SYMBOL TECHNOLOGIES, INC., . LEMELSON MEDICA L,...

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 19, 2002 . . . . . . . . . . . . . . . 8:22 a.m. And related cases and parties

COURT TRIAL - DAY 2

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

002

Las Vegas, Nevada 89133-5257 (702) 658-9626 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. 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

003

PROCEEDINGS BEGIN AT 8:22 A.M. 1

THE COURT: Have a seat, please. My clerk has indicated that the 2

parties have agreed to certain of the exhibits that were the subject of testimony 3

yesterday and perhaps some that were not the subject of testimony yesterday, and I 4

believe my clerk has already got a recordation of those. 5

Donna, do you need any further clarification on those the parties have 6

agreed to? 7

THE CLERK: Well, I think they're going to address that with you 8

'cause there are more, Your Honor, that they -- 9

THE COURT: Okay. Ms. Curtin, why don't you go ahead and start 10

and let's -- let's start so Donna can take notes as to which ones the parties are in 11

agreement with and then we'll focus on those you're not. 12

MS. CURTIN: That's what I had thought we would do, Your Honor. 13

As I understand it, they do not have any objection, in addition to the ones that we 14

already took care of, to a small number of things that were in Mr. Swartz' binder but 15

which were not addressed with him, which are Defendant's Trial Exhibit Number 16

1006, Number 1157A, and Number 1652F. 17

In addition, Numbers 2111F, Q and T as in Thomas. 18

THE COURT: All right. 19

MS. CURTIN: And if I may give -- 20

THE COURT: Did you get all of those, Donna? 21

THE CLERK: Yes, Your Honor. 22

(Defendant's Exhibit Nos. 1006, 1157A, 1652F, 2111F, 23

2111Q and T admitted) 24

MS. CURTIN: May I give those to her? 25

004

THE COURT: Yes, certainly, you can provide those. And I'm correct -1

- or rather Ms. Curtin is correct, there's no objection to those particular exhibits 2

then? 3

MR. JENNER: That's correct, Your Honor, as set forth in a letter. If 4

it's helpful to the Court, there was a letter -- 5

THE COURT: Yeah, we've got a copy of the letters that the parties -- 6

MS. CURTIN: I have an -- 7

THE COURT: -- exchanged yesterday. 8

MS. CURTIN: -- unmarked copy, would that help, Jesse -- 9

THE CLERK: Your Honor, there were a few more. 10

MS. CURTIN: -- 'cause I think yours has your notes on it. Okay. 11

THE COURT: And that letter indicated, in response for Mr. Jenner to 12

Ms. Curtin of last evening, no objection to a list of exhibits. 13

Donna, do you have an ext ra copy of that letter? 14

THE CLERK: Yes, Your Honor, I do. 15

THE COURT: Okay. Good. Well, those that are stated no objection 16

can simply be received. We don't need to read those again into the record, you can 17

just file the letter. 18

Now there's objection, however, to a number of them, and I'm not sure 19

which of those, Ms. Curtin, defendant is persistent in offering, but do you have Mr. 20

Jenner's letter of November 18th where it identifies objections starting with DTX-21

999? 22

MS. CURTIN: Yes, sir. 23

THE COURT: Okay. Tell me about those. Are -- is defendant 24

offering each of those that are objected to? 25

005

MS. CURTIN: Yes, Your Honor, we are. 1

THE COURT: Okay. 2

MS. CURTIN: And let me explain. They fall into three categories 3

basically. The first category are letters that went to Symbol from various customers 4

-- 5

THE COURT: Yeah. 6

MS. CURTIN: -- including Ford, Motorola. 7

THE COURT: Goodyear Tire and Rubber Company and so forth? 8

MS. CURTIN: Exactly. And, Your Honor, we are not offering those for 9

the truth of the matter asserted, we're offering them as notice to Symbol of the 10

infringement claims, and for that reason we don't think there's an appropriate 11

hearsay objection. And in addition we don't think there's an authenticity question 12

because they came out of Symbol's corporate files. 13

THE COURT: All right. Mr. Jenner, what is -- as to that class of 14

correspondence letters from customers, if you will, of Symbol such as Goodyear 15

Tire and Rubber and DTX-999, or 1000 and so forth, what is the objection to that 16

genre 17

of -- 18

MR. JENNER: Now that we know what the proffer is, we did not know 19

that there was a limited offer. Certainly our objection was on the basis of hearsay. 20

There are a fair number of inflammatory statements made by third-party authors, we 21

don't have a chance to deal with them. 22

THE COURT: Sure. 23

MR. JENNER: If it's a limited purpose offer and it doesn't come in for 24

truth, I think that we would -- 25

006

THE COURT: For the limited purpose of showing notice to Symbol of 1

infringement claims by Lemelson, then, you don't object to it for that purpose? 2

MR. JENNER: No, not for that purpose I believe. 3


MR. JENNER: We certainly would object on grounds of hearsay -- 5

THE COURT: Sure. 6

MR. JENNER: -- and if it's not offered -- 7

THE COURT: All right. Then I'll receive that class of exhibits. Now 8

which ones would those be? Obviously, 999 and 1000. 9

MS. CURTIN: 999, Your Honor, 1000 -- 10

THE COURT: 1001. 11

MS. CURTIN: -- 1001, 1014 -- I'm sorry, 1003. 12

THE COURT: Right. 13

MS. CURTIN: Getting ahead of myself here, 1007. 14

THE COURT: Qualcom? Okay. 1014 is from Ford. 15

MS. CURTIN: 1014 is a series of letters with Ford 16

-- or I guess it's just one big letter, my apology. 17

THE COURT: Yeah, one letter. Okay. 18

MS. CURTIN: 1652E is a letter from Motorola. 19

THE COURT: Okay. 20

MS. CURTIN: And -- 21

THE COURT: Any others that -- 22

MS. CURTIN: Yes. 2111E, G, H, J, K -- they're sticking together -- L, 23

M, O, P, R and S. 24

THE COURT: All right. Well, for that limited purpose, those exhibits 25

007

will be received. 1

Now, what is the second -- 2

MR. JENNER: Your Honor, if I could just comment on that. 2111G 3

was not objected to. 2111S was not one of the ones listed as far as I can tell. 4

MS. CURTIN: I apologize. I just pulled S out of the file. 5

THE COURT: Okay. So, S as in Sam is not, but R is. Okay. 6

(Defendant's Exhibit Nos. 999, 1000, 1001, 1003, 1007, 1014, 1625E, 2111E, G, H, 7

J, K, L, M, N, O, P and R admitted) 8

MS. CURTIN: Right. 9

THE COURT: All right. Now what's the second class that's subject to 10

objection? The genealogy chart, 1683 through 84, for example. 11

MS. CURTIN: That was one of the next ones, Your Honor, and -- but I 12

thought, just for logical -- instead of handling those next, there's a related exhibit, 13

which is 14

2111U -- 15

THE COURT: Okay. 16

MS. CURTIN: -- as in umbrella. 17

THE COURT: Yep. 18

MS. CURTIN: That is the Ford cross motion for leave to file third-party 19

complaint. 20

THE COURT: Mm-hmm. 21

MS. CURTIN: We believe that Your Honor can take judicial notice of 22

that. It's being offered for the fact that it happened. 23

THE COURT: All right. Is there any objection to DTX-2111U as in 24

umbrella? 25

008

MR. JENNER: Offered for the fact that it happened. 1

THE COURT: The fact that a Ford's cross motion for leave to file its 2

third party complaint was filed, I assume. I mean, the -- 3

MS. CURTIN: Correct, Your Honor. That Ford made an effort to bring 4

Symbol into that litigation. 5

MR. JENNER: I don't -- if it's offered for that purpose, we'd have no 6

objection to that limited offer. 7

THE COURT: All right. I'll receive it for that limited purpose. 8

(Defendant's Exhibit No. 2111U admitted) 9

MS. CURTIN: Okay. Now the last two, Your Honor, are, indeed, 10

sixteen eighty -- 11

THE COURT: So I understand what occurred, did Judge Reed grant 12

that motion? 13

MS. CURTIN: No, he did not, Your Honor. 14


MR. JENNER: It was withdrawn. It was not a matter of the judge 16

rejecting it. 17

MS. CURTIN: Right. 18

MR. JENNER: The motion was withdrawn. 19

THE COURT: He did not rule on it then, it was later withdrawn by 20

Ford? 21

MR. JENNER: That's right. 22

MS. CURTIN: Correct. 23

THE COURT: Was that as part of a settlement that was reached in 24

that case? 25

009

MS. CURTIN: Not that we know of. 1

THE COURT: Or was it withdrawn separately, I mean, before the 2

case was -- 3

MR. JENNER: It was withdrawn shortly after -- 4

COURT RECORDER: Excuse me, Mr. Jenner. 5

MR. JENNER: -- it was filed during the -- 6

COURT RECORDER: Could I have you move closer to the 7

microphone? 8

MR. JENNER: I'm sorry. 9

COURT RECORDER: Thank you. 10

MR. JENNER: It was -- 11

THE COURT: Withdrawn shortly after it was filed. 12

MR. JENNER: It was withdrawn during the pendency of the case. 13

THE COURT: Okay. Okay. 14

MR. JENNER: The case continued on. 15

THE COURT: Okay. And one other question about that particular 16

exhibit, and Ms. Curtin, this is a motion filed as between Lemelson and 17

Chrysler/Ford/GM. At this stage, am I correct Symbol was not a party to the 18

litigation? 19

MS. CURTIN: That is correct, Your Honor, that was Ford's effort to 20

bring Symbol into the litigation in which it was not at that time a participant and was 21

never a participant. 22

THE COURT: And was the particular motion then served on Symbol? 23

MS. CURTIN: Yes, it clearly was. That's addressed in some of the 24

correspondence that's also been moved in. 25

0010

THE COURT: All right. All right. All right. Fair enough. Okay. Go 1

ahead. And what's the other then? 2

MS. CURTIN: The other two, Your Honor, are 1683 and 1684 which 3

are the -- 4

THE COURT: Well, at least the genealogical -- what it was referred, 5

genealogy charts? 6

MS. CURTIN: There are patents attached in genealogy charts. It was 7

my understanding with regard to these and with regard to the other genealogy 8

charts that Your Honor deferred ruling on yesterday with regard to the charts. 9


MS. CURTIN: That -- 11

THE COURT: Well, the charts aren't part of the packet. 12

MS. CURTIN: -- there was a question of whether they were -- correct. 13

There was a question of whether they were accurate, and we were wondering if the 14

-- if the plaintiffs had found any inaccuracies. 15

MR. JENNER: Well, Your Honor, we haven't had a chance to confirm 16

that and -- 17

THE COURT: Yeah. I -- I -- 18

MR. JENNER: -- I thought -- I thought Your Honor said -- 19

THE COURT: -- those are argument, really -- 20

MR. JENNER: I -- 21

THE COURT: -- as far as I'm concerned. 22

MR. JENNER: I thought you said they weren't -- 23

THE COURT: Yeah. 24

MR. JENNER: -- coming in. 25

0011

MS. CURTIN: Okay. 1

THE COURT: Yeah. I'm not going to receive the genealogy charts. 2

MS. CURTIN: Okay. 3

THE COURT: Those -- those may be helpful, you can argue them to 4

me, but I have no problem receiving patents that Symbol has secured -- 5

MS. CURTIN: We -- 6

THE COURT: -- I mean, that -- 7

MS. CURTIN: We would ask that the patents that are part of 1683 8

and 1684 be received. 9

THE COURT: Any -- 10

MR. JENNER: No objection. 11

THE COURT: Those will be received. 12

(Defendant's Patent Exhibit Nos. 1683 and 1684 admitted) 13

MS. CURTIN: Okay. That's it. 14

THE COURT: Okay. All right. Thank you. 15

MS. CURTIN: Thank you so much. 16

THE COURT: And, Mr. Jenner, did you have -- 17

MR. JENNER: Your Honor, if I may, I thought that there were two 18

exhibits that I didn't hear addressed, and maybe I missed it, but there were 19

objections, too, to DTX-862 and 867. I'm not sure if counsel commented on them. 20

THE COURT: 862 and 867. 21

MS. CURTIN: I considered those to be part of the correspondence to 22

Symbol that I addressed in the first category. 23

MR. JENNER: Okay. I missed that if you said that. 24

THE COURT: Okay. All right. 25

0012

MS. CURTIN: And I did miss listing those. I apologize. 1

THE COURT: All right. And are the re any, Mr. Jenner, that you 2

believe yesterday should be received that we haven't addressed? 3

MR. JENNER: I think ours were all taken care of. 4

THE COURT: Okay. Good enough. 5

THE CLERK: Your Honor, 862 and 867 -- 6

THE COURT: I'm sorry, Donna? 7

THE CLERK: They are not in, 862 and 867 are not received? 8

THE COURT: Yes, those were received. 9

THE CLERK: Those -- okay. 10

THE COURT: Yeah. 11

(Defendant's Exhibit Nos. DTX-862 and 867 admitted) 12

MR. JENNER: Those were part of the limited purpose offer. 13

THE COURT: For the limited -- exactly. Yeah. 14

And then, Donna, you can just file those letters in the Court file as well 15

today, okay? 16

THE CLERK: Okay. 17

THE COURT: Okay. 18

All right. Plaintiff then can call its next witness. 19

MR. CHERNY: Plaintiff Symbol Technology calls Fredrick Schuessler. 20

THE COURT: All right, sir, if you'd please come up to the witness 21

stand and be sworn by the clerk. 22

FREDERICK SCHUESSLER, PLAINTIFF'S WITNESS, IS SWORN 23

THE CLERK: Thank you. Please be seated. 24

MR. CHERNY: Your Honor. 25

0013

THE COURT: Hold on just a second. Let's get the witness -- 1

THE CLERK: If you would state your full name for the record and 2

spell your last name, please. 3

THE WITNESS: Frederick Schuessler, 4

S-C-H-U-E-S-S-L-E-R. 5

THE COURT: All right. Go ahead, Mr. Cherny. 6

MR. CHERNY: I apologize. I wanted to ask the 7

Court's permission to put a couple of physical exhibits up in front -- 8

THE COURT: Sure. 9

MR. CHERNY: -- of the witness. 10

THE COURT: Sure, as long as you've shown them to counsel for -- 11

MR. LISA: If they were produced at the hotel, the ones we've seen 12

were fine. 13

MR. CHERNY: What we've got up there is actually what's shown as 14

the LS4000 scanner and a couple products. 15

MR. JENNER: No problem. 16

THE COURT: Okay. 17

MR. CHERNY: And I'd like to ask Mr. Serra to give the witness the 18

witness book of exhibits. 19

DIRECT EXAMINATION 20

BY MR. CHERNY: 21

Q Mr. Schuessler, where do you live? 22

A I live in Baiting Hollow, New York. 23

Q And where do you work? 24

A I work at Symbol Technologies. 25

0014 SCHUESSLER - DIRECT

Q What's your position at Symbol? 1

A At Symbol I'm a senior director of engineering. 2

Q And how long have you worked at Symbol? 3

A I started at Symbol in 1983. 4

Q Mr. Schuessler, please tell me your educational background. 5

A Sure. After I graduated high school in 1970, I went to Vassar College in 6

Poughkeepsie, New York. 7

Q And did you graduate? 8

A Yes. I received a bachelor of arts in psychology in 1974. 9

Q And did you graduate with honors? 10

A Yes. I was Phi Beta Kappa. 11

Q What did you do after you graduated from Vassar? 12

A After I graduated, I went on the road as a musician. 13

Q What type of musician? 14

A I was a bass player. 15

Q Were you a professional musician? 16

A Yes, I was. For three years I made my living at it. 17

Q How long did you work as a musician? 18

A Those three years. 19

Q What happened then? 20

A Near the end of that time I was getting more and more interested in the 21

technical aspects of what I was doing, especially the sound equipment for the bands 22

I was in, and so I decided to look for an engineering program that combined music 23

and engineering, and I found such a program at the University of Miami in Florida. 24

Q Did you attend the University of Miami? 25


A Yes, I did, from 1977 through '79. 1

Q Did you graduate? 2

A No, I didn't. 3

Q What happened? 4

A When I had one semester to go, that summer I went looking for a job as an 5

audio engineer in a recording studio, that's what that degree is leading towards, and 6

I found a job and so I didn't go back to school. 7

Q Who did you work for? 8

A Master Sound Productions. 9

Q And how long were you there? 10

A I was there for about three years. 11

Q What happened after you worked in Master Sound Productions? 12

A Well, as I was working there, it was a lot of fun, a very exciting job 13

sometimes, but it wasn't very good money, frankly. And also as I was working 14

there, I got more and more interested in the strictly technical side of things, and so I 15

decided to leave that job and go back and get an engineering degree. 16

Q And did you? 17

A Yes, I did. 18

Q Where did you go? 19

A I went to the State University of New York at Stony Brook. 20

Q Did you graduate from Stony Brook? 21

A Yes, I did. In 1984 I received a bachelor of engineering in electrical 22

engineering. 23

Q Did you have any more education after graduating from Stony Brook? 24

A Since then I had a few graduate courses in computer science. 25


Q Mr. Schuessler, can you tell us how you first came to work at Symbol? 1

A Yes. While I was still at Stony Brook, one of my professors there thought I 2

had a lot of talent, and he contacted one of his associates to recommend me for a 3

job. That was Dr. Jerome Swartz. 4

Q And who was Dr. Jerome Swartz then? 5

A He was the head of what was then a very small company called Symbol 6

Technologies. 7

Q And what happened after that? 8

A Dr. Swartz gave me a call and I came in for an interview and I worked there 9

that summer before my senior year. 10

THE COURT: So that would have been about 1983 then? 11

THE WITNESS: That was 1983 when I started. 12


THE WITNESS: Yes, Your Honor. 14

BY MR. CHERNY: 15

Q Did you continue working at Symbol after you completed your summer at 16

Symbol? 17

A Yes. I enjoyed that work so much I kept working part time through my senior 18

year. 19

Q And what happened after you completed your senior year at Stony Brook? 20

A Well, then I had to go job hunting and decide where I was going to work. 21

Q And what happened? 22

A And it finally came down to a choice between Symbol and Bell Labs in New 23

Jersey. 24

Q Which did you choose? 25


A I chose Symbol. 1

Q Why? 2

A Well, it was a tough decision. Bell Labs was offering a very interesting 3

career in what was then a brand new area called cellular telephones. But ultimately 4

I went with Symbol because Symbol, being truly a start-up company still, I thought 5

the opportunity overall would be greater. 6

Q So, am I correct in saying that you went to work full time at Symbol in 1984? 7

A That's correct. 8

Q What was your first position at Symbol? 9

A When I started at Symbol I was manager of the software engineering 10

department. 11

Q How long did you manage that department? 12

A Through about 1991. 13

Q And what were your responsibilities as the head of the software engineering 14

department? 15

A That department was responsible for the design and creation of all the 16

software that went into Symbol's scanning products. 17

Q Did your position change in 1991? 18

A Yes, it did. 19

Q How so? 20

A In 1991, I started a new department at Symbol called engineering quality 21

assurance, or EQA for short. 22

Q What were your responsibilities as the head of EQA? 23

A Our primary responsibility was the definition and documentation of the 24

process by which engineers went about designing a new product, and, in fact, how 25


teams formed from manufacturing, marketing and engineering to get together and 1

design and release a new product. 2

Q Did you have any other responsibilities as director of EQA? 3

A Yes. In that job we were also responsible for investigating, defining, and 4

creating new test methods and tools to measure the performance of our products 5

and improve it. 6

Q Were you responsible for any particular products? 7

A No. That was for all Symbol products. 8

Q Are you still the head of EQA at Symbol? 9

A No, I'm not. 10

Q When did you change position? 11

A In 1996. 12

Q And how did that happen? 13

A Well, going back about a year earlier -- excuse me -- while I was running 14

EQA, a Symbol associate, Kristina Barkan, approached me with a problem that 15

she'd come up against in the applications world out there, which was the electronics 16

industry would like to have seen a bar code that was so small you could put it on 17

individual electronic parts, but that you could still read it with a laser. 18

Q And did you help Ms. Barkan with that project? 19

A Yes. I had some ideas on that, and we ended up working on it for about a 20

year, and after that, we came out with a new symbology called Micro PDF-417. 21

Q So, after you designed Micro PDF-417, what happened? 22

A Well, in doing that work, not only did I find it really interesting, but also I 23

concluded it was really the best way I could contribute to Symbol overall, so I 24

changed jobs and started doing symbology work full time. 25


Q Are you still doing symbology work? 1

A Yes, I am. 2

Q Are you only doing symbology work? 3

A No. Recently, I also took charge of the group that's responsible for the 4

decode algorithms software in all our products. 5

THE COURT: How would you define symbology work again? 6

THE WITNESS: Okay. A symbology is a bar code language, so to 7

speak. There's many different ways that bar codes can encode information, so, 8

generally, that's called symbologies. 9

Symbology work includes a design of symbologies as I've done 10

several times, Micro PDF being one, when you need a new symbology for some 11

new application. Also, its research topics about the issues and the difficulties in 12

printing bar codes, research topics and scanning bar codes, and research topics 13

and how to use bar codes, new applications. For instance, the U.S. Postal Service 14

I'm working with right now trying to figure out how to make, quote, unquote, 15

"intelligent mail" using bar codes. 16


BY MR. CHERNY: 18

Q Now you mentioned decode algorithms, what are decode algorithms? 19

A Well, an algorithm in general is just a set of instructions to accomplish a task. 20

For instance, a recipe is an algorithm for cooking. A decode algorithm is the 21

instructions for the computer that help us find and understand what a bar code says. 22

Q Have you represented Symbol on any technical and industry committees 23

during your time? 24

A Yes. Several. 25


Q Can you tell me which ones or give me an example? 1

A Yeah. An example would be the AIM TSC. 2

Q What's AIM? 3

A AIM stands for automatic identification manufacturers. That's the most 4

important trade group for the bar code industry. 5

Q How did you end up on the AIM TSC? 6

A 1992, I believe, I was nominated by Symbol and elected by the AIM 7

membership. 8

Q And how many people are on the AIM TSC? 9

A At any given time usually about a half a dozen. 10

Q And does that committee have a chairman? 11

A Yes. Currently, I'm chair of that committee. 12

Q Have you ever served as chairman before? 13

A Yes. Once before, I think, in 1994. 14

Q What does TSC stand for? 15

A It's a mouthful and it stands for technical symbology committee. And its 16

primary responsibility is for the editing, review and publication of the bar code 17

symbology specifications, the documents that tell you how bar codes should be 18

printed and read. 19

Q As a result of your work experience at Symbol, are you familiar with how 20

Symbol's bar code readers work? 21

A Yes, I am. 22

Q Why are your products called readers? 23

A Well, they're called readers 'cause that's actually a very good name for what 24

we do. Reading a bar code is actually a great deal like the way people read text. 25


Q Can you elaborate? 1

A Yeah, I'll give you an example. 2

MR. CHERNY: With the Court's permission, I think the witness wants 3

to write something. 4

THE COURT: Sure. 5

THE WITNESS: Yeah. When we read text, we're not really matching 6

a picture, we're looking for patterns. For instance, I can write the word "hello" and 7

my handwriting is notoriously bad and nobody, even I, have ever seen hello quite 8

this way before, but we're not trying to match a picture of the word hello, what it's 9

supposed to look like, we're looking for the patterns. We see this pair of goal posts 10

that look like an H, and we recognize that, and so forth. 11

So, if I look at the word "hello" from here, I can obviously recognize 12

that pattern and see it, and if I kept it right there, I could probably take a picture of it 13

and match it to that. But if I move closer, the image gets larger and a lot blurrier, 14

but I can still recognize the patterns. If I take it much further away, it gets much 15

smaller. Again, it wouldn't match the image I originally had, but the patterns I can 16

still recognize. 17

I could curve it, and now actually there's a lot of perspective distortion 18

and the patterns don't really look anything like they originally did, but I can still 19

recognize them. I could crumple the paper and uncrumple it, and now there's all 20

these random variations in the pattern, but I can still pick out the underlying pattern 21

and read it. 22

BY MR. CHERNY: 23

Q Now you seem to be drawing a connection between reading on the paper 24

and bar code reading? 25


A Yes, I am. 1

Q Is there some connection? 2

A It's really the same principle here. Bar codes, as you saw yesterday, can be 3

held from a variety of distance, they can be printed in a variety of sizes, different 4

shapes, different colors. The actual way the bar code looks is not that important, 5

what's important is the underlying pattern. And that's what a bar code reader finds. 6

Q Now, before I think you made a distinction between reading and matching. Is 7

there a distinction between those processes? 8

A Yeah, they're very different processes. Matching would be you'd have to 9

have an image stored up that you could call up and say does this image match that 10

image? 11

I think you already saw yesterday and you' ll see it some more today, there'd 12

be an infinite number of images you'd have to call up to match a bar code; instead 13

reading is a matter of recognizing the patterns. 14

Q What is a bar code? 15

A A bar code, I think you've seen a few now, it's an array of light and dark 16

areas, we call them bars and spaces, and those bars and spaces are arranged in a 17

predefined set of patterns. Those patterns are designed according to rules that 18

make the patterns easy to read and scan accurately, and when you put those 19

patterns together in a sequence, the choice of patterns is what actually encodes the 20

information. 21

Q Now you said that they are arranged according to a set of rules. What do 22

you mean by that? 23

A Well, it's like English. We don't make up new patterns for every new word, 24

we take an alphabet, twenty-six letters, and we put them together in different ways 25


to form new words. 1

Q Now, why don't you just use letters and numbers from a language like 2

English? 3

A If you could read letters and numbers with a machine as well as you could 4

read a bar code, we wouldn't use bar codes at all, they serve no other purpose. 5

The problem is letters were designed to be read by humans, not machines, and so 6

the letter O and the number 0 look very much alike to a machine. The letter l and 7

number 1, same thing. 8

Q Now, is a bar code one big pattern? 9

A No, it's not. It's not like a branding iron. You know, a ranch would make up a 10

new picture to identify each new ranch and brand cattle with it. It's not like that, we 11

don't make up a new picture for each object. We have a predefined set of patterns 12

from a symbology, and we arrange them to form the numeric sequence of an 13

identifier, for instance. 14

Q Now earlier before you told the Court what a symbology was, so I'm not 15

going to ask you that question. But what I do want to ask you is why is it that we 16

need different symbologies? 17

A Right. We need different symbologies because different applications and 18

needs for bar codes have different requirements. For instance, some applications 19

may only need to encode numbers, so you can design a bar code symbology that 20

does that very efficiently, but it can't do letters. Some other application also needs 21

to do letters, you'll need a different symbology. 22

Q Do you have examples of different symbologies? 23

A Yes, I do. 24

MR. CHERNY: Ms. Andrews, can I ask you to -- 25


THE WITNESS: Let's see, yes -- 1

MR. CHERNY: -- dim the lights a little bit? 2

THE WITNESS: Yeah, could we dim the lights? 3

THE COURT: Sure. 4

(Off-record colloquy) 5

THE WITNESS: I have it here on my screen -- 6

MR. CHERNY: Is it not coming up? 7

THE WITNESS: -- but I'm not seeing it up there. I don't -- I don't think 8

this will help. 9


MR. CHERNY: Your Honor, would it be allowable for our technical 11

person to help? 12

THE COURT: Absolutely. Yeah. 13

MR. CHERNY: Please, Matt, help. 14

THE CLERK: Well, do you need me to turn it to computer clerk? 15

THE COURT: Not yet. 16

THE CLERK: Okay. 17

THE COURT: There we go. 18

THE WITNESS: Oh, is he good. 19

THE CLERK: There we go. 20

MR. CHERNY: Way to go, Matt. 21

THE COURT: Now I've got it on mine, counsel should have it on 22

theirs as well. 23

MR. CHERNY: We do. 24

THE COURT: Okay. 25


THE WITNESS: Okay. Good. Yeah, what you see here is about ten 1

different symbologies, ten different bar code languages that encode exactly the 2

same information. I took the same number and used an encoding program and 3

printed that number out using several different bar code languages. 4

MR. CHERNY: And just for the record, this was from Exhibit 3363, 5

which I believe was shown yesterday in the form of a board. 6

THE COURT: Yes, it was. 3363 was already received, I believe. 7

BY MR. CHERNY: 8

Q Mr. Schuessler, is there a way to show that all these bar codes encode the 9

same data? 10

A Yes, there is. The easiest way to show that is to scan them and see what 11

comes out. 12

Q Okay. Please do. And I believe that you'll be referring to Exhibit 3275 at this 13

point? 14

A Let's find out. Oops. That's correct. Okay. What I have here is the same 15

bar codes you saw a minute ago on the screen but printed out on the one page so I 16

can scan them, okay? 17

The first one up here on the upper top is a UPC symbol. That's the same bar 18

code we've been seeing over and over again, that's the one they use in retail to 19

mark products, and if you look on the screen, ignoring what's at the top which I can't 20

clear off, the first number there in the white part of the screen is the decoded data I 21

got from the scanner when I scanned that bar code. 22

Q Now you said the UPC. What are the uses for the UPC? 23

A UPC is there to give every item sold at retail a unique identifying number. 24

Q Okay. And who invented the UPC? 25


A UPC was invented at IBM by George Laurer [phonetic] and David Severe 1

[phonetic]. 2

Q Okay. Please proceed. 3

A Okay. The next one on this page just below the UPC is called code 128. As 4

you can see, or if you can you recall, the patterns are totally different, but the data 5

coming out from the scanner is exactly the same. 6

Q And what is code 128 used for? 7

A Code 128 is also used is some retail applications, industrial applications, 8

general purpose bar coding applications. 9

Q Okay. What's the next one? 10

A Under the code 128 we see a code 39. Again, totally different patterns, but it 11

encodes the same data. 12

Q And what is code 39 used for? 13

A Oh, it's used very widely in industrial applications, paperwork processing. 14

You see it a lot. 15

Q And who invented code 39? 16

A That was invented by Dr. David Leigh [phonetic] and Ray Stevens [phonetic] 17

of Intermech [phonetic]. 18

Q Okay. Please proceed. 19

A Okay. Under that you see an interlead to a five symbol. That again encodes 20

the same data and illustrates what I said earlier. You see how much smaller the 21

interlead to a five symbol is than the one above it. That's because interlead to a five 22

only encodes numbers, but it does it very efficiently. 23

Q Okay. 24

A Okay. 25


THE COURT: Well, do I understand correctly then that the four that 1

you've illustrated so far and that are depicted on Exhibit 3275, the language is in 2

essence using the same alphabet? It's -- 3

THE WITNESS: Actually, I'd put it this way -- 4

THE COURT: -- or is it using a different alphabet as long as -- is the 5

key the relative relationships between, what was it called, metric ratio analysis that 6

was referred -- 7

MR. CHERNY: Ratio metric analysis. 8

THE COURT: -- ratio metric analysis. 9

Are we focusing here on the, again, the widths of the bars and the 10

spaces between the bars in each case, and are they the same, relatively speaking, 11

in each of these four instances, just maybe wider band or -- 12

THE WITNESS: Mm-hmm. No. 13

THE COURT: -- more truncated, or are they completely different? 14

THE WITNESS: All right. No, Your Honor, they're actually completely 15

different sets of patterns. So, it's as if each of these symbologies used a different 16

alphabet. 17

THE COURT: So one's in French, one's in Spanish, one's in English, 18

in essence? 19

THE WITNESS: Yeah. Maybe it's more like one's in Arabic, one's in 20

Cyrillic. 21

THE COURT: Okay. 22

THE WITNESS: Really different patterns for the numbers entirely. 23


BY MR. CHERNY: 25


Q Please continue, Mr. Schuessler. 1

A Okay. Proceeding, I don't remember if we did a code 93? 2

THE COURT: No, you didn't yet. 3

THE WITNESS: There's a code 93, yet another set of patterns. It's a 4

different alphabet for the numbers, but it's still the same output. Under that, 5

[unintelligible], again, different patterns, same output. Under that code-a-bar, again, 6

yet a different set of patterns we've seen before, but still the same output. 7

The three at the bottom of the page are clearly different from the 8

others. Those are the two dimensional bar codes called PDF-417 that we saw 9

before. Now PDF is -- illustrates the point that even within this same bar code 10

language, you can choose different patterns to encode the same data. These are 11

three different PDF symbols, but they all encode the same number as the same 12

number we've been seeing before. 13

THE COURT: What's the utility of having the same information or the 14

machine that is reading able to recognize, in essence, the same thing in these 15

various languages? 16

THE WITNESS: Well -- 17

THE COURT: For output? 18

THE WITNESS: Yeah. In every case, there was something special 19

about the design of the symbology that met a new application that hadn't been met 20

before. 21

THE COURT: So give me an example, just -- it could be anything, but 22

hypothetically as to what these seven or eight different symbologies would be 23

employed for. One, for selling soup at the market -- 24

THE WITNESS: Right. 25


THE COURT: -- for example, one for selling clothing at a -- 1

THE WITNESS: Yes. 2

THE COURT: -- store, one for a part that's in an automobile -- 3

THE WITNESS: Mm-hmm. 4

THE COURT: -- and so forth, is that what you're driving at? 5

THE WITNESS: In terms of the applications, yes. In terms of a 6

characteristic that made them different, for instance, looking at the second two on 7

the sheet, the code 128 versus the code 39? 8

THE COURT: Right. 9

THE WITNESS: As you see, the code 128 does make a smaller bar 10

code for the same data than the code 39 -- 11


THE WITNESS: -- but the code 39 is actually easier to print, it's more 13

tolerant to printing defects. 14


THE WITNESS: So, that's the kind of trade off that would cause 16

people to use different patterns for the same information. 17


BY MR. CHERNY: 19

Q Now, Mr. Schuessler, I see that you got the same number every time. Does 20

your computer know which symbology you're scanning? 21

A No. Once I've scanned them, all the computer receives is the numbers you 22

saw up there, and they're the same every time. 23

Q Have you prepared an animation to illustrate the process of reading a bar 24

code? 25


A Yes, I have. 1

Q Would you show the Court? 2

A Yes, I will. Oh, I'm sorry, it's not on my PC. Let me switch over to the other 3

animation here. 4

Q Well, he's doing the switching. 5

A Okay. 6

Q What -- 7

A Yeah. This is the same bar code symbology we've been talking about, UPC. 8

This is the one used in supermarkets and in retail. 9

Q And so we have up here a UPC bar code? 10

A I'm sorry? 11

Q We have up here a UPC bar code? 12

A Yes, that's a UPC bar code. 13

Q And is that bar code associated with a product? 14

A Yes, it is. Specifically, it's associated with this product here, this jar of hand 15

cleaner. 16

Q And I believe that's marked Exhibit 3255I? 17

A That's correct. 18

Q Is that the actual bar code printed on that can? 19

A No. What we see on the screen is I reprinted that bar code so it's a perfect 20

version of the bar code that's on the can. 21

Q Do we have a picture of the actual bar code? 22

A Yes. On the easel over there, you see a blowup of the bar code as it is on 23

the can. As you can see, it looks a fair amount different from the one on the screen, 24

in particular the bars are too thick. 25


Q And I believe that's Exhibit 3261. 1

Now you were pointing out that the bars are too thick. Can you elaborate on 2

that? 3

A Yeah. Well, if you turn your head back and forth, up on the screen, you can 4

see, for instance, looking at the left edge of the bar code the narrow bars and 5

narrow spaces are supposed to be the same width of each other along that left 6

edge, and if you look at the picture, you'll see the bars are thicker than the spaces. 7

In fact, on the right it's even worse. 8

Q What causes that? 9

A That's a phenomenon called ink spread. 10

Q And can you explain what ink spread is, just generally? 11

A Yes. Just generally, it's where either in the printing process, sometimes the 12

printing process is like a rubber plate, and as you press it kind of squishes. 13

The other phenomenon would be if you print on paper and the ink is 14

absorbed by the paper and it spreads. 15

Q And are you telling us that these two bar codes look different but yet they 16

encode the same data? 17

A That's exactly right. They encode exactly the same number as shown at the 18

bottom, but to the scanner in particular, they look quite a bit different. 19

Q Can you describe the parts of the bar code? 20

A Yes, I can. Using this bar code we have here as an example -- oops -- along 21

the left we have the pattern I was mentioning; it's a narrow bar and a narrow space 22

and a narrow bar. 23

Q And what is that called? 24

A That's called the left guard bar pattern. 25


Q And can you explain what you meant when you said that they are narrow, the 1

bars and spaces? 2

A Right. That's a relative term. They're narrow only compared to the other 3

bars of the bar code. There's no absolute size. The other bars in the bar code may 4

be printed at the same size or may be printed twice as big or three times as big or 5

four times as big, but nothing in between. 6

Q Now does the guard pattern represent any numbers? 7

A No. That represents no numbers at all, that's just a fixed pattern. 8

Q And what is the purpose of the guard pattern? 9

A Okay. That pattern, along with the fairly large white space to the left of it, is a 10

recognition pattern. It helps the scanner recognize that there might be a UPC bar 11

code in its field. 12

Q And what's the next part of the bar code? 13

A Okay. This is not a very good scanner. 14

Q Okay. Now we have -- why don't you stop there? 15

A Okay. Here I am the bar code expert. I wonder if we actually might have a 16

problem. 17

MR. CHERNY: Can I call for technical help again, Your Honor? 18

THE COURT: Sure. 19

MR. CHERNY: Help. 20

THE COURT: Well, now we're getting -- 21

THE WITNESS: Oh, now we're getting it. 22

THE COURT: Well, we were, I think. 23

THE WITNESS: Is the beeper turned off? That may be one thing 24

that's wrong with it. 25



THE WITNESS: Okay. Being in the bar code business a long time, I 2

expect a beep when I read a bar code. 3

BY MR. CHERNY: 4

Q Okay. Well, now we have another pattern up. Please explain. 5

A Okay. Now we have another pattern up there. It's the same as the pattern 6

we saw on the left, it's called the center guard bar pattern. 7

Q And can you please explain the center guard bar pattern? 8

A Again, by itself, it's just a recognition feature. Now when you put the two 9

together, as I've shown on the screen, now it's forming a sandwich, so to speak, 10

and in between that goes bar and space patterns that represent the six digits that 11

are on the left side of the symbol. 12

Q Okay. Well, what about the other half of the bar code? 13

A The right side is constructed quite similar. You have a pair of recognition 14

patterns like that that form a sandwich, and six more patterns worth of data 15

characters are in between. 16

Q Now why is the symbol broken up into a left and right half that way? 17

A It's broken up that way to make it easier to read at a super market. It's a -- 18

it's a issue called omni directionality. When it's printed like that in two halves and 19

can be scanned in two halves, it's -- you can rotate that symbol at any orientation 20

and still read it. 21

Q Can you please explain how those bars and spaces represent the numbers 22

underneath? 23

A Yes, I can. To do that, let me switch back to the other animation here. Okay. 24

