Perfect Company v. Adaptics Limited

DECLARATION In Support of Perfect's Responsive Claim Construction Brief of David Howell by Plaintiff Perfect Company

Western District of Washington, wawd-3:2014-cv-05976

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2 1 2 THE HONORABLE RONALD B. LEIGHTON 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 WESTERN DISTRICT OF WASHINGTON 10 11 PERFECT COMPANY No. 3:14-cv-05976-RBL 12 Plaintiff, (Consolidated with 3:17-cv-05922-RBL) v. 13 ADAPTICS LIMITED, and 14 Defendants. 15 16 17 _________________________________________________________ 18 DECLARATION OF DAVID S. HOWELL 19 REGARDING CLAIM CONSTRUCTION OF U.S. PATENT NO. 9,772,217 B2 20 _________________________________________________________ 21 22 23 24 25 26 27 28 DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/2/2018 5:03:45 PM PURI.035 Page 1 2 1 2 I, DAVID S. HOWELL, having personal knowledge declare as follows: 3 4 1. I am engaged as an expert by Perfect Company in connection with the 5 captioned proceeding to provide my analyses and opinions on certain technical aspects of this 6 dispute, including my opinion on construction of certain terms within, and infringement of 7 certain claims, of U.S. Patent No. 8,829,365 B2 (hereinafter "the '365 Patent") and U.S. 8 Patent 9,772,217 B2 (hereinafter "the '217 Patent") by Adaptics Limited ("Adaptics"). 9 2. I am an expert in the fields of software engineering, mobile application design 10 11 and development, software architecture and systems, and graphical user interface (GUI) 12 design and implementation. In formulating my opinions, I have relied upon my training, 13 knowledge, and experience in the relevant art. A copy of my curriculum vitae, a true and 14 correct copy of which is attached as Exhibit "A" hereto, provides a description of my 15 professional experience, including my academic and employment history, publications, 16 patents, and patent applications. 17 3. I am currently working as an entrepreneur running two companies that 18 develop and sell software and hardware for mobile devices. 19 20 4. I received a Bachelor of Science degree in Computer Science and 21 Engineering, with High Honors, from Case Western Reserve University in 1986. I received 22 a Bachelor of Arts degree in Music, Cum Laude, from Case Western Reserve University in 23 1987. I received dual Master of Business Administration degrees both from Cornell 24 University's Johnson School of Business and from Queen's University's Smith School of 25 Business in 2008. 26 27 5. I have been writing desktop and mobile computer software since 1978. In 28 DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/2/2018 5:03:45 PM PURI.035 Page 2 2 1 2 1987, my first job after receiving my undergraduate degrees involved writing real-time MIDI 3 drivers for the Apple IIgs and the Macintosh, for a pioneering MIDI firm called Passport 4 5 Designs. My drivers performed input and output operations via the serial ports, 6 communicating with a MIDI adapter. The timers for these drivers were incremented by 7 programmable hardware interrupts. Interrupt handlers afforded the timers the guaranteed 8 timed response that was required by a real-time musical environment. The MIDI drivers were 9 interesting from a real-time perspective because there were two different types of real-time 10 requirements: (1) a an interrupt-driven timer had to keep track of position within a musical 11 sequence, send NOTE ON and NOTE OFF, as well as and other MIDI commands, at the 12 appropriate time, while also recording note and other device data received from connected 13 MIDI devices, and (2) the serial port communications were event-driven by interrupts from 14 the serial-port hardware. 15 16 6. For MIDI drivers, failure is catastrophic, in the non-fatal sense, in that if the 17 drivers failed to send a NOTE OFF command, they could leave a musical note playing 18 indefinitely, resulting in cacophony and irritated musicians. Similarly, sending or recording 19 notes and other data a fraction of a second late could yield perceptible rhythmic inaccuracy. 20 7. In the late 1980's I wrote real-time Laserdisc drivers for the Apple II, under 21 contract to Lucasfilm at Lucas Valley Ranch. These drivers also drove serial port 22 23 communications, this time with Laserdisc player devices. Missed interrupts would generate 24 communication failures that could not only yield perceptible presentation flaws but even 25 potentially damage the player head or the disc. 26 8. In the 1990s, I was employed as the Lead Software Engineer by an early 27 pioneer in desktop video, a company called New Video Corporation, which was the first joint 28 DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/2/2018 5:03:45 PM PURI.035 Page 3 2 1 2 venture between Apple Computer and Intel. My software drove a desktop video card called 3 EyeQ. The software had hard real-time requirements, in that badly timed video frames or of 4 5 audio packets could variously yield video "stuttering," ghosting (from dropped inter-frame 6 compressed frames), audio stuttering and pops, and other visual or audible artifacts. In some 7 cases missed interrupts could cause buffer runs that could result in crashing and data loss. 8 9. Later in the 1990s, I completed several game programming contracts, 9 primarily contract work that entailed porting DOS games to Mac and to the Sony Playstation. 10 My game clients included Hasbro, Westwood Studios, Realtime Associates, Zombie Games, 11 and other game publishers. These games all needed to respond very quickly to user actions 12 and, optimize presentation frame rates, especially in the case of the Sony Playstation game, 13 14 which had to adhere strictly to a 60-frame-per-second presentation rate. 15 10. From 2002 to 2008, I worked at Apple Inc in the Pro Apps division, where of 16 course real-time video and audio playback were requirements, to one degree or another, in 17 all of our products. 