going to hurry. 16

THE COURT: -- sentencings here at 4:00 o'clock, 17

so -- 18

MR. LISA: I'm going to hurry, then. 19

BY MR. LISA: 20

Q Sir, you said that your PatMax program is 10 times more accurate than Search; 21

is that right? 22

A Yes, I did. 23

Q All right. And does that make Search not useful? 24

A It doesn't make it not useful, that's correct. 25

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Q Now, you said that 12 competitors have tried to copy the PatMax program; is 1

that right? 2

A I think "imitate" is the word I used. 3

Q "Imitate." Okay. Has Cognex done anything to stop that? 4

A Yes. 5

Q What has it done? 6

A We've done quite a few things, but I think that what you'd like me to get to 7

already, 'cause it's late, is that we've sued one of the competitors for patent 8

infringement. 9

Q All right. And when did you do that? 10

A July, June, somewhere around then this year. 11

Q And did you -- do you know if there was -- if your patents are involved in that? 12

A Absolutely. 13

Q Okay. Did you undertake a study to make sure your patent was valid before 14

you filed that suit? 15

A I'm not sure what you mean. 16

Q Well, did you do anything besides just take a patent and file suit? Did you 17

undertake to do your own prior art searches to make sure that your patent was valid 18

before you filed suit? 19

MR. QUINN: Your Honor, I object. This is -- must be covered by the 20

work product immunity doctrine at least. 21

MR. LISA: I'm not asking- 22

MR. QUINN: He's asking for what Mr. Silver did in connection with the 23

preparation of another lawsuit. 24

MR. LISA: I've asked him personally, Your Honor. 25

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THE COURT: Say again? 1

MR. LISA: I've asked him personally, if he's done anything. 2

MR. QUINN: Well, that's the point, Your Honor. 3

THE COURT: I'll sustain the objection as to that particular case. 4

Have you -- yeah, I'll sustain the objection. 5

MR. LISA: I'll rephrase it, Your Honor. 6

BY MR. LISA: 7

Q Have you done anything -- did you do anything outside of the direction of 8

counsel to review the patents inside of Cognex that you sued on before making the 9

decision to file suit? 10

MR. QUINN: Your Honor, same objection. An attorney doesn't have 11

to be involved for work product immunity to apply. 12

THE COURT: Well, no. But -- 13

MR. QUINN: It's -- clearly in anticipation of litigation anything that Mr. 14

Silver may or may not have done, if he's, you know, thinking about asserting a 15

patent or he's asked by his superior or a colleague to look at the patent, what he 16

thinks, and the other guy's product, that person doesn't have to be a lawyer for work 17

product immunity to apply. 18

THE COURT: I'll sustain. I'm a little vague on precisely -- but I'm 19

going to sustain that objection. 20

MR. QUINN: Thank you, Your Honor. 21

BY MR. LISA: 22

Q Well, sir, you personally believe the Patent Office did the right job in issuing 23

your patents; right? 24

A I believe the patent is valid, if that's what you mean, yes. 25

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Q All right. And do you believe that the patent examiner did his job correctly in 1

issuing your patent? 2

A Yes. 3

MR. LISA: Thank you. No further questions. 4

THE COURT: Thank you. 5

Mr. Quinn, any redirect? 6

MR. QUINN: I don't think we're going to get done today, Your Honor, 7

but -- 8

THE COURT: All right. Well, if -- 9

MR. QUINN: -- I'll start, if you like. 10

THE COURT: No. If that's the case, then we'll wait till tomorrow 11

morning, because we do have quite a few matters 12

on the afternoon calendar, I think some four. So I want to give staff a chance to try 13

and get out of here at a reasonable hour. 14

We'll be in recess until 8:30 tomorrow morning, then, and we'll 15

continue to completion with Mr. Silver, and then pick up with some of these other 16

witnesses. Clearly you don't need to have that gentleman or lady from Seattle fly 17

down. That will be unnecessary. 18

MR. JENNER: Thank you, Your Honor. We appreciate that. 19

MR. QUINN: Thank you, Your Honor. 20

THE COURT: All right. 21

(Court recessed at 3:54 p.m., until the following day, 22

Friday, November 22, 2002, at 8:30 a.m.) 23

* * * * * * * * * * 24

25

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2

3

4

5

6

7

8 9

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WITNESS INDEX AND EXHIBIT LIST 1

2

WITNESS INDEX 3

4

PLAINTIFF'S WITNESSES: PAGE 5

6

WILLIAM MICHAEL SILVER 7

Cross-Examination by Mr. Hosier 4/60 8

Cross-Examination by Mr. Lisa 167 9

10

JOSEPH WILDER 11

Direct Examination by Mr. Hanish 64 12

Cross-Examination by Mr. Hoffman 114 13

14

15

16

17

EXHIBIT LIST 18

19

PLAINTIFF'S EXHIBIT NO. ADMITTED 20

21

2878 Joseph Wilder patent application 86 22

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2983 Cognex Patent - May 23, 2000 228 1

3245 Cognex Patent - June 18, 2002 213 2

3

4

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2

* * * 3

4

5

DEFENDANT'S EXHIBIT NO. 6

7

2142 Cognex Patent - November 19, 2002 218 8

2884 Patent 130 9

10

11

* * * 12

CERTIFICATION 13

14

15

16

17

I (WE) CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM 18

THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE 19

ABOVE-ENTITLED MATTER. 20

21

22

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1

NORTHWEST TRANSCRIPTS, INC. 2

LAS VEGAS DIVISION 3

P.O. BOX 35257 4

LAS VEGAS, NEVADA 89133-5257 5

(702) 658-9626 6

7

8

9

10

11

12

13

GAYLE MARTIN-LUTZ 14

FEDERALLY CERTIFIED OWNER 15

16

17

18

MANAGER 19

20

21

L. Lizar/D. Lohmuller/K. McCrea/F.Hoyt SIGNATURE OF 22

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TRANSCRIBER DATE 1