Here's the same bar code again that we've been looking at, and what I'll do is I'll 25


highlight the first pattern on the left which represents the number 6. 1

Q Can you show me how this corresponds to a 6? 2

A Yes, I can. To do that we need to direct our attention over there to that 3

poster that's labeled "Character set." 4

Q And I believe that's from Exhibit 3363 as well? 5

A Okay. 6

Q Can you explain this? 7

A Yes. This chart here shows the entire alphabet defined by the UPC 8

language. These are all the different patterns that are used to encode the ten digits 9

0 through 9. First thing you'll see looking at the top row is that there are actually 10

three different patterns that can be used to encode the number 0, and three more 11

for the number 1, and so forth. 12

Q And should we focus on one particular -- 13

A Yeah. 14

Q -- set of patterns? 15

A Yes. For the moment, we can ignore the other two columns on the right and 16

just focus on this first column on the left, which has a set of patterns that represent 17

the ten digits. 18

Q Do the patterns have anything in common? 19

A Yes. There are rules for UPC in terms of how you put the patterns together. 20

And the first rule you can see is that all these patterns are the same width as each 21

other as you look up and down. Next thing you'll see is every one of these patterns 22

starts with a white area and ends with a dark area, starts with a space and then a 23

bar and then a space and then a bar. Every UPC character has two spaces and 24

two bars like that. 25


Q But I see seven spaces and seven bars. 1

A Right, I see what you mean. Looking at the top pattern, for example, it looks 2

like there are seven boxes there. We draw it that way on this chart to illustrate how 3

the characters are constructed, but those narrow lines aren't actually printed. 4

What's really printed is just a big white space and then a bar and then a space and 5

then a bar. 6

Explaining what these divisions mean, let's take a look down here at the six, 7

for instance, the pattern for six. You can see that it does start with a narrow space 8

and a narrow bar and a narrow space, and what follows is a four module wide bar. 9

It's got those lines in there to show that this bar is supposed to be printed exactly 10

four times as wide as that one. 11

Q Now you mentioned the word "module." What's a module? 12

A Yeah. The module is the -- kind of the unit of measure of a bar code. Every 13

narrow space and narrow bar is arbitrarily defined as one module wide. 14

Q Is there an assigned measurement to a module? 15

A No, that's not actually a unit of physical measurement, it's a logical quantity 16

which describes how bar codes are constructed. 17

Q So there's no assigned measurement like a tenth of an inch per module? 18

A No. UPC bar codes can be printed over a pretty wide range of sizes. The 19

module size changes, that makes the overall bar code get bigger or smaller. 20

Q Now can you show me where the patterns you have on the character set 21

correspond to the UPC bar code up on the screen? 22

A Yes, I can. That first pattern that's highlighted in green there, if you look at 23

the screen you can see it's a narrow space, a narrow bar, a narrow space and a 24

much wider bar. Now going to the chart and finding the pattern for 6, you see that's 25


what we've got and you see further that that wide bar is exactly four times as wide 1

as the narrow bar. Okay. Moving on -- 2

Q Please continue. 3

A -- the next pattern next to that I'll highlight in a different color, and it's right 4

over the 8, and that is the pattern for an 8. Looking it up on the chart, you'll see it's 5

got two narrow spaces and two pretty wide bars, and in fact, it's one module space, 6

two module bar, one module space and three module bar. And going back and 7

looking at the screen, you can see now that's exactly what it is. 8

Q Please continue. 9

A Okay. Next number is another 6. So, as you'd expect, the next pattern is the 10

same pattern we saw for the first 6. 11

Moving on, we have a new pattern, so we'll put it in a new color. For the 12

number 2, it has two fairly wide spaces this time. And if you go back to the chart 13

and look up the 2, you'll see a two module space, a one module bar, a two module 14

space and a two module bar, which is what you see on the screen. 15

Next is another 2; same number, so, of course, it's the same pattern. Next to 16

that is you got another 6, and, of course, it's the same pattern as we've seen before. 17

Now, crossing to the other side of the symbol, we'll see another 2, but stop 18

and wait a second. This is not the same pattern as we've been seeing for a 2 19

earlier. 20

Q Where does it come from? 21

A It comes from another column of the chart. Now, if you go back to our 22

character set, our alphabet, now you look at the right column and you'll see a 23

different way of defining a 2, which is a two module bar, a one module space, a two 24

module bar and a two module space. And looking at the screen, you'll see that's 25


what we're using now. 1

Q What about the middle column? 2

A The middle column is part of the UPC character set, but it's not used in a 3

UPCA symbol, which is the particular flavor of UPC we're looking at right now. 4

THE COURT: Would that be typical that on the left side you would 5

have either an odd set and on the other side an even set, or vice versa? Is that -- 6

THE WITNESS: That's exactly right. That's how we tell when we're 7

scanning whether we're looking at the left half of the bar code or the right half. We -8

- you know, it could be upside down, we don't know from the scanning which way it 9

is, but that's exactly right. We use only the odd parity set on the left half of the 10

symbol and the even parity set on the right half of the symbol. 11

BY MR. CHERNY: 12

Q And why is it called odd and why is it called even? 13

A Okay. If you take a look at that chart, for the 2, for instance, on the 2, there's 14

two two-module-wide bars for a total of four. On the other side, there's a one 15

module bar and a two module bar for a total of three. So, some of the bars, that's 16

odd in one case and even in the other. 17

Q Can you tell me what the purpose of that number is on the bottom of the bar 18

code? 19

A Yes. That's the -- that's the Universal Product Code, the UPC number. 20

That's what identifies the product. 21

Q Now is it the number that identifies the product or the bar code? 22

A It's the number, not the bar code, actually. For instance, if for some reason 23

the clerk can't scan that bar code, they type in the number and it identifies the 24

product exactly the same way. 25


Q Now where does the number come from? 1

A The number is part of a numbering system that's maintained by the Uniform 2

Code Counsel in Dayton, Ohio. 3

Q Does some part of that number come from the Uniform Code Counsel? 4

A I'm sorry, could you repeat the question? 5

Q Does some part of that specific number come from the Uniform Code 6

Counsel? 7

A Yes. Actually only the left half of the number comes directly from the Uniform 8

Code Counsel. The first six digits are assigned by the Uniform Code Counsel to 9

different manufacturers, so that, for instance, Coke gets one number, Pepsi Cola 10

gets -- or the Pepsi Company gets another number. 11

Q And can you please explain the numbers on the right side? 12

A Yes. The first five digits on the right are the numbers that any manufacturer 13

is free to assign to his own product line so that Coke can tell the difference between 14

a 16 ounce Coke and a 16 ounce Diet Coke, for instance. 15

Q Now what about the one that's all the way on the right? 16

A The one is a little different. The one is called a check digit. 17

Q And what's a check digit? 18

A That's to catch errors. What you do is you take the first 11 digits and you run 19

a mathematical calculation over them, and the result should match that last digit. 20

So when we run that calculation over these numbers, the result would be the 21

number one. And we encode that as the last digit so that we have a check on 22

whether or not the other numbers were perceived correctly. 23

Q Now is that just when you're scanning the bar code? 24

A When you're scanning a bar code, we check that number ourselves, and if it 25


doesn't work out, we know we don't have a correctly decoded symbol yet, and we'll 1

keep scanning. If, on the other hand, the number was keyed in, then the store 2

system checks that number, runs the same calculation, and if the check digit isn't 3

right, then the system knows there was a typo. 4

Q Now, Mr. Schuessler, what information is encoded in this bar code? 5

A The numbers you see at the bottom of the bar code. 6

Q Anything else? 7

A No, nothing else. 8

Q What about the price or a description of the product? 9

A No. Neither of those are encoded in the bar code. 10

Q Wouldn't it be easier just to put the price in the bar code? 11

A You might think so at first, but actually it would be a lot harder. The reason 12

for that primarily is prices want to be able -- stores want to be able to assign their 13

own prices, put items on sale, and so forth. If you have to change the label every 14

time you put something on sale, that would be cumbersome. If Heinz catsup had to 15

put a different UPC on for every store that wanted to charge a different price, that 16

would be cumbersome. So instead there's just one UPC number that means Heinz 17

catsup, and every store is free to assign their own price to it. 18

Q Now must the bar code for a particular product always look the same? 19

A No, actually, it can look quite different in a variety of ways. One thing is the 20

bars can be printed in different colors to match the inks that are already available on 21

the packaging. They can be printed in different sizes; there's quite a range of sizes 22

that are allowed. The bars can be taller or not so tall. You can print that on a 23

curved surface and it will look different than on a flat surface. 24

Q Are there other ways that the appearance of a bar code for a particular 25


product can vary? 1

A Yeah. Unfortunately one very common way is that ink spread problem we 2

talked about earlier. 3

Q Do you have an animation showing ink spread? 4

A Yes, I do. Okay. Give me a moment to find it. 5

Q Please. 6

A Okay. And now give me a moment to find the little wand I scan with. All 7

right. 8

Okay. What we see here is the kind of patterns we saw at the left and right 9

sides of the symbol, those guard bar patterns which consists of a narrow bar, a 10

narrow space and a narrow bar. They -- on both sides now we have them printed 11

as they're supposed to be, but what happens when you have ink spread we'll show 12

by looking at the pattern on the right. Ink spread is a good name for it. The ink 13

spreads and what happens is the bars get much larger at the expense of the space 14

in between. 15

Q Now does that happen often? 16

A It's a very, very common occurrence. Yes. 17

Q Does it happen so often that sometimes people try to compensate for it? 18

A Yes, that's right. Do you remember yesterday we heard about film masters, 19

that's the art work for making a UPC symbol on packaging. Very often in the art 20

work, they deliberately make the bars narrow expecting the ink to spread. If it does, 21

then the bars come out the way they were supposed to, but if it doesn't, then the 22

bars come out too thin. 23

Q Do you have examples of ink spread and bars that are too thin? 24

A Yes, we do. This can here, which was blown up on the poster, is an example 25


of where the ink had spread and the bars are much too thick. 1

On the same shopping trip I picked up that, I picked up this package, which is 2

an example of where the bars are much too thin. I don't know if Your Honor can 3

see that. 4

THE COURT: The -- I can. The first one was 3261, the hand cleaner. 5

THE WITNESS: Yes. 6

THE COURT: What's the exhibit number on that? 7

THE WITNESS: That's PTX-3255. 8

THE COURT: 3255. All right. 9

MR. CHERNY: Actually, Your Honor, the poster was 3261. The 10

orange hand cleaner itself is actually -- 11

THE COURT: Oh, 3255I? 12

MR. CHERNY: Correct. 13

THE COURT: Yeah. 14

BY MR. CHERNY: 15

Q Now does ink spread and having two thin bars actually change the ratio of 16

the bars and spaces? 17

A Yes, it surely does. Looking back at the screen on the left, those are three 18

one-module elements, the space -- the bar, the space and the bar. So the ratio 19

between them is one to one to one. That's the way they're supposed to be. When 20

the ink spreads, the ratio between them is now, say, two to one to two. It's a 21

different radio altogether. 22

Q And even though the ratios change, your readers still read these codes? 23

A Yes, we do. 24

Q Mr. Schuessler, do you have an animation showing how your readers work 25


from beginning to end? 1

A Yes, we do. Give me a minute to que that up. 2

Q I think it's in the same animation you have? 3

A Yes, I think it is, too. The difficulty here is keeping track of the wand. Okay. 4

Yeah, here we go. 5

Q And what do we see here? 6

A What we see here is the LS-4000 scanner. It's the same scanner I have right 7

here next to me. It's our current standard point-of-sale retail hand-held scanner. 8

Q And, Mr. Schuessler, can you read the exhibit number off the scanner that 9

you have in your hand? 10

A Yes. It's Plaintiff's Trial Exhibit 3331. 11

Q Okay. Now, is the LS-4000 a good scanner to use to demonstrate how 12

Symbol's products work? 13

A Yes, it is. It's -- I believe it's our largest selling single scanner model ever. I 14

know we've sold well over a million of them. It's a good representative scanner to 15

use. 16

Q Okay. How would you begin? 17

A Okay. I'd begin by showing you how we use it. Let's see, we pick up the 18

scanner, and we'll point it at a bar code, and when we pull the trigger, you get this 19

bright red line of laser light across the bar code. 20

Q Does it come out in a line? 21

A No. It actually comes out in a single spot of laser light; however, that spot is 22

moved back and forth so rapidly that to the human eye it looks like a single line. 23

Q Now does the reader have to be in a certain position relative to the bar code? 24

A No, not at all. It can be fairly far away, as we show here, or we can bring the 25


scanner much closer and it reads anywheres in that range, and probably even a 1

little closer than that. 2

Q Does the bar code have to be flat? 3

A Oh, no. Bar codes are often showing up on curved surfaces, so we have to 4

be able to read that, too. 5

Q Is there any particular angle it has to be lined up at? 6

A No. The scanner will read bar codes over a wide variety of angles. 7

Q Do you have to aim at the middle of the bar code? 8

A Not at all. But as long as the bar code is somewheres within that laser line, 9

we'll read it. 10

Q Does the bar code have to be on a smooth surface? 11

A No. Bar codes are often on plastic bags and other surfaces that naturally get 12

crinkled. We have to be able to handle that. 13

Q Can the bar code be read if a surface is skewed or turned away from the 14

scanner? 15

A Yes, it can. You don't have to be careful in your orientation like that. 16

Q How careful does the operator have to be in positioning the scanner relative 17

to the bar code? 18

A Not careful at all. We wouldn't have a product if it was true. We sell these 19

scanners to be used by store clerks, other untrained operators with high turnover. It 20

has to be really intuitive, you have to be able to just pick it up and use it. 21

Q Now why isn't it important to aim carefully or to position how close or far the 22

scanner is? 23

A Because it's really very analogous to the reading process, as we talked about 24

earlier. We just illustrated the equivalent to what I was doing with the word "hello." 25


We just illustrated all that with a bar code. You can be very close, you can be very 1

far away, you can be tilted, you can be crumpled. The image of the bar code, of 2

course, as perceived by the scanner would change every time, but we're not looking 3

to match the image, we're looking to recognize the underlying pattern. 4

Q And that's the distinction you drew before between reading and matching or 5

measuring? 6

A That's exactly right. We're not measuring the bars either. If we were, we 7

wouldn't be able to work over a variety of businesses. The actual widths don't 8

matter, only the relative proportions as we perceive them. 9

Q Okay. How does the scanner actually work? 10

A All right. To go further into that question, we'll have to look under the hood, 11

so to speak. And so let's take a look inside the LS-4000. This is looking down from 12

above. Now let me get my laser pointer to point out a thing or two. 13

As you're looking at it now, the laser would come out the front of the scanner 14

pointing towards the bar code. Where that starts is there's a silver barrel here near 15

the front, and that silver barrel is pointing back towards the mirror in the back. 16

Q Now why is the laser pointing backwards as opposed to forwards? 17

A Okay. As you can see here, we have the laser light pointing towards that 18

mirror. The reason we do that is because the laser spot has to move. So we direct 19

it at a mirror which oscillates back and forth and creates that motion. 20

Q And can you show us? 21

A Yes. Okay. As you see now, the laser light is bouncing off that mirror being 22

directed back out the scanner, and the laser is being swept back and forth. Every 23

time it sweeps, it has to slow down at the end to stop and turn around, speeds up in 24

the middle, slows down at the other end to stop and turn around, speeds up again, 25


and so forth. 1

Q So are you saying that while it's oscillating it's not going at a constant speed? 2

A No, it's really very much like a pendulum motion. It's a natural motion that 3

has it constantly slowing down and speeding up as you see. And that motion 4

translates to what shows up on the page. The laser spot slows down at each end to 5

turn around, speeds up and slows down again at the other side. 6

Q Is there anything else that affects the speed of the spot across the bar code? 7

A Yes, there is. In addition to this wide variation we see left to right in the spot 8

speed, there's another important factor, which is distance. 9

Q And how does distance affect the speed? 10

A Well, as we see here, we have the laser going across, that's about a one-11

inch bar code, so that's about a three inch scan line, but if you move the symbol 12

much closer, now that scan line is about one inch wide. The reason that matters is 13

because up close the laser on every sweep has to cover one inch in a certain 14

amount of time; far away it has to cover three inches in exactly the same amount of 15

time. Therefore, the spot has to be going three times faster at the other distance. 16

Q Now given the effects we've just seen, is there any way to know how fast the 17

spot is moving across the bar code? 18

A No, there isn't. I'll show this from another angle. 19

THE COURT: Well, let me -- 20

THE WITNESS: Oh. 21

THE COURT: -- let me interrupt you then. 22

THE WITNESS: Uh-huh. 23

THE COURT: What -- this was illustrated yesterday, or attempted to, I 24

think, by Mr. Hosier on cross-examination in terms of proximity how close you were 25


to something, but it would take longer to scan, less time if you're within an 1

inch -- 2

THE WITNESS: Yes. 3

THE COURT: -- more time if you're six inches away or whatever. 4


THE COURT: Does the speed or the oscillation speed of which the 6

mirror is going to affect the scanning speed, does that change then depending upon 7

the distance you are -- 8

THE WITNESS: No. 9

THE COURT: -- or does it remain constant? 10

THE WITNESS: No, we don't try to compensate. The swing of this -- 11

of the mirror is always constant. So the -- what's called the angular momentum, the 12

angular speed of the -- of the thing is always the same. 13

THE COURT: Okay. 14

THE WITNESS: But the physical speed changes depending on 15

distance. 16


BY MR. CHERNY: 18

Q To -- just to make sure that's absolutely clear, you have two components 19

here, the speed is varying from left to right, and it's also varying depending on 20

whether it's closer or farther; is that correct? 21

A That's correct, and there's not a constant relationship between those two 22

effects. Always as you move further away, the spot goes faster. Always the spot is 23

changing as you go left to right, but if you look at the screen now, when you're up 24

close, that bar code is filling the scan line, and so you get the full range of variation 25


in left-to-right speed. Further away, you get less of that variation. 1

THE COURT: And if you stepped much closer than the one in front 2

and lost the ability of your scan to pick up the entire bar code, it would be too close, 3

you wouldn't read it? 4

THE WITNESS: Right. That's -- 5

THE COURT: It would be too blurry. 6

THE WITNESS: -- that's the limit. Yeah. That's the limit. 7

THE COURT: Yeah. 8

THE WITNESS: Yeah. That's the limit. And there's a limit to how 9

close you can read. 10


THE WITNESS: There's a limit to how far you can read. 12


THE WITNESS: If you're lucky, you can read as far as your arm. 14


THE WITNESS: That's as far as you need to go. 16

Yes. So, if you're looking at this picture now you'll see that the extent 17

to which the left-to-right variation occurs depends on distance, and so we have two 18

unknowns here, and you put that together and there's really no way we can even 19

estimate the spot speed at any given time. 20

BY MR. CHERNY: 21

Q Now what happens as the laser spot hits the bar code? 22

A Okay. As the laser spot hits the bar code, if it hits a bar, the light tends to be 23

absorbed and you get little back. If the light hits a white area, you get light reflected 24

back. 25


Now as you remember, the laser light is coherent when it comes out, but it's 1

not coherent when it comes back. If it does reflect off a surface, it scatters in all 2

directions, some of that back towards the scanner. 3

Q Now what determines how much light is absorbed and how much is 4

reflected? 5

A It's really how relatively light the paper or what's causing the spaces is, and 6

how relatively dark the bars are. 7

Q What do you mean by light and dark? 8

A Well, it's a good question, I mean, light is -- light and dark as it appears to a 9

scanner, not as it appears to a person. For instance, you could take an image of a 10

bar code and put it on a TV screen and you could see it just fine, but we can't scan 11

that. 12

Another example is colors. We can print black bars or blue bars or green 13

bars, they look different from each other to a person, but to the red light of a laser 14

scanner, they look all the same. On the other hand, we could print red bars on 15

white paper and we'd be able to see them as a pattern, but the scanner wouldn't. 16

Q And that's because the red light -- the red bars reflect the red light? 17

A Right. The red bars reflect light just as well as the white paper does. 18

Q Now what happens to the light after it's reflected back? 19

A Okay. After the light is reflected back, some of that light comes in through 20

the clear window, and some of that light is collected by that gold mirror in the back, 21

which is curved so it can direct the collected light back towards the photodiode in 22

the front. 23

Q Now why do you want to concentrate the light on the photodiode? 24

A Well, the photodiode is the part of the system that's sensitive to light. It 25


generates a signal, and the more light that's collected on it, the stronger the signal 1

is. 2

Q Now what do you mean by signal? 3

A Well, let me show you. Okay. On the bottom there we have a typical pattern 4

from part of a bar code. On the top we have the signal that's created as the laser 5

would move across that, and the high points in that signal represent times when the 6

laser was on a space and a lot of light was reflected back, and the dips in that signal 7

would represent the times where the laser was over a bar and not much light came 8

back. 9

I can illustrate that in motion now. Looking at the bottom of the screen, you'll 10

see the laser go across once I get that to scan, there you go, and you'll see every 11

time the laser hits a bar, there's a dip in the signal. And you'll see one last dip 12

coming up as we hit that last bar. 13

Q Now how come and peaks and valleys of that signal don't seem to line up 14

with the bars and spaces? 15

A They don't do that because the spot speed is changing left to right as we go 16

across. I'll run that again. At least I think I will. Okay. Yeah. As the laser is 17

moving, they start out looking kind of in sync, but as the laser slows down, the 18

signal on top will appear stretched out. 19

Q Could you take the signal at the top and -- I guess first the question is, is that 20

signal the analog signal? 21

A Yes. That signal would be the analog signal coming out of the photodiode, 22

for instance. 23

Q Could you take that analog signal and reconstitute the way the bar code 24

looked? 25


A No, you could not. 1

Q Why not? 2

A Several reasons, one of which we just mentioned. Because the spot speed 3

isn't constant, the analog signal is distorted, it gets stretched out as the spot speed 4

changes, and so you wouldn't be able to get the right ratios back. 5

On top of that, we don't know literally how big the bars and spaces were at 6

all, because we don't know any of the factors we talked about with variable 7

distance, so we couldn't print the bar code at the right size from this. In addition, we 8

don't know the color, we don't know the height of the bars, of course, we don't really 9

know anything about it except the relative kind of measurements we care about. 10

Q Do you know the widths of the individual bars and spaces? 11

A No, we don't. 12

Q Why not? 13

A Well, because of the effects we talked about. If you don't know the speed, 14

you don't know the distance. The analogy is like driving a car. Let's say you drove 15

a car for half an hour, and if you watched your speedometer the whole time and 16

didn't have an accident, after half an hour you'd know that you'd gone exactly thirty 17

miles because you can figure it out, sixty miles an hour times half an hour, but if you 18

drive half an hour and never look at your speedometer, you really have no way of 19

knowing from the time how far you went. It's exactly the same thing here. We know 20

how long it took in time for the laser spot to cross a given bar, but we don't know 21

how fast it was going, so we can't calculate a width from that. 22

Q And what information is present in the analog signal? 23

A What's present? The main information is the amount of time that the laser 24

spent going over each dark and light area that it crossed, which may or may not be 25


a bar code at all. 1

The only other thing we know is from that analog signal, we have some idea of the 2

relative lightness and darkness of the bars and spaces we went over. 3

Q Now you stated that you didn't have enough information to go back and 4

recreate the scanned bar code. Is that important that you can't do that? 5

A Luckily, it's not important at all. We don't need to do that. If we were trying 6

to match a picture, for instance, I think we would need to do that. If we were 7

measuring the bars and spaces themselves, we would certainly need to do that, but 8

we don't do either of those things. We're not looking at matching a signal, we're not 9

looking at measuring the signal, we're looking at finding the underlying pattern. 10

Q Now, do you operate on the entire analog signal, or just a predetermined 11

portion of that signal? 12

A Yeah. A predetermined portion would mean nothing to me. We operate on 13

the entire signal. 14

Q Do you ever compare this analog signal to another signal? 15

A No, we don't. 16

Q Can you show me what happens to the analog signal? 17

A Sure. It all starts with the light that's coming back from the bar code area, 18

and it's variably reflected, so sometimes it's light, sometimes it's dark. That varying 19

amount of light is interpreted by the photodiode, which generates a varying signal. 20

Q And where does that signal go to? 21

A The first thing we do is we send that signal off to an amplifier because the 22

signal on a photodiode is a very weak signal, and a stronger signal is much easier 23

to work with. 24

Q And what happens with your amplified signal? 25


A Okay. We send the amplified signal off to a circuit called a differentiator. 1

Q And what is the job of the differentiator? 2

A The job of the differentiator is to try to find the transitions between the light 3

and dark areas that the laser spot was going over. 4

Q Does it only do that for a bar code? 5

A No, any light and dark area, whether it's a bar code, we may have been 6

scanning some text, news print, a picture. As long as there's any transitions from 7

light to dark, the differentiator will generate a signal like that. 8

Q Now does the scanner only scan the bar code? 9

A No, usually not. I'll use this as an example. As you scan, the scan line is 10

usually much wider than the bar code. As you see in this case, it's almost inevitable 11

that you'll cover some text as well as the bar code. 12

Q Now are you saying that the differentiated signal will show transitions in both 13

the bar code and whatever else is scanned? 14

A That's right. Transitions for anything it scans. 15

Q Now why do you want to find the transitions between light and dark areas? 16

A Well, because if there is a bar code under that scan line, then the transitions 17

between light and dark areas would represent the edges of the bars and spaces, 18

naturally, and that's what we need to know. 19

Q How does it find the transitions? 20

A Okay. If you look at the signal on the left, that's the analog signal amplified, 21

and it's a series of hills and valleys. The peaks represent where we were getting 22

the most light reflected back, and the valleys represent where the least light was 23

reflected back. 24

What we do is we look for the steep slopes of those hills and valleys. We do 25


that because when the slope is steepest, that's where the spot was crossing from 1

light to dark. That's where there was the biggest change in signal over the shortest 2

time, and this circuit responds to that and generates a spike every time there's a 3

strong sudden change in the signal. 4

Q So what you're saying is it looks for the place where the change is greatest 5

over the shortest amount of time? 6

A That's right. It's looking -- it's -- it's the first derivative, and that's why we call 7

it a differentiator. That signal is strongest where the light -- where the laser spot is 8

crossing from light to dark or vice versa. 9

Q Is this method like using a clipper or a fixed threshold? 10

A No, actually it's very much different from that. Looking at that signal on the 11

left again, for instance, you could find a fixed horizontal line that would be halfway 12

between where the highest peaks were and where the lowest valleys were. You 13

could take that horizontal line, go across that signal on the left, and you could either 14

clip the signal at that point, chop off the tops of the mountains, or you could 15

arbitrarily say that when the signal is above that, we'll call it a space, when it's below 16

that, we'll call it a bar. 17

Looking at this signal here, that might look like a reasonable thing to do, but 18

as you'll see later on, when we have real world signals, that just doesn't work at all. 19

The actual amplitude, that's what that's called, the height of the signal, the actual 20

amplitude is just affected by too many different factors and it's a really terrible 21

indicator of where the bars and spaces would be. Instead we look at the slopes 22

'cause the rate of change represents the fact that we've crossed an edge. 23

Q Now what do you do with a differentiated signal after the differentiator? 24

A Okay. First I find that scanner again, and then we send that off -- 25


Q I think you went one -- 1

A Oops, I went one too far, I'm sorry. 2

The differentiated signal we send off to a filter. 3

Q And what does the filter do? 4

A Cleans up that signal a bit, gets rid of the little noise spike that we don't need, 5

also does some amplification, as you can see. 6

Q And what do you do with the filtered signal? 7

A Okay. We send that off to another circuit called the digitizing circuit. 8

Q And what does the digitizing circuit do? 9

A Its job is really to give us just an easier-to-measure version of the signal on 10

the left. Those spikes are relatively difficult to measure accurate accurately. The 11

digitizing circuit responds to those spikes, and every time there's a spike, it 12

generates a change in the signal on the right, which is a nice easy-to-measure 13

square-looking signal. 14

Q Now is there a name for the signal that's coming out of the digitizing circuit? 15

A Yeah. The signal on the right is called the digitized bar pattern or DBP. 16

Q Now, does the digitized bar pattern tell you where the bar code is? 17

A No. It's not the greatest name for that signal. We'll get that same kind of 18

signal whether we're looking at a bar code or even not looking at a bar code. 19

Q So you're saying you get that same squared-off signal even if there's no bar 20

code present? 21

A That's right. That signal looks squared off and on purpose, and so it looks 22

like a bar code to us, but, in fact, you'll get that same kind of squared-off signal if 23

you're scanning text, if you're scanning a picture, really anything. 24

Q Now if there's a bar code in there, does it tell you the widths of the bars and 25


spaces? 1

A Oh, no, we can't tell the widths of the bars and spaces from that. 2

Q Why not? 3

A Well, as we said before, we don't know the speed the laser spot is going at, 4

so we have no way of translating a time measurement to a distance measurement. 5

Q And that was your car analogy? 6

A That was the car analogy, yeah. 7

Q Now is the DBP proportional to the widths of the bars and spaces? 8

A No, not even that, because the spot speed changes from left to right, there's 9

no fixed proportionality there. I can't take those time measurements, multiply them 10

by the number -- by any fixed number or scale and come up with distance 11

measurements. 12

Q Now when you say time measurements, are you saying that the DBP is a 13

series of time measurements, not distance measurements? 14

A That's right. All that signal really tells us is the amount of time that the laser 15

spent over dark and light areas. 16

Q Now you just testified that the -- that the DBP is not proportional to the widths 17

of the bars and spaces, but are you aware that some of the Symbol documents do 18

state that the DBP is proportional to the bar code? 19

A Yes. Sure. 20

Q Can you explain that? 21

A Yeah. It's a mental image thing. Those documents are typically directed at 22

either a sales force or customers or systems integrators. The description is good 23

for somebody who is not trying to understand every last detail of how a scanner 24

works. The real explanation -- 25


THE COURT: Excuse me one second. I'm sorry. 1

THE WITNESS: -- of this is quite complicated. 2

(Pause in the proceedings) 3

THE COURT: All right. Sorry for the interruption, counsel. Just had a 4

matter I had to take care of there. 5

Go ahead. 6

BY MR. CHERNY: 7

Q I believe we were at you were explaining why it is that some of Symbol's 8

documents say that the DBP is proportional to the widths of the bars and spaces 9

even though you've testified that they are not? 10

A Right. This is directed at either a non-technical audience or even a very 11

technical audience who isn't at that moment interested in the exact details of how 12

this all works. As you'll see, we'll see how it really works, but it's quite a 13

complicated explanation. 14

Also, it's difficult for people to get in their heads the concept that we're 15

looking at the widths of the bar codes, but we're looking at them by measuring 16

times. It's -- makes that easier to understand if we just say that the times are 17

proportional to the widths. They're not, but over a very small area as the laser 18

scans across, if you look at just a very small region of that, the spot speed 19

acceleration is not very severe over a small area. So, as long as we're only looking 20

at a small group of light and dark transitions at a time, the amount of time spent is a 21

pretty good proxy for the widths, so we get -- not their absolute widths, but their 22

relative widths. So we can use the relative time measurements over a short area as 23

a decent approximation of the relative widths over that same short area. 24

Q But you're never actually measuring the width, is that correct? 25


A Oh, no. We have no idea of the absolute widths. We only know the absolute 1

times, but we can use the relative times as a proxy for the relative widths. 2

Q So, the relative times are actually only an approximation of the widths. 3

You're not actually measuring the relative widths, is that correct? 4

A That's what I mean by proxy. Yeah. It's an approximation that's good 5

enough for us to decode with, but we're not really measuring even the relative 6

widths of the bars and spaces. No. 7

Q Does the DBP tell me where the bar code is in a scan line? 8

A Not at all. First of all, it doesn't even tell us if there is a bar code there. 9

Secondly, even if there is, it doesn't tell us where that bar code is on the object or 10

even left to right within the scan line. 11

Q Does it tell me if the bar code is right side up or upside down? 12

A No, it doesn't. 13

Q Does the DBP tell me anything about what the scanned area looked like? 14

A The only thing it tells you is as the laser crossed, there were some light and 15

dark areas, and it tells you approximately how much time the laser spent over those 16

light and dark areas. That's it. 17

Q Now you say that the DBP can be used to measure the times between 18

transitions. How do you do that? 19

A Okay. To do that, now that we have a relatively easy-to-measure squared-off 20

signal, we send that signal off to a circuit called the counter. 21

Q And what does the counter do? 22

A Okay. The counter measures those times. There's a timer running inside 23

that circuitry, and it's running at some fixed rate. Let's say, for instance, it's running 24

at a megahertz, which means every tick of that timer is one millionth of a second or 25


a microsecond. So, as that circuit runs, we'll measure the duration of these pulses, 1

and that first pulse, as shown here, may have lasted for 337 microseconds. 2

The second pulse then was low for a 199 microseconds, then it was high 3

again for 131 microseconds, and so forth. 4

Q Now you gave an example of a megahertz. Is that the only rate at which you 5

count? 6

A No. And different products have different timer frequencies. The exact 7

frequency doesn't matter as long as it's a high resolution enough to give us decent 8

measurements of these individual pulses. 9

Q Well, why doesn't it matter? 10

A Okay. It doesn't matter -- and we just call these counts or timer ticks, we 11

don't really refer to them as microseconds. It doesn't matter because we're not 12

interested in the absolute time of a given measurement. The fact that the laser saw 13

a light area for 337 microseconds, that's meaningless to us. Okay. The absolute 14

number doesn't mean anything until we put it in context of other numbers, until we 15

do that ratio metric analysis that says what's interesting is the ratio between the 16

amount of time it spent over one area and another. And once you take a ratio 17

between those two numbers, the units of measurement, the exact units of time drop 18

out of the equation. 19

Q Now the numbers you have up on the screen, 337, 199, are those made-up 20

numbers or are those actual counts? 21

A No, those are actual counts I took from scanning the hand cleaner can here. 22

Q Now were there only six counts? 23

A No, there were actually over 70 counts in that scan that I captured, but I'm 24

only showing a little bit of that here. 25


Q Now what are the chances of getting the exact same set of counts from two 1

different scans? 2

A Very slim. In all my years of scanning and looking at the signals, I don't think 3