18 11. Since 2008 I have owned and have been running a mobile apps company 19 called Avatron Software, one of the first mobile apps firms. Avatron's most successful 20 21 product is Air Display, which allows users to employ an iPad or Android tablet as a monitor 22 for a Mac or PC, or even a Mac or PC as an extra monitor for another Mac or PC. Air Display 23 does this via the use of virtual video drivers, which have real-time requirements for copying, 24 compressing, sending, decompressing, and presenting smooth playback of video frames. 25 12. In short, I have been involved in developing real-time software for the past 26 thirty years, and am well versed in the requirements. 27 28 DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/2/2018 5:03:45 PM PURI.035 Page 4 2 1 2 13. I have reviewed the '365 Patent and the '217 Patent and the prosecution 3 history for each, including the reexamination of the '365 Patent. I have reviewed Perfect 4 5 Company's ("Perfect's") Perfect Drink® and Perfect Bake® products and Defendants Drop 6 Kitchen Recipe App and Drop Scale (collectively "the Drop Product"). 7 14. I have reviewed discovery responses in this case, and interviewed the 8 inventors of the '365 Patent and '217 Patent. I have done a source code inspection of some 9 of the firmware and software app source code for the Drop Product. 10 11 15. I have reviewed the expert reports of Dr. Direen on invalidity of the '365 12 Patent and claim construction for the '217 Patent. I was present for the two depositions of 13 Dr. Direen on both expert reports. 14 Level of Ordinary Skill in the Art 15 16. I understand that claims are read and construed from the perspective of a 16 Person Having Ordinary Skill In The Art ("PHOSITA") of the '365 Patent and the '217 17 18 Patent. 19 17. The '365 Patent and the '217 Patent are directed to systems involving 20 computer science, as well as electrical engineering. 21 18. A person having ordinary skill in the art (PHOSITA) in the field of the 22 computer science at the time of invention would be expected to have a Bachelor of Science 23 in Computer Science (alternatively Electrical Engineering or Physics with a significant focus 24 25 on computer engineering, design, and programming) or equivalent training, and 26 approximately two years of practical programming experience involving communication 27 with peripheral devices. Alternatively, eight years of practical working experience across a 28 DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/2/2018 5:03:45 PM PURI.035 Page 5 2 1 2 range of computer science areas (e.g., operating systems, drivers design and programming) 3 could substitute for formal education. 4 5 19. Defendant has offered several different definitions for a PHOSITA during the 6 course of my engagement. After hiring Dr. Direen, Defendant asserted that a PHOSITA 7 would need a significant background in "control systems and real-time embedded systems 8 including hardware and embedded software design relating to weigh scales." As I recall, 9 Defendant's first expert (presented during the reexamination of the 365 Patent) had no such 10 qualification, and yet, Adaptics asserted that he was an expert in the field. 11 12 20. Defendant's latest assertion regarding the qualification of a PHOSITA do not 13 make sense for other reasons. 14 21. I interviewed one of the inventors of the'365 Patent and the '217 Patent, 15 Phillip Odom, who created the prototype scale for Perfect's invention. He, like I, did not 16 have a background in designing weigh scales at the time that he created a working prototype 17 system. He necessarily possesses the ordinary skill of that aspect of the art since he is the 18 one who adapted the prototype scale and wrote the firmware for it. As such, Dr. Direen's 19 opinion is contradicted by Adaptics' prior position and the actual experience of the inventor. 20 21 22. Notably, the patent also includes the terms "electronic display," "computing 22 device," and "culinary," but Defendant is not arguing that a PHOSITA needs to be display 23 engineer, a computer hardware designer, or a restauranteur. 24 23. It is my opinion that a person having ordinary skill in the relevant art does not 25 need any expertise in "control systems and real-time embedded systems including hardware 26 27 and embedded software design relating to weigh scales," as Defendant suggests. Again, Mr. 28 DECLARATION OF DAVID S. HOWELL 29 (14-cv-05976-RBL) 10/2/2018 5:03:45 PM PURI.035 Page 6 2 1 2 Odom did not, and he created a working example prior to applying for the patent(s). Further, 3 the phrase in Defendant's proffered level of skill, "electrical and/or computer engineer" 4 5 (emphasis added) implies that software engineering skills are optional for a PHOSITA. To 6 the contrary, software engineering skills are a fundamental minimum requirement, while 7 electrical engineering is optional. 8 24. I reviewed the declarations and reports of Defendant's experts Gosling and 9 Direen, and I was present for both of Dr. Direen's depositions. In my opinion, Dr. Direen 10 views the invention through the lens of a senior electrical engineer with deep experience and 11 education in control systems. Conversely, he does not have any experience in mobile app 12 programming or mass manufactured consumer electronics development. 13 14 25. The '217 Patent specifically states: that the "culinary ratio system 100 has a 15 software app on the smart device 104 which is configured to receive real-time information 16 from the smart scale." '217 Patent Col.4, lns 38-40. The use of the term "app" generally, but 17 not always refers to applications on smart phones tablets, and smart watches. The passage 18 also makes clear, however, that the software app is on the smart device, distinguished from 19 the smart scale. 20 21 26. In other words, Dr. Direen claims no experience at all in the principal subject 22 matter of the claims at hand, namely consumer product development and mobile application 23 design and development. Dr. Direen has created some back-end software and software tools 24 to be used by hardware test engineers, but admitted in his deposition no experience in 25 developing consumer-facing software. The principal subject matter of the '217 patent is 2