`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 1 of 10
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`EXHIBIT E
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`EXHIBIT E
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 2 of 10
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` UNITED STATES DISTRICT COURT
` NORTHERN DISTRICT OF CALIFORNIA
` SAN JOSE DIVISION
` - - - - - - - - - - - - x
`FINJAN, INC., :
` Plaintiff, :
` v. : Case No.
`SONICWALL, INC., : 5:17-cv-04467-BLF-VKD
` Defendant. :
` - - - - - - - - - - - - x
`
` Videotaped Deposition of
` KEVIN ALMEROTH, Ph.D.
` Conducted Virtually
` Tuesday, October 20, 2020
` 8:06 a.m.
`
`Job No.: 329529
`Pages: 1 - 121
`CERTIFIED SHORTHAND REPORTER:
`Tracy M. Fox, CSR #10449
`(COURT APPROVED COURT REPORTER)
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 3 of 10
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`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`61
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` A. Yes, sir, I have.
` VIDEO TECHNICIAN: Stand by.
` (Technician complied.)
` (Whereupon, Defendant's Exhibit 5 was
` marked for identification.)
` COURT STENOGRAPHER: Exhibit 5 marked for
`identification.
`BY MR. WOLFF:
` Q. I don't know what you have, but I'm sure
`it's the same as what she -- she's loading up as
`Exhibit 5.
` A. Yes, I'm generally pretty careful to make
`sure that the -- the pdf that I print is the -- the
`served version of the report.
` Q. Do you want to double-check Exhibit 5 and
`confirm that is a copy of your report?
` A. Yes. Let me download it.
` VIDEO TECHNICIAN: Sharing Exhibit 5.
` (Document reviewed by the witness.)
` THE WITNESS: Yes, they're -- they're the
`same.
` But just so that it's clear, I didn't print
`out my CV and the materials considered in the -- the
`printed version.
`/ / /
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 4 of 10
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`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`62
`
`BY MR. WOLFF:
` Q. No worries. No worries.
` I'm -- I'm going to mostly stay away from
`that. Got it.
` So what I want to do is direct your
`attention to page 274 of Exhibit 5.
` (Technician complied.)
` THE WITNESS: Okay.
`BY MR. WOLFF:
` Q. And is it fair that for Claim 1 of the '154
`patent you give two grounds for why it's your opinion
`that the written-description requirement has