I've ever seen the exact same signal come back twice. 4

Q Why don't you need the same counts? 5

A Well, they're -- they're just not important. We're not trying to measure these 6

widths, so we don't care with any accuracy what the counts end up being, we only 7

are interested in the ratios between them and the decode algorithms provide a lot of 8

slop, so to speak, allowing there to be a lot of variation in how it's printed or how it's 9

scanned. So the exact numbers don't matter. 10

Q Now from looking at this DBP up on the screen, can you tell me if these 11

counts came from reading a bar code? 12

A From looking at that, no, I wouldn't be able to. 13

Q Why not? 14

A Because -- well, looking at the signal, first of all. No matter what you scan it 15

looks like that, it looks like a bar code. Looking at the counts, when you just look at 16

them by eye, all the counts look the same, too. You actually have to run the decode 17

algorithm over those numbers to find the relationships that are in there, especially 18

as the numbers are -- vary a lot under real-world conditions. 19

Q Do you happen to know whether this portion of the signal came from reading 20

a bar code? 21

A Yes, I do because I've already decoded this data. I happen to know that 22

these counts actually were from scanning the text to the left of the bar code, not 23

from the bar code at all. 24

Q Now, once you derive the counts, what do you do with them? 25


A Okay. Once we've derived these counts, we need to store them in memory. 1

So, the last stage here is that we take those time measurements and we stick them 2

sequentially in memory, like this. 3

Q Now, are the counts a signal? 4

A The counts themselves are not a signal, the counts are data. 5

Q Do you store the actual DBP signal in memory? 6

A No, we don't store the signal, just these counts. 7

Q Now after you've got the counts in memory, what do you do next? 8

A Well, now that we have the counts in memory, we can run a decode 9

algorithm over them and try to figure out if there's a bar code there, and, if so, what 10

it is. 11

Q Can you show us how the decode algorithm works? 12

A Yes. Let me switch screens. Okay. 13

Q That was actually pretty seamless. Could you tell me what this chart shows? 14

A Yes. This chart shows the actual counts that I measured when scanning that 15

hand cleaner bar code which is blown up on the chart there. 16

Q And, in fact, we can see the counts that -- the little section that you had up 17

before, starting with the 337? 18

A Yeah. You can recognize them up there along the top line of that. 19

Q Okay. Now, are the numbers, the counts, formatted this way in the 20

computer? 21

A Not at all. Actually, if anything, they're formatted like we see in the very 22

bottom of the screen; it's just one long continuous series of numbers with no 23

formatting at all. As you see you can't even see those numbers on the screen, so 24

what we do is first we show the formatted ones for you up top, and what we'll do 25


continuously is we'll put a little box around the area on the bottom of the screen that 1

we're actually focusing on and blow it up like you see here. 2

The last thing I'll mention is, of course, they don't -- 3

the counts don't come in in different colors. We put in gray the counts that 4

represent time spent over light areas, possibly spaces, and we put in black the 5

counts spent over the dark areas, or possibly bars. 6

Q Now I see you start with a space. Is that true always, or do you sometimes 7

start with a bar? 8

A We just have a convention in our products that the first thing we stick in 9

memory is always a space. That helps us keep track of which counts are the 10

spaces and which are the bars. 11

Q Now, how many sets of counts are shown here? 12

A At the top of the screen that's a total of 73 counts. 13

Q And what do the 73 counts actually represent? 14

A Well, they -- they represent when I scanned this can on one particular scan, 15

the laser saw 73 transitions from dark to light, or vice versa. 16

Q Does it always have to be 73? 17

A No. Totally depends on where the operator aims and so forth. 18

Q Do all 73 counts represent the bar code? 19

A No. This UPCA bar code only has 59 transitions within it. The others are 20

from graphics and text. 21

Q Can you tell by eye if there's a bar code in that set of counts? 22

A No, I can't. 23

Q Can't you just look at the ratios between the counts? 24

A No, it's not that simple, actually. Even looking at the ratios between the bars 25


and spaces, you wouldn't be able to detect a bar code that way. 1

Q Now, what is the first step of the decode algorithm? 2

A Okay. The first step of the decode algorithm is to find whether or not there's 3

a bar code there at all. As you saw, it's just a big long run of numbers. None of that 4

looks like a bar code. So our challenge is to figure out if those numbers could be a 5

bar code. If so, where within that whole scan of data the bar code is, and then 6

figure it out. 7

Q How do we do that? 8

A Well, to get started, we rely on a feature that most of the bar codes have. 9

Looking at the chart, for instance, on the poster there, most of the bar codes we 10

scan have relatively large white spaces immediately to the left and the right of the 11

bar code. Those white spaces are called quiet zones, we call them margins 12

internally, so those two spaces there, just within the dotted lines, would be the left 13

margin and the right margin of that bar code. 14

Q So you begin looking for the margins? 15

A Right. The easiest way for us to start the search and limit the computation is 16

to try to find these relatively large light areas to either side of the bar code data. 17

We're looking for ratio, as always. The spaces inside that symbol, for instance, can 18

be compared to the narrowest space only as much as four times as wide. The 19

space outside the bar code is at least seven times as wide. 20

If you look -- of course, all the standard bar code symbologies we read, we 21

can use a safe number and say, if we see a space more than six times bigger than 22

a narrow space in a neighborhood, we can say that's a margin. It's too big a space 23

to be inside the bar code, so we can stop searching at that point. 24

Q Well, why can't you just look at the counts and see where the big white 25


spaces are? 1

A Yeah, this is a good example of why we need an algorithm and can't just take 2

a quick look at the ratios. That first space there is quite a bit bigger than the spaces 3

to the right of them; however, that is not the right -- it's not the left margin of this bar 4

code, as we will see. 5

Q Okay. Well, what's the next step to finding our margin? 6

A So, what we have to do is run a specific algorithm that binds the margins or 7

the possible margins in a scan of data. And we do that by starting from the center 8

of the number of elements loaded. 9

Q Okay. When you say the center, are you talking about the center of the 10

scan? 11

A No, not at all, not the physical center of the scan line. We can't really tell 12

where that is. We just say, for instance, in this case, 73 transitions were loaded. 13

We divide 73 by two, we get 36, we move the pointer 36 in from the beginning. It's 14

just the mathematical center of the number of elements we loaded, nothing to do 15

with the physical scan line. 16

Q Okay. Well, what's the next step? 17

A Okay. Starting from that center point we'll examine the data and march out 18

to the right and hopefully find a space that qualifies for the criteria of being a right 19

margin. 20

Q Okay. 21

A Okay. So, the first thing we do is we look at the group of spaces, meaning 22

we're only looking at the gray counts for now. We look at the group of spaces 23

immediately to the right of that center pointer that we found, and we examine those 24

spaces looking to see if we find this rule that says if we find a space bigger than six 25


times the narrowest space of an area, that's too big to be in the bar code, and we'll 1

call that a right margin. 2

The first part of that is to find the smallest space of this group. You can do 3

that by eye pretty quickly. Actually for a computer, anything is painful, they're fast 4

but they're kind of dumb, but they do eventually find that the smallest group of this -- 5

the smallest space of this group was 26 counts. So, we remember that as the 6

minimum space and we use our rule that says if we see a space six times bigger, 7

that can't be in the bar code. So, our minimum margin count would be six times 26, 8

or 156. 9

Q Okay. 10

A Now having determined that as our margin criterion, we'll reexamine these 11

spaces to see if any of them were bigger than that. We check the first one, 33. Is it 12

bigger than 156? And, of course, not. Check the next one, 31, and so forth. 13

That fails, so we move onto the next group. We move one more group over 14

to the right, take a look at the next five spaces and repeat the same exact process. 15

Looking at the first one, is 84 bigger than 156? No. Is 90? No. And so on. 16

Q Okay. What's next? 17

A Okay. Well, we'll slide over to the right and look again at the next group, of 18

course, but before we do that, we update that margin criterion. 19

Q Now -- 20

A We look for a new minimum space. 21

Q Now you say we look for a new minimum space, why do we do that? 22

A Okay. We do that because of that problem of spot speed acceleration we've 23

been talking about. We know the spot is likely to change as we move left to right. 24

That means a narrow space in the center of the scan will probably measure a 25


smaller than a narrow space at the extreme end of the scan. The -- 1

Q Now why is that? 2

A -- patterns come out distorted because of the change in speed. 3

Q Now why is going to come out smaller in the middle of the scan than at the 4

end of the scan? 5

A Right. Because in the center of the scan is typically where the laser is 6

traveling the fastest. So at that point the counts would be relatively small. The 7

counts will appear to stretch out or get bigger as the spot slows down towards the 8

ends. 9

Q Okay. 10

A So we know that if we stick with the original estimate of how big a margin 11

would be, which we got from the center, if we didn't update that we would get into 12

trouble as the spots slow down. The ratios are going to change. 13

Q Okay. 14

A Okay. So before we move on now, it's time to update that estimate, so we 15

find the smallest space of this group. Remember last time it was 31 or so, now it's 16

29. And so we take six times that minimum space and get a new minimum margin 17

which is 174. Last time around that was a 156. So we do this mechanically 'cause 18

we don't know if the spot is going to slow down or not. We do it just in case it does, 19

and in this case it's starting to. 20

Q Okay. 21

A Okay? So now that we have a new minimum margin criterion, now we can slide 22

over to the next group and examine it. And we do the same process again, but with 23

a new criterion. Now, first, is 34, for instance, greater than 174, and it's not, and 24

then we move over to the 155 and check that. 25


May I point out that the 157 there is a good example of why we need to 1

update that criterion. Indeed, as we've been getting near the end of the scan line, 2

the spot speed is slowing down. The original margin criteria from the center was 3

156. Had we not updated that criterion, you know, anticipating the possibility of the 4

spot speed changing, that space in the middle would have passed as a margin. 5

That's incorrect. We would have not been able to decode the data had we not 6

updated the criterion, but we did, so we safely got through this group and see that 7

we don't have the margin yet. 8

What happens next is we'll slide over one more time to the right and look at 9

the next group. So we have 35 -- By the way, we updated the criterion again and 10

now it's all the way up to -- 11

Q That's what I was gonna point out. 12

A Yeah, now it's all the way up to 204, so we are comparing the spaces against 13

that number. The first one, 35, doesn't pass, the next one, 34, doesn't pass, but 14

then we hit that next space, 851, and now we finally have a space that's too big to 15

be inside the bar code. So, if there's a bar code here at all, we say this is where it 16

ends. This would be the right margin. 17

Q Do we know that it's the margin? 18

A No. We're gonna call it the right margin 'cause, if it is, then that's where it is, 19

but, if it's not a bar code at all, of course, we'll eventually give up on this scan all 20

together, but we're gonna assume it's the right margin just so that we can go ahead. 21

Of course, I should also point it could be the left margin, even if it is a bar 22

code. We don't know if the bar code is right side up or upside down. We don't 23

know, at this point, if we're scanning left to right or right to left, but we're gonna call 24

it, conceptually, the right margin 'cause it's at the right end of the data when you 25


look at it like this. 1

Q Okay. What's the next step? 2

A Okay, now having found what we're gonna call the right margin, we repeat the 3

same process starting from the center and moving to the left to find the left margin 4

and we start -- 5

Q And how do we do that? 6

A Okay, we start with a criterion of 26 that we remembered from before, so the 7

minimum margin's 156 like it was when we started. 8

Q Now -- 9

A Because, when we start here, we're still in that same region in the center. 10

Q Why are we starting with 26 again? 11

A Remember that, when we did the first half of the search, we started in the 12

middle, found the minimum space of 26 and the minimum margin of 156 and, when 13

we start this second half of the search, we're starting from the same region so we 14

can use that same criterion. 15

Q Okay. 16

A Okay, 'cause we know the spot speed here is about the same as it was 17

immediately to the right of it. 18

Q Okay. 19

A Okay, so we can just use that criterion and compare these spaces. We'll 20

compare 33, then 35, moving to the left, as you'd guess, and none of these spaces 21

will pass. We'll do the same thing with the next group and the next group. I won't 22

drag you through the details. Every time we update the minimum margin, it just so 23

happens, by the time we get to this group, it's back to the 26 again just by 24

coincidence. 25


And we'll look at this group. Is 31 greater than 156? No, it's not. We'd move 1

over to 30 and 28 and then, when we hit the 604, again we have a space that, 2

relative to the spaces near it, it's too big to be inside the bar code. So, if there's a 3

bar code here at all, this would be the left margin of that bar code. 4

Q How about all that data to the left? 5

A Right. Looking at the bottom of the screen, you'll see there's some data we 6

haven't examined here. We never do. Once we find the left and right margins, we 7

say, well, if there's a bar code, it's within these two points and the data to the left of 8

that we can exclude all together from the analysis. 9

Q Does that affect your ability to determine the relative position of the bar code 10

within the scan line? 11

A Yeah, that's part of the issue. We never even look at those last counts to the 12

left, so we don't know how far we are from the start of the scan, so to speak. 13

Q Now that you found two margin candidates, do we have a bar code? 14

A We have no idea yet. All we know is that, if there's a bar code here, it's 15

between these two points. 16

Q Okay. What's the next step? 17

A So, now knowing that, you know, thinking about it conceptually by looking at 18

that poster, if there's a left and a right margin and they do correspond to those two 19

wide spaces next to the bar code, we should start decoding at the left and see what 20

we've got, so that's what we do. 21

Q Okay. 22

A Okay, the thing is we don't know that this is UPC. We have, you know, maybe 23

eight or ten symbologies that are usually enabled in our readers and it could be 24

UPC, it could be Code 39 or it could be Code 128. 25


Q So are you saying that your readers read more than one symbology? 1

A Oh, yeah. We ship them with, I don't know, seven or eight different 2

symbologies turned on by default and there's several more that people can turn on 3

if they need them. 4

Q Okay, what's the first step? 5

A All right, so we have to figure out not only what the bar code is, but, before that, 6

which bar code language it is, which symbology. 7

Q Okay. How do we do that? 8

A And there's only one way to do that really, is to apply the rules of each 9

symbology one at a time to see if this data fits any of the rules. 10

Q Okay, which one do we start with? 11

A Well, we try them one at a time and we start with Code 39 as it turns out. 12

Q Is that really the one you start with in the LS-4000? 13

A Yes. In the LS-4000 the first one we try is Code 39. 14

Q Why Code 39? 15

A Well, it is a very popular bar code that we scan a lot. In addition, it turns out, 16

with the rules of Code 39, it's relatively easy and quick to reject it if we're really not 17

scanning Code 39. 18

Q Okay. 19

A Okay. 20

Q What's the next step? 21

A Well, so we analyze this data to see if it could be the start of a Code 39 symbol. 22

To understand what we do next, you have to know just a little bit about Code 39 and 23

how it's structured. 24

Every Code 39 symbol is made up of a bunch of symbol characters. That's 25


the alphabetic Code 39. Each symbol character is a pattern that has five bars in it 1

and the four spaces in between. And those spaces and bars can be of different 2

widths naturally, but the rules for Code 39 are quite different from UPC. First of all, 3

there aren't four possible widths like there were in UPC. Every bar and space in 4

Code 39 is either narrow or wide. There's only two widths. 5

The other difference though is wide in Code 39 isn't twice as wide as a 6

narrow. The wide bars of Code 39 could be two times as wide or two and a half 7

times as wide or three times as wide, or anything in between, 'cause there isn't a 8

fixed ratio between narrow and wide in Code 39, which means we can't just apply 9

some preconceived notion of a ratio and decode it. We have to do an algorithm. 10

The algorithm for deciding Code 39, wide versus narrow, we do like this. 11

First we find the narrowest count in the group and the widest count in the group. 12

And, by the way, you know, I talk about narrow and wide all the time. Naturally, 13

we're only talking about counts here loaded, we're only talking about time 14

measurements, but I hate to admit it, engineers are people too and, just like 15

anybody else, we want to have a mental image of what we're working with. And, 16

since we know we're trying to read a bar code, we think of it in bar code terms, so 17

we think of these times as widths. You'll hear me say it all the time, but they're 18

really time measurements. 19

Q Okay. So you now have the narrowest -- 20

A So now we have the narrowest and widest of these five counts. Now we're only 21

looking at the black counts for a moment, only the bars, and, when we find the 22

narrowest and widest, then we just take the average of those two and, when you 23

round off, that becomes 134. 24

Q Okay, what do you do with that average? 25


A Well, we use that 134 as our criterion for whether each of these counts is 1

narrow or wide. If the count is bigger than 134, we'll call it wide. Otherwise, we'll 2

call it narrow. 3

So we apply that rule to the five bars here and we see a pattern pop out. It's 4

a pattern narrow, narrow, narrow, wide, narrow. 5

Q And what does that mean? 6

A Well, what that tells us is, right away, it tells that this is not a Code 39 symbol at 7

all. 8

Q Why? 9

A It doesn't fit the rules of Code 39. The way Code 39 is constructed, there are a 10

few data characters that have no wide bars, but most of the data characters have 11

exactly two wide bars. There isn't a valid Code 39 pattern with only one wide bar. 12

Q Now am I right in saying that none of the narrows or wides have the same 13

number up there, the same count corresponds? For example, you have a 70 under 14

narrow one, a 65 under narrow two, a 63. 15

A Yeah, right. If this were Code 39, you'd see that kind of variation all the time. 16

Even when you do have Code 39 and they are true wides and narrows, the 17

numbers for the narrows won't be the same as each other and the numbers for the 18

wides won't be the same as each other. There's gonna be a lot of variation from 19

printing defects and so forth and so we have to take ratiometric measurements that 20

are -- that give us as much latitude as possible to be able to decode. 21

Q So now that we've determined this doesn't fit within the rules of Code 39, what's 22

our next step? 23

A Right. We give up on Code 39 all together and we try the next code on the list. 24

Q And that is? 25


A Well, lucky for us, the next code on the list is UPC. 1

Q That means we don't have to go through another seven -- 2

A That means -- 3

Q -- symbologies? 4

A Yeah, that means we can get out of the courtroom some time today. 5

What we do is we'll look at this now and try to interpret it as a UPC symbol. 6

And, as you remember, on the left of the UPC symbol the first thing we have is this 7

narrow bar, narrow space, narrow bar pattern called a guard bar pattern, so we're 8

gonna look at this data, same data, again, but now looking at it through the rules of 9

UPC to see if this data fits the rules of UPC. 10

Q Wait a second. I mean, I know enough about what you told me earlier that a 11

guard bar pattern has equal spaced bars and spaces, you know, each was the 12

same space, one module wide. I can take a look at that and tell you right now that 13

they're not the same. 14

Does that mean -- 15

A Absolutely right. 16

Q Does that mean this is not a guard bar pattern? 17

A It could mean that. You know, it might be that this isn't UPC at all or it could be 18

that actually this is UPC, this is a guard bar pattern, but it suffers from that 19

phenomenon of ink spread we talked about earlier. It turns out that is the case. 20

As you recall, the ink spread can actually change the ratios between bars 21

and spaces and I know in advance in this case it did that quite a bit. There's more 22

than a 2 to 1 ratio there between the space and the bar. They were supposed to be 23

printed the same. In actuality, they weren't printed the same. 24

Q How do we deal with that? Do you have an animation that shows that? 25


A Yes. Let me go back to an animation that we had earlier and I'll explain to you 1

how we actually handle this problem. 2


Okay, as you recall, we saw this earlier. This is what you meant by they're 4

supposed to be the same width. Indeed, they are. It's supposed to be a one 5

module bar, a one module space and a one module bar and, as we saw earlier, 6

because of ink spread, we can get a distorted pattern that actually appears a lot like 7

what we just saw in the counts where the bar is much bigger than the spaces, easily 8

twice as wide. And, in fact, when you measure them, and we have different 9

measurements in this example, but, as you measure them, what should have been 10

equal size counts, like 13 versus 13 versus 13, become a different pattern all 11

together, 17 versus 9 versus 17. 12

Q What do we do? 13

A The way we handle that -- 14

Q What are we gonna do? 15

A Yeah, what am I gonna do. Well, I'm not gonna give up. It turns out there's a 16

way to handle this. When the gentlemen at IBM invented UPC, they also invented a 17

method to handle this, which we apply to this kind of bar code, and it's called an 18

edge to similar edge measurement. If you look at the bottom of the screen now, if 19

you just sum up the bar and space on the left, 13 plus 13 is 26. The measurement 20

on the right at the top showed 17 versus 9, but, if you add them together, the sum is 21

still 26. 22

The reason this works is we take advantage of the actual physics of what's 23

going on here, which is that, when the ink spreads, it spreads equally to the left and 24

the right of each bar. 25


So, if we look at the left edge of one bar, it's moved because of ink spread, 1

but, if we look at the left edge of the next bar, it's moved by the same amount. So, if 2

we only look at the left edge of one bar compared to the left edge of another bar, 3

that overall measurement actually shifts and doesn't change. 4

THE COURT: Is that dependent upon the ink spreading evenly or equally? If 5

it doesn't, then that's not going to -- 6

THE WITNESS: Yes, Your Honor. You have a future in the bar code 7

business. 8

This is called uniform ink spread, the phenomenon that we know we can deal 9

with. 10

THE COURT: The Bar, not the bar code. 11

THE WITNESS: Yeah. Oh, yeah, that's right. 12

Yeah, this is called -- uniform ink spread is the phenomenon we're dealing 13

with here. Ink doesn't spread really totally uniformly, but the largest part of the 14

component is uniform and therefore this technique will work, yes. 15

BY MR. CHERNY: 16

Q Now what does this teach us about the relationship between the decoding 17

process and how the bar code actually looks? 18

A It teaches us that it's the purpose of the bar code decoding process to ignore 19

how the bar code looks to us as much as humanly possible. We're not trying to 20

measure these individual counts, as you see. We would just give up on this as 21

Code 39 if we did. We're not even trying to measure the ratios between a bar and a 22

space and a bar and a space. The ratios come out wrong. We aren't measuring 23

the size of these things either. As you know, that varies with distance and so forth. 24

So we're not looking to measure anything in particular or match the pattern 25


we see to some preconceived notion. We're trying to decode it and recognize the 1

underlying pattern despite how it looks. 2

Q Now before you analogized the process to reading. Would this be like your 3

handwriting? 4

A Yeah, this would be like my handwriting, for instance. The pattern is not what it 5

was supposed to be when I write, it never is, but sometimes I can recognize the 6

underlying pattern, not always. 7

Q Okay, so let's go back to our guard bar candidate. 8


A Okay, here we are with our guard bar candidate. At this point we call it a 10

candidate 'cause we don't really know whether it is or it isn't. We know that pattern 11

can be as screwy compared to the ideal, as you see here, so we're not gonna reject 12

it, but we certainly aren't gonna accept it on this basis either. We need to know 13

more. We need to check some other rules of UPC to see if we can find a matching 14

pattern to give us some more confidence. 15

Q And how do we do that? 16

A Well, as you recall, -- Oh, I'm sorry, before we even move on to look for other 17

patterns, we do have to at least put some sanity check on this pattern, okay, so 18

what we do here is we rely on some of the rules of UPC to tell us that. 19

As you remember from the ink spread demonstration, we want to take an 20

edge to similar edge measurement, which is a fancy way of saying we look at these 21

elements in pairs or maybe in any other even number, like four at a time still works. 22

Why would we do that? In this case we're making use of the fundamental rule of 23

UPC, which is that every bar code character in UPC is made up of a total of seven 24

modules. Those space bar/space bar patterns should always add up to seven unit 25


widths in total. 1

This pair with the guard bars, on the other hand, should be two unit widths in 2

total, if it was a narrow space or a narrow bar, and, if this is guard bar patterns, then 3

there should be a character next to them on the right. And so, if we examine these 4

two sums, we should get a ratio of 2 to 7, because the bracketed sum on the left 5

ought to be representing two modules of width and the bracketed sum on the right 6

ought to be representing seven modules of total width. 7

Q Okay, so what you're saying is that the two-thirds of the guard bar you have 8

bracketed there should be two modules in width? 9

A That's right. 10

Q And the UPC character, if it is a character, should be seven modules? 11

A That's right. So we want to find out if that's true. Of course, it will only be 12

approximately true, but it should be true. So we take the counts that we were able 13

to measure, the time counts of 93 and 328, and we divide them and we see if the 14

number is close enough to two-sevenths to satisfy us. 15

I won't show you the algebra by which we actually do it, but, if you just do the 16

division, you'll see that, in fact, it's a pretty good match. 17

Q Okay. So what does that tell us? 18

A Well, this tells us again that this could be a guard bar pattern, but we're still not 19

convinced. We need to do more. 20

Q Okay, what do we do? 21

A Well, we rely on the structure of UPC that says, if this is a UPC symbol, yeah, 22

there should be a guard pattern there next to the left margin, but there should also 23

be another guard bar pattern in the middle of the symbol. 24

Q Okay. I see you have 24 counts between them. How do you know that? 25


A Well, if you remember that sandwich, we had the pattern on the left, the pattern 1

in the center and there were six digits in between. Each of those digits is 2

represented by space bar/space bar, a total of four counts, so, if we multiply four by 3

six, we know we should be able to jump 24 counts to the right and find that center 4

pattern if it's there. 5

Q And that's the center pattern between the six and the two? 6

A Yeah, those bars that actually dip down a little bit between the two halves of the 7

numbers. 8

Q Okay. 9

A Okay, so now we want to find out if that's a valid center guard bar pattern. The 10

math for that is very similar to what we just saw. Again, we rely on the rules of UPC 11

and we know that if these four counts on the left that we've bracketed that sum to 12

349, if those four counts represent the last character before the guard bars, they 13

should be a total of seven unit widths. And we know that the guard bars are all 14

narrow spaces and bars, so, if we take the first four of them, that should be four unit 15

widths. We take four, not all five, because we don't want to have the ink spread 16

problem. 17

So in this case we see that the ratio between these two measurements ought 18

to be about 4 to 7. 19

Q If I may, Mr. Schuessler. 20

MR. CHERNY: May I approach the board, Your Honor? 21

THE COURT: Sure. 22

BY MR. CHERNY: 23

Q This isn't the actual code. What you're saying is that this space, this bar, this 24

space, this bar and this space should have a four-sevenths relationship to the next 25


character? 1

A Yes, exactly. If we're in the right place and we're really looking at UPC, that's 2

exactly what we should be looking at at this time, so that's the ratio to check for. 3

And, when we do it, we find out, yeah, that works out really well too. So now we're 4

getting somewhat confident that we're staring at a UPC symbol here and not 5

something else. 6

Q So is that enough to tell us that we have a center guard bar? 7

A It's enough for us to do a little more work and make sure, but it's not quite 8

enough yet. We've checked that the overall sum of the pattern is the right size 9

relatively, but we haven't checked that it's all evenly sized bars and spaces within 10

that center guard bar pattern like it should be, so we have to check each of the 11

individual pairs in that pattern against that overall sum. Again, you're only 12

comparing counts to other counts right in the same neighborhood, usually in the 13

same character, so we want to check each of these pairs. 14

Each of those pairs should be a narrow space and a narrow bar or a narrow 15

bar and a narrow space, that's a total of two modules, and the four counts 16

underneath that we bracketed are supposed to be four modules, so, in every case, 17

these bracketed pairs we're calling T1 and T2 and so on should be in a ratio of 2 to 18

4 to the sum underneath. 19

Q Again, these aren't absolute measurements. You're just measuring to see if 20

there's a relationship between the internal bars and spaces of the potential guard 21

bar and the total guard bar to see if there's a 2 to 4 relationship? 22

A Right. It's all ratios. There's no magic to the individual numbers that we can 23

measure. 24

Q Okay. 25


A And, when we do all these ratio checks, they all work out and now we can say, 1

yes, indeed, we have a pair of matching guard bars, so we can proceed with the -- 2

it's worth the time now to try decoding this as a UPC symbol. 3

And the way we do that, of course, is we go back to the left now and say, 4

well, since we think that it's a guard bar pattern, there should be a data character 5

right next to it. 6

Q Well, hold on a second. I mean, can't I just -- I mean, if we've got the guard 7

bars, can't I just take a look at those counts and say, well, let's take a look at the 8

ratios up there and see if they fit within your chart there? 9

A Right. No, you can't do that. When I say we do ratios, it's not just any ratios. 10

The pattern's got to be detectable to the decode algorithm and there's special ratio 11

checks we take. If we just compare these counts, taking a look at them on the 12

screen, the 30, 63, 31 and 204 that are in question, -- 13

Q Yes. 14

A -- by eye you can tell that's a ratio of 1 to 2 to 1 to 6 or even more. 15

Q Okay. 16

A Okay, but, if you remember, looking back over at the UPC character table over 17

here, the real ratios for a 6 are 1 to 1 to 1 to 4, very different from the 1 to 2 to 1 to 6 18

we're seeing in the real data. 19

Q So what does that illustrate? 20

A What that illustrates is that, if we just simplistically took the ratios between these 21

numbers, it wouldn't work. It illustrates that matching the pattern is not really what 22

we're doing. We're not actually saying I know I should be seeing a 1 to 1 to 1 to 4, 23

so let me match that. That's not the way it works. We do an algorithm and we find 24

the underlying pattern will be right for the character, but, looking at these ratios, they 25


wouldn't even work out. 1

Q Okay. 2

A And again, of course, that was because of ink spread. 3

Q Okay. 4

A Okay, so to understand whether or not this is a UPC character and which one it 5

is, we have to apply the UPC decode algorithm to this data. 6

We start like we have before. We take a group of an even number of 7

elements, in this case the space bar/space bar that adds up to 328, and we want to 8

compare each of the similar edge pairs above it that make it up to see what the 9

pattern is. And we look at the first pair, for instance, and we have a count of 93 10

versus 328. 11

Q Now I remember with the bar code you had a preconceived notion about what 12

the numbers were gonna be. You were looking for two sevens. 13

A Yeah. This is a little different, 'cause that was a fixed pattern. If it was the right 14

thing, we knew it was supposed to be a ratio of 2 to 7, for instance. In this case, we 15

don't know what the ratio is in advance because these different character patterns 16

have different ratios, so we have to figure out is this closest to a 2 to 7 ratio or a 3 to 17

7 ratio or whatever. 18

When you do the math, we find out that this is closest to 2 to 7. 19

Q Okay. 20

A So we record that on the right as the first part of this pattern is a 2. 21

Q Okay. 22

A Okay. Then we look at the next edge to similar edge measurement we can 23

make, the next pair of elements, which actually overlaps the first pair somewhat, 63 24

plus 31, and we do the same kind of comparison. As you can guess, since the 25


numbers are almost the same as before, we'll get a 2 again. 1

Then we look at the last pair of edge to similar edge measurements in this 2

character, which is a 31 plus a 204, a space -- the last space and the last bar of the 3

supposed character. In this case it's gonna be a number bigger than 2. Obviously, 4

235 is much more than two-sevenths of 328, but we still need to find out just what it 5

is. It works out closest to five-sevenths. 6

So now we have a pattern that completely describes this data, which is 2 to 2 7

to 5, in terms of the pairs, not in terms of the digital elements. 8

Q So are we done yet? 9

A Well, we're done now except 2 to 2 to 5 doesn't do us any good. We don't know 10

what that means yet. So to figure out what that means, in terms of UPC, we have to 11

bring that back to the alphabet and we do that using what's called an indexing 12

function. You can see it there on the screen, I won't bother with the math, but you 13

take the pattern on the left, run it through the indexing function and you get what's 14

called a table index. In this case that index is a 6. 15

Q Is that the same 6 that we were looking for? 16

A No. This index works out to 6 just by accident. Usually, they don't. 17

Q Okay. 18

A Okay, what you use that index for is this. We have a translation table inside our 19

decoder which allows us to understand these patterns at the top, like 225, and 20

translate them to the UPC numbers they're supposed to represent. And the way 21

you do that is nice and quick. You just take that table index of 6 and you jump six 22

entries into the table and that gives you the right answer. 23

Q How does it give you the right answer? 24

A Well, I know the right answer says 86 and not 6, but that's because we're trying 25


to -- in that table we're also trying to say whether it's a left-half symbol or a right-half 1

character -- Sorry. The 8, in our case, tells us it's a left-side encodation pattern. It's 2

that odd parity version of the 6 and the 6 on the right, of course, means it's a 6. 3

So, by using that table index, we can immediately translate from the pattern 4

of 225 to the answer we're looking for, which is that pattern is an odd parity 6. 5

Q Okay, so we now finally decoded our 6? 6

A Yes. At this point we now have finally decoded our 6 and so we can record that 7

fact, that this pattern next to the guard bars represents the number 6 with odd 8

parity. 9

Q Now does the computer do that process over and over again? 10

A The computer, yeah, has nothing better to do. We just make it do that process 11

over and over again on the next set of bars and spaces and, when we go through 12

the same mechanics, we'll come up with an 8 and we'll repeat that, going to the 13

right, until we have a complete set of six characters. 14

Q Okay. And why do we stop there? 15

A We stop there because we've hit the guard bars, but the good thing about that 16

is that we now have six characters in a row that we've decoded correctly, we 17

believe, and that makes enough of a piece of information for us to save that all by 18

itself. 19

Q Okay. 20

A As you remember, UPC was structured in two halves. They can be coded -- 21

they can be decoded independently. You don't have your full answer until you've 22

decoded both halves, but you can decode the halves one at a time. 23

Q Okay. 24

A But since we do have more data in the scan, we keep going, we keep moving to 25


the right, and it turns out that on this particular scan all the bars base patterns were 1

decodable. That last one, the 1, was a check digit and we ran the calculation on 2

that and the check digit was correct for this data and therefore we know we have a 3

complete decode of a UPC symbol now. 4

Q Okay. Is there anything else before we move on? 5

A Before we move on, there's just one more thing I wanted to point out. 6

Now that we've decoded all this bar/space data, these counts, now we know 7

exactly what each of these counts represent and we can take a look. The first 8

counts on the left represent the left guard bar pattern and, some of those last counts 9

at the right, now we know they represent the right guard bar pattern. And I'm 10

pointing this out because, as you can see, the numbers are very different even 11

though we know the patterns on the left and the right are printed identically. 12

Q Why are they different? 13

A Well, it's mostly that acceleration problem we've been talking about. As the 14

laser moved to the right, near the end it did slow down and so it took longer to go 15

over -- read bar and space and so the counts on the right are bigger. 16

Q Now I understand that it took longer, but it seems like the ratios have changed 17

also between the two guard bar patterns. Would that be attributable to the spot 18

speed variation? 19

A The ratio between the left and the right has changed because of spot speed 20

variation, but the ratio locally wouldn't change because of that, but, as you see, the 21

ratio has changed. The 28 to 65, looking on the left for instance, is not nearly as big 22

a ratio as the 34 to 103 on the right looking at the last space and bar. 23

The reason that changed is because the ink spread actually wasn't quite 24

uniform in this can. The ink spread is worse on the right. And I think, if you even 25


look at the poster, you'll see that the spaces on the left, although they are narrow, 1

they're not as narrow as the spaces on the right. There was actually more ink 2

spread on the extreme right. 3

Q Okay. And is that pretty much it for the decode process? 4

A Yes, that is about it for the decode process. 5

Q Now that took a long time. How long does that take in the real world of the 6

scanner? 7

A Well, thankfully, computers aren't very smart, but they are very fast. That whole 8

process we went through, and more, would happen in just a couple of thousandths 9

of a second. 10

Q Now, while the decoding process is occurring, what else is happening? 11

A Oh, while we were going through this whole process we were doing here, which 12

was analyzing a scan of data, at the same time the scanner didn't stop and just shut 13

down. It started another scan. So the scanner kept going and went over a pattern 14

again. The laser spot went over in the other direction, in this case, and what 15

happens is, while we're decoding this data, the scanner is scanning still and the 16

hardware timing circuit is measuring the new set of counts and storing them in 17

memory in a different buffer. 18

Q Why? 19

A Well, we want to have more counts available in case this scan of data didn't 20

quite work out. 21

Q Now does the decode process take place on the fly while you're scanning the 22

bar code? 23

A No, it doesn't. We wait until a scan has completed and we have those counts 24

in a buffer all ready to look at at once, so we wait until the scan is finished and we 25


analyze those counts while new scans are being collected in the background. 1

Q Okay. Now that we've got our number, what's next? 2

A Well, now that we have our number, we need to do something with it. Hold on a 3

second. 4

THE COURT: Before we do that, let's go ahead and take our morning recess 5

then. We'll take a ten-minute break. 6

Ms. Clerk, it's about, roughly, 10:15, so we'll reconvene at 10:25. 7

(Court recessed at 10:16 a.m. until 10:30 a.m.) 8

THE COURT: Okay. All right, counsel, let's go again and have the witness 9

come on back up to the stand and we can proceed with further direct examination. 10

How much longer do you have, Mr. Cherny, with this witness? 11

MR. CHERNY: I would bet about a half hour to 40 minutes. 12

THE COURT: Okay. 13

MR. CHERNY: And if we could dim the lights. 14

THE COURT: Need to get the lighting down again? I got it. 15

MR. CHERNY: Okay. 16

DIRECT EXAMINATION (Continued) 17

BY MR. CHERNY: 18

Q You all settled in, Mr. Schuessler? 19

A Almost. Let me just find that wand. Here we go. 20

Okay, all set. 21

Q Okay, so we now have our number which we've decoded from the can of 22

orange hand cleaner. What do we do with the -- Does that number have a name? 23

A Yeah. That number right up there, in this case it was a UPC code, of course, 24

but in general this is the decoded data. 25


Q Now what happens to that decoded data after it's been decoded? 1

A Well, once we've decoded it, we send it off to whatever we're attached to. In 2

this case, we're attached to a cash register and we send it there. 3

Q And what happens next? 4

A Well, with a cash register, they usually send that data straight on to the store's 5

computer where there's a database and it's a database of all the different products 6

that they have that they sell, and so they have a big file, and, if the UPC number we 7

just sent them is on file, then they know what it is. 8

Q Is it always on file? 9

A No, it's not. I'm sure you've been at the supermarket and had a very -- 10

everything gets held up for a minute because the clerk has to run off and do a price 11

check for something that's not on file. 12

Q Now does that decoded data, the number, tell the computer anything about how 13

the bar code looked? 14

A No, that number is just a number. That's about it. It could have been keyed in. 15

It wasn't necessarily even scanned. 16

Q Now assuming it was scanned, why wouldn't it tell you why -- how the bar code 17

looked? 18

A Well, it's just a number basically and, as you saw, we can encode that same 19

number in a number of different symbologies. Even if it was encoded in UPC, 20

there's a huge variety in the way UPC can look. It can be in different colors, it can 21

be in different sizes, different heights, curved surfaces, flat, crumpled, whatever, 22

and it may not be printed at all the way it was supposed to be printed. It could have 23

been printed with a lot of ink spread or the bars may have been too thin. 24

Q So it doesn't even tell you the pattern that was scanned? 25


A No, it doesn't even tell you the pattern that was scanned. 1

Q At the very least, doesn't the decoded data tell you what bar code symbology 2

was used? 3

A Not necessarily. A lot of different bar codes can encode the same data and in 4

lots of applications different symbologies can be used. Even in UPC, there's UPC 5

A, which we've seen, and a short version, UPC E, like you see on Coke cans. 6

Q Okay. Well, I'm having a little problem understanding how it is that this number 7

can't tell me anything. Do you have a chart perhaps that explains that? 8

A Yes, there's a chart. I don't see it up right now. 9


MR. CHERNY: This is our most technical of charts. 11


BY MR. CHERNY: 13

Q Okay, how is this chart gonna help me understand why that number doesn't tell 14

me anything about the way the bar code looked? 15

A Well, transmitting data from a bar code is very much like me reading a word and 16

then speaking it to you. For instance, I'm gonna speak to you a word from that 17

chart. I'm gonna say the word "cat." Did you understand the word? 18

Q I did. 19

A Okay, now would you mind telling me which version of the word cat I just said? 20

Q I'm not sure. 21

A Yeah, you can't tell. As a process, I looked at that chart, I found the word cat, 22

recognized the patterns. Obviously, I didn't recognize the image, 'cause every cat 23

on that chart looks very different from all the others, but I recognized the underlying 24

patterns for C-A-T, or maybe K-A-T, and I spelled that out, I saw it was the word cat, 25


so I decoded it. Then, after I saw that and decoded it, I said it and that's like 1

transmitting the data from the scanner. 2

So you can hear me say the word cat, but all you're getting is the information. 3

Of course, that's all you really care about. That's all they care about. They want to 4

know the UPC number we decoded. They don't care what the bar code looked like 5

and, in fact, you can't tell. When I say the word cat, you have no idea which version 6

of that word I saw. 7

Q Which one were you looking at? 8

A This time I tried K-A-T, a nice misspelled cat. 9

Q Okay, thank you very much. 10

It's my understanding that -- By the way, the chart is Exhibit 3362. 11

THE COURT: 3362, all right. 12

BY MR. CHERNY: 13

Q It's my understanding that you've got some video that you'd like to show the 14

Court, Mr. Schuessler. 15

A Yes, I do. You'll have to give me a minute and I think I need to flip the disk for 16

this. 17

Q If you'll hold on a second, I think we can get you some assistance, with the 18

permission of the Court. 19

THE COURT: Go ahead. 20

THE WITNESS: Okay. 21


BY MR. CHERNY: 23

Q Now while Matt is flipping that, can you tell us what, in general, this video's 24

supposed to show us? 25


A Yes. Okay, we brought in a camera crew to film some demonstrations of 1

scanning and also some oscilloscope demonstration showing what the signals look 2

like and realized, at the last minute, we didn't really have any products to scan. So I 3

took a quick trip out to the K-mart around the corner from Symbol, I happen to know 4

K-mart's a Symbol customer, and, sure enough, when I showed up, they had an LS-5

4000, this same scanner, at the check-out booths. 6

So I went around as quick as I could and got some items, bought them and 7

brought them back to Symbol to use for these videos. 8

So you'll see the items, the scanning process and how it ties into the check-9

out process. 10


THE WITNESS: And then some other videos that illustrate many of the 12

points we've talked about today. 13

These are amongst the items I picked up. 14



MR. CHERNY: How we doing, Matt? 17

MATT: It will just be one second. I've got to switch decks. 18

THE WITNESS: I'm glad I asked for help. 19


MR. LISA: Your Honor, if I may make a request. 21

THE COURT: Yes, Mr. Lisa. 22

MR. LISA: Since we're anticipating getting close to the end here, I'd request 23

that the various aids that the witness has used be kept available for cross-24

examination. 25


THE COURT: Sure. 1

MR. CHERNY: Sure, sure. 2

THE COURT: Absolutely. 3

MR. LISA: Thank you. 4

MR. CHERNY: You might require some technical assistance too. 5

MR. LISA: That was what I was anticipating. 6


MR. CHERNY: I apologize, Your Honor. 8

THE COURT: It's all right. 9

MR. CHERNY: Unfortunately, none of the stuff that we're using to broadcast 10

is made by Symbol. 11

THE WITNESS: Especially not this wand. 12


THE WITNESS: Hey. 14

MR. CHERNY: Yeah. 15

THE COURT: We've got a picture now on my computer, so -- 16

THE WITNESS: Thank you, Matt. 17

MR. CHERNY: That's right. 18

BY MR. CHERNY: 19

Q So what do we see here? 20

A Okay, what we see here is the items I picked up on my little trip to K-mart and I 21

believe the first thing we'll see is me just scanning them in such a way that you'll be 22

able to see the transmitted data from each one as I scan it. 23

Q Okay, please proceed. 24

(Plaintiff's Exhibit No. 3254C is played) 25


A Okay, note the items. That's a Hoover vacuum bag and trading cards, a variety 1

of different items, and, as you see on the right, the UPC number coming out from 2

every one. 3

One of those numbers was longer than the others because that was from the 4

European version of UPC called EAN. At the bottom you see -- I scanned my hand 5

a couple of times and I set a special feature in the scanner so that, any time I pull 6

the trigger and don't read, I get a "no read,"' an NR coming out of the scanner. So, 7

as we go through the rest of this demonstration, you'll know if I pull the trigger and 8

don't get an NR, it means I did successfully decode. 9

Q Okay. 10

A Okay, this is gonna be a little cumbersome for me 'cause I can't see the 11

numbers on that video machine, so I may accidently scan the same thing twice as 12

we go. 13

Okay, now here's the receipt I got from K-mart. Let me back up one. Okay, 14

when I did this little shopping trip, here's the receipt I got from K-mart. As you see, 15

on the left it has UPC numbers, you'll see them in the close-up in a second, and a 16

description and the prices. 17

Q Now how much of the information on that receipt came from the scanner? 18

A Only the UPC numbers on the left. 19

Q Not the descriptions or the prices? 20


Q And where did that come from? 22

A That came from the K-mart database. 23

Okay, now I'm gonna zoom in a little bit so you can see that the numbers on the 24

receipt are exactly the same numbers that the scanner scanned for each of the 25


items. 1

Q Okay. 2

A Okay, next we're gonna go and scan the items again and this time 3

demonstrating the flexibility of the scanner, the fact that you can be in quite close or 4

quite far away and at various angles, as you saw there. That's a crinkled surface, 5

like we've talking about on a bag, and still it reads near and far. And, of course, it 6

always gives you the same data, different angles and so forth. 7

This is a particularly small UPC symbol. It's smaller than you're allowed to 8

print them, so to speak, in the UPC spec and next to a big one on the side, so we 9

handle the big range in sizes. Even in retail we see these range of sizes all the time 10

and we scan them both and with good working range. 11

Again, this is one of the larger UPCs. 12

Q Okay. 13

A Let me see, this is -- Okay, the next one here is interesting 'cause -- Well, first I 14

put it upside down and right side up to show that that doesn't matter. Then it's a 15

very shiny surface. As you can see, that can blind us if we're looking at it in the 16

wrong direction, but normally the scanner can read that just fine. 17

Q Okay. 18

A As you're about to see, it does, and, again, with a good range of distance and 19

orientation. 20

Okay, don't try this at home. This is a little behind-the-back scanning. This 21

is to show we don't need to aim all that carefully. 22

Q Now how much positioning was there behind the back there? 23

A About as well as I can do behind the back, which is not well at all. 24

Okay, that's one that actually is interesting 'cause it has white spaces printed 25


and the red bars are just the show-though from the product inside. That's a 1

chewing gum pack. They're notorious for having bars that aren't nearly as tall as 2

they're supposed to be, but they can still read quite well. 3

There's that product that had bars that were very, very much too thin, but it 4

still reads just fine. 5

Q Okay. 6

A Let's see. Okay, let me back up one. 7

Q You want to back up one in the -- 8

A Well, too late. 9

Okay, this package is interesting 'cause it has the UPC on both sides, on the 10

product itself and on the back package. The one on the product itself I had to scan 11

through plastic, it's on a curved surface and it's a smaller module size than the one 12

on the back, but, as you see, I get the same data every time. And what that tells 13

you is the way the bar code looks isn't reflected in the data that the scanner sends. 14

It also tells you that, in this case in particular, since there's a bar code on the 15

front and the back, when you scan this at the supermarket there's no way in the 16

world the computer at the other end would know which of those two bar codes were 17

scanned from the number. Even the clerk himself doesn't know which one was 18

scanned. 19

Q And there's no way for you to know, from those numbers, which one was 20

scanned? 21

A Absolutely not. 22

Q Even though they look different, one's curved and one's flat? 23

A Oh, yeah, they look different. One's curved, one's smaller, one's through 24

plastic, but there's no way to tell it from the number. 25


Q Okay. 1

A Let's see. Okay, now we're gonna switch to the oscilloscope demonstrations. 2

What we're seeing here is we took an LS-4000, the same model I have, but we ran 3

some extra wires out of the scanner to get access to the signals that you normally 4

never see and we hook those signals [sic] up to an oscilloscope. 5

Q And what are those signals that we're seeing? 6

A Okay, the trace on the top is -- which looks just like noise, that's the analog 7

signal as it would come from the photodiode after amplification. 8

Q And the middle signal? 9

A The middle signal is the differentiated signal that has picked up the transitions 10

between light and dark by picking up the steep parts of the slope of the signal above 11

it. 12

Q And the bottom signal? 13

A And the bottom signal is the DBP, the digitized bar pattern, which is the easy-to-14

measure version of the middle signal. 15

Q Okay, proceed. 16

A Okay, if I can. Sorry. Let me back up and find the right one. 17


Okay, now we're scanning from quite far away and, as you can see, the 19

signal on the top is hardly even visible. We're so far away that the bar code 20

appears very small and also very little light is being reflected back from that 21

distance, so it's a little signal there. It really just looks like noise, but, as you saw, 22

we actually can decode the signal at that distance. We just got data displayed at 23

the top of the screen. 24

Q Now what does that show us in terms of the ability to use a fixed threshold? 25


A It shows us that that would be impossible to do. If you look at that yellow signal, 1

how would you know in advance some fixed threshold level that was gonna work for 2

that signal. I don't see how that would be possible. 3

Q Okay. 4

A And that's not, of course, what we do. We detect the changes in that signal, 5

those deep slopes, and you see that middle signal is able to find out, within all that 6

noise, it's able to find out which part of that is actually good changes from dark to 7

light and light to dark. 8

Q Okay. 9

A Now, as we move the scanner in, the signal changes completely. Its amplitude 10

gets a lot taller, the height of the wiggles get much taller and they get much wider 11

apart, so the scale is totally different as well. 12

Q And did this one read? 13

A Yeah, this decodes also. So you see the two signals were as different as you 14

can imagine. One looked like pure noise, one has several, several times larger 15

amplitude and very, very different scale. 16

Q Does this illustrate anything about what Dr. Swartz was talking about yesterday 17

when he says you don't match signals or compare signals? 18

A Yes, I think this is what Dr. Swartz was talking about. If you remember those 19

two signals in your head, the one from far away and the one from close up, they 20

were different from each other in every respect. There's no way you could have a 21

standard signal to match them against. We're not doing that at all. 22

And, of course, if we were trying to measure the bars and spaces, that 23

wouldn't have worked either. The measurements would have been totally different, 24

of course. We can detect the ratios between the bars and spaces with an algorithm 25


and the edge points between the bars and spaces have to be set by extremely 1

tricky circuitry that can detect those edges. 2

Q Okay. 3

A Okay, now this is showing that we actually did decode the bar code at this very 4

near distance. Looking at the two numbers up on the right, you'll see they, of 5

course, have the same numbers, even though the two signals were as different as 6

they could get. 7

Q Okay. 8

A Next we see what happens when you scan on a curved surface. The signal is 9

very, very distorted on the top, as you can see. It's a good illustration of that fixed 10

threshold problem. The amplitude of the signal changed like crazy from left to right 11

across the bar code. Trying to decide between bars and spaces based on some 12

fixed amplitude to the threshold wouldn't have worked. 13

Q And what do you mean fixed threshold? You couldn't just cut off the top or 14

something? 15

A Yeah. Picture drawing some horizontal line. That would have been good at 16

picking up all the transitions between the bars and the spaces. 17

The next one shows that even more so. We show the effects of ambient 18

light. Looking at the top signal, it's all over the map and we're decoding as the 19

signal takes on all these crazy shapes. I think that's maybe the clearest illustration 20

that you can take any left to right horizontal slice and have it work for all the bars 21

and spaces. 22

One more thing. Looking at the end of this segment, you see the DBP at the 23

bottom looking just like a bar code, but we're not scanning a bar code. That's just 24

the scanner laying on the table top. 25


Q There's no bar code underneath it? 1

A No, there's no bar code underneath it, but, of course, the signal, its job, is to 2

make the world look like a bar code, so to speak, so the signal always does. 3

Q Okay. 4

A Okay, another one we're gonna see here is the effect of scanning a wrinkled 5

bag. We'll crumple the paper and, when you look at the analog signal on the top, 6

you'll see the signal itself actually looks crumpled. There are totally random 7

variations in amplitude looking across the bar code from left to right. We couldn't 8

have predicted that in advance and that wouldn't have matched any signal we 9

would have had stored in memory. 10

Q So you couldn't have used this to match it up to some signal stored in memory 11

you're saying? 12

A Right. I don't see how you could do that. All the variations we've seen, even 13

with a bar code that's printed at one size and one color, the variations are such that 14

it would be an almost infinite number of different signals you'd be trying to match. 15

Q Okay. 16

A Okay, now we're gonna show, in more graphical form, the spot speed 17

acceleration that we've been discussing throughout the day. This is scanning a 18

UPC symbol and we've put this -- 19

Q You said it was a UPC symbol. 20

A Oh, because it -- 21

Q But you've taught me enough to know that's not true. 22

A I've taught you everything I know. At this point let's correct ourselves and say 23

this was a Code 39 symbol. I'm sorry. It's a Code 39 symbol and it's at the extreme 24

left edge of the scan line. It still does decode in that position. It will decode 25


anywhere from left to right. 1

We're showing you this to show the effect of spot speed acceleration. To 2

see that, as you will in a minute, you have to understand a little bit about the Code 3

39 symbol we're scanning. I think you can see on the screen that that symbol starts 4

with a narrow bar on the left and it ends with a narrow bar on the right and, 5

naturally, those two narrow bars are printed exactly the same size. In fact, this is a 6

photographic quality test symbol, so they're really exactly the same size, left and 7

right. 8

Also, looking on the right, we have two wide bars next to the narrow bar and 9

those two wide bars are exactly 2.2 times wider than the narrow bar next to them. 10

Q Okay. 11

A So, if you can bear that in mind, we have a narrow bar at each end of the 12

symbol and two wide bars on the right. Then we'll will be able to see what the 13

demonstration is telling us. 14

Okay, we've done an inset here, so you can see that we're still scanning that 15

signal in that same orientation and now we'll show you the oscilloscope traces. This 16

is making visual the signals that we're getting, in this case the analog signal on top 17

and the DBP on the bottom. 18

Q And what does it show us? 19

A Well, you can see we're actually in the process of measuring one of the bars on 20

the left. That's the left-most narrow bar of the symbol. Now, if you look across that 21

DBP signal to the right, at the extreme right, the last pulse you see was the narrow 22

bar on the right. And, as you can see, the narrow bar on the left, by appearances, 23

the way the scanner saw it, was about three times as wide as the narrow bar on the 24

right. Of course, it wasn't printed that way at all. That's just the way the scanner 25


saw it and that's because the spot was speeding up as we moved from left to right, 1

so on the left it took much longer to cross the narrow bar than it took on the right. 2

Q What about the two wide bars that we saw? 3

A Right. Now looking at the right end of that pulse train there, the next to the last 4

pulse, there's two relatively wide pulses. When you're looking in that neighborhood, 5

they look relatively wide, but, if you compare it to the first bar on the left, they are 6

actually narrower than the narrow bar on the left, so, if you look across the symbol, 7

the ratios are totally gone. The wide bars on one side are narrower than the narrow 8

bars on the other side. 9

Q Okay, so what you're saying is that those two pulses just next to the thin one on 10

the right were the fat bars and the one on the left was actually a skinny bar? 11

A That's actually correct. This is why I said earlier that overall the DBP doesn't 12

even give you a relative sense of the widths of the bars and spaces. Only in a small 13

measure is there any correlation at all. 14

Q And that's measuring what? The times you said? 15

A Yeah. This signal is, as I said before, only measuring time. It measures the 16

amount of time the laser was over light and dark areas. We can't measure widths. 17

Q Okay. 18

A But even using time as a proxy for width, you can only do that in a small area. 19

Across the signal as a whole, the ratios don't even correspond. 20

Q Okay. 21

A Okay, I just have one more to show you. That's this red can on the left of the 22

jewelry cleaner. And what people often do, when they do the packaging and 23

include a UPC symbol, if they don't have black or a dark color ink already on the 24

label, they'll do this. They'll print white for the spaces instead and let the bars just 25


be the show-through from the product inside. This is like that too actually. 1

The problem in this case is, if you look close, and we do have the product 2

here, that the contents of that jar have settled at the bottom. You see, the bottom of 3

the jar is lighter than on the top, so what happens, when we pick that up and scan it, 4

is an interesting phenomenon, the bars on the left side of the symbol are darker 5

than the bars on the right side of the symbol, so the bars aren't even uniform from 6

left to right in color. 7

And, when you look at the signal on the oscilloscope, you see that difference. 8

We're looking at the signal from the left and right half of the bar code and, as you 9

see, the signals are just totally different for the two halves of the bar code. That's a 10

very clear illustration that you can't take any horizontal line through that signal and 11

find a threshold between the bars or the spaces. There's no level you could clip 12

them at and turn that into bars and spaces. You totally miss one-half of the symbol 13

or the other, no matter what level you picked. 14

Q So you have to use your slope methodology as opposed to a clipping or 15

thresholding methodology? 16

A That's right. We're only seeing the analog signal here, but, when you look for 17

the sudden changes in slope, those changes have their maximums at the same 18

points either way on both halves of the symbol and so we end up with a 19

differentiated signal that we can still use and we can decode this. 20

Q Okay, thank you, Mr. Schuessler. 21

It's my understanding that you have a couple of short demos before you wrap 22

up. 23

A Yes, I have a couple and, yes, -- 24

THE COURT: Are they on the video or -- 25


THE WITNESS: They're short. 1

MR. CHERNY: Actually, these are live demos. 2

THE WITNESS: A very simple live demonstration. 3

THE COURT: Oh, okay. Let me go ahead and restore the lights then so we 4

can -- 5

THE WITNESS: Yeah. Your Honor, if I can stand up? 6

THE COURT: Sure. 7


THE COURT: Go ahead if you need to step down. 9

MR. CHERNY: I'm just gonna get out of the way. 10


THE WITNESS: Okay, first I'll demonstrate what's known as our long-range 12

scanner. This is used, and this isn't a joke, this is used very often in warehousing 13

applications and places where somebody's riding around, maybe on a forklift, and, 14

as they pick in place or take objects in or out of inventory, they need to know where 15

they are within the building, so they put bar codes on the shelves themselves, 16

okay? 17

Can I have somebody -- 18


THE WITNESS: Okay, so you'll see bar codes like this throughout the 20

warehouse, which are labeling the different shelves. 21

THE COURT: Hold on. We'll get a microphone over there to you. 22



THE WITNESS: Okay, now, because the operator is on a forklift and is 25


gonna stay seated and because these shelf labels can be, you know, quite high, 10 1

or 20 feet in the air, they need a very long-range scanner. And what they do to 2

make that work better is these labels are reflective backgrounds. There is little 3

particles in the white background that help the reflective light come back better, 4

okay? 5

And we should be able to have this thing turn on. 6

And, of course, if you're scanning a shelf, you don't need to be right up next 7

to it, so we can be a little bit away and this will read, but shelves get much further 8

away than that, so I'll just keep backing up. 9

Well, I just lost my microphone because we've exceeded the range of the 10

microphone and we've exceeded my ability to see the red line almost, but we're still 11

-- 12

BY MR. CHERNY: 13

Q Would it help if it was dimmed? 14

A But we haven't -- Huh? No. Probably we won't need to go any further than this 15

or so, but now we're getting to the distance where you can see that, no matter 16

where the shelf label is, we should still be able to read it and that's the purpose of 17

this example. It's kind of a striking example of how far these scanners can read if 18

they need to. 19

Q Can you estimate about how far away you were? 20

A What was that, 20 feet or so? 21

Q I'll take your word for it. 22


THE COURT: Well, that's close enough. It's a good 20 feet. 24

THE WITNESS: Yeah, so that ran from about 3 feet to 20 feet or so. 25


BY MR. CHERNY: 1

Q And it's my understanding you have one more demonstration? 2

A Yes, I do. 3

Q Hold on a second. 4


A This is actually the same UPC bar code we've been seeing before, you know, 6

well printed, the same numbers and, of course, it reads. 7

Q Hold on a second. 8

A This is a demonstration -- 9

THE COURT: Wait one second. I think -- 10

Go ahead. 11

MR. CHERNY: Hold on one second. That bar code actually happens to be 12

Exhibit 3274. 13


MR. CHERNY: And the long-range scanner was 3259. 15

THE WITNESS: As you remember, the UPC was designed to be read in 16

halves if necessary, so we'll do that now. Now you see it still reads even though 17

I've actually ripped the bar code in half. The scanner isn't really looking to judge the 18

overall picture and say is this right or is this wrong. It's looking to pull the patterns 19

out and it can pull the patterns out from the two sides separately. 20

I can, for that matter, swap the two halves and it's still working. I can turn one 21

upside down so the relationship is totally wrong, but it would still work. 22

To understand what I'm doing here a little 23

better, -- 24



THE COURT: Sorry. 1

THE WITNESS: Okay, to understand just what you're seeing here, I'll 2

separate them this way so that you can tell no one scan is gonna cover the whole 3

bar code, all right, but you can -- I'll scan one half and then the other and I'll still get 4

it either way, demonstrating, of course, that from the decoded data, which you'll 5

have to trust me is the same every time, there's no way to tell from what was 6

decoded what the scanner actually saw. The patterns themselves were in different 7

places. We never saw them all in the same scan. Some patterns were upside down 8

and others were right side up. 9

We're not matching to a standard pattern that we're expecting to see. We're 10

trying to make sense of the data coming to us as best we can and individually we 11

had scans that fit the rules of UPC well enough for a half symbol, later on the other 12

half, and that's why we're able to decode this. 13

Now we know our customers don't normally rip symbols in half before they 14

scan on it, but what this does illustrate in the real world is that, on any given scan, 15

with defects in the printing, one-half or the other might not read, so we make use of 16

that fact in this scanner to make sure that you get aggressive even with very poorly 17

printed symbols. 18

What that means though is that, when we're done and we beep, you really don't 19

know whether we ever saw the whole bar code at once. Even if we were standing 20

over it, it may have been one half and then the other half on a later scan. 21


BY MR. CHERNY: 23

Q Is there any way that that number would have to ld anybody that that bar code 24

was transposed or ripped in half? 25


A No. No, in all these orientations, it's still the same number coming out every 1

time. 2

MR. CHERNY: I have no more questions. 3

THE COURT: All right, thank you. 4

Mr. Lisa, you may cross-examine. 5

MR. LISA: Excuse me, Your Honor. 6


Donna, the last two exhibits that were referenced, that long-range scan was 8

in Exhibit 3259 and then the piece of paper with the bar code that the witness was 9

just illustrating was Exhibit 3274, while you were out. 10

THE CLERK: Okay, Your Honor. Are these being admitted? 11

THE COURT: We'll take those up, but I think thus far -- 12

I take it there's no objection to the exhibits that have been employed thus far. 13

MR. LISA: No, Your Honor. 14

THE COURT: Those should all be received then. 15

(Plaintiff's Exhibit Nos. 3259 and 3274 admitted) 16

MR. CHERNY: And, Your Honor, I've been reminded that perhaps we should 17

mark the ripped bar code as A -- or C. I'm sorry. 18

THE COURT: 3274? 19

MR. CHERNY: Is it 3274 or 75? 20

MR. JENNER: 74. 21

MR. CHERNY: 74. 22

THE COURT: I think you said 74, but -- 23


THE COURT: We can mark that then as 3274C. 25


MR. CHERNY: Yeah. 1


MS. CURTAIN: Can I ask what exhibit number the animation was? 3

MR. CHERNY: I'm sorry? 4

THE COURT: I don't think that was identified by exhibit number. What was 5

that? 6

MR. CHERNY: I actually did identify that during a break to -- 7

THE COURT: Okay. 8

THE CLERK: I have 3259, 3360. I have a whole list. 9

MR. CHERNY: Hold on a second. 10

THE CLERK: But maybe it was one of the last ones you identified, 59 or 62. 11

MR. CHERNY: The actual animation, where we had the laser scanning, was 12

3254A. The video showing the bar code reading products was 3254C. 13


THE COURT: Go ahead, Mr. Lisa. 15

MR. LISA: Thank you, Your Honor. 16

CROSS-EXAMINATION 17

BY MR. LISA: 18

Q Mr. Schuessler, the animation that you showed did not have any audio 19

associated with it, correct? 20

A Yeah, I think that's correct. 21

Q In fact, both animations that you showed had no audio, correct? Is that yes? 22

A Yes, that's a yes. 23

Q I'll ask that you please give verbal responses. Thank you. 24

And I take it it was your intent to make those animations as accurate as you 25

00107 SCHUESSLER - CROSS

possibly could, right? 1

A Yes. We're trying to illustrate how the scanner works. 2

Q And to the extent that you showed that animation -- And maybe you can refresh 3

my recollection as to the exhibit number. 4

A You'd have to ask -- 5

MR. CHERNY: Are you talking about the animation or the video? 6

MR. LISA: The animation. 7

MR. CHERNY: I believe it was 3254A. 8

BY MR. LISA: 9

Q To the extent that you showed that animation, 3254A, you intend that to apply 10

to virtually all of Symbol's products, correct? 11

A Well, the only part that doesn't apply directly would be the front end scanning 12

portion for our CCD product, which doesn't scan, but other -- 13

Q Are you sure a CCD camera doesn't scan? 14

A Well, I don't know if I want to call our product a CCD camera per se. Okay, our 15

imaging scanner, and we call it a scanner sometimes, but it doesn't scan, no. 16

Q Okay. And I want to make absolutely sure that it's your testimony that the CCD 17

imager product does not scan. 18

A In my definition of scanning, that involves moving a beam of light and our 19

scanner has no beam and no moving parts. 20

Q You're, of course, aware that there's a lot of documentation that refers to virtual 21

scanning by Symbol, right? 22

A Right. Virtual scanning and scanning are two different things. 23

Q But you put in Symbol documentation that your CCD scanners conduct virtual 24

or electrical scanning of the image, correct? 25


A No. You'd have to show me that. 1

Q Okay, we'll show you that, but, to the extent you applied the animation or did 2

the animation, what's shown on the screen is applicable to all laser scanners by 3

Symbol? 4

A Yeah, with relatively minor differences at a lower level of detail than we got 5

today, sure. 6

Q Right. 7

Well, are there any details that you think at the level you showed the 8

animation are material? 9

A I don't think material. The biggest one that comes to mind is that some of our 10

scanners, instead of sweeping back and forth in a single line, say they raster or they 11

have a complex pattern. 12

Q Okay, but, to the extent the signal is generated that's decoded, the actual scan 13

line that is decoded, -- 14

A Uh-huh. 15

A -- the Court and even Lemelson's experts can rely on the animation as being an 16

accurate depiction of how all of Symbol's laser scanners operate? 17

A As best as I can think, yes. 18

THE COURT: You mentioned or there was a question about virtual scanning 19

and you said that's different than what we've seen. 20


THE COURT: What is virtual scanning? 22

THE WITNESS: Well, that was in reference to a CCD. Okay, we have an 23

imager product and I don't want to call it a camera, 'cause it's not exactly the way it 24

works, but I'm sure there will be testimony later on or perhaps, if Mr. Lisa would like 25


me, I can explain further, but we do take an image of what we're looking at and we 1

have to analyze that image somewhat to see if there's an area in there that might 2

have potential for having a bar code in it. Again, we're looking for slopes. 3

In this case, it's really slopes in terms of a steep gradient from relatively light 4

to dark within that image. If we see a bunch of those slopes lined up, that could be 5

a line. If we see a bunch of those lines lined up, that could be a bar code. 6

When we find an area within the CCD image that has those statistical 7

characteristics, we can drop a line through it from end to end and we call that the 8

virtual scan line. You can make an imaginary line through the stored pixel data that 9

represents that image and you could say, okay, we can drop a line through here, we 10

can take those gray scale pixels and we can estimate black and white edges for 11

them and we can turn that into counts, just like our DBP counts, and then we can 12

apply the same decode algorithm you just saw. 13


THE WITNESS: So that's a virtual scan line within the image, but the imager 15

itself doesn't scan. The array is a fixed array of fixed sensors and it just takes a 16

picture. 17

BY MR. LISA: 18

Q The point is that a virtual scan line is drawn of the image in memory, correct? 19

A Well, of course, it's not physically drawn. 20

Q Well, what's the word you used in your deposition, metaphorical scan line? Is 21

that the word you used? 22

A That would be good. 23

Q Okay. So the point is that we can all agree that a CCD scanner product of 24

Symbol's draws a metaphorical scan line of the data in memory, right? 25


A When it's decoding a 1D bar code in memory, I believe that's a good analogy for 1

the process. 2

Q And once the signal is read out, it's converted to an analog signal by the CCD 3

products, right? 4

A Yes and no. 5

Q Well, it's read right out of the sensor as an analog signal, correct? 6

A Well, it's not continuous in amplitude. 7

Q I didn't ask that question. 8

A It's a stepped analog signal. 9

Q Let's just -- 10

A Okay. 11

Q The way you've shown it on the video, -- 12

A Yeah. 13

Q -- it's an analog signal? 14

A Well, it doesn't look like the analog signals that we've seen exactly. 15

Q Okay, so, so far, we agree the CCD products draw a metaphorical scan line 16

and generate an analog signal at its output, similar to what you showed on the 17

video, correct? 18

A Similar with some differences. 19

Q All right. And at that point -- Well, similar. 20

To the extent you showed it on the video, at that level, it's the same, right? 21

A It's not the same shape. You can tell the difference by looking. 22

Q The analog signal that's read out of the sensor is not the same shape? 23

A No. I think it's stair-stepped. It's the same overall shape, but it's got jaggies in 24

it, so to speak. 25


Q I see, but it's the same overall shape? 1

A Yes. 2

Q Okay. And from that point on we can all agree, or you can certainly -- you 3

would be okay with the Court accepting, that what you showed on the video is the 4

same then even for CCD products? 5

A The circuitry that's between the analog signal and the counts in memory is 6

different. Do you remember I went through a differentiator and a filter and a 7

digitizing circuit? Those aren't present in the imager. 8

Q The steps that are performed, are they carried out? 9

A To the extent they're performed, they're performed in software rather than in 10

hardware. 11

Q Okay. So, if we're looking at the steps or methods that are performed, is it okay 12

for the Court to accept the animation that you showed as an accurate depiction of 13

all Symbol CCD and laser scanners? 14

A I think, with the kinds of caveats we've just made, I think that's fair. 15

Q Okay. Now the one thing you mentioned in your opening, or direct examination, 16

was that you were aware that your testimony was, in some respects, inconsistent 17

with some Symbol documentation, right? 18

A Well, I think my testimony as a whole, as far as I know, is consistent with the 19

documentation. 20

Q When you were talking about relative widths, you said that there were 21

integration guides and manuals that were inconsistent with your testimony. 22

A They use a phrase that's a simplification. 23

Q All right. And you said that was because those manuals were directed towards 24

people who don't have familiarity with bar code scanning? 25


A Not necessarily that. I think what I said was it was directed at people who 1

either -- only want a superficial understanding of the bar code system, I think, is 2

more like it. 3

Q And when you were at the EQ&A, would you explain whether you had any 4

involvement in preparing manuals or overseeing the preparation of manuals? 5

A I'm trying to think. I think people in my department sometimes would be 6

amongst the reviewers on a new manual under preparation. 7

Q All right. And I take it you would instruct them to be accurate? 8

A Within the context of what a user manual's trying to be, yes. 9

Q All right. And these user manuals were not geared for people who had specific 10

knowledge of bar coding, right? 11

A Some do and some don't. Their point wasn't to give a detailed tutorial on how a 12

bar code reader operates. 13

Q Is that true for integration guides? 14

A Even there. An integrator has to know what he has to know and that's largely to 15

do with, when you take a scan engine, for instance, and they're gonna stick it in 16

some piece of equipment of their own, they have to know things like mechanical 17

clearances, how the exit window should be angled compared to the scanner. They 18

need to know a bunch of things and they need to know how to receive the signals 19

that come out, but, again, when it comes to the details of the innards of that little 20

engine, a superficial explanation will suffice. 21

Q Now some of your bar code scan engines are undecoded, right? 22


Q And that means that all the software for decoding, all that's left up to the end 24

user, right? 25


A Well, not literally the end user. It's up to whoever OEM's that engine and 1

integrates it into a product. 2

Q Okay. Now certainly it wouldn't be your position that these integration guides, 3

to the extent they're inconsistent with your testimony, would be geared for people 4

not sophisticated? 5

A I'm sorry, there were too many negatives in that question. 6

Q Sure. I'll ask it again. 7

Would you expect these integration guides to be inconsistent with your 8

testimony with respect to -- well, to the relative width of the bar codes and spaces 9

as you testified in your direct? 10

A Actually, I wouldn't be surprised if, at that level, we'd just give a 25 words or less 11

description of it. 12

Q What I'd like you to do, if you can, is refer to Exhibit 426, please, which should 13

be in your binder. 14

A Yes. 15

MR. CHERNY: I'm sorry, was that 426, Steve? 16

MR. LISA: Yes, please. 17

THE WITNESS: Yes, I have it. 18

BY MR. LISA: 19

Q And, if you would, would you identify what this document is? 20

A It says it's the SE-1022 Family Integration Guide. 21

THE COURT: Give me the number one more time. 22

MR. LISA: It's 426, Your Honor. 23

THE COURT: 426, all right. 24

BY MR. LISA: 25


Q I'd like you to turn to page 1-1. 1

A Okay. Does it matter if I'm using this copy or the copy in the book? 2

Q No. I just put a complete copy on your -- 3

A Okay, page 1-1. 4

Q Right. 5

It is in fact, correct, sir, isn't it, that this manual was written with the 6

assumption that the reader has a basic understanding of bar codes and bar coding 7

systems? 8

A That's what it says. 9

Q Okay. And, in fact, for your undecoded bar codes -- scan engines, your 10

manuals are written to the level of an optomechanical engineer, correct? 11

A I don't know if I can say that yes or no. 12

Q Okay. 13

A I know they have to know how to fit the scanner into the system. 14

Q Well, let's turn to Defendant's Trial Exhibit 431 in your book, please. 15

A Yes. 16

Q Let's turn to page -- introductory page 7. It's entitled "About this Guide." 17

A Oh, you don't mean Roman Numeral VII. That's blank. 18

Q Yes, that's fine. 19

A Sorry? 20

Q Yes, that's fine. 21

A Roman -- 22

Q Roman VII. 23

A Okay, I've got it. 24

Q Okay. All right, now this, again, is an undecoded bar code scanner, correct, the 25


scan engine? 1

A I would have to check. 2

Q SE-2200. 3

A I don't know the nomenclature that well. 4

Q Do you know whether the SE-2200 is a decoded or undecoded bar code? 5

A No. That's what I mean. I don't remember if it's decoded or undecoded. 6

Q Well, I'll represent to you that I believe it to be an undecoded bar code -- scan 7

engine. 8

A Okay. 9

Q Isn't it a fact -- 10

A Yeah, I think I see something that indicates that. 11

Q Okay. And, in fact, it's anticipated that this book is being read and used by 12

integrators who must take the scan engine and put it into their product and prepare 13

the decoding algorithms and the electronics that analyze those ends of the signals, 14

right? 15

A Well, it's understood somebody's got to do that. 16

Q Okay. So, in fact, this book is not written for somebody with just a minor 17

understanding, but, in fact, would be one read by an optomechanical engineer, 18

right? 19

A Perhaps. 20

Q Okay. And, in fact, it says that on Roman VII, right? 21

A Oh, yeah, it says an optomechanical engineer. 22

Q Okay. 23

A Right. 24

Q All right. Now would you be surprised to find similar statements in virtually all of 25


Symbol's integration guides? 1

A Similar to -- 2

Q What you just read? 3

A -- this recommendation for an optomechanical engineer? 4

Q What you just read in Defendant's Exhibit 50 -- I'm sorry, 431. 5

A No, that's a good recommendation. 6

Q Okay. 7

MR. LISA: Your Honor, I think I'll save us some time, if we can. I'd like to 8

prepare a list for the opponents. Instead of wheeling them all out and reading them 9

to the witness, I'll simply prepare a list of the integration guides -- 10


MR. LISA: -- that has these inconsistent statements and ask that we move 12

them into evidence and the lawyers can argue about it later. 13

THE COURT: Well, you can certainly make your arguments about it to me, 14

but I take it there's not gonna be opposition or objection to integration guides of 15

Symbol that relate to -- or that are indicated in this -- 16

MR. CHERNY: I mean, we certainly don't object to the admission of our 17

guides. I mean, you know, we certainly will check to make -- 18

THE COURT: Right, you take a different view of what they say or whether 19

they're inconsistent. I understand that. 20

MR. CHERNY: Of course. 21

THE COURT: Yeah. Okay, that will make a good deal of sense and let's 22

take that approach. 23

MR. LISA: All right. That will save us some time too. 24

BY MR. LISA: 25


Q Now scan engines, those are a significant part of Symbol's business, right? 1

A Yes. Undecoded ones I think are not. 2

Q Well, scan engines are -- 3

A But scan engines in general I think are, yeah. 4

Q Okay, about how much, do you know, in general? 5

A I wouldn't want to hazard a guess. 6

Q Would you say roughly 20 to 30 percent of the business? 7

A That sounds right. 8

Q Okay. So Symbol has a very good idea of what its scan engines are used for, 9

right? 10

A Symbol as a whole might. I don't have a lot of experience with it myself. 11

Q Okay, I didn't see any of your animations or videos that showed scan engines 12

being used to scan products. 13

A No, we just stuck with one scanner throughout. 14

Q All right. Are scan engines sometimes put in counters at grocery stores? 15

A I don't think any of the scan engines we make are actually put in counter in a 16

grocery store. 17

Q But, so that it's clear, it is -- the integration guides that are written by Symbol 18

are written to show their end users how to use these scan engines, how to mount 19

them and how to interface with them, right? 20

A No. Again, it's not the end users that we're talking to here. 21

Q The integrators, right? 22

A The integrators. 23

Q Okay, but we can agree that it is something that Symbol knows is done with its 24

systems, the scan engines, that is, that they are used by system integrators to build 25


products that are delivered to end users, right? 1

A That sounds correct. 2

Q Okay. And that the end users ultimately perform the operations and methods 3

when they turn on the scanner and use it that you showed in your various videos, 4

right? 5

A Yes. 6

Q Okay. Now could you clarify what it was about the inconsistency in some of 7

these manuals with the relative width situation that you were concerned about? 8

What is it that was inconsistent? 9

A It would be helpful if you could point me to a specific. 10

Q You said in your testimony that there were going -- that there would be some 11

manuals or documents that were inconsistent with your testimony with respect to 12

the relative width issue of what a signal represented. Do you recall that testimony? 13

A Not with those words. 14

Q All right, what do you recall about it then? I don't have the transcript in front of 15

me. 16

A Yeah, I can take a whack at it. 17

I believe what I said would be along the lines of you'll see manuals and 18

integration guides and so forth written with a simplified explanation of the correlation 19

between the signals and the bar code. Since they're not actually interested, when 20

they're reading this stuff, in knowing all the details, it's much easier to explain to 21

people in terms of physical widths than it is to explain in terms of time, so that the 22

inconsistency, if any, would be that while, in fact, the scanner is indicating how 23

much time was spent and that, in fact, there's only, over a small region, an 24

approximate correlation between time and width, we simplify things. 25


Instead of trying to explain how in the world we can work if, in fact, there's no 1

correlation or only a lousy correlation, we just simplify things and say the time 2

pulses are proportionate to the widths. That's a nice 25 words or less way of doing 3

it. 4

Q So, again, do you agree that ultimately the signal that is generated and 5

decoded is indicative of the relative widths of the marks and spaces? 6

A No, because we work on the whole signal and, going end to end, it's not 7

indicative at all. 8

Q So the output of the photosensor is not a signal that is indicative of the relative 9

widths and spaces? 10

A No, it's not. It's quite distorted from left to right. 11

Q And so, to the extent that the manuals say something inconsistent with that, 12

they're incorrect? 13

A No. I think, at the level of detail they're presenting, it's an approximately true 14

statement that's gonna get them by what they're trying to get out of the manual. 15

Q Okay, now you -- 16

THE COURT: You're telling the person reading the manual something in 17

speaking to them in terms of relative widths because you expect that's easier for 18

them to understand, particularly when they're looking at something like a bar code, -19

- 20


THE COURT: -- than to go into the detail of the time measurement that's 22

involved or the intervals? 23

THE WITNESS: That's exactly right. 24

THE COURT: All right, so you're telling them what time it is, not how to build 25


the clock? 1

THE WITNESS: Right. And, moreover, that distinction doesn't matter to 2

somebody trying to -- the optomechanical engineer who's trying to integrate this 3

thing in. That distinction is lost on him and irrelevant. 4

BY MR. LISA: 5

Q So the person who's writing -- who's integrating an undecoded bar code into a 6

product doesn't need to know what actually is happening? 7

A Well, think of the word integrator. He's integrating different things from different 8

places. He's integrating an undecoded engine from us. He may be well integrating 9

a decoder from somebody else indeed. It's still somebody else. Now that means 10

that person who's providing the decoder is an expert, but the integrator just wants to 11

plug these things together. 12

Q All right, so -- 13

THE COURT: So the manuals are one thing, but, when it comes to the 14

patent applications and what becomes the patent, are you also speaking in terms of 15

relative widths or are you there being more technical or detailed in your explanation 16

to speak in terms of the time measurement you testified to? 17

THE WITNESS: Certainly, when you get down to lower detail, we do want to 18

mention that we're talking about measuring time, not measuring widths. That's 19

absolutely true. 20

THE COURT: Are you involved in the preparation of any of the applications 21

for patent that Symbol is involved in? 22

THE WITNESS: Only the few I've done myself. 23

THE COURT: All right. And have those involved the bar coding technology? 24

THE WITNESS: Yes. 25


THE COURT: And in those is it your recollection that you got into the greater 1

detail, as you have here in your testimony today, regarding how the technology 2

operates? 3

THE WITNESS: Actually, it depends on the patent. Some of my patents 4

were really about new bar code symbologies and, for those, there's gonna be some 5

introductory matter about how a scanner works. And it's quite superficial and it 6

might even say, you know, proportional to the widths or whatever. 7

That wasn't the point of the patent. I wasn't inventing a new scanner. I 8

wasn't inventing new signals. I was inventing a new bar code. 9

So, in some of the patents, I'm sure you'll see very broad and superficial 10

language about how the reader works, because that's not what I was patenting. 11


THE WITNESS: At the other extreme, one of my patents was about when 13

you use your scanner -- I'm sorry, actually it was really about when you're 14

measuring the quality of the scanner's signal, dealing with the fact that the spot 15

speed does vary a lot from end to end, and I had a whole patent about how to deal 16

with that. And, of course, that one is the other extreme. It gets very specific about 17

the characteristics of that varying spot speed over time. 18

So it depends on what the patent's targeted for. 19

MR. LISA: Well, Your Honor anticipated exactly where I was going to go 20

next. 21

BY MR. LISA: 22

Q I'd ask that you turn to Defendant's Trial Exhibits 1857 and 2162, please. 23

They're both in the book and they're -- 24

MR. LISA: Your Honor, the book does have a few exhibits that are excerpted 25


to the extent that they're less than the entire exhibit. We'll hand Your Honor and the 1

witness a complete copy, but these are complete copies, so we can just -- 2


MR. LISA: We'll exchange an original -- 4

MR. CHERNY: And, Your Honor, may I also request that we get a complete 5

copy as well? 6

MR. LISA: You have a complete copy of that. 7

MR. CHERNY: Oh, I'm sorry. I thought the books I had were excerpted. 8

MR. LISA: The few manuals that are excerpted you've already received. 9


MR. LISA: They've been exchanged. 11

BY MR. LISA: 12

Q Now would look, please, at Defendant's Trial Exhibit 1857? 13

A Yes, I have that. 14

Q Would you confirm that this is, in fact, a patent in your name? 15

A Mine, amongst others, yes. 16

Q All right, so you signed an oath and declaration in filing this patent, right? 17

A I'm sure I did. 18

Q Okay. And Exhibit 2162, that's your patent as well, right? 19

A Hang on a sec. Yes, again, mine with others. 20

Q Okay. And you signed an oath and declaration in that patent obviously, 21

correct? 22


Q Okay. 24

MR. LISA: Your Honor, we offer into evidence Exhibits 2162 and 1857. 25


THE COURT: Any objection, Mr. Cherny, to those? 1

MR. CHERNY: No, no. 2

THE COURT: All right, those will be received. 3

(Defendant's Exhibit Nos. 1857 and 2162 admitted) 4

BY MR. LISA: 5

Q Now, if you would, while we're on Exhibit 1857, look at the very first page, the 6

abstract. 7

A Yes. 8

Q It's in fact correct to refer again to the laser scanners as flying spot scanners, 9

correct? 10

A May I read the abstract? 11

Q Let me just ask you first. Is it correct to refer -- You used the word "spot" 12

frequently in your direct, right? 13

A Yes. 14

Q All right. And it is common to refer to Symbol laser scanners as flying spot 15

scanners, correct? 16

A I wouldn't really use the word common, but I've heard the word, yes. 17

Q All right. You've certainly used it in your patents, as recently as 1992, to 18

describe those scanners, right? 19

A I see a flying beam spot. Is that what you mean? 20

Q That's one of them. 21

So referring to it as a flying spot beam is proper? 22

A Flying beam spot? Well, if you think about it, the spot from the laser beam 23

certainly flies back and forth across the page, right? 24

Q It seem very descriptive. That's fine. 25


A Yeah. 1

Q But we can agree that is a proper description of the scanner, correct? 2

A The spot is a flying -- A flying beam spot is not a bad term. That's okay. 3

Q Okay. Look at column 12 of your patent, please. This is Exhibit 1857. 4

A Yes. Okay, I have column 12. 5

Q All right. And here you again, in line 5 and 6, refer to it as a flying spot beam 6

scanner, right, or scan? 7

A No, it says a flying spot beam scans a bar code, so the beam is a flying spot. 8

Q And it scans a bar code? 9

A Yes. 10

Q All right. And the beam is generated by a laser scanner? 11

A Yes. 12

Q Okay, thank you. 13

Now in this particular patent -- Let me back up. Excuse me. 14

Do you understand what a patent claim is? 15

A I have an inventor's understanding of it. 16

Q Right. 17

And you understand that's where your invention is defined, right? 18

A Yes. 19

Q Okay. Would you look at claim 1 of column 15 of your patent and this would be 20

line 13. Here, in fact, in your claim, in which you define the invention, you 21

characterize it as a flying spot beam that scans, correct? 22

A Yes. I have no problem with that term. A flying spot scanner might carry some 23

additional baggage with it. 24

Q All right. Now while we're looking at Defendant's Trial Exhibit 1857, on the very 25


first page of it, -- 1

A I'm sorry? 2

Q Looking at Exhibit 1857, the very first page. 3

A Yes. 4

Q All right. Those are multiple scan lines that cross the bar code, correct? 5

A Yes. 6

Q So this is one of Symbol's scanners that generates a plurality of scanning paths 7

that cross the bar code image, correct? 8

A No, that's incorrect. 9

Q How is that incorrect? 10

A Well, that's incorrect because this patent, at least my portion of it, there are 11

other inventors here, but my portion of this patent at least was directed at a single 12

line scanner where there was relative motion between the bar code and the scan 13

line, so that's really the same scan line represented at different points in time. 14

Q Is figure 1 -- Okay, let's go back again. You said this is the same scan path, 15

same scan line, single scan line you said? 16

A Yeah. Picture pulling the trigger on the bar code scanner I've been using. 17

Q Okay. 18

A So you get a single line across. Now picture dragging the bar code across that 19

at an angle and, at various points of time, the scan line will be crossing different 20

parts of the bar code. That's what the figure on the cover is showing. 21

Q So you're actually moving your hand? 22

A Or moving the object more likely. 23

Q Okay, but, in that situation, a plurality of scan lines actually pass over the 24

image, right? 25


A I don't know. I would have described it as a single scan line passing over the 1

image. 2

Q Well, if you'd turn to column 4. 3


A Okay. 5

Q I'm sorry, let's go to column 8, that's easier yet, top of the page. 6

A Okay. 7

Q It's referring to figure 5(a). It shows six scan lines covering the whole bar code. 8

See that? 9

A Yes, I do. 10

Q All right. So, in fact, what's occurring in this method or process is there are a 11

series of scan lines? 12

A No, that's what I meant by that statement. 13

Q Okay. 14

A If you look pictorially at figure 5(a), you'll see, at the points -- 15

Q That's all right. 16

A -- labeled 0 through 5, -- 17

Q That's okay. 18

A Yeah. 19

Q That's okay. 20

THE COURT: Well, go ahead. You can finish that explanation. 21

THE WITNESS: It's the same scan line at five different positions -- 22


THE WITNESS: -- as you move the bar code under it. 24

MR. LISA: All right. 25


BY MR. LISA: 1

Q And that's over a period of time the laser scanner is actually generating those 2

five scan lines, right? 3

A Visually, as I see it, it's one scan line and one bar code. If you actually see it in 4

motion, you'll only see one scan line. 5

Q The point, sir, is that some of the scan lines don't cover the entire bar, correct? 6

A Oh, that is correct. 7

Q All right. In 5(b) some of them do, right? 8

A Yes, that's correct. 9

Q All right. And the point is that over -- in a scanning operation several scan lines 10

will occur as the mirror oscillates back and forth, correct? 11

A It's a terminology question and the answer would be no. 12

Q There would not be a plurality of scan paths? 13

A There is one scan line, which is the question you asked me. 14

Q All right. 15

A Will that line trace different paths if the bar code moves under it? I think the 16

answer is yes. 17

Q All right, or if your hand moves it will scan different paths, correct? 18

A Yes. 19

Q All right. So we can agree, then, that at least if the object moves or your 20

hand moves, at all, different scanning paths will take place; correct? 21

A Yes. Scan paths is okay. 22

Q Now, so that we're clear as well, it is also proper to refer to the -- or to use 23

the term "image" to describe any representation, modification or derivation of the 24

analog scan signal; correct? 25


A I'd have to see that in context. Perhaps it's in -- 1

Q Well, I'm just asking in your experience, you said you were an expert a 2

couple times, in your experience is it proper to refer to any representation, 3

modification or derivation of the analog scan signal as an image of the bar code? 4

THE COURT: Mr. Cherny. 5

MR. CHERNY: I'd just like to object, I don't believe that Mr. 6

Schuessler ever testified or called himself an expert, and I think that Mr. Lisa 7

characterized his testimony as saying he was. 8

MR. LISA: I heard it a few times, but -- 9

THE COURT: Well, I don't -- I don't recall. He's testifying to areas 10

within his experience. You all can use appellations like "expert." I don't really use 11

those. If you look at the Rules of Evidence beyond the titles they don't either. They 12

talk about persons with specialized knowledge and so forth. So it's not a team that 13

has a lot -- term that has a lot of meaning to me, so go ahead. 14

MR. LISA: That's fine, Your Honor. I withdraw the characterization. 15

BY MR. LISA: 16

Q Let's see if we can go back. With your significant experience in the industry, 17

it is certainly proper to refer to any representation, modification or derivation of the 18

analog scan signal as an image? 19

A Without knowing -- there's got to be some context to that because the word 20

"any" would be flat wrong. 21

Q Okay. Well, I'll refer you to column 5, line 45 of Exhibit 1857 of your patent. 22

A I'm sorry, we're still in the first patent? 23

Q 1857, Defendant's Exhibit 1857 -- 24

A Right. Okay. 25


Q -- column 5, line 45, and if you look at the -- actually, let's go to line 22 where 1

you just say what the present invention relates to. See there, it says, "The present 2

invention provides the method for the design of scanning systems for reading bar 3

code symbols or similar indica." Do you see that? 4

A Yes. 5

Q So this patent does relate to scanning systems for reading bar code symbols, 6

right? 7

A Right. 8

Q Okay. Look down at column 45. You say, "The term image as used herein 9

with respect to the invention includes any representation, modification or derivation 10

of the analog scan signal." Do you see that sentence? 11

A Yes, I do. 12

Q So in your patent you viewed it as proper to refer to any representation, 13

modification or derivation of the analog scan signal as an image? 14

A No, not at all. 15

Q Okay. 16

A I was being my own lexicographer, as they say. I'm defining the way I use 17

image within the context of this patent. 18

Q In this context you used it to describe the output, the analog signal generated 19

by the scanner, correct, in this patent? 20

A I would have to read the whole patent, but that's the way it looks. 21

Q All right. And this is something that doesn't go to somebody of nominal skill, 22

but this is a document signed under oath by you to the Patent Office; correct? 23

A Yeah, that's correct. 24

Q Now you had a lot of testimony about how the laser beam that sweeps over 25


the bar code varies greatly in speed; right? 1

A Yes. 2

Q Okay. Isn't it a fact, though, that over relatively small parts of the bar code 3

the speed is essentially constant? 4

A I wouldn't say essentially, especially the parts of the bar code near the end. I 5

would have to answer no to that. 6

Q All right. Well, I'll refer you to column 6, line 16 of your patent, Exhibit 1857. 7

You say, "Since the rate at which the laser beam is swept over the bar code is 8

generally constant, the travel time between two boundaries of an element is 9

proportional to the width of the element defined by such boundaries." Do you see 10

that? 11

A Yes, I do. 12

Q So in your patent you believed it proper to tell the patent examiner that the 13

rate at which the laser beam sweeps over the bar code is generally constant? 14

A Yes, for the same reason I said earlier this patent isn't directed at spot 15

speed, so I can give the same superficial explanation of that phenomena as I would 16

somewhere else. 17

Q Now, you have some familiarity with the Micro PDF bar code symbology, 18

right? 19

A Yes, I do. 20

Q How big is that symbol? 21

A Well, you can print it real big if you want, and you can print it real small if you 22

want. 23

Q You can actually print it small enough to fit on integrated circuits, right? 24

A What we aimed at was the necessary amount of data in a quarter-inch by 25


quarter-inch square. 1

Q So we're talking about a quarter-inch by quarter-inch, right? 2

A Yes. 3

Q I take it you wouldn't want to do a behind-the-back bar code scan here in the 4

courtroom with one of those, right? 5

A No, I would not. 6

Q Okay. And in fact, while there is variance in depth of range for symbol 7

scanners, there are also limits, right? 8

A Sure. 9

Q Okay. And there are limits for virtually ever scanner Symbol makes? 10

A Yeah, there are limits -- 11

Q Okay. 12

A -- for every piece of machinery I think that -- 13

Q Okay. 14

A -- human beings make. 15

Q And those limits depend on several factors, don't they? 16

A Surely. 17

Q And one of them is the size of bar codes, right? 18


Q Right. Now the bar code that you used today, the UPC bar code, is a 20

relatively tall bar code, isn't it? 21

A Supposed to be. It very often isn't. 22

Q Well, if we look at Exhibit 3275, which was in your book, you showed several 23

bar codes; right? 24

A Oh, in my book. I'm sorry. 25


Q This is Plaintiff's Exhibit 32. 1

A Yes. Yes, there you go. 2

Q All right. Do you recall that exhibit? 3

A Yes, I do. 4

Q Okay. And several of the bar codes are relatively narrow, like the PDF 417, 5

or even the Interleave 205, and others are quite tall; right? 6

A That's correct. 7

Q In comparison. So you would certainly agree that I could, if I asked you to 8

take your bar code scanner and hold it steady on the counter -- 9

A Mm-hmm. 10

Q -- and I took one of the smaller bar codes, it'd be pretty easy for me to make 11

that scanner not work; right? 12

A Yeah. 13

Q Okay. So, a lot of the flexibility that you're talking about comes from the 14

ability, and you showed it in your video, to pick up the scanner and move it around 15

to match the orientation of the scanner to the orientation of the bar code; right? 16


Q Okay. So if I asked you to take your bar code scanner, hold it steady on your 18

bar -- on the witness bench, and I took one of these bar codes and rotated it 19

vertically without changing the distance, the skew or anything, not changing a thing 20

except rotating it vertically, it wouldn't work, would it? 21

A Not at that orientation. 22

Q Okay. So keeping the distance constant -- 23

A Mm-hmm. 24

Q -- keeping the skew constant, keeping everything in the world constant 25


except the orientation, all I have to do is rotate that a little bit and your scanner 1

won't work; right? 2

A Well, a little bit is totally dependant on the size and shape of the bar code. 3

Q Well, and the distance from the bar code as well, right? 4

A Yeah, it's like reading -- 5

Q Okay. 6

A -- once I'm past the end of my arm it just doesn't matter any more. 7

Q Okay. So the point is that if I took one of these smaller bar codes shown on 8

Exhibit 3275, went into the optimum range of scanning for your system and rotated 9

it, I could rotate it and relatively quickly it wouldn't scan, right? 10

A Well, it's all relative, but they're going to have a limit. 11

Q Okay. The answer is yes, I could rotate it about 10 degrees for a longer bar 12

code and it won't work, right? 13

A You can also rotate a 180 degrees and it will scan just fine. 14

Q That's fine. 15

A Yeah. 16

Q Right. But when it's rotated 180 degrees it's going to be within a range in 17

which the bar code is scanned entirely by the laser; right? 18


Q Okay. So, you can agree that there are tolerances with Symbol's systems, 20

right? Tolerances in scanning range? 21

A I would never define it as a tolerance. 22

Q There are limits? 23

A There are limits. 24

Q And while there is flexibility in how the scanners are used, there are limits? 25


A I agree. 1

Q And for some of the scanners and some of the bar codes that are used, the 2

limits are pretty tight, aren't they? 3

A You can print a bar code. That's got pretty tight limits on things like angular 4

tolerance. 5

Q Okay. And as we heard from -- yesterday from the witness and from you, 6

one of the great aspects of the flexibility is the ability to move it with your arm and 7

point and shoot; right? 8

A That's correct. 9

Q Okay. But once you fix that scanner so that it's not moveable, the limits 10

increase, right -- or limits become more important and it's easier to not make it 11

work? 12

A It depends on what's happening at the other end. If it's a scanner where the 13

operator is passing it over the bar code, it's almost sure to read without being too 14

careful. 15

Q Are you sure? 16

A Not in every case. 17

Q But in the case where it's -- any of the scanners you demonstrated in this 18

courtroom and every single scanner demonstrated in your video. So, so far, 19

everything that's been demonstrated in this court, if you take it and hold it next -- 20

steady on the -- on the witness stand, the only thing you have to change to make it 21

not work is to rotate it 90 degrees? 22

A That would not be true if some of our scanners, I think, were demonstrated. 23

Q Which ones? 24

A The M2000. 25


Q The one that generates multiple scanning paths? 1

A Yes, that one does. 2

Q Okay. For those, though, that generate a single scanning path you take that 3

bar code scanner, you mount it on that witness stand, and I don't change the 4

distance, location, all I have to do is rotate it and it doesn't work? 5

A If you rotate it past the height of the bar code it won't work. 6

Q Okay. All right. 7

Now, you're a member and have been a representative of Symbol in AIM for 8

a while, right? 9


Q All right. And you said they're a group responsible for setting standards, 11

including for printing, right? 12

A They set the standards for the symbologies and of course that includes how 13

you print them. 14

Q All right. Now would you say that AIM is a reputable organization? 15

A Yes, I would. 16

Q Would you say that in printing standards AIM would seek to be as accurate 17

as possible in how they describe their standards and their bar coding symbologies? 18

A Well, I think they would seek to be as accurate as possible. 19

Q And certainly in talking about printing bar codes, is it correct -- are you -- let 20

me back up. Are you familiar with the various printing methods, such as direct 21

thermal printing and thermal transfer and dot matrix printing and things like that? 22

A I have experience with the results of those processes. You know, I'm -- 23

Symbol doesn't make printers, so my direct experience with the printing process is 24

limited. 25


Q All right. You talked about how the printing processes could have great 1

variation in how the bar codes are smeared and looked at and grow, right? 2

A That's correct. 3

Q So actually you do have some familiarity with those processes, right? 4

A With the results of the process. 5

Q Okay. 6

A Yeah. 7

Q So you would agree that if one were to use direct thermal printing of bar code 8

labels that it would be proper to characterize it as "heating elements in the print 9

head are selectively heated to form an image from overlapping dots of heat 10

sensitive substrate" -- "on a heat sensitive substrate"? 11

MR. CHERNY: I'd just like to interpose a foundation objection at this 12

point. 13

MR. LISA: I'm just asking the witness whether he agrees. 14

THE COURT: Well, if he -- if he's able to respond. Are you able to 15

respond to that question? 16

THE WITNESS: I'll have to hear it again, if you don't mind. 17

THE COURT: Go ahead, restate it. 18

BY MR. LISA: 19

Q All right. Would you -- are you familiar with direct thermal printing of bar code 20

images? 21

A You know, a user's familiarity with them. 22

Q Okay. Well, maybe I can ask it this way. Would you agree that AIM routinely 23

describes to printed bar code labels that are actually on the various exhibits that 24

have disappeared here -- refers to those bar code labels as images of bar codes? 25


A I'm not familiar with AIM statements to that effect, no. 1

Q All right. Can I have Exhibit 2160. Actually 2160 is in your book. If you'll 2

turn to 2160. 3

A Okay. 4

Q And this is a page printed off of the AIM web site and you can see the 5

address down on the bottom. Have you ever visited the AIM web site? 6

A Yes, I don't think this part of it. 7

Q Okay. Well, you certainly recognize that this is describing bar code printing, 8

right? 9

A Yes, I do. 10

Q All right. And if you want to look down at Onsite Printing it reflects -- refers to 11

direct thermal printing, thermal transfer, dot matrix, ink jet, and laser printing of 12

images. Do you see that? 13

A Sure. 14

Q Okay. In each case what is printed on the object to be scanned as a bar 15

code is referred to as an image; right? 16

A Yeah, that's what it refers to it as, yes. 17

Q And this is AIM, a very respected, standard-setting organization, right? 18

A Mm-hmm. 19

Q Okay. That's a yes? 20

A That's a yes. 21

Q Thank you. Now your direct testimony had a significant amount directed to 22

the various overhead characters that appear in bar code symbols; right? 23

A I don't think I used the term. 24

Q Well, do you know what overhead symbols are, or overhead characters? 25


A Well, that will vary from symbology to symbology. 1

Q Do you know generically what an overhead character is? 2

A Yeah. I mean, I may not know with great precision. That's kind of an old -3

fashioned term. 4

Q Okay. Well, why don't we turn to Exhibit 1208A, it's the first in your book. 5

A 1208A. Yes. 6

Q All right. And have you visited Symbol's own web site? 7

A Yes. 8

Q All right. It's a very extensive, lengthy web site, right? 9

A Pretty big. 10

Q Okay. Included on that web site is a PDF 417 glossary of symbology terms, 11

right? 12

A Oh, I have no idea. 13

Q Okay. Well, I'll ask you to look at the front -- first page of Exhibit 1208. 14

A Mm-hmm. 15

Q And you're familiar with the PDF 417, right? 16

A I'm familiar with the symbology, yes. 17

Q Okay. Is that an old-fashioned symbology? 18

A Yeah, in a sense it is, it was invented around 1990. 19

Q All right. So 1990 is the earliest that it's been used commercially? 20

A I'm not sure when exactly it was first used commercially. I don't think it would 21

have been before then. 22

Q All right. Well -- 23

A The invention may be done in '89 even. 24

Q All right. It's still being used, right? 25


A Oh, yes. 1

Q Okay. And the date, if you look on the bottom of this printout for the Symbol 2

web site, is 9/28/2001, do you see that? 3

A Yes, sure. 4

Q Okay. And this is a glossary that is addressed to -- says PDF 417 Auto ID 5

Glossary up top? Go all the way up top on the header. 6

A Oh. Oh, it's the title. Yes, I see it now. 7

Q Right. Now if you turn to the O's in there. It's 8

about -- 9

A Got it. 10

Q -- got it? If you look down at the bottom of the page there is a heading for -- 11

entry for overhead, do you see that? 12

A Mm-hmm. 13

Q The fixed number of characters required for start, stop, and checking in a 14

given symbol. Do you see that? 15

A Yes. 16

Q Okay. And can we agree that's a good definition of overhead? 17

A Yeah, that matches my recollection. 18

Q Okay. And you had significant testimony about start, stop and checking 19

characters, right? 20

A Yeah. UPC doesn't really do starts and stops in that same sense, but they 21

do have a check digit. 22

Q All right. They have guard bars? 23

A Right, they have guard bars. 24

Q Okay. So what is the purpose of a guard bar? 25


A To frame an area of data that can be recognized by the scanner. 1

Q All right. And what happens if the scanner doesn't find a guard bar? 2

A If we don't find any guard bars on a given scan -- 3

Q Correct. 4

A -- if we don't find any we won't decode that as UPC. 5

Q All right. So the part of the signal that would follow -- I'm sorry, back up. 6

Let's say you scan a bar code that has a bad -- a bar code was scanned and the 7

scan goes entirely through the bar code, but the first guard bar is not detected. Do 8

you understand that so far? 9

A Yes. 10

Q In that situation the rest of the signal defining the rest of the bar code will not 11

be analyzed, right? 12

A No, that's untrue. 13

Q And that's true for all -- untrue for all symbologies? 14

A It's untrue for many. 15

Q So is it your testimony that if a start code is not found that the rest of the 16

signal is analyzed? 17

A It's certainly true in UPC, it's true in PDF 417 and probably -- 18

Q How about 128? 19

A It can be true in 128. 20

Q But in general with code 128 isn't it the fact that if a start or stop code is not 21

found that you move on to look for a new scan? 22

A I would say if we find neither a start nor a stop, then we won't be able to 23

process it. 24

Q Okay. So if you set these guard bars or start/stop characters at either end to 25


frame the bar code, if the systems don't find a start and a stop code they don't go on 1

to decode the data; correct? 2


Q Even for code 128? 4

A I said a start or a stop. 5

Q All right. So if it doesn't find a start or a stop it will not decode the rest of the 6

data? 7

A That's correct. 8

Q Okay. And in that point it goes on to look for another scan line, correct? 9

A Yeah, that would be correct. 10

Q So the portion of the signal defining the middle area that's guarded, or 11

between the start and stop characters, in that situation where a stop or start is not 12

found is not analyzed; right? 13

A No, that's untrue. 14

Q How is that untrue? 15

A If it was -- if we found one or the other we would still analyze what's in 16

between as -- it may just be the last -- let's say the stop isn't decodable, we would 17

still have analyzed everything in between. 18

Q But what if you don't find a start or a stop character? 19

A If you don't find either one, then we don't analyze it as code 128. 20

Q Now, is it proper to refer to the area that is scanned by the laser scanner, or 21

an imaging scanner, as a field of view? 22

A The word "field of view" is pretty common. It's -- I'm not sure that is an exact 23

correlation to the physical scan line, but I think -- let's go with that. Okay. 24

Q All right. So again let's be clear, 'cause this is the court. It's okay and 25


appropriate to agree that what the laser scanner is looking at, or what an imager is 1

looking at, is a field of view? 2

A We say we -- you know, we say the scanner has a field of view. When we 3

refer to the field of view of a scanner, we're talking about the dimensions of the scan 4

line, for instance, that it's at. I guess you can use that term for that -- you know, I 5

know where you're heading. 6

THE COURT: Somebody in photography might think of one thing and 7

-- 8

THE WITNESS: Yeah. Yeah, the term might mean something else to 9

somebody than what it means to us, but we do use the term. 10

BY MR. LISA: 11

Q The field of view, though, is the area in which the bar code is; correct? 12

A It's the area where we hope the bar code is within that, yeah. 13

Q Now, if a bar code is properly scanned and the signal is loaded into the 14

system of the bar code scanner, what you get is a data that consists of a series of 15

counts; right? 16

A Yes. 17

Q And those counts represent measurements of the bars and spaces within the 18

field of view of that scan; right? 19

A Well, as we said earlier, they're not actually measurements of the widths, no. 20

Q Okay. Well, you were deposed in this case, right? 21

A Yes, I was. 22

Q Okay. And it certainly is true that the data represents measurements of the 23

bars and spaces within the field of view; correct? 24

A No, we can't measure the bars and spaces. 25


Q Okay. Well, I'd like you to turn to page 89 of your deposition, Exhibit 2108. If 1

you'll look at the first -- 2

A I presume it's right in the front? 3

Q Right. If you look at the first page of that, you can see that you were 4

deposed on August 22nd of this year. 5

A I'm sorry, I'm not sure 89 is here. 6

Q 2108. 7

THE COURT: No, Exhibit 2108 in the book. 8

THE WITNESS: Oh, 2108. 9

THE COURT: 2108. It should be a copy of transcript, or part of the -- 10

THE WITNESS: On 2108 it has (a), (b), (c), (d). I'm sorry, that's 11

1208, let's keep going. 12

MR. LISA: Defendants' Trial Exhibit 2108. I think I put your transcript 13

in the front of the binder. And, Your Honor, this is one that is a excerpt, so I -- 14

THE COURT: Sure, I understand. 15

MR. LISA: -- I can deposit the entire manual? 16

THE COURT: You're referring to which page, 88? 17

MR. LISA: 88. 18

THE COURT: Okay. 19

BY MR. LISA: 20

Q So you have just the pages that I thought I'd -- 21

A Yes, I have it now. 22

Q Do you have that now? 23

A Mm-hmm. 24

Q Okay. And do you see you said that's -- "And what that data consists of 25


when you start the decode process is a series of counts." 1

A I'm sorry, you didn't give me a page. 2

Q Page 89. 3

THE COURT: 89? 4

MR. LISA: 89. 5

THE COURT: And what line? 6

MR. LISA: Lines 6 through 11. 7

THE COURT: Okay. "And what that data consists of." I see. Okay. 8

BY MR. LISA: 9

Q So, it is in fact true, isn't it, that the data consists of a series of counts which, 10

if properly scanned and loaded into the system, represent measurements of the 11

bars and spaces and whatever graphics are also within the field of view of that 12

scan? 13

A I clarify that in my next sentence below. 14

Q I'm just asking you, sir, if that's correct. 15

A That's what I said in that particular sentence. 16

Q Okay. 17

THE COURT: Well, we're talking about a CCD scanner in this 18

colloquy? 19

THE WITNESS: Yes. Yes, I think we are, as a matter of fact, Your 20

Honor. 21

BY MR. LISA: 22

Q Well, actually, if you turn to page 88, isn't it in fact that you're talking about in 23

all cases, eventually in anything but a 2D CCD? You see that? 24

A Oh, I haven't seen the -- okay, I see "an anything but," yes. 25


Q And so in fact what you're talking about there is a laser scanner, correct? 1

A Yeah, I think so. 2

Q Okay. And then what you happened to explain, which the Judge caught, is 3

that you can -- and this is reflected on the bottom of page 88 -- that in a CCD you 4

can logically draw a line through the captured image and then from there on you 5

can pretty much treat it as the same process. Do you see that? 6

A Yes. 7

Q Okay. So the statement that the data that you used when you start the 8

decode process represents measurements of the bars and spaces within the field of 9

view of that scan applies both to CCD and laser scanners, correct? 10

A Well, the statement I made was incorrect and I clarified it -- 11

Q Okay. 12

A -- immediately below. 13

Q Well, what you said below is that they are measurements of the amount of 14

time the scan beam spends crossing the bars and spaces; right? 15

A Yes, that's correct. 16

Q And that the counts are proportionate to the amount of time that the laser 17

spent -- spot spent crossing black to white and black to -- and white to black; 18

correct? 19

A Yeah, proportionate, and I guess that, in my mind, meant approximately 20

proportional. 21

Q All right. And then on page 90 at line 12 to 17, which you said again to Mr. 22

Hosier under oath, was that the bar coding was designed through code 128 as an 23

example, "it's relatively immune to spot speed variations as long as you look at one 24

small group of bars and spaces at a time." Do you see that? 25


A Yes. 1

Q All right. So, do you agree that for even laser scanners if what you're looking 2

at and analyzing is, say, a small group of bars and spaces like a module -- 3

A Oh, a single module? 4

Q Sure. 5

A Okay. 6

Q That the speed of the laser could be treated as relatively constant at that 7

point? 8

A Over an area as small as a module. At the extreme ends of the scan line 9

within one module I think I can still treat it as fairly constant. 10

THE COURT: All right. That'll be good time to take our luncheon 11

break. We'll be in recess until 1:30, counsel, and continue with further cross-12

examination of the witness then. 13


(Court recessed at 12:00 p.m. until 1:32 p.m.) 15

THE COURT: Have a seat everybody. 16

All right. We can have our witness -- oh, come on back up to the 17

stand, if you would, and we'll proceed with further cross-examination. 18

MR. LISA: Your Honor, while he's doing that a quick housekeeping 19

matter? 20

THE COURT: Sure. 21

MR. LISA: There were a few exhibits I marked that I don't know if 22

they're actually moved in yet. One is Defendant's Exhibit 426, which was the 23

Symbol 2E1022 Scan Integration Guide, and I think there was no objection to that. 24

MR. CHERNY: No objection to the Integration Guide. 25


THE COURT: Yeah, that'll be received. 1

(Defendant's Exhibit No. 426 admitted) 2

MR. LISA: The -- I did, and I still will be referring to the Symbol web 3

site 2D Auto ID Glossary, which is Exhibit 1208. 4

THE COURT: Any objection to that glossary? 5

MR. CHERNY: No. 6

THE COURT: That'll be received. 7


MR. LISA: And finally the Defendant's Exhibit 2160, which is the 9

printing of the web site from the AIM Group on the -- 10

THE COURT: Any objection to the AIM Group? 11

MR. CHERNY: Your Honor, there is an objection. We object to the -- 12

Exhibit 2160 as hearsay. 13

THE COURT: All right. It is hearsay. How would you -- other than 14

the witness acknowledging it says what it says, I'm not going to receive that 15

separately. 16

MR. LISA: Okay. I think, Your Honor, the fact that it's referred to by 17

an organization as a bar code symbol is referred to as an image by a respected 18

organization, I think is -- you know, to introduce it not for the truth of the matter, but 19

for the fact that the group does refer to it as such, it should be admitted for that 20

purpose, limited purpose. 21

THE COURT: Well, no, I still think that's hearsay. I'll sustain the 22

objection to 2160 but I'm not going to strike the witness's testimony. There was no 23

objection to his testimony about the direct thermal references in it and so forth. All 24

right. 25


All right. Go ahead. 1


BY MR. LISA: 3

Q All right. Well, let's then refer back, if we can, sir, to Defendant's Exhibit 4

2160. It's in the book, so it should 5

-- you should have a complete copy tabbed there. 6

A 2160, I have it here. 7

Q In fact, you do recognize that it is -- 8

THE COURT: You know what, let me -- I'm gonna just save time, for 9

goodness sakes. I mean, it's -- there's no debate as to its authenticity, the witness 10

has already testified to his status on behalf of Symbol as a representative, I forget 11

the term of art that was used, with AIM and to the content as regards direct thermal 12

definition that's provided. So -- and he read other portions of it, so it's effectively 13

covered. I'll let it come in so -- 14



BY MR. LISA: 17

Q All right, moving on then. Sir, we were talking a little bit before break about 18

the different audiences for some of Symbol's manuals; do you recall that? 19


Q All right. And it is, in fact, true that Symbol prepares sets of documents for 21

people who are in fact beginners in bar code scanning; correct? 22

A I think that is true. 23

Q Okay. And if you turn to Exhibit 210 in your manual, you'll see that in fact 24

Symbol prepares a manual entitled "Bar Coding for Beginners"; correct? 25


A That's the title. 1

Q Okay. And -- 2

THE COURT: Should have picked Bar Coding for Dummies, that 3

would have been popular. You know -- 4

THE WITNESS: It looks pretty much like that, yeah. Yeah. 5

THE COURT: -- like all the other -- 6

MR. LISA: I think the end users might be slightly offended but that's 7

usually -- 8

THE COURT: Well, I don't know, I think those sell pretty well -- 9

MR. LISA: Yeah. 10

THE COURT: -- those different-- 11

MR. LISA: Oh, that's true, that's right. 12

THE COURT: -- this and that for dummies, those yellow books you 13

see in the stores. 14

MR. LISA: That's right. Okay. 15

BY MR. LISA: 16

Q And certainly -- 17

THE COURT: I'm not going to admit I have any -- 18

MR. LISA: I have two. 19

THE COURT: -- but I probably should. 20

BY MR. LISA: 21

Q And certainly this type of a document is intended by Symbol as a high level 22

introduction to bar code scanning; correct? 23

A Yeah, I'd say. 24

Q Okay. 25


MR. LISA: Your Honor, we'd ask to move in Defendant's Trial Exhibit, 1

210. 2

THE COURT: Any objection to 210? 3

MR. CHERNY: No, sir. 4



BY MR. LISA: 7

Q Now, sir, in your animation you showed the analog signal that was generated 8

by the photosensor; do you recall that? 9

A Correct. 10

Q Okay. And that analog signal you showed is passed through an analog to a 11

digital converter; is that right? 12

A No, that's not correct. 13

Q Okay. What happens to it after the analog signal is generated by the 14

photosensor? 15

A Well, it was -- it's a bit of a memory test to get the order, but it was amplified, 16

went through a circuit called a differentiator, which, remember, made that signal 17

with all the spikes in it? That was filtered and then it went through a differen -- 18

sorry, a digitizing circuit. 19

Q The signal that goes into the digitizing circuit is an analog signal, correct? 20

A Goes into the -- well, that's -- it's a differentiated signal. 21

Q Is it an analog signal? 22

A It's still an analog signal; it's not the one we started with. 23

Q But it's an analog signal? 24

A Yes. 25


Q Thank you. Now the output of the A to D converter is what you called a 1

digitized bar pattern; correct? 2

A That's not an A to D converter. 3

Q All right. What is it? 4

A It's a digitizing circuit. 5

Q All right. It takes an analog signal as an input, correct? 6

A Correct. 7

Q And converts it to a digitized bar pattern, correct? 8

A That's correct. 9

Q And the digitized bar pattern is not really a digital signal, is it? 10

A It doesn't have all the characteristics of a digital signal, no. 11

Q Okay. In fact it's really still an analog signal? 12

A It's really kind of squarely in between. 13

Q All right. So would it be fair to say that you can think of it as either a 14

squared-off analog signal or a one-bit digital signal? 15

A Yeah, it's a kind of a horse of no color, and you can really kind of call it either 16

one. 17

Q Now, a number of the bar code symbols that you put up on the screen had 18

numerous modules and numerous characters in them, correct? 19

A Yes. 20

Q All right. And why is that? 21

A I'm sorry? 22

Q Why is that? 23

A I'm not really sure I understand the question. 24

Q Well, the bar codes are being applied to a large body of objects, such as a 25


wide variety of commercial goods if it's a UPC character; right? 1

A Correct. 2

Q All right. And so the length of the bar code is somewhat a result of the 3

universe of products that have to be uniquely identified; correct? 4

A In that application -- well, in which application? 5

Q Certainly in any application. You have a intended application or use, I think 6

is -- was your word; different symbologies were intended for different uses, correct? 7

A Yes. 8

Q In the context of the UPC environment you've got a store full of goods, each 9

one has to be uniquely identified? 10

A Correct. 11

Q All right. So to some degree the length of that bar code is to accommodate 12

the breadth of goods that are moved through commerce and covered by the UPC 13

code; right? 14

A The number of digits we use covers that, not the length of the bar code. 15

Q Okay. The number of digits means what? 16

A In other words, the 12-digit number was picked as a 12-digit number to 17

accommodate the range of products that needed to be identified. 18

Q Okay. And I think you said that each of those digits is a module, is that right? 19

A Oh, no, that's not correct. 20

Q Okay. Is it a character? 21

A A bar code character would be more correct. 22

Q Okay. And -- 23

A Or one of those -- excuse me, each one of those digits is represented by a 24

pattern which is a bar code character. 25


Q Okay. 1

A Or symbol character. 2

Q All right. And so how many different characters can appear -- are 3

represented in one of -- I mean, A through Z and 0 through 9; is that right? 4

A No, that's not right. 5

Q Okay. What is it for each character? What is -- what's the limit? 6

A In which symbology, UPC? 7

Q Sure. 8

A Okay. In UPC each bar code character or, you know, letter of its alphabet 9

can represent the digits 0 through 9. 10

Q All right. So, theoretically then, if you only had nine things moving down a 11

conveyor and only wanted to identify nine different pieces of work or work pieces on 12

a conveyor, you could use one character? 13

A You could use a one-digit number for that. 14

Q All right. And so you don't need, in that environment and for that application, 15

to have a multi-digit symbology; right? 16

A One digit could identify ten items. 17

Q Okay. And in that situation then the bar code can be much smaller, right? 18

A I would think it would. 19

THE COURT: Well, explain to me in what kind of circumstance can 20

you envision where that would have utility. Why would you want a bar code that 21

only could accommodate nine or ten items? Is there some -- 22

THE WITNESS: I don't know of any symbology that can only do that, 23

but I guess it was a hypothetical. 24

THE COURT: As a practical -- I'm just trying to think of any practical 25


application of it where you would then need the bar code technology to -- 1

THE WITNESS: Right. No, I don't know of any bar code symbology 2

that's restricted to only being able to represent a very small number of items like 3

that. 4

THE COURT: All right. All right. 5

BY MR. LISA: 6

Q Well, why don't you turn to Exhibit 357A in your book, please? 7

A Yes, I have that. 8

Q All right. And if you look at the second page of that exhibit -- and this is a 9

partial printout, so I need the entire manual, please. The -- from your Codefendant 10

Cognex. And do you see on the second page there, there's Identification: Piston 11

Verification? 12

A Yes, I -- 13

MR. CHERNY: Your Honor, I'd like to interpose a foundation 14

objection. This is a document from Codefendant Cognex. He's here on behalf of 15

Symbol. 16

THE COURT: Well, I understand that, but maybe the witness is 17

familiar with it. Is there -- 18

MR. LISA: Okay. 19

THE COURT: Let the witness -- go ahead and put a question to the 20

witness. 21

MR. LISA: I'll phrase my question so it's appropriate, Your Honor. 22

THE COURT: He maybe is unfamiliar with it. Maybe he's never seen 23

it, I don't know. 24

MR. LISA: Yes. 25


BY MR. LISA: 1

Q Well, first, I think you just said you're not aware of a situation where there 2

could be a bar code symbology of just one character; right? 3

A I said I wasn't aware of any bar code symbologies -- 4

Q All right. 5

A -- that can only encode one character. 6

Q Okay. But in fact you're aware that small codes are used all the time by 7

manufacturers to identify their products on assembly lines, right? 8

A No. 9

Q All right. 10

A What do you mean by small codes? 11

Q All right. And so you're not aware of situations such as that reflected in 12

Exhibit 357A -- 13

A Right. 14

Q -- where a small number of dark marks on a bright background or dark marks 15

on a black background are used to identify pistons, for example? 16

A No, I've never seen that pattern before. 17

Q Okay. Now, if you would please refer to Exhibit 1208A, which is the symbol -18

- symbology -- Symbol Auto ID Glossary. 19

A Yes, I have it. 20

Q Okay. And if you turn to the entries under D, for dog. 21

A Yes. 22

Q Okay. There's an entry for a data collection system; do you see that? 23

A Oh, I'm sorry, under B or D? 24

Q D for dog. 25


A Okay. Yes. 1

Q Have you heard the phrase "data collection system" before? 2

A Yeah, I think I have. 3

Q Okay. And the first sentence of that dictionary or definition in the glossary 4

says "A system that consists of input devices located at points where data are 5

created." Do you see that? 6

A Yes, I do. 7

Q Okay. And is that your understanding of what a data collection system is? 8

A Geez, I don't know. I would have left it at a system that consists of input 9

devices that collect data, the -- located at points -- well, mobile systems aren't 10

located at any particular points, and that's often what we do. 11

Q So your point is they could be located throughout the factory if they're 12

wireless or something? 13

A Correct. 14

Q Okay. So in a -- and does Symbol sell to customers who set up these data 15

collection systems where multiple scanners are sold and distributed throughout a 16

factory? 17

A I don't -- can you repeat that question? 18

Q Sure. 19

A Just want to be sure I have that. 20

Q Do you have some understanding as to whether Symbol sells to customers 21

who use Symbol's products in a data collection system in which the scanners are 22

distributed throughout a factory or warehouse, whether wired or mobile? Does that 23

occur?** 24

A I'm not personally aware of us selling complete systems like that. 25


Q Do you sell components of those systems? 1

A Yeah, I think we do. 2

Q Okay. And do you know whether your mobile computers are sold with RF 3

systems as complete systems to form data collection systems? 4

A I know we sell mobile computers with radios in them that go into wireless 5

systems. I'm not sure who sells the complete system. 6

Q Okay. Now, once captured by the bar code scanner, the data can either be 7

transmitted immediately to a host computer or stored locally and held for what's 8

called batch transfer; right? 9


Q Okay. Now, when the data is stored, can it be stored in a tape, magnetic 11

tape? 12

A I'm not aware of any Symbol product that does that. 13

Q How about the system used by the end users, do you know whether it uses a 14

tape to store data? 15

A Now you're talking about batch mode when we said stored. 16

Q Well, either one. 17

A Oh. Once we've transmitted the data to the other end, I'm not aware of how 18

the users actually store it. 19

Q Okay. So the storage medium, as far as you know, from the end user, could 20

be a tape or a disk or semiconductor memory; right? 21

A As far as I'm personally aware. 22

Q Okay. So these data collection systems in which Symbol's systems are 23

installed generate data that has been transmitted, stored, and used by the end 24

users; right? 25


A That sounds correct. 1

Q Okay. And that may be -- the storage may be a tape, a disk or 2

semiconductor memory, right? 3

A To be honest I haven't seen direct-to-tape storage in a live system in a very 4

long time. 5

Q All right. Well, if you look at the definition of data collection system in your 6

glossary you'll see that it says that "The data may be transmitted to a storage 7

medium, such as a tape, a disk or semiconductor memory, for later transfer to a 8

host computer application program." Do you see that? 9

A Yes. 10

Q Okay. So at least Symbol's glossary indicates that it may be any of those, 11

right? 12

A It may be any of those. 13

Q Okay. Now, do you know whether in any of -- let me withdraw that and I'll 14

ask it this way. Do any of Symbol's products store the data that it generates, either 15

during its analysis or as a result of its analysis, in magnetic tape or disk, or is it all 16

semiconductor memory? 17

A Sitting here with the products I can think of, it's always semiconductor 18

memory. 19

Q Do you know whether it's ever been, in Symbol's history, that the data's been 20

stored on magnetic tape or disk? 21

A Can we repeat what the "it" refers to? 22

Q Data generated by the bar code scanners before transmission to the 23

customer. 24

A I don't have any recollection of anything being on either disk or tape. 25


Q And when did you start with the company? 1

A 1983. 2

Q I'd refer you to Exhibit 390, please. 3

A Could I hear that again, please? 4

Q 390. 5

A Thank you. 6

Q Do you recognize this patent? 7

A Yes, I do. 8

Q And why do you recognize it? 9

A Oh, I'm sorry, I don't -- I recognize the names on it, I recognize Jerome 10

Swartz and Ed Barkan and so forth. 11

Q Okay. Do you recognize this as being one of the early Symbol patents? 12

A I see it issued in 1983. 13

Q Okay. I'd refer you to column 12 of the patent, please, bottom of column 11, 14

line 65, through column 12. 15

A Oh, I'm listening. No, I'm sorry, at the bottom of column 11? 16

Q 11. It begins the Body Harness 100. 17

A Right. I have no idea what a body harness is. 18

Q Okay. 19

A I would have to back up quite a bit to know what we're talking about. 20

Q All right. Well, how about the next sentence, the Decode Computer Circuitry. 21

You're familiar with that terminology, right? 22

A Yes. 23

MR. CHERNY: Your Honor, I'm going to interpose a foundation 24

objection here. 25


THE COURT: Well, let's put the question to the witness first. 1

MR. CHERNY: Sure. 2

THE COURT: I'm not -- 3

MR. LISA: All right. Do you -- 4

THE COURT: Overruled at this point. 5

MR. LISA: Okay. 6


BY MR. LISA: 8

Q Do you know, sir, whether or not the digitized signals generated by Symbol's 9

signal processing circuits, as you showed on the animation today, are transmitted to 10

data storage circuits that contain memory such as nonvolatile bubble memory or 11

magnetic cassette or volatile semiconductor memory? 12

A Only the last of those is one I've actually seen. 13

Q Okay. And I'd refer you then to the top of column 12 and ask you again to 14

read that and see if that refreshes your recollection as to whether tapes, magnetic 15

cassettes, have been used by Symbol to store data? 16

A Definitely not. I'm guessing here and it is a guess. 17

THE COURT: Well that's all right, don't guess. 18

THE WITNESS: Yeah, okay. 19

THE COURT: If it doesn't refresh your recollection you're otherwise 20

just reading what it says -- 21


THE COURT: -- and don't do that. 23

BY MR. LISA: 24

Q Referring back to Exhibit to 1208. 25


THE COURT: 1208A? 1

MR. LISA: Yes, please. I'm sorry, that's right, Your Honor. 2

THE WITNESS: Yes. 3

BY MR. LISA: 4

Q If you'd turn to the entries for F, as in Frank. 5

A As in Frank? 6

Q Correct. There's an entry for fixed beam bar code readers; do you see that? 7

A Yes, I do. 8

Q Okay. And it says -- defines that, quote, "A scanning device where scanning 9

motion is achieved by moving the object relative to the reader." Do you see that? 10

A Yes, I do. 11

Q Okay. Are you familiar with that type of a bar code reader? 12

A Well, Symbol, I don't think ever made one. 13

Q Did they exist? 14

A Do they exist? 15

Q Yes. 16

A Yes, I think they do. 17

Q I'm sorry? 18

A Yes. 19

Q Okay. And in that case the object itself bearing the bar code is moved 20

physically past the sensing device, right? 21


THE COURT: Well, there you're talking about something fairly 23

common in a market field, where they'd be under the glass and you'd slide the 24

product over a fixed scanner. 25


THE WITNESS: Yeah, I'm not sure if that's what Mr. Lisa is referring 1

to. Are you referring to a supermarket-type scanner or a single point of light where 2

on a conveyor belt an object slides right by? 3

BY MR. LISA: 4

Q It would be a single point of light with the conveyor sliding by would be an 5

example. 6

A Right. Yeah. 7

Q Now if you turn to the definitions for M, as in Mary. 8

A Okay. 9

Q On the second page there is a term MRD for minimum reflectance difference; 10

do you see that? 11

A Yep. 12

Q Are you familiar with that term? 13

A I mean, I am passing familiar with it. I think, you know, it is a term that 14

involves measuring bar code print quality. 15

Q All right. And in fact what it states for the record is that one -- it's a minimum 16

reflectance difference, one formula that is used to determine if there is an adequate 17

difference between absorbed and reflected light. Do you know whether Symbol's 18

bar code scanners, as part of their coding algorithms, check MRD? 19

A Symbol's scanning products as we sell today? 20

Q Yes. 21

A No. 22

Q Is there a minimum MRD that is specified by Symbol for its various products 23

to successfully scan bar codes? 24

A I think I've -- I've seen a minimum contrast. There's different ways of 25


measuring contrast, MRD being one of them. 1

Q Well, do you agree that the Symbol specifications typically recite a minimum 2

reflectance that's required in order for the systems to successfully operate? 3

A Well, that's not correct. 4

Q It's not? How is it incorrect? 5

A We don't put a requirement on it. There's a minimum level of contrast that 6

we say we guarantee to work under otherwise optimum conditions, but the actual 7

contrast could be far less. 8

Q Is there a minimum level of contrast that the Symbol bar code scanners look 9

at before they decide that the decode is successful? 10

A No. 11

Q So there's no checking of minimum contrast by Symbol decode algorithms? 12

A Oh, no. We have -- the decode algorithm really doesn't have any information 13

about contrast at all. 14

Q Do Symbol bar code scanners, in any of their processing, check contrast 15

against some minimum in order to determine that the scan is a legitimate good 16

scan? 17

A Oh, no. 18

Q Does it do anything to check contrast -- 19

A No. 20

Q -- to see if it's above a threshold? 21

A Huh? I'm sorry. Excuse me? 22

Q To see that the contrast is above or below a threshold? 23

A I don't think the way the circuitry works we actually ever determine if the 24

contrast is above a threshold. 25


Q Are you aware of a term "print contrast signal?" 1

A Yes. 2

Q What is that? 3

A That's another way of measuring the contrast of a bar code. 4

Q And that's a measurement of the ratio of the reflectance between the bars 5

and spaces, right? 6

A That sounds right. 7

Q Okay. Do you know whether anywhere, in the processing conducted by 8

Symbol's bar code scanners, it checks any sort of print contrast? 9

A I don't think so. 10

Q Do you know for sure? 11

A I'm stretching to try to see if there's some way I can make it fit. None of the 12

circuitry or processing I'm aware of does that. 13

Q Now, there are also, though, minimums set for how the relative widths of the 14

bars and spaces compare to some set and defined tolerance in symbologies; 15

correct? 16

A Could you repeat that whole question? 17

Q Sure. The smallest width must be a -- within a certain tolerance of the 18

largest width or of a defined width; right? 19

A No, that doesn't sound correct at all. 20

Q Do you know what a T-distance is? 21

A Yes, I do. 22

Q What is that? 23

A That's actually the kinds of measurements we were seeing in the 24

presentation earlier today. It's just a name, but it's name for that edge-to-similar-25


edge measurement that we make when we're trying to figure out what the patterns 1

we're looking at. 2

Q And is it your testimony that the Symbol decode algorithms don't check to 3

see if the widths, the relative widths of these bars and spaces are within predefined 4

tolerances? 5

A There was reverse logic in there, but my testimony is that we don't check 6

that. 7

Q Referring you, please, to Exhibits 2163. 8

A Yes, I have it. 9

Q Okay. This is a third of your patents in which you're named as an inventor, 10

correct? 11

A I'm one of the inventors on this patent, yes. 12

Q And you signed an oath and declaration in connection with this patent as 13

well, right? 14


MR. LISA: Okay. Your Honor, we move into evidence 21 -- 16

THE COURT: Yes, any objection to 21 -- I'm sorry, 2163? 17

MR. CHERNY: No objection. 18


(Defendant's Exhibit No. 2163 admitted)) 20

BY MR. LISA: 21

Q Now, if you'll turn to Figure 11 of this patent? 22

A 11 not 11A, right? 23

Q Correct, 11. 24

A Okay. 25


Q This is the configuration that most of us are familiar with, is that right, with the 1

conveyor and the bar code scanning unit mounted underneath it and groceries 2

being swiped by; right? 3

A Well, that part of it, yes. 4

Q And you haven't done any demonstrations of this type of a unit in here today, 5

right? 6

A Yeah, I did not. No. 7

Q Now in fact, in this environment, we're in a situation where the bar code 8

scanning device cannot move; right? 9

A That in-counter scanner does not move. 10

Q Okay. And in that environment, certainly, the -- there was a requirement of 11

precise positioning of the symbol with respect to the scanning head, right? 12

A No. 13

Q Okay. I'll refer you to column 1, line 37. There you say, "Early scanning 14

systems were constructed with single aiming axes or fields of view and required 15

precise positioning of the code symbol with respect to the scanning head"; do you 16

see that? 17

A Yes, I do. 18

Q All right. First, you do use the word "field of view" again so we can agree 19

that's a proper term for the Court to accept, right? 20

A It's a term that's just in there. 21

Q Okay. And at least for early versions of these in- counter scanners you told 22

the Patent Office that precise positioning of the code symbol with respect to the 23

scanning head was required, right? 24

A No, I don't know what early scanning systems are referred to there. This part 25


of the patent was not my language. 1

Q You didn't read the patent for which you signed the oath? 2

A To tell you the truth, this patent has multiple inventors on it, and it's really an 3

assemblage of a couple of different ideas that all relate to audible indicators. I only 4

looked carefully at the parts that had to do with my contribution to the invention. 5

Q Are you aware that in the industry, to overcome these requirements for 6

precise positioning of the code symbol with respect to the scanning head, that end 7

users started putting multiple scanning heads underneath the counter; correct? 8

A No. 9

Q All right. 10

A If there was ever precise positioning required that went away a long before 11

there were two window scanners. 12

Q What I asked is whether or not -- 13

THE COURT: Well, no, let me make sure I understand. Do you 14

disagree with that statement or are you saying you don't know whether early 15

scanning systems were so constructed? 16

THE WITNESS: I'm saying only very, very early scanning systems 17

would have been constructed in such a way that required precise positioning. The 18

earliest supermarket slot I remember didn't require that at all. 19

BY MR. LISA: 20

Q So it's your testimony that conventional systems don't require that? 21

A Conventional -- no, supermarket slot scanning systems don't require precise 22

positioning, right. 23

Q All right. Well, let's go to column 2, line 11 please. You'll see there that it 24

says: 25


"In conventional systems an operator visually locates the symbol as he or 1

she moves the article towards the scanner. The system can read the code 2

only if it is located in such a position so that it passes through the field of 3

view of one of the scan heads in the windows. If the symbol is not located in 4

such a position the operator must reorient the product and pass it over the 5

scanner." 6

Do you see that? 7

A Yes. 8

Q And of course we see it every day when the shopper -- when the cash 9

register attendant has to reswipe articles, right? 10

A If the bar code's literally facing the wrong way. Earlier that's about precise 11

positioning, and I wouldn't consider that precise positioning at all. 12

Q This gets back to our point that there is a limit on positioning, there's 13

tolerances, right? 14

A If the bar code symbol is not within the field of view of the scanner, yes, it 15

won't read. 16

Q Okay. Now would you agree that what's shown in Figure 11 is a scanning 17

station? 18

A Figure 11 again. Frankly, outside the discussions about this case I've never 19

heard that referred to as a scanning station before. 20

Q Well, I'll refer you to column 3 of your patent and the heading there is 21

"Summary," do you see that? 22

A Yes. 23

Q And you state at column 56, "In an alternative embodiment an optical 24

scanning station with an operator is disclosed." Do you see that? 25


A Yes. 1

Q All right. So in fact it is fair and reasonable to refer to what's shown in Figure 2

11 as a scanning station? 3

A Yes, I don't object to it, it's just not a common term. 4

Q Were you in the courtroom yesterday when Mr. Hosier presented to Mr. 5

Swartz the integration guide that had the sections on location and positioning? 6

A Oh, I know I was here at the time, yes. 7

Q Okay. And do you, of course, recognize that Symbol includes in its 8

integration guides instructions for the type of scanning station we just looked at in 9

which -- let me get the right part here -- in which symbols are presented to the scan 10

head in a fixed-mounted orientation? In other words, the scan head is fixed? I'll 11

withdraw the question. 12

A Okay. 13

Q Are you aware that Symbol's integration guides include instructions for 14

location and positioning of a scan head in an environment such as shown in Figure 15

11? 16

A I'm hung up on the "such as shown in Figure 11." I don't believe we make a 17

scan engine for in-counter mounting. 18

Q Do you agree that it is sometimes necessary to mount these Symbol scan 19

engines in such a way that it is able to read symbols that are automatically 20

presented to it? 21

A Can you reread the whole sentence, please? 22

Q Sure. Do you agree that it is sometimes necessary to mount the scan 23

engines in such a way that it is able to read symbols that are automatically 24

presented to it? 25


A Tell you the truth, I'm not an expert on the applications of our -- of our OEM 1

scanners once they're sold. You have the word "necessary" in there and I would 2

not know. 3

Q So it's your testimony that you have no idea that Symbol scan engines are 4

sold for that environment? 5

A Well, if it's defined as environment where it's necessary to automatically scan 6

a symbol, now you're getting into -- I'm not sure what that application is. 7

Q Well, let's rephrase it then. Do you agree that end users sometimes mount 8

the SE scan engines of Symbol in a way such that it is able to read symbols that are 9

automatically presented to it? 10

A No, I would imagine that's true. 11

Q So your quibble was with the word "necessary?" 12

A Yeah. 13

Q Okay. But we can agree then that Symbol knows its scan engines are sold in 14

environments where the end users automatically present objects to it? 15

A I believe I've heard of such applications, so I would assume Symbol as a 16

whole knows about it too. 17

Q During your animation and your discussion of the decoding process you 18

talked about left and right scanning? 19

A Correct. 20

Q That the -- and the codes were able to be decoded whether it was scanned 21

left to right or right to left? 22


Q In fact, that enabled you to flip the bar code 180 degrees and get the same 24

result; correct? 25


A Well, I never said that exactly, but they will read either right side up or upside 1

down, yes. 2

Q All right. Now, do any of the processing steps -- in fact, let me lay some 3

foundation. I'm sorry, I'll withdraw it. 4

You actually have written software at Symbol before, right? 5

A Oh, yes. 6

Q All right. Do any of the software processing steps that are carried out by the 7

Symbol decoding algorithms differ? In other words, are different steps or routines 8

initiated based on whether it's a left-to-right scan or right-to-left scan? 9

A I will answer no, but I'm not trying to be tricky. We don't know left to right or 10

right to left. 11

Q All right. So it can't tell the difference between a left guard bar, a right guard 12

bar? 13

A Well, that -- well, actually those two patterns are identical. 14

Q All right. How about a stop, start and stop character? 15

A Yes, but that's not a question of is it physically scanned left to right or right to 16

left, it's a forward scan versus reverse scan. It's all relative to the bar code. Not 17

relative to the three-dimensional world. 18

Q At some point though when it wants to know the number when it generates 19

the 12-digit number -- 20

A Yes. 21

Q -- it has to know whether it scanned left to right or right to left, right? 22

A Well, it's not left to right or right to left, did it scan -- let's put it this way, did it 23

scan the left half of the symbol first? The symbol could be upside down, so it's the 24

right side, but the side -- as we all know now, one side has odd parity characters 25


and the other side has even parity characters. We can tell whether we scanned the 1

odd characters first or the even characters first. If we stored the even characters 2

first we know we have to flip the data around before we transmit it. 3

Q And the point is, though, that the software is written to handle the situation of 4

a code that is read left side first or right side first; correct? 5

A Yes. 6

MR. LISA: If you give me a minute, Your Honor, I may be done here. 7

THE COURT: Yes, certainly. 8

THE WITNESS: See if I can correct it, left and right side as we 9

defined in terms of the symbology, not whether it was physically the left or 10

physically the right. 11

BY MR. LISA: 12

Q Okay. I do have one more exhibit to mark, Plaintiff's Trial Exhibit 573, could 13

you refer to that, please? 14

A I have it. 15

Q Are you familiar with that document? 16

A Well, a little bit. It was shown to me during my deposition. 17

Q Okay. It's got your name on it as a presentation that you presented, right? 18

A I don't know if I presented it or not. 19

Q It's got your name on it? 20

A It's got my name on it. 21

Q All right. Do you doubt that this is an authentic document? 22

A Well, no, I don't doubt it's authentic. 23

Q All right. And it's marked "confidential," do you see that? 24

A Yes. 25


Q All right. So this was done internally for Symbol employees, right? 1

A Yes, this was a presentation for the sales force or some -- or new sales -- 2

new sales associates. 3

Q Isn't it a fact that what you told those sales associates is that the decoding 4

operation is the process of applying mathematical extractions typically implementing 5

software that indicate the data content of the bar and space widths of a scanned bar 6

code; is that right? 7

A Well, first of all, I don't recall doing the presentation. Glen probably did the 8

presentation. Second of all, the text you're just reading were notes under the slides. 9

We only showed the slides and then spoke to the slides. Glen, no doubt, used 10

these -- this text as notes, so I'm not sure what he actually presented. 11

Q So this is what you might have said? 12

A It's what Glen might have said or, conceivably, I might have said. 13

Q All right. Now, isn't it also true that what you told the sales force at Symbol is 14

that the spot of light actually travels at nearly constant rates and that therefore the 15

time between transitions corresponds to the distance that the laser spot travel? 16

A Well, again those were notes so I don't know what we told them, but certainly 17

the prime -- the sales force is a prime example of the audience for which we would 18

give the twenty-five words or less approximation as a teaching tool rather than give 19

them every nuts and bolts detail, which would be very hard to explain. 20

Q So if you turn to page 5 of your presentation, Exhibit 573, it's your testimony 21

that that's incorrect? 22

A Which that, please? 23

Q Your testimony that the statement right there that as the spot travels at nearly 24

constant rate -- I'm sorry, "As the spot travels at nearly constant rate the time 25


between transitions corresponds to the distance that the laser spot traveled. The 1

distance is the bar width." Do you see that? 2

A Yes, I do. 3

Q All right. And that's what either you or your associate said to the sales group 4

at that presentation; correct? 5

A Well, as I said, those are the notes. What was said was no doubt something 6

like that. 7

Q Do you deny that this -- 8

THE COURT: Who is Glen Spitz? 9

THE WITNESS: As you recall, around 1991 or so I was no longer 10

running the software group, I went on to form EQA. Glen Spitz inherited my job 11

being responsible for the software and the decode software. 12

THE COURT: And this does not bear, at least as I can discern, a date 13

as to when it was -- do you have any idea when this presentation was prepared, 14

these slides? 15

THE WITNESS: After a lot of head scratching and some guesswork 16

at the deposition, we decided we could discern a 3 at the bottom of the slide and it 17

couldn't have been 2003 and it couldn't have been 1983 either, reference products 18

didn't exist yet, so we're assuming 1993. 19


BY MR. LISA: 21

Q So, your best estimate is this would be 1993, is that right? 22


Q And that coincides with your transition in -- 24

A It was a year or two after I left -- I changed. 25


Q Correct. All right. 1

THE COURT: And I don't recall, had 573 already been received, 2

Donna? 3

MR. LISA: No, Your Honor, I was going to ask to move that in. 4


MR. CHERNY: No. 6

THE COURT: All right. That'll be received. 7

(Plaintiff's Exhibit No. 573 admitted) 8


THE WITNESS: Now as I point out, we didn't have that oscilloscope 10

demonstration for the sales force. To explain the actual case wouldn't be so easy, 11

but as you saw from the scope demonstration, clearly the spot doesn't travel at a 12

nearly constant speed. If you throw in the phrase "nearly constant" -- 13

BY MR. LISA: 14

Q Well, there's no question pending. 15

A Oh, okay. Sorry. 16

Q Okay. I'm sure your counsel will be happy to address -- 17

THE COURT: Go ahead. I'm sure Mr. Cherny's probably ready to 18

pose the question, but -- 19

MR. LISA: All right. Very much so. 20

// 21

BY MR. LISA: 22

Q Sir, just to clarify, are you knowledgeable on the circuit design of these 23

systems? 24

A Not nearly so much as on the decode process, but I know I understand 25


enough -- 1

Q Excuse me? 2

A -- to get -- I understand enough to get by. 3

Q I'd like you to turn to Exhibit 526. 4

A 526. 5

Q Are you familiar with the super nova decoder board? 6

A No, I'm not sure what project that is. Is there a date on this document? 7

Q Excuse me? 8

A I'm not sure I know what that project is precisely. Is there a date on this 9

document? 10

THE COURT: Well, that's all right. If you don't know what it is -- 11

BY MR. LISA: 12

Q You don't know. 13

A Yeah, I'm not sure what project or product. 14

THE COURT: Catchy name, super nova decoder board, but -- 15

THE WITNESS: Yeah, exactly. 16

THE COURT: -- you don't know what it -- or you're not familiar with it? 17

THE WITNESS: Well, I don't know if it's a standard 9100 or some 18

revised 9100 that either did or didn't actually happen. 19

BY MR. LISA: 20

Q Have you seen this document before? 21

A No. Let me think, 9100 decoder board. Actually, I think I did see it in terms 22

of the pile of documents we produced, I happened to run across it. 23

Q To what level is this document addressed? To what level of reader? 24

A Well, this is certainly for an internal reader. I would say it's for engineers. 25


Q I refer you to page 4 of 21 where there's an entry for DBP; do you see that? 1

A Yes, I do. 2

Q All right. For the record, I'll just read that paragraph in. 3

"Digital bar pattern input to the decoder board. A high level indicates a 4

space, a low level indicates a bar, a high low signals pulse widths are 5

proportional to the respective space bar element widths of the bar code being 6

scanned." 7

Do you see that? 8

A Yes, I do. 9

Q Do you agree with that? 10

A No, I don't. Uhh -- all right, I don't want to answer a question that's not been 11

asked. 12

MR. LISA: I have no further questions, Your Honor. 13

THE COURT: All right. Thank you. 14

Mr. Cherny, you may redirect. 15

MR. LISA: Your Honor, may I offer Exhibit 526 into the evidence, 16

please? 17

THE COURT: Yeah, any objection to 526? 18

MR. CHERNY: What was 526 again? 19

THE COURT: The theory of operation super nova LS9100. 20

MR. CHERNY: No. 21

THE COURT: All right. That'll be received. 22


MR. CHERNY: If I might take a moment, Your Honor? 24

THE COURT: Sure. 25

00178 SCHUESSLER - REDIRECT


REDIRECT EXAMINATION 2

BY MR. CHERNY: 3

Q Now, I'll ask you, Mr. Schuessler -- don't worry about him, he's just looking at -- 4

can you go back to Exhibit 573. And Mr. Lisa pointed you to page 5, where there 5

was some measurements about -- okay, where there's some basic measurements. 6

Do you see that? 7

A Yes, I do. 8

Q Can you take a look at the next page, which Mr. Lisa didn't take you to. 9

A I'm sorry. We're on page 6 now? 10

Q Yes. 11

A Okay. 12

Q Do you see where it says, "The time `width' of each bar and space is measured 13

and represented"? 14

A Yes. 15

Q And "width" is in quotes? 16

A Right. 17

Q Is that consistent with your testimony that what's really being measured is the 18

time, not the actual width? 19

A Right. That's why "width" is in quotes. That's that mental image thing. We're 20

really measuring time, but it's much easier to visualize widths. 21

Q And in fact you actually tried to explain to Mr. Lisa, and I think he left it for me, 22

that you were going to explain on the oscilloscope that that's what we saw. 23


Q Okay. And we'll get back to that in a second. 25


Do you have your testimony that Mr. Lisa put in front of you? I think it's in 1

Exhibit -- 2

THE COURT: 2108? 3

BY MR. CHERNY: 4

Q -- 2108. 5

A Thank you, Your Honor. 2108. 6

Q Page 89. 7

A I hp 2108. And I have page 89. 8

Q Do you have it in front of you? 9

A Yes. 10

Q Do you remember Mr. Lisa asked you if you make measurements, and he 11

showed you a question and answer, and you tried to point out the next question and 12

answer on the page. I believe the question you tried to point out was 13

measurements of their physical width or relative physical width. 14


Q Do you see that? 16

A Yes. 17

Q Can you read the answer that you gave. 18

A Right. "Not really, no. They are measurements of the amount of time the scan 19

beam spends crossing the bars and spaces." 20

Q Thank you. Can you read the next line. 21

A "And even there it's only a relative measurement." 22

Q Thank you. So in your deposition you did tell Mr. Hosier that what you were 23

measuring was times, not widths? 24

A Yeah, definitely. 25



BY MR. CHERNY: 2

Q While he's doing that, I have a question for you. Mr. Lisa kept on asking you 3

about tolerances. 4

A Yes. 5

Q Now, do you have an understanding of the difference or if there is a difference 6

between the term "range" and "tolerance"? 7

A Yes, I do. 8

Q Can you explain that difference to me. 9

A Sure. I think they're different animals altogether. To say something has a -- 10

let's say it's supposed to be 3 inches with a tolerance of plus or minus an inch. That 11

means you really want that thing to be 3 inches and anything other than 3 inches is 12

wrong. How wrong it is is perhaps acceptable if it -- unless it exceeds the tolerance. 13

A range, on the other hand, means here's a whole range over which a 14

product's guaranteed to work. There's no right or wrong place within that. In other 15

words, if you're not halfway through it exactly and then off by a little bit, well, you're 16

not out of tolerance, you know, or you're not in tolerance. The whole concept 17

doesn't apply. 18

Q Now, are you aware of anything that -- any type of scanner at all that has an 19

infinite range? 20

A No. I hope we have it on the drawing board, but I haven't seen one yet. 21

Q So everything has an [ every scanner has a range? 22

A Like everything else, I know, yeah. 23

Q That doesn't mean it has a tolerance? 24

A No. Again, that's just a different concept. 25


Q Now, can you pull up on the video, if you can, the presentation you did with the 1

oscilloscope. I think it was the Code 39 symbol. 2

A Okay. Give me a moment. Will we be able to dim the lights a little bit again, 3

please? 4

THE COURT: You bet. 5

THE WITNESS: You're looking for that demonstration with the Code 6

39 symbol? 7

BY MR. CHERNY: 8

Q Correct. 9

A Okay. That was the start of it. 10

Q Okay. We saw over here that the Code 39 symbol that you scanned had the 11

exact same measurements in terms of the narrow bar on the left and the narrow bar 12

on the right; isn't that correct? 13

A You mean as printed. 14

Q As printed. 15

A Oh, yes, as printed. That's a test symbol. We had it made for us, a calibrated 16

symbol. It's absolutely true that the left -- the leftmost bar and the rightmost bar 17

were identical widths. 18

Q Now can you go to the oscilloscope trace that you showed us. 19

A Yes. There's the resulting oscilloscope trace. And as we described earlier this 20

morning, the bar on the left is approximately three times bigger than the bar on the 21

right even though they're printed identically. 22

Q So the DBP can't be proportional to the widths, because you have the exact 23

same bar appearing three times different size on the oscilloscope trace of the DBP; 24

isn't that correct? 25


A That's correct. It's changing scale, and in a fairly arbitrary way throughout the 1

same image. And there's no fixed constant to it, either. 2

Q And in fact there were two fat bars over on the right that actually appear smaller 3

on the oscilloscope trace than the thin bar on the left? 4

A That's right. The wide bars on the right were, quote, unquote, "narrower" than 5

the narrow bar on the left. 6

Q And that's because the spot wasn't moving at constant speed? 7

A That's correct. That's the way the scanner saw it. Obviously there's no 8

correlation to what was printed in that -- in that regard. 9

Q Now, before I think you wanted to point out -- I don't know if it was clear. Mr. 10

Lisa was giving you an example in a glossary, I think, of a definition of a fixed-beam 11

reader. Now, I think you testified that symbol didn't make such a device. 12


Q Okay. Can you take a look at Exhibit 1857 that Mr. Lisa showed you. 14

A Okay. I have 1857. 15

Q Now, can you turn to column 5, where Mr. Lisa pointed you to. 16

A Okay. And I think he pointed you to lines 45 to 48. Do you see that? 17

A Yes. The term "image," quote, unquote, right. 18

Q Now, you said in there that the term "image" as defined in there in quotes, you 19

were being your own lexicographer. 20

A Yes. 21

Q What does that mean? 22

A What that means is in this patent, for instance, if you look at the front page of it, 23

where what we're doing here is we're trying to do what we call stitching. And even 24

though we're stitching a one-dimensional bar code, because the bar code is moving 25


through -- through time at a slanted scan line, to really understand what we're doing 1

here we need to think of it as if it were a two-dimensional phenomenon. You know, 2

it's a one-dimensional bar code, and normally we would ignore anything else, 3

except the one dimension of length. 4

But in this case we have to think of it in more two-dimensional terms to 5

understand how the stitching process works. And so that two-dimensional area that 6

the bar code is going to go through, and as it travels under the scan line is a two-7

dimensional area now, and that's a new thing for us in our work, so we -- I quoted, 8

you know, "image" so I could keep referring to that phenomenon over and over 9

again without explaining it again every time. 10

Q So this was a specific definition that you explicitly defined for the Patent Office? 11

A For the purposes of this patent, yes. 12

Q Thank you. Now, a little earlier was some discussion of CCD scanners, CCD 13

readers. 14

A Yes, I recall. 15

Q And you testified that they don't scan; isn't that correct? 16


Q Now, do CCDs -- when they decode do they use fixed thresholds or clipping? 18

A Oh, no. Neither one. 19

Q Do they compare signal to signal? 20

A No. 21

Q Okay. And I -- one more question. During your testimony you pointed out to 22

the Court, I believe, that when you are writing patents they're specifically about 23

timing and spot speed and, where it's important for the Patent Office to understand 24

what you're saying, 'cause that's actually the subject matter, you try to be a little 25


more specific? 1

A That's absolutely correct. 2

MR. LISA: Your Honor, could I object to the speech and perhaps just 3

have a question asked. 4

THE COURT: Well, that was rather leading, but go ahead. Ask 5

another question of the witness. 6

BY MR. CHERNY: 7

Q You actually -- 8

THE COURT: I don't -- it was inaccurate in terms of what the witness 9

had said, so go ahead. 10

BY MR. CHERNY: 11

Q During the lunch break I think we printed out a patent of yours I'd like to show 12

you. I think it was a patent you referred to. 13

THE COURT: We'll need to mark it. If you're going to offer it, let's 14

mark it. 15

MR. CHERNY: I'd like to mark it as Exhibit 3374 -- 16

THE COURT: 3374. All right. 17

MR. CHERNY: -- A. 18

THE COURT: A. All right. 19

MR. CHERNY: And can you give it to the witness. Make sure that's 20

the one that does have writing on it. 21

BY MR. CHERNY: 22

Q Can you take a look at Exhibit 3374A. 23

A Yes, I have it here. 24

Q Is that your patent? 25


A Yes, it is. 1

Q And it's entitled "Bar Code Scanning With Correction for Spot Speed Variation"? 2

A That's correct. 3

Q Can you take a look at it, just familiarize yourself with it for a second. 4

THE COURT: Do you have another copy? 5

MR. CHERNY: Oh. I do. I'm sorry, Your Honor. Would two copies 6

suffice? 7

THE COURT: I just need one. 8

MR. CHERNY: And we didn't have time to print out a copy with the 9

images, if it's okay with the Court -- 10

THE COURT: That's fine. 11

MR. CHERNY: -- we'd be happy to substitute in a better copy with no 12

objection for the other side. 13


MR. LISA: Actually, Your Honor, I would suggest that we substitute 15

this lexis or whatever, this computer printout. We'll have no objection to the basic 16

patent that we maybe substitute for the correct exhibit number instead of this 17

version. 18

THE COURT: Sure. 19

MR. CHERNY: Sure. No problem. 20

MR. LISA: Which has the figures and everything else with it. 21

THE COURT: Yeah. 22

MR. CHERNY: That's exactly what I was suggesting. This is -- 23

actually comes off the Patent Office database. 24

THE COURT: Right. What page are you referring the witness to on 25


this? 1

BY MR. CHERNY: 2

Q Take a look at page 5 of 9. 3

A Page 5 of 9. 4

Q Now, this is a patent that's -- it relates to spot speed variation? 5

A Yeah. That's -- and that's really kind of all it relates to. I didn't invent a new 6

scanner or new signals or anything. I was -- directed this one strictly at spot speed 7

variation. 8

Q And take a look at page 5, please. 9

A Yes. 10

Q Now, do you see in the second paragraph, second full paragraph it says, "If a 11

scanning system determines time domain widths of elements, i.e., how long it takes 12

the spot to cross the elements...." Do you see that? 13

A Yes. 14

Q Is that what you've been referring to as the times that it goes from, you know, 15

light to dark? 16

A Yes, that's right. 17

Q So when you're talking width sometimes, what you're really talking about is time 18

domain width? 19

A Yeah, that's a pretty good phrase, the time domain widths. 20

Q And that's measured in time, not in actual widths? 21

A That's right. 22

MR. CHERNY: I have no more questions, Your Honor. 23

THE COURT: All right. Thank you. 24

Mr. Lisa, any recross? 25

00187 SCHUESSLER - RECROSS

MR. LISA: Just a few questions, Your Honor. 1

RECROSS EXAMINATION 2

BY MR. LISA: 3

Q The exhibit that you just referred to, the patent, can we have tha t number again, 4

please. 5

THE COURT: 3374A. 6


BY MR. LISA: 8

Q Refer to page 4 of 9. 9

A Yes. 10

Q Third -- no, I'm sorry. Fourth paragraph down. 11

A Uh-huh. 12

Q You -- beginning with, "In typical scanning systems," do you see that? 13

A Yes. 14

Q You believe that to be an accurate statement of how the Symbol bar code 15

scanners operate; correct? 16

A Well, I haven't even read it yet. 17

Q All right. 18

A But I can tell you in advance this would be a summary statement. It's the same 19

kind of thing we've been going over here over and over again. This isn't the area of 20

invention the patent's directed towards, so a 25-words-or-less gloss of it suffices. 21

So this might be high-enough level to not be precise. 22

Q Well, at this level what you told the Patent Office is, "...the analog signal is 23

converted to a pulse width modulated digital signal in which the pulse widths 24

correspond to the physical widths of the elements in the time domain, i.e., how long 25


the elements were scanned." Do you see that? 1

A Yeah. But the whole patent is about how that isn't actually technically accurate. 2

Q I'm just -- I'm just asking you if you see that right now. 3

A Uh-huh. Uh-huh. 4

THE COURT: Well, let me ask. When you apply or participate in the 5

application for a patent do you personally engage in any research, review of existing 6

patents in conjunction with preparing your patent application? 7

THE WITNESS: Do you mean Symbol patents, or outside? 8

THE COURT: Well, either. 9

THE WITNESS: Well, when I do a patent -- of my own you mean? 10

THE COURT: Yes. 11

THE WITNESS: Okay. First of all, because of my fairly wide 12

knowledge of what's going on out there in the bar code world, if I think I have a new 13

idea, I'm probably right that it hasn't actually shown up in product, okay. Or if it's a 14

new symbology, that there's been no symbologies actually showing up out there 15

that do the same thing. Of course, I'll ask the lawyers to check on that and, more 16

importantly, see if there's patents I've never seen on the subject, all right. So we do 17

that. Now -- 18

THE COURT: So you seek the assistance of counsel to conduct the 19

research on the existing universe of patents? 20

THE WITNESS: Yes, I do. And, moreover, they will provide me with 21

the first draft of text for the description, especially in terms of background and so 22

forth. They usually have some canned text available for the purpose. So that stuff I 23

don't pay a lot of attention to until you get to the part that relates to the invention. 24

And then I get very picky. 25


BY MR. LISA: 1

Q Is the statement, sir, on page 4 that I just read accurate or not? 2

A It's only accurate at that very high-level view. In fact, the whole patent is about 3

how the pulse widths don't correspond well enough and so we have to do 4

something about it. 5

Q So you disagree with the statement, or agree with it? 6

A It's only true at that 25-words-or-less level. 7

Q All right. Now, isn't it true, though, that the acceleration of the spot is positive at 8

the start but decreases to zero? 9

A The -- well, at one point it will decrease to zero. 10

Q All right. And if you're scanning bar codes characters where the acceleration is 11

zero, what does that mean? 12

A Well, it doesn't mean anything. There'll be -- 13

Q Well, it mean it's not changing speed; correct, sir? 14

A Well, that's only out of point. There's only going to be one point in the middle of 15

one character where the acceleration is zero. 16

Q Sir, in fact what happens is after the bar code spot, after the bar spot changes 17

direction, it accelerates relatively quickly, then decreases to zero and continues until 18

it reaches the other end of its scan line, where it begins to decelerate; correct? 19

A The acceleration curve is flattest in the middle. And you can't count on it being 20

zero anywhere except at a point. 21

Q But you can certainly agree that the acceleration curve is zero in the middle; 22

correct? 23

A At some point -- no, not the exact middle. No, I wouldn't agree with that. 24

Q Sir, can you agree that there's a point in time where the acceleration reaches 25


zero? 1

A Yes, there is a point in time. 2

Q Thank you. Now, the scan you have up on the screen right there -- 3

A Yes. 4

Q -- where was the bar code located relative to the scan line? 5

A It was over to the left. 6

Q Can you show that again, please. 7

A I can. If I can find the one. 8

Q Well, I don't want to make it -- 9

THE COURT: You jus t want to be able to point a laser pointer to -- 10

THE WITNESS: No, no. He wants -- 11

THE COURT: -- to point to that or -- 12

THE WITNESS: He wants the picture of the bar code, I think. 13


THE WITNESS: Okay. Here we go. Hmm. There you go. 15

BY MR. LISA: 16

Q Okay. So the example that Mr. Cherny selected for redirect was one in which 17

the bar code is being scanned at the extreme left of the scanning pattern of the 18

scanner; correct? 19

A Yes. 20

Q Okay. And in fact I could make that not work by moving it just a little bit more, 21

moving the bar code itself just a little bit more to the left, and it won't scan at all; 22

right? 23

A Yeah. If you get it past the end of the scan line, sure. 24

Q So that's the extreme, isn't it? 25


A No, it's not the extreme. 1

Q It's close to the extreme, isn't it? 2

A No, it's not close to the extreme. 3

Q All right. How far do you have to move it before it won't work at all? 4

A No, that's my -- that's not my point. That's about as far left as that particular bar 5

code can go. But if the bar code's wider, you don't have a lot of choice. 6

Q So that's where acceleration is the greatest; right? 7

A It's accelerated -- yeah, the acceleration is greatest at the ends. 8

Q Okay. And that's the example you chose to show how the widths vary the 9

most; right? 10

A Yeah. 11

Q Okay. Thank you. Now, have you -- do you get the Official Gazette as part of 12

your ability -- you know, the Patent Office Official Gazette? Do you happen to 13

receive that and look at it? 14

A No. 15

Q You're not familiar with that? 16

A I don't think so. 17

MR. LISA: Okay. Thank you. 18

No further questions, Your Honor. 19

THE COURT: All right. Thanks very much. And you can step down. 20

Thanks. 21

All right. You may call your next witness. 22

MR. McCABE: Your Honor, we're going to call Edward -- Edward 23

Barkan as our next witness. 24

THE COURT: All right. Is he present in court? 25


MR. McCABE: Should be. 1

MR. JENNER: We need just a minute to set up. 2

THE COURT: Sure. 3

MR. LISA: And we do, as well, Your Honor. So we'll take part of the 4

blame for that. 5

THE COURT: Okay. Well, let's do this. I hate to take too many 6

breaks, but let's take five minutes while you get all of the paperwork shifted around 7

and anything else you need technically to set up, then. 8

Donna, we'll just keep it to about a five-minute break. 9

(Court recessed at 2:39 p.m., until 2:45 p.m.) 10

THE COURT: All right. Have a seat, everybody. 11

Okay. Why don't you go ahead and step right up, 12

sir, and be sworn by the clerk, if you would. 13

EDWARD BARKAN, PLAINTIFF'S WITNESS, SWORN 14

THE CLERK: Thank you. Please be seated. And if you'd state your 15

full name for the record and spell your last name. 16

THE WITNESS: My name is Edward Barkan, B-A-R-K-A-N. 17

THE COURT: All right. Go ahead, Mr. Quinn [sic]. 18

MR. McCABE: Thank you. 19

DIRECT EXAMINATION 20

BY MR. McCABE: 21

Q Good afternoon, Mr. Barkan. 22

A Good afternoon. 23

Q Are you currently employed at Symbol? 24

A Yes, I am. 25

00193 BARKAN - DIRECT

Q What is your current position? 1

A Senior fellow. 2

Q What does that mean? 3

A Senior fellow is the highest technical position at Symbol. 4

Q How long have you worked at Symbol? 5

A Twenty-five years last month. 6

Q Congratulations. I'd like to briefly walk through your background. Where are 7

you from? 8

A I'm from Ardsley, New York. 9

Q Would you briefly describe your educational background. 10

A I went through high school at Ardsley. I graduated there in 1968. Then I went 11

to [Huff University briefly, and decided I would rather be working, rather than going 12

to school at that point, so I went and I worked for my father. 13

Q Okay. You said you worked for your father. What did you do there? 14

A He had a business that involved optics, machining and electronics. So I got 15

involved with all of those things to some extent there. 16

Q Okay. And that was around 1968, '69? 17


Q Okay. While you were working with your father were you awarded any U.S. 19

patents? 20

A Yes. I had two or three patents relating to touch switches or touch screens. 21

Unfortunately, those patents are expired now that a lot of people use those things. 22

Q Do you have any other patents? 23

A I have over 140 patents with Symbol. 24

Q Generally what do those patents relate to? 25


A They're generally related to bar code scanning technology for bar code 1

scanners. 2

Q After working for your father, where did you next go to work? 3

A I went to a place that made stereo headphones, and I worked there making -- 4

designing headphones, as well as designing production fixtures for testing them. 5

Q Okay. After working at the stereo headphone place where did you go next? 6

A I went back to my father's for a couple of more years. 7

Q Okay. And after that what did you do? 8

A I went to -- moved to Long Island at that point and got a job at a company called 9

IMC Magnetics that makes electric motors. 10

Q After IMC Magnetics what did you do next? 11

A I worked for a company called Autonumerics that makes -- or made computer-12

controlled milling machines. 13

Q And what did you do there? 14

A I designed controls for the motors on those milling machines. 15

Q After IMC Magnetic -- I'm sorry. After Autonumerics where did you next go? 16

A That's when I went to Symbol. 17

Q And that was? 18

A 1977. 19

Q How was it that you came to be employed at Symbol? 20

A Jerry Swartz had worked as a consultant for my father years before, and my 21

brother had been in contact with him, and I learned that he was looking to hire some 22

-- some people. So I went and got a job there. 23

Q Can you describe what Symbol was like when you joined in 1977? 24

A It was a very small business. There was perhaps maybe four or five people 25


there, I think a couple of part-time people. 1

Q What was Symbol doing at the time you joined? 2

A Well, it had a business with the film master machine that you've heard 3

described, selling film masters. And I believe there might have been some other 4

consulting work going on. 5

Q Over the last 25 years generally what type of work have you done for Symbol? 6

A I've worked on designing laser scanners of all sorts. 7

Q Did Symbol ever make any laser scanners that required that the bar code be at 8

a fixed or known distance from the scanner? 9

A Yes. 10

Q What product was that? 11

A There was a product called Laser Check. It was a quality control device for 12

measuring bar codes. 13

Q Okay. Did Symbol ever make any laser bar code scanners that required that 14

the bar code be at a particular orientation with respect to the scanner? 15

A Yes. 16

Q What product was that? 17

A Laser Check. 18

Q Does Symbol make any products today that require the bar code be at a fixed 19

or known distance from a scanner? 20

A No. 21

Q Does Symbol make any bar code scanners today that require that the bar code 22

be at a particular orientation with respect to the scanner? 23

A No. 24

Q Okay. Would you explain why the Laser Check device required that the bar 25


code be at a fixed or known distance and that a particular orientation with respect to 1

the scanner, but that Symbol's other bar code scanners did not have that 2

requirement? 3

A Sure. As I mentioned, Laser Check was a device that was intended to actually 4

measure bar codes. And in order to do that it had to -- it worked actually like a laser 5

scanner in that it had a moving laser beam that moved across the bar code. But in 6

order to actually make measurements it had to have precise knowledge of the 7

speed of the laser spot across the bar code. 8

The speed of the laser spot was calibrated to be a known speed only at one 9

position. It could -- it only can be calibrated at one position. At any other distance it 10

would not be correct. So it had to be at that distance in order to provide accurate 11

measurements. 12

Q Okay. You've mentioned that the Laser Check was designed to make 13

measurements. Could you tell us what type of measurements it was designed to 14

make. 15

A Yes. It was able to make measurements of the widths of the bars in a bar code. 16

It was also able to make measurements of the contrast, the print contrast of a bar 17

code. And it also provided a measure of general scanability of a bar code, how 18

easy it was to scan. 19

Q Okay. Earlier we heard testimony that bar code scanners are designed to 20

decode the bar code. Could you explain why someone would want to measure the 21

widths of a bar in a bar code? 22

A Yes. The Laser Check was intended to be used by people who were in print 23

shops, printing bar codes. Those people had little -- really no idea how a bar code 24

ought to look or how a scanner worked. So they needed some kind of a tool to 25


make sure that the bar codes they were printing were going to be scanable when 1

those labels -- say -- say they're printing out a label for a can of soda. That would 2

get to a supermarket, and they wanted to be sure that the labels they were printing 3

would be scanable at the supermarket. 4

Q Did the Laser Check decode the bar code? 5

A Yes, it did. 6

Q Why would it do that? 7

A Well, it also was important for these people who were printing labels to be sure 8

that the proper data was encoded in the bar code. They didn't want to be putting 9

the wrong bar code on a particular product. 10

Q Could you explain why it would be a problem if the bar code was not properly 11

printed. 12

A Well, first of all, some stores would actually send products back to the 13

manufacturer if the bar codes were not scanable, even though the product might be 14

perfectly good otherwise. And nobody wanted that to happen. 15

The other thing is that if a bar code wouldn't scan, that would mean that the 16

-- typically the checkout clerk would have to punch in the UPC number by hand. 17

They might make a mistake, and the customer would get charged say for the wrong 18

product. 19

Q Earlier you testified that you participated in the design of laser scanners. Did 20

you design the Laser Check? 21

A I was involved with a team or a group of people that designed Laser Check. 22

Q Which portions did you design? 23

A I designed the photodiode amplifiers, the digitizing circuitry, the circuitry that ran 24

the scan motor, and the power supplies that powered the whole system, the whole 25


scanner. 1

Q Who was responsible for the design of the optics? 2

A That was Jerry Swartz and my brother, as I recall. 3

Q You mentioned a digitizer. Did you try different designs for that type of circuit? 4

A Yes. 5

Q Did you have any early designs that you discarded? 6

A Yes. One of the very first things we tried was a circuit that tried to distinguish 7

between light and dark areas by using a fixed threshold, with the idea being that if 8

any area that was higher than the threshold we would say was a space or a light 9

area, any area that was lower we would call a dark area. 10

Q Did that work? 11

A No. We found out almost immediately that that just was not capable of dealing 12

with the range of signals that you get with real-world bar codes. 13

Q When was that? 14

A That would have been in late 1977 to early '78 that I was working on that, that 15

kind of thing. 16

Q Since that time have engineers at Symbol suggested using the amplitude 17

threshold that you just mentioned? 18

A Yes. One of my jobs now is to instruct new engineers that we hire about bar 19

code scanners. It's one of those things that people don't learn about in school, so 20

they have no familiarity with it. And one of the questions that they almost always 21

ask me when we get -- start to talk about the digitizer is why don't you just use a 22

fixed threshold and try that kind of thing that I -- I tried. It's kind of one those things 23

that seems like the obviously correct answer until you actually try it, and then you 24

very rapidly see that it simply is not acceptable. 25


Q How did you find out it was not acceptable? 1

A I tried it. 2

Q Okay. Let me show you -- oh. We need to get our exhibit books out. I'm sorry. 3

Would you turn to Exhibit 1148, please. Let me know when you have that 4

tab, and I'll tell you what page to go to. 5

A I have it. 6

Q Okay. Could you go the page that ends in 297. It's 166297. It's about the 7

fourth or fifth page in there, in the lower right-hand side, 297. 8

THE COURT: Mr. Quinn, could you keep your voice up just a little bit. 9

I have a little trouble hearing you. 10

MR. McCABE: Your Honor, I'm Mr. McCabe. 11

THE COURT: I'm sorry. I apologize. I had -- I'm so sorry. 12

MR. McCABE: The other Irishman, I guess. 13

MR. HOSIER: I get a little confused, too. 14

BY MR. McCABE: 15

Q Do you have that page? 16

A Yes, I do. 17

Q Okay. Could you tell us what's shown in that -- in that photograph. 18

A Well, there's two versions of Laser Check there. 19

Q What are the two versions? 20

A Well, the one on the right is our original version that was called the 2711, and 21

the one on the left is a -- kind of a simpler, scaled-down version that we made a little 22

later called the 2701. 23

Q Okay. Let's just focus on the 2711, which is the Laser Check pictured on the 24

right of the photo; correct? 25


A Right. 1

Q Okay. It looks like there's two boxes there. Could you explain what those two 2

boxes are. 3

A Yes. The large box on the right is the box that contained the decode electronics 4

and power supplies and whatnot, and the smaller box on the left, which has a 5

handle on top, is the part that actually had the scanning mechanism in it. 6

Q Okay. And you participated in the design of both of the Laser Checks that are 7

shown there? 8

A Yes, I did. 9

Q Okay. Could you turn to Exhibit 385, please. I think it's the first exhibit in your 10

book. 11

A Okay. 12

Q Okay. Do you recognize that exhibit? 13

A Yes, I do. 14

Q Okay. Could you tell us what it is. 15

A It is an annual report for Symbol from 1979. 16

Q Okay. Could you turn to the page -- it's page 5 of the annual report. It's the 17

page ending in 299 on the Bates numbers. 18

A Okay. 19

Q Do you have that? 20

A Yes, I do. 21

Q Could you describe what's shown in the lower right-hand photograph. 22

A That's a picture of a -- someone working in a print shop who's been printing 23

apparently labels for Pepsi. And he is measuring the quality of those bar codes on 24

those labels with a Laser Check by holding the scanner up against the bar code. 25


Q Okay. He has the scan head in his hand on the bar code? 1

A That's right. 2

Q Okay. Let me show you physical Exhibit 2797. 3

MR. McCABE: Your Honor, may I give this to the witness? 4

THE COURT: Certainly. 5

BY MR. McCABE: 6

Q Can you tell us what Exhibit 2797 is 7

A Yes. This is the scanner from a 2711. 8

Q It's what, the scan head? 9

A Scan head. Yeah, we call this part of it the scan head, and we call the other 10

part the decoder. 11

Q Okay. Unfortunately, we don't have the decoder with us. 12

A Yeah. These are too old to have any decoders anymore. 13

Q And I'm not going to carry this one over to you. 14

MR. McCABE: Can the witness come down and identify this? 15

THE COURT: Sure. 16


BY MR. McCABE: 18

Q Could you take a look at Exhibit 2813 and tell us what that is. 19

A This is a 2811. 20

THE COURT: 2811? 21

THE WITNESS: 2811. This is a Laser Check that was part of the 22

next generation after our 2711. 23

BY MR. McCABE: 24

Q Okay. Could you point out for the Court the scan head and the decoder. 25


A This is the scan head. 1

THE COURT: I'm sorry. Go ahead. 2

THE WITNESS: This is the scan head. It looks very similar to the 3

scan head from the 2711. And this is the decoder. 4

THE COURT: And that exhibit number is? 5

THE WITNESS: 2813. 6

THE COURT: 2813. 7


THE COURT: Counsel, as to the four exhibits addressed thus far, I'm 9

not sure any of them have been moved. Do you have any objection to those -- 10

MR. LISA: No, Your Honor. 11

THE COURT: -- including 2813? All right. Those will be received, 12

then. 13

(Plaintiff's Exhibits 385, 1148, 2797, and 2813 admitted) 14

BY MR. McCABE: 15

Q Mr. Barkan, could you demonstrate the Laser Check for us. 16

MR. LISA: Your Honor, one objection I do have, actually. The list of 17

photographs does have in the front of it a summary, I think, of what each 18

photograph is. And I think there has not been a foundation laid for that. I don't 19

have a problem with photographs coming in. But to the extent Counsel has created 20

a list that's descriptive, I would -- would object to whatever characterizations there 21

are. And I haven't seen it or studied it, but it does appear to Counsel's description, 22

not just photographs. 23

THE COURT: Which exhibit number are you talking about? 24

MR. LISA: It was the one where -- the first one with the pictures. 25


THE COURT: Donna, what was that again? 1

MR. McCABE: 1148. 2

THE COURT: 1148. I have that in front of me. 3

MR. LISA: In other words, Your Honor, there's a cover that says, 4

"Photos, Historical Materials - Symbol." 5

THE COURT: Right. 6

MR. LISA: Then the second page appears to be a relatively recently 7

titled document with descriptions. 8

THE COURT: Ah. 9

MR. LISA: And that continues on and on, for which there are 10

photographs behind it. And I have not had opportunity to check the accuracy of 11

those. 12

THE COURT: Mine only has one photo, and -- 13

MR. McCABE: Yeah. We're only interested in the one photograph, 14

Your Honor. But -- 15

THE COURT: There's only one photo attached to 1148. I'd 16

understood the witness to testify that that was a -- 17

MR. McCABE: Right. 18

MR. LISA: We have a -- as long as that's what 1148 is, that's fine. 19

Our copy, Your Honor, has -- is 50 pages long. That's why -- 20

THE COURT: Really. Okay. I don't have that. 21

MR. McCABE: Your Honor, the way that we marked it in our trial 22

exhibit list, it was a package. The only thing I'm interested in relying on is the one 23

photograph. 24

THE COURT: Is the one photo of the Laser Check -- 25



THE COURT: -- the witness identified. 2

MR. McCABE: Right. So -- 3

MR. LISA: Which I -- for which there is no objection. 4

THE COURT: Okay. Fine. 5

MR. McCABE: So we can just renumber that 1148A or something. 6

THE COURT: Well, no, it's 1148. Yours is just -- has more to it. 7

MR. McCABE: Okay. Yeah. Okay. 8

All right. We're going to try and do a demonstration of this device. 9

THE WITNESS: It's a really noisy device, so I'm going to have to yell. 10

THE COURT: All right. That's fine. 11

THE WITNESS: Okay. You can see on the scanner there are some 12

displays over here. And on these displays the various -- results of the various 13

measurements that it takes are displayed over here. 14

You can also see that on the bottom there's a window, and a laser line 15

comes out of that window. So to use it, it's actually placed physically on top of the 16

bar code that you want to measure, and that puts it at the right distance to give the 17

accurate measurements. 18

Now, to use it, each Laser Check came with this calibration book. 19

MR. McCABE: Okay. Let me just stop you there for one second. 20

The calibration book is in the binder as 2814A. 21

THE COURT: Okay. 2814A. 22


THE COURT: That will be received, as well. 24

(Plaintiff's Exhibit 2814A admitted) 25


MR. McCABE: Right. And what I've tried to do is get an image -- or a 1

picture of what he's going to show you you could see it on your screen -- 2


MR. McCABE: -- that's inside the book there. 4

BY MR. McCABE: 5

Q Proceed. 6

A Well, you can see at the top in the picture there that there is a bar code over to 7

the right. It's a UPC code. That's a UPC bar code that's known to be printed just 8

perfectly. It's a well-printed bar code. 9

Over to the left of that is a bunch of what looks like uniform bars. It's not 10

really a bar code. And that's used to calibrate the contrast measurement feature of 11

our -- of the Laser Check. 12

And this is how you use it. First of all, you can take it, and I'm just going to 13

sit it right on top of that well-printed bar code. You can hear it beeping. That means 14

it's -- it's decoding. 15

And on the display over here I can see right now the decoded number, the 16

number that's encoded in this particular bar code. 17

Okay. So it stopped for a second. On the bar code that you're scanning the 18

number that's encoded -- I don't know if you can read it from here. 19

Q Read that into the record. 20

A Yes. It's 012345678905. 21

Q Okay. And then what is the reading on the Laser Check? 22

A Same number. 23

Q Okay. So that's just decoding. What else does it measure? 24

A Okay. It can also measure the width of the -- one of the measurements it 25


makes is the widths of the printed guard bars in the -- in the bar code. 1

Q Okay. Could you make that measurement for us. 2

A Yes. By pushing a different button here I can make it display numbers here that 3

are the widths of the left center and right guard bars in the lower display here. 4

Q Could you tell us what those numbers are. 5

A Well, it's saying 13. Each one is saying it's 13, which is the right number for a 6

bar code of this particular size. For a UPC symbol of this size, 13 is the proper 7

number. 8

Q Okay. Let me just stop you there for one second. Can we just put up the UPC 9

symbol and just point out which bars -- can you just point out which of the guard 10

bars that it's measuring. 11

A Yeah. It's actually measuring the second guard bar in on the left, the second 12

one in on the right, and one of these two center ones. It's not -- it's not reading 13

both. It's reading one at each location. 14

Q And you said it was giving a reading of I think 13. 15

A 13. 16

Q 13 what? 17

A That's -- 18

Q Seconds, days? 19

A That's 13 thousandths of an inch. 20

Q Okay. So it's measuring in actual inches? 21

A It is. 22

Q Okay. 23

A It also shows -- in the other window here there's the numbers 9 and 17. Those 24

numbers are the recommended limits for these guard bars for a bar code of this 25


size. In other words, as long as the numbers, the actual measured numbers are 1

more than 9 or less than 17, it's saying that the bar code is printed within the 2

recommended specifications for this size bar code. So this is saying that this bar 3

code's printed with bar widths that are within the recommended limits. 4

Q Okay. Earlier in your testimony you testified that the Laser Check needs to be 5

at a fixed and known position and at a particular orientation -- 6

A That's right. 7

Q -- in order to make the measurements. Could you explain how that's 8

accomplished in the measurement you're making now. 9

A Well, right now I have the -- I have the standard position. There's actually a 10

little window on the top of the scanner. I can look through it and I can see the laser 11

line moving across the bar code. And I can visually position it, you know, so that 12

the bar code is nice and perpendicular to the scan line so I know I'm going directly 13

across the bar code. And as far as the distance, that's really determined by the fact 14

that I'm in contact with the surface that the bar code is printed on. 15

Q All right. Could you make a measurement on Exhibit 3274. This is just I guess 16

a normal-size version of the big blowup of the bar code. Now, just explain how 17

you're going to square it up and do whatever it is you do. 18

A Okay. I'm going to sit it on there, and again I'll look through the window, and I 19

can see the -- see the bar code there. I'll adjust it to -- so its scan line is going 20

straight across the bar code. And in this case it's a much larger bar code, and 21

instead of reading 13, like we saw in the other one, it's reading 28, 27, depending 22

on the bar, 27, 28, 29. 23

It's also saying in the other window, where it shows the recommended range 24

that would be acceptable for a bar code this size, it's saying 15 and 33. It's saying 25


that these measurements should be within -- between 15 and 33 to be acceptable. 1

And since they're 27 to 29 range, they are between the 15 and 33. 2

Q Okay. So right now it's reading for the guard bars, was it 29 -- 3

A 29, 27, 28 4

Q -- 27, 28? 5

A Yes. 6

Q What would happen if you changed the orientation of the bar code? 7

A If I intentionally don't make the scan line perpendicular, like you're supposed to, 8

now it's reading 30, 29, 29. Going across the bar code at an angle, it has to travel a 9

little bit further, the laser line, to get across each bar. And I'm seeing that here. 10

When you go across straight you'll get one measurement, but if you're going at an 11

angle, it's a larger measurement. 12

So when it's tilted like this, the measurements are no longer accurate, and 13

that's not how it was supposed to be used. 14

Q And it's still beeping. What is that indicating? 15

A It's still decoding. 16

Q Now, you also testified that it needs to be at a fixed and known position. 17

A Right. 18

Q What would happen if it's not at a fixed and known position? So come back 19

and square it up again. 20

A Okay. As we said, when squared off, the number is in the 27, 28 range. If I 21

start to lift it up, now it's reading say 24, 25. 22

Q Could you explain why that is. 23

A Yes. Because since I've moved it further away, the spot is moving faster further 24

away, it's taking less time to move across those bars, and it thinks the bars are 25


smaller. 1

Q Okay. When it measured the 24 or 25 when you lifted it off, was that a correct 2

measurement of the size of the bars? 3

A It was not. 4

Q Okay. When you rotated the bar code and it measured I think it was 30 or 31, 5

was that a correct measurement of the bar size? 6

A No, it was not. 7

Q I think that's it for the Laser Check for the moment. Thank you. 8

Mr. Barkan, when was the Laser Check first sold? 9

A 1978. 10

Q Was the Laser Check a successful product? 11

A We believed it was successful. We felt it was successful at that time. 12

Q Approximately how many were sold over the next couple of years, from -- 13

A I believe something over a thousand were ultimately sold. 14

Q Does Symbol still sell Laser Checks? 15

A No. 16

Q Does Symbol sell any bar code scanners that can measure the physical 17

dimension of the bars in a bar code? 18

A No. 19

Q Okay. After the Laser Check series what was the next laser bar code scanner 20

you designed? 21

A We built a scanner that was called an LS410. 22

Q Okay. In what application was the LS410 used? 23

A That was sold, among other things, to blood banks, actually, for keeping track of 24

little packets of blood that people donated. 25


Q Okay. I'd like to direct your attention to Exhibit 388. I believe it's already been 1

moved into evidence. I'd like to -- do you have that exhibit? 2

A Yes, I do. 3

Q Would you turn to page 10 of that exhibit. 4

MR. LISA: Your Honor, I'm having a hard time hearing Counsel. I'm 5

sorry. I can't -- 6

THE COURT: Yeah. Keep -- Erica is that turned up to amplification 7

on that -- on that mike? 8

MR. McCABE: Let me get a glass of water. 9

MR. LISA: Can we have the last exhibit number he just referred to? 10

MR. McCABE: 388. 11

MR. LISA: Thank you. I don't mean to be a pain, but -- thank you. 12

THE COURT: 388? 13

MR. McCABE: 388. 14


THE CLERK: It's already in, Your Honor. 16

MR. McCABE: I think it's already in. 17


BY MR. McCABE: 19

Q Could you turn to page 10 of that exhibit. It's the page ending 591. 20

A I have it. 21

Q Okay. Could you tell us what's shown on that page. 22

A Yeah, that's showing a picture of an LS410. 23

Q Okay. And the application that's shown there? 24

A This is shown -- well it shows it with a little -- one of those plastic bags full of 25


blood like you'd see at a blood bank underneath it. 1

Q Okay. Could you explain generally how that device operated. 2

A It was -- well, it worked very much -- I'm not sure if your question is how is it 3

used or how does it work. 4

Q Yeah. We've seen some scanners demonstrated that are hand-held scanners. 5

A Yes. 6

Q This looks a little different. Could you just explain. 7

A Okay. Yes. This was used -- as you can see, it's mounted on a stand, and the 8

user would hold the object with the bar code in their hand and hold it up underneath 9

the scan head. Similar to the Laser Check, the scan beam came out of the bottom 10

of the housing, so it projected downward toward the table. 11

Q Okay. Did it need to be in a -- at a fixed distance, the way the Laser Check 12

did? 13

A No, it didn't. It could work either from close to contact, like a Laser Check, to a 14

few inches down. 15

Q Okay. After the LS410 what was the next laser scanner that you designed? 16

A I believe it was the LS550. 17

Q Okay. And what was that used for? 18

A That was made really for magazine wholesalers. Wholesale -- magazines are 19

sold in such a way that the various stores can get credit at the end of the month for 20

any that haven't been sold. So at the end of the month they send them back to the 21

wholesaler to get credit, and the wholesaler has to process many magazines each 22

month. And the way that they do that is by reading the bar codes on the magazines 23

that come back to them. 24

Q Okay. Could you turn to page 6 of Exhibit 388 and tell us what's shown. That's 25


the exhibit you're on, yeah. 1

A Okay. 2

Q Okay. Can you tell us what's shown in the lower photograph. 3

A Yeah. That's an LS550. 4

Q Okay. And that's shown being used to read what? 5

A It's shown reading a bar code on a magazine. 6

Q Okay. Did the bar code need to be at a fixed and known position? 7

A No. 8

Q Okay. Were the LS410 and 550 hooked up to any type of host computer? 9

A Yes. 10

Q Could you explain why that was. 11

A Well, in each case the decoded data from the bar codes needed to be kept 12

track of for the -- for their particular application. 13

Q Were the LS410 and LS550 sold commercially? 14

A Yes, they were. 15

Q When were they first sold? 16

A I believe 1980 or thereabouts. 17

MR. McCABE: Your Honor, to aid the Court, we've prepared a 18

timeline that -- not for the witness, but just as a demonstrative. 19



THE COURT: All right. That's marked as Plaintiff's 3373 for 22

identification. 23

MR. McCABE: All right. What we're going to try to do is, as the 24

witnesses testify, to kind of fill it in as we go along. And so right now I'd like to just 25


draw your attention to the screen. And we've just heard testimony on the Laser 1

Check 211 [sic] and the LS550. 2

THE WITNESS: 2711. 3

MR. McCABE: 2711. 4

THE COURT: Since you've started earlier, I can remember all of 5

these. It's -- 6

MR. McCABE: Just to keep them in some kind of chronology. 7

THE COURT: If you look at the lectern and the little plaque, today is 8

the anniversary of Lincoln's Gettysburg Address. I would not recall that, but -- 9

MR. McCABE: Well, our timeline doesn't go back quite that far. 10

BY MR. McCABE: 11

Q Okay. After -- I'm just pointing out on the timeline where we are. So it would 12

probably be about page 2 or 3. 13

THE COURT: I don't think we need to keep the lights dim, then, for 14

that. Go ahead. 15

BY MR. McCABE: 16

Q I think we were just talking about the 410 and the 550. What was the next bar 17

code scanner that you designed? 18

A That would have been the LS100. 19

Q Could you describe what the LS100 did. 20

A The LS100 was our first scanner that was really what we would call today a 21

hand-held scanner. That's a scanner that's intended to be held in your hand while 22

you're using it. 23

Q Could you generally tell us what the difference between the LS100 and the 24

Laser Check was. 25


A Yeah. The Laser Check, although you could pick it up and move it, was really 1

used sitting on top of whatever it was scanning, because it was trying to make a 2

measurement. The LS100 was held in the hand and didn't have to be used at a 3

precise distance like that. 4

Q Did the LS100 need to be in contact with the bar code in order to read it? 5

A No, it didn't. 6

Q How far away could it be and read the bar code? 7

A I believe it would read out to about 2-1/2 inches away. 8

Q Okay. Could the LS100 be used to measure the width of the bars in the bar 9

code? 10

A No. 11

Q Why not? 12

A Because we didn't -- without -- we didn't really take the effort, and didn't need to 13

calibrate the speed of the laser spot very carefully like we did on the Laser Check, 14

so we didn't really know the speed at any -- any distance from the scanner. On top 15

of that, we didn't know how far away somebody might hold the bar code. 16

Q Okay. Was there anything else besides distance from the bar code that 17

affected the speed of the spot in the LS100? 18

A Well, yeah, there was another difference. In the Laser Check, in order to have 19

a very uniform spot speed across the length of the scan line, we didn't use an 20

oscillating motor like you've seen talked about today that moves back and forth. 21

Instead, we used what's called a rotating polygon. And that is really -- it's like a little 22

wheel with mirrors around its edge. And that could rotate at a uniform speed, and 23

the laser was bounced off those rotating mirrors. And that would cause a scan -- 24

the scanned laser spot to really move at a uniform speed across the bar code. 25


Now, in the LS100, since we were not trying to make measurements, there 1

was no need to have that uniform speed, and those rotating polygons were fairly 2

large and expensive to put in a product like that, so we switched at that point to an 3

oscillating mirror, like the yellow things you've heard about. 4

Once we did that, we didn't really have any good way to know what the 5

speed was, because it changed across the scan line. But we didn't need to, 6

because we were only trying to decode at that point. 7

Q I think you mentioned the Laser Check could make certain contrast 8

measurements. 9

A Yes. 10

Q Could the LS100 make those measurements? 11

A No. 12

Q Why not? 13

A Well, to make those contrast measurements the Laser Check again had to be 14

placed in contact with the bar code in order to keep the room light from striking the 15

bar code, because those would ruin the measurements. 16

With the LS100, since it wasn't in contact with the bar code, room light could 17

strike the bar code and really made it impossible to make any measurements like 18

that. In addition, the various circuitry and software needed to make those 19

measurements just wasn't there. 20

Q Would you turn to Exhibit 1038, please. When you find it, could you go to the 21

third page of that exhibit, the page marked 165668. Do you have it? 22

A Okay. Yes. 23

Q Okay. Would you tell us what's shown in that photograph. 24

A That is an LS100 with its decoder box. And it also shows -- there's actually 25


three things there. One is the scanner, as you can see. On the left the large box is 1

the decoder, and on the right there's a smaller box that has a little keyboard and 2

display that some of our customers wanted to have. 3

Q Okay. Let me hand you Exhibit 2785. Would you tell us what Exhibit 2785 is, 4

please. 5

A This is an LS100. 6

Q And you designed that? 7

A I designed most of this, yes. 8

THE COURT: Any objection to the Exhibit 2785 or 1038? 9

MR. LISA: The fact that they show something we don't object to, Your 10

Honor. I don't want any date particularly assigned to these exhibits themselves. I 11

mean -- 12

THE COURT: Well, no. The -- 13

MR. LISA: We don't know the state of these 14

pictures -- 15

THE COURT: 2785 is simply a photograph of what the witness is 16

holding, I think. 17

MR. LISA: So there's no objection to the photographs themselves 18

going in, that's right. 19


(Plaintiff's Exhibits 1038 and 2785 admitted) 21

BY MR. McCABE: 22

Q When you were using the Laser Check it was making a beeping sound. 23

A Yes. 24

Q What did that indicate? 25


A That indicated that it had decoded the bar code that it was scanning. 1

Q Okay. Did the LS100 make any type of audible sound? 2

A It would also beep when it decoded a bar code. 3

Q Okay. Could you turn to Exhibit -- well, actually, turn to the first page of Exhibit 4

1038. And could you tell us what's shown there. 5

A Yeah. That's a picture of me when I was thinner and younger and had a lot 6

more hair, also. 7

Q What are you holding, and what are you doing in the picture? 8

A I was -- 9

THE COURT: Scratching his head. 10

THE WITNESS: I don't remember. I was scanning a bar code, with a 11

-- with an LS100. 12

BY MR. McCABE: 13

Q Okay. Can you turn to Exhibit 783, please. 14

A Okay. 15

Q Could you identify that for the Court, please. 16

A Yes. This is a document that I wrote about the LS100. 17

Q And when did you write that document? 18

A In 1980. 19

Q October 16th? 20

A Yes. 21

Q Okay. And what does it describe about the LS100? 22

A Well, this is -- this is kind of a description of the various -- well, actually, this first 23

page is an adjustment procedure for the LS100. This was used during the 24

manufacturing process. 25


Q Okay. Could you turn to the next exhibit, 784. 1

A Yeah. This -- 2

Q Could you tell us what that is. 3

A This is another document I wrote in August 8th, 1980. And this is a description 4

of the digitizer circuitry that was used in the LS100. 5

Q Thank you. Could you turn to Exhibit 785 and tell us what that is. 6

A Another document that I wrote in August 11th, 1980. And this is a description of 7

the circuitry that operated the oscillating motor that drove the scan mirror in the -- 8

Q The oscillating motor that drove the mirror? 9

A The mirror in the LS100. 10

Q Okay. Could you turn to Exhibit 786 and tell us what that is. 11

A Another document I wrote. I guess it says August -- I can't quite make it out -- 12

of 1980. 13

Q And what -- what does this describe? 14

A This one is a procedure for aligning the optics in the LS100 again during the 15

manufacturing process. 16

Q And finally could you turn to Exhibit 787 and tell us what that is. 17

A This is a -- a description of the LS100. 18

Q Okay. Could you turn to the second page of that exhibit, under the heading, 19

"Operating the LS100." Can you turn to that. 20

A Yes. 21

Q Okay. It says, "Positioning of the symbol in front of a scanner is not critical as 22

long as the beam -- the scanning beam crosses all the bars and spaces in the 23

symbol." Could you explain what that means. 24

A It was -- it was saying that, it was not important or necessary to locate the bar 25


code at any one very precise position in order for the scanner to read the bar code. 1

Q And in the next sentence it says, "Tilt and skew of the symbol is of little 2

importance as long as the entire symbol is within the depth of field of the scanner." 3

A Right. 4

Q Could you explain what that means. Perhaps holding the LS100 you can show 5

the Court what that means, tilt and skew. 6

A That means that the bar code could be, you know, tilted one way or the other or 7

this way with respect to the scanner. And as long as its -- the whole bar code 8

remained -- was still covered by the scan line and remained within the working 9

range, it would still work. 10

THE COURT: So when the term "field of view," or the exact term the 11

way it's used -- 12

MR. McCABE: It says "depth of -- depth of field," Your Honor, in this 13

one. 14

THE COURT: -- "depth of field" is employed, it's referring to making 15

sure that the line covers the entire bar code and the distance is appropriate? 16

THE WITNESS: Yeah. The "depth of field" is really referring to the 17

distance -- the range of distance over which the scanner can operate. 18


THE WITNESS: And, you know, and if you tilt the bar code say very 20

much, one end might go outside that is what it was -- 21

BY MR. McCABE: 22

Q So the depth of field is kind of like a near/far? 23

A Yes. It's the total range from near to far over which it will work. 24

Q And what was the range for the LS100? 25


A I believe it was in the neighborhood of 2 or 2-1/2 inches. 1

Q Okay. From how close? 2

A It would start in I think almost at contact, an eighth of an inch, a quarter of an 3

inch, and go out to about 2-1/2 inches. 4

Q And it would decode a bar code anywhere in that range? 5

A That's right. 6

Q As long as the laser line crossed the bar code? 7

A That's right. 8

Q Okay. When was the LS100 first sold? 9

A I believe 1980. 10

Q Was the LS100 successful? 11

A It was a -- you know, successful enough to let us know that there was a large 12

demand for a product of that nature and really inspired us to go on and do things we 13

did later. 14

Q Okay. What do you mean a product of that nature? 15

A Well, a hand-held scanner product. There was -- it made it very clear -- we had 16

a lot of demand for it, and it inspired us to go on and make better ones. 17

Q Was that a new product, hand-held bar scanners? 18

A That's true, yeah. This was really the first hand-held laser scanner that there 19

was. 20

Q From Symbol? 21

A From anybody. 22

Q From anybody. 23

A Yes. 24

Q Okay. Could you explain generally how an LS100 would read a bar code. 25


A You're asking about how it works, is that what -- 1

Q How it works, yes. 2

A Well, inside the body of the scanner there's a laser tube down in here. There 3

were a few mirrors in the back. The laser tube is actually mounted so that the laser 4

beam comes out the back of that. There's a couple lenses back there that focus the 5

laser beam, and there's a couple of mirrors that direct it up to -- the laser beam up 6

to the oscillating scan motor that's up in the back. 7

That oscillating scan motor would direct the laser out through the nose, it'd 8

be going back and forth across this window. And it would project on whatever you 9

positioned in front of the scanner. 10

Light would reflect off that bar code, if it was a bar code, and would be 11

detected by some -- there's a couple of photodiodes inside here that are looking at 12

the same window. Those photodiodes would convert the light signal to an electrical 13

signal, an analog signal. 14

That signal would be amplified and filtered. It would then be -- go through a 15

digitizer, which would square it up in the way that we've seen. That would then go 16

to the decoder, which had counters in it that would measure the time that it took for 17

the laser spot to move across the light and dark areas, and then a microprocessor 18

would decode it in the way that we've seen. 19

Q Thank you. After the LS100 -- well, let me ask you this. Was the LS100 known 20

by any other name? 21

A Yeah. At one point we called -- we changed its name to an LS1000, I believe. 22

But they were the same thing. 23

Q Okay. After designing the LS100 or 1000 did you design any other laser bar 24

code scanners? 25


A Quite a few. 1

Q How many? 2

A I don't know the exact number, but it's many. 3

Q Okay. Were there different categories that they would fall into? 4

A Yes. We -- there are a number of later generations of hand-held scanners, and 5

there are also what we call stand-alone scanners which are not held in the hand 6

when they're used, and there were scan engines, also. 7

Q Could we start with some of the hand-held scanners. 8

A Okay. 9

Q What was the next hand-held scanner you designed after the LS100? 10

A The next one was the LS7000. 11

Q Okay. When did you design that? 12

A That was designed during 1982. 13

Q Okay. Could you turn to Exhibit 392, please, in your book. 14

A Okay. 15

Q Could you tell us what's shown on the cover. 16

A Yeah. That's a picture of an LS7000. 17

Q Could you turn to the -- I think it's the fourth page. It's the page ending in 655. 18

And if you would just describe what's shown in those photographs. 19

A 655? 20

Q It ends in 655. 21

A Okay. Yeah, these are two pictures of people using LS7000s. 22

Q Okay. And what's the top application? 23

THE COURT: Well, look, let's really save some time. I mean, now 24

we're back at the blood bank, it looks like there, and the other fellow's reading a 25


meter. But it describes -- 1


THE COURT: The caption for each photo tells us what it is. 3

MR. McCABE: That's fine. We just want to get into the record that 4

they were used in the relevant time period. 5

THE COURT: Oh, I'll receive the exhibit, the -- 6

THE CLERK: Your Honor, 392 is already in. 7

THE COURT: It's in the record, then, yeah. 8

BY MR. McCABE: 9

Q Okay. When was the LS7000 first sold? 10

A 1983. 11

Q Okay. Let me hand you Exhibit 2786. Would you tell the Court what 2786 is. 12

A Yes. This is a handmade prototype that I built of an LS7000 in 1982. 13

Q And you also designed it? 14

A I designed a lot of the parts of it. I worked with some other people. 15

Q Okay. How did the LS7000 differ from the LS100? 16

A It had a new kind of a laser tube in it that gave it a much larger working range or 17

depth of focus. It also, unlike the LS100 that had the laser come out the window in 18

the nose, it had the laser come out a little window up on the top here. There's a 19

little window here where the laser came out. 20

THE COURT: And it's obviously smaller, lighter? 21

THE WITNESS: Right. And that allowed it to be smaller, because we 22

didn't need a big wide nose to get that laser light out. 23

BY MR. McCABE: 24

Q You said it had a better, I think, depth of focus? 25


A Yes. 1

Q Approximately what was the depth of focus of that device? 2

A I believe it was 7 or 8 inches. 3

Q And that meant how far away that it would read the bar code? 4

A Right. It would start almost -- almost touching through 7 or 8 inches out. 5

Q Okay. After designing the -- well, let me just show you an exhibit here. Can 6

you turn to Exhibit 1104 in the book. Do you have that? 7

A Yes. 8

Q Could you describe what that is. 9

A This is a preliminary specification for the LS7000. 10

Q Okay. Could you turn to the page ending in 691. There's some figures there. 11

A Okay. 12

Q Could you explain what's shown in the top figure. It says, "Angle of incidence 13

and dead zone." What does that mean? 14

A Right. Yeah, these are showing the various angles over which the LS7000 15

could be tilted with respect to a bar code -- 16

Q Okay. 17

A -- and still be expected to be able to be -- to decode. The little area called the 18

dead zone is an area where there would be -- might be glare if you were reading a 19

glossy symbol that might make the scanner unable to read in that little narrow 20

angle. 21

Q But the other areas it would read? 22

A It would work everywhere except that little narrow area, and only you'd have a 23

problem in that narrow area if the bar code were very glossy. 24

Q Is that like if you're reading a glossy magazine the light is glaring off of? 25


A Exactly. If you're reading a glossy magazine sometimes you'll see the ceiling 1

lights on it, and you might have to change its position a little bit to read it. 2

Q All right. I'd like to hand you Exhibit 2802. Could you identify Exhibit 2802 for 3

us. 4

A This is an LS7000 that's been disassembled so you can see what's inside it. 5

Q Okay. Could you just walk us through the different parts. 6

A Okay. Well, first we -- obviously we have a housing -- 7

Q Right. 8

A -- two halves. This is an optical assembly that fit inside the housing. There's 9

also a circuit board that's sitting on top of the housing. And this piece right down 10

here, which fit in the handle, was actually a power supply for the laser. In those 11

days we were still using a gas laser tube, and they required quite a high voltage to 12

operate on. And this little -- this power supply created that high voltage to power 13

the laser that was inside here. 14

Q The laser's inside the optical assembly? 15

A Yeah. Inside here there's a gas laser tube. 16

Q What else is in the optical assembly? 17

A Well, there's also some lenses to focus the laser, which are mounted in the 18

back. There's some mirrors. Those mirrors direct that laser beam to the scan 19

motor, which is mounted up on top over here. It's a little hard to see, this little thing 20

I'm wiggling here. That wiggling -- there's a mirror on the side of it. So the laser 21

would come out of there, hit that little mirror that was wiggling, that would get 22

projected out this little top window across the nose and out into the front of the laser 23

scanner. 24

Q That wiggling mirror, is that the oscillating mirror? 25


A That's the oscillating mirror. 1

Q Okay. On the circuit board, did you participate in the design of the circuit 2

board? 3

A I designed the circuit board. 4

Q Okay. Just tell us briefly what's on the circuit board. 5

A Well, you have the photodiodes here in the front. These are -- these are the 6

things that detected the reflected light. They looked out through the little holes in 7

the nose of the housing. There's amplifiers in here, filters, a digitizer, and circuitry 8

to drive the oscillating motor on the circuit board. 9

Q Did the LS7000 need to be at any fixed or known distance in order to read a bar 10

code? 11

A No. It could work over -- anywhere within its depth of focus. 12

Q Did a bar code need to be at any particular orientation for the LS7000 to read? 13

A No. It's that -- the drawings show there's a wide range of angles that it can 14

operate at. 15

Q Did the LS7000 make any audible sound when it decoded? 16

A Yeah. When it decoded there was a beep sound to indicate that it decoded. 17

Q Was the LS7000 hooked up to a host computer? 18

A Yes. 19

Q Okay. Was the LS7000 successful? 20

A That was an extremely successful product. It really was what put Symbol on 21

the map. 22

MR. McCABE: Okay. On our timeline, Your Honor, we've made it all 23

the way up to 1983 or so. 24



BY MR. McCABE: 1

Q All right. After the LS7000 what was the next hand-held laser scanner that you 2

designed? 3

A Well, there was a improved version of the LS7000 called the LS7000-2. 4

Q Okay. When was the LS7000-2 first sold? 5

A I believe that was 1985. Pretty sure. 6

Q Okay. You mentioned it was improved. How was it improved over the 7

LS7000? 8

A We changed the way the laser was focused a bit to give it a little more range 9

and to improve its ability to read poorly printed or damaged bar codes. And we also 10

added an automatic gain control that gave it quite a bit more working range. 11

Q Was the LS7000-2 successful? 12

A Yeah. We sold even more of those than we sold of the LS7000. 13

Q I think we have one down here. If you could come down and do a quick 14

demonstration. 15

MR. McCABE: Is that okay, Your Honor? 16

THE COURT: No, we don't need a demonstration of that. I think 17

we've had plenty of demos of how the scanners work, so -- 18

BY MR. McCABE: 19

Q Okay. Did the LS7000-2 need to be at any fixed or known distance in order to 20

decode a bar code? 21

A No. It had quite a large working range, and it would work on a bar code 22

anywhere within that range. 23

Q Okay. Rather than repeat these questions for all the bar code scanners, did 24

any -- other than the Laser Check series that we talked about, did any of Symbol's 25


hand-held laser bar code scanners need to be at a fixed or known distance in order 1

to decode a bar code? 2

A No. 3

Q Did any of Symbol's hand-held laser scanners need to have the bar code at any 4

particular orientation in order to decode the bar code? 5

A No. They all worked over a large range of orientations. 6

Q After the 7000 series what was the next hand-held laser bar code scanners that 7

you worked on? 8

A There was an LS8000. 9

Q And when was that first sold? 10

A I think that was also first of 1985. 11

Q Let me hand you Exhibit 2788. I also have Exhibit 2789 here. Take a look at 12

2788. And could you identify that for us. 13

A Yes. This is an LS8000. This particular one has a battery mounted in its 14

bottom so it could operate on battery power. 15

Q How did the LS8000 differ from the LS7000? 16

A Well, you can see it's much smaller. It didn't have the gas laser tube in it 17

anymore. 18

Q What did it have instead? 19

A By this time, '85, solid state -- small solid state lasers had become available at 20

reasonable prices, so we started to use them in the scanners. 21

Q Was the LS8000 successful? 22

A Very. We sold it for many years. 23

Q Okay. After the 8000 what was the next laser bar code scanner? 24

A There was a version called an LS8500, which, right, looked pretty much the 25


same. It did look the same. This one doesn't have the battery on the bottom that 1

the other one had, but they were both sold, with and without batteries. And -- 2

Q Could you just read the exhibit number in, please. 3

A Oh. This one is 2789. And the difference here is now -- when we originally 4

made the 8000, the lasers, the solid state lasers or laser diodes that were available 5

only produced infrafred light, and a user could not see the laser beam like we were 6

used to seeing on the other scanners. So there was an extra little light source in 7

here, an LED, actually, that projected out with the scanned laser which a user would 8

use to know that he was aimed at the bar code properly, 'cause he couldn't see the 9

laser. 10

A couple years later the laser diodes that produce visible light became 11

available, and we put those into what was essentially the same scanner and called 12

it LS8500 instead of an 8000. So this was the same scanner, but with a visible 13

laser. 14

Q Let me just show you very quickly Exhibit 2803. And would you identify this for 15

us. Be careful. There's some loose parts on it. 16

A Well, these are -- we have here an LS8500 that's been disassembled so -- 17

again so you can see what's inside it. 18

Q Could you just quickly point out the different parts to it. 19

A We have the housing, we have a circuit board that has the digitizer, amplifiers 20

and whatnot. Now, in this case we no longer needed that big block that was the 21

high-voltage power supply for the laser tube, because we don't have a laser tube 22

anymore. The little solid state laser doesn't need that. So that left the handle 23

empty. So we were able to at that point take the decoder and put it into the handle. 24

We also -- this is the optical assembly for the scanner. That holds the little 25


laser up in the front. It has a motor in the back, again, with an oscillating mirror. 1

Q Okay. 2

THE COURT: Mr. McCabe, I hate to interrupt the flow of your 3

examination, but I'm -- I'm really not grasping what -- what this is driving at. Once 4

we understand how these are used and so forth, the fact that generationally they 5

get smaller, the technology -- what is the relevance of this evolution of these 6

particular scanners? The way they operate, at least the recent versions, is the 7

same. So what -- 8

MR. McCABE: Your Honor, that's exactly the point that we're trying to 9

drive home here, is that they do operate the same way as the current scanners and 10

that with respect to intervening rights as to Symbol's own work that the products 11

that we have just seen would constitute those rights. We're just trying to lay a 12

record for testimony later by our experts that the earlier products were on sale, they 13

were available, they were out there, they operated. 14

THE COURT: Well, you know, your experts could so testify without 15

even putting that in the record. I mean, they really could. That's the kind of 16

information I would assume they rely upon in making their opinions or providing 17

their opinions, even it wasn't admissible or in the record. 18

But, gosh, I think that it's, you know, abundantly clear that up to the 19

very recent point -- I just don't know that it's necessary to belabor it. 20

MR. LISA: If they want to stipulate that all of their scanners operate 21

the same as the early scanners, and we've got lots of patents to look at, all sorts of 22

things, we'll be happy to take that stipulation. 23

THE COURT: I don't know. Is that essentially what you're saying, 24

that there hasn't -- 25


MR. McCABE: At a certain functional level they operate the same 1

way. 2

THE COURT: All right. All right. 3

MR. McCABE: We're not going to stipulate that everything is identical, 4

but at the functional level that the Lemelson claims are written, there's many 5

differences in hardware and some of the processing and things like that. 6

THE COURT: Well, no, I -- certainly I understand. The casings are 7

different sizes and so forth and -- 8

MR. LISA: And perhaps it's worth addressing this. If what your 9

stipulation is that at the level the claims are written that the early products operate 10

the same as the later products, then we can simplify a whole lot here. If it's going to 11

be at the level they want to defend the claim and infringement charges, that's fine 12

with us. 13

THE COURT: Well, I'm not trying to put the parties in a position of 14

stipulating to something you're not prepared to stipulate to. But I just don't see the 15

point of now -- with the timeline we're up to, what, '85 or something, and -- 16

MR. McCABE: Well, the good news is we're pretty much done with 17

the intervening. 18

THE COURT: -- you know, George Bush II is going to be elected 19

before long here, and I really -- I really just don't -- I'm not finding a lot of utility in -- 20

it's interesting. But once I've seen a couple of them, I really think I've seen what I 21

need to see. Your experts can talk about everything in the world that they've 22

reviewed, and I certainly won't be surprised if they tell me that they've looked at 23

them and they've gotten smaller but they operate in the same way. 24

MR. McCABE: Okay. There are a few of the current products that we 25


would like to briefly demonstrate that are different from what we've seen before, and 1

they directly go to some other issues that Mr. Lisa has raised today. 2

THE COURT: Different in what sense -- 3

MR. McCABE: Well, in the sense that -- 4

THE COURT: -- other than being hand-held or smaller? 5

MR. McCABE: They're not -- they're not hand-held. In that sense. 6

And if we could take a few minutes to demonstrate that, that would be appreciated. 7

THE COURT: All right. All right. Well, let's do this. It's about 10 8

minutes to 4:00, and I've got two matters at 4:00 o'clock and a meeting at 4:30, so 9

let's go ahead and take our evening recess. Maybe the parties can talk about your 10

stipulation. If there's something you can do to truncate that a bit, I would sure be 11

interested in hearing that. 12

Who would your witness be after this witness? 13

MR. McCABE: After this witness it will be William Silver from Cognex. 14

THE COURT: Okay. Mr. Hosier. 15

MR. HOSIER: Which brings me to the next subject. I think we're 16

probably going to get through all five of the initially identified witnesses by the end of 17

the day tomorrow. That leaves us with Thursday and Friday -- 18

THE COURT: At the rate we've been going, I'm skeptical, but -- 19

MR. HOSIER: Well, I think it's -- for example, there's Mr. Testa 20

tomorrow. I suspect that he will be very short. I don't think we have hardly any 21

examination of him. I don't think they have a very long presentation. 22

It leaves us now Thursday and Friday coming up with no identified 23

witnesses. We do have a very small group. They 24

identified 27 trial witnesses, whatever reason. 25


THE COURT: No, no. I -- 1

MR. HOSIER: So it leaves us in a dilemma. If we could know who 2

they plan to call for the rest of the week, we'd get a little more sleep. 3

THE COURT: Well -- 4

MR. JENNER: Your Honor, that's the reason why we proposed before 5

this so-called 24/48 rule. We will certainly tell them tonight -- 6

MR. HOSIER: It's now 48. 7

MR. JENNER: We will certainly tell them tonight who we plan to call 8

Thursday. I mean, part of the problem is that we have people, including third 9

parties -- 10


MR. JENNER: -- who we have to tell to fly in or not fly in. 12

THE COURT: Well, we'll recess now, and you tell them who you're 13

calling Thursday, and, you know, who you're calling Thursday we may finish 14

Thursday. It may go into Friday, I don't know. And talk about -- if there's a 15

stipulation that would somehow shorten some of this, that would sure make sense. 16

MR. HOSIER: Well, it's 48. I mean, they -- we get it close to 17

midnight, literally, as to who the -- 18

MR. JENNER: That's not true, Your Honor. 19

MR. HOSIER: It was 11:00 -- after -- 20

THE COURT: Well, go ahead and tell me now. Who would be -- who 21

are the next -- let's go ahead and run this down. I want to -- I want to start speeding 22

it up. Who would your witness be tomorrow? What was the first gentleman's name 23

from Cognex? 24

MR. JENNER: The first gentleman is Mr. Silver, who'll be on 25


tomorrow. 1

THE COURT: Silver from Cognex. All right. And who would be after 2

Mr. Silver? 3

MR. JENNER: Subject, when I get back to the hotel, to finding out 4

about exactly who's coming and going -- 5

THE COURT: Sure. 6

MR. JENNER: -- we think it's Mr. Testa. 7

THE COURT: Testa? 8

MR. JENNER: There are two other witnesses coming behind him. 9

MR. HOSIER: Do they have names? 10

MR. JENNER: Laurer. 11

THE COURT: Laurer. 12

MR. JENNER: Do we know who else is for sure coming Thursday? I 13

think Mr. Reinhold. But this is part of the thing. I have to go back and find out the 14

transportation arrangements because of it being third parties who don't want to get 15

on airplanes until they know what they have to do. 16

THE COURT: All right. All right. So these are all people coming from 17

out of town, obviously. 18

MR. JENNER: That's right. 19

THE COURT: Okay. And after that, after Mr. Reinhold, you don't 20

have -- you've not determined which witness would be -- 21

MR. JENNER: I'm not sure who comes in order. I have to find that 22

out when we get back. 23

THE COURT: Okay. Well, get back, and then -- and then tomorrow 24

morning be prepared to let Mr. Hosier and Mr. Lisa know who it would be after -- 25


MR. JENNER: We'll tell them tonight what we think we're going to go 1

through on Thursday -- through Thursday. 2

THE COURT: Okay. Fine. Fine. You all can get on the phone and 3

talk about it. 4

MR. HOSIER: Well, Friday could we know tonight sometime late? 5

THE COURT: Yeah. Sometime tonight, after he gets back to his 6

hotel or office or -- 7

MR. JENNER: We'll give them Thursday for sure. Friday we're still 8

working up. We'll do what we can. 9

THE COURT: All right. Let's do the best you can. 10

All right. Let's break until 8:30 tomorrow morning, then. 11

As to the exhibits testified to by this witness, because it's going to 12

drive my clerk nuts, and these -- we've been really loosey goosey. Typically, you 13

know, to lay a foundation and to get a document admitted it would be a little bit 14

different before I'd let you -- if we had a jury, before the witness could testify about 15

the content of an exhibit, it would have to be admitted. I'm really sliding on that, 16

because I can't conceive that there's going to be much opposition to any of these 17

photographs or any of these annual reports, I mean. But are there any objections to 18

any of the exhibits the witness has testified to thus far? 19

MR. LISA: So far not, Your Honor. 20

THE COURT: Okay. Those will be received, then, Donna. 21

THE CLERK: Okay, Your Honor. 22

MR. LISA: I think as a practice as it gets to more substantive issues 23

there may be -- 24

THE COURT: Well, I haven't gone back to the pretrial order, but 25


typically what I would have, particularly in a court trial, I would have a -- probably 1

the parties would have stipulated that, you know, subject to some particular 2

difficulty, things like annual reports or whatever, I mean, they're just going to come 3

in. So -- 4

Okay. Those are in, Donna. 5

(Plaintiff's Exhibits 1104, 2786, 2802, and 3274 admitted) 6

THE COURT: All right. We'll see you, then, at 8:30 tomorrow 7

morning. 8

(Court recessed at 3:52 p.m., until the following day, 9

Wednesday, November 20, 2002, at 8:30 a.m.) 10

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00238 BARKAN - DIRECT 1

CERTIFICATION 1

2

3

4

5

I (WE) CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM 6

THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE 7

ABOVE-ENTITLED MATTER. 8

9

10

11

12

NORTHWEST TRANSCRIPTS, INC. 13

NEVADA DIVISION 14

P.O. BOX 35257 15

LAS VEGAS, NEVADA 89133-5257 16

(702) 658-9626 17

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00239 BARKAN – DIRECT=

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GAYLE M. LUTZ 2

FEDERALLY CERTIFIED MANAGER/OWNER 3

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MANAGER/SUPERVISOR OF NEVADA 4

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D. Lohmuller/K. McCrea/L. Lizar/F. Hoyt 11/20/02 7

TRANSCRIBER DATE 8

00241 BARKAN – DIRECT= WITNESS INDEX AND EXHIBIT LIST 1

2

WITNESS INDEX 3

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PLAINTIFF'S WITNESSES: PAGE 5

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FREDERICK SCHUESSLER 7

Direct Examination by Mr. Cherny 8

Cross-Examination by Mr. Lisa 9

Redirect by Mr. Cherny 10

Recross Examination by Mr. Lisa 11

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EDWARD BARKAN 13

Direct Examination by Mr. McCabe 14

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EXHIBIT LIST 22

00242 BARKAN – DIRECT= 1

PLAINTIFF'S EXHIBIT NO. ADMITTED 2

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385 Annual Report - 1979 - Symbol Technologies 2

1038 Photograph 3

1104 Preliminary Specification - LS7000 4

1148 Photograph 5

2785 Photograph 6

2786 Prototype - LS7000 - 1982 7

2795 Scanner From Laser Check 2711 8

2802 Disassembled LS7000 9

2813 Scanner from Laser Check 2811 10

2814A Calibration Book 11

3274 Bar Code 12

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* * * 15

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WITNESS INDEX AND EXHIBIT LIST 18

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WITNESS INDEX 20

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Cross-Examination by Mr. Lisa 4

Redirect by Mr. Cherny 5

Recross Examination by Mr. Lisa 6

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EDWARD BARKAN 2

Direct Examination by Mr. McCabe 3

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EXHIBIT LIST 11

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1038 Photograph 15

1148 Photograph 16

2785 Photograph 17

2813 18

2814A Calibration Book 19

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00246 BARKAN – DIRECT= * * * 1

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WITNESS INDEX AND EXHIBIT LIST 1

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WITNESS INDEX 4

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Cross-examination by Mr. Lisa 11

Redirect Examination by Mr. Cherny 12

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EXHIBIT LIST 15

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573 Presentation 20

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DEFENDANT'S EXHIBIT NO. 2

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210 Defendant's trial exhibit 4

426 Integration guide 5

526 Super nova decoder board 6

1208 Symbol web site ID glossary 7

2160 AIM Group web site 8

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CERTIFICATION 11

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I (WE) CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM 16

THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE 17

ABOVE-ENTITLED MATTER. 18

19

NORTHWEST TRANSCRIPTS, INC. 20

LAS VEGAS DIVISION 21

P.O. BOX 35257 22


LAS VEGAS, NEVADA 89133-5257 1

(702) 658-9626 2

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GAYLE MARTIN-LUTZ 10

FEDERALLY CERTIFIED OWNER 11

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MANAGER 15

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Kay McCrea SIGNATURE OF 18

TRANSCRIBER DATE 19

00251 BARKAN – DIRECT= WITNESS INDEX AND EXHIBIT LIST 1

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Cross-examination by Mr. Lisa 54 11

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00252 BARKAN – DIRECT= EXHIBIT LIST 1

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3259 Long-range scans 53 7

3274 Pager with bar code 53 8

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DEFENDANT'S EXHIBIT NO. 13

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1857 Patent by Frederick Schuessler and others 75 15

2162 Patent by Frederick Schuessler and others 75 16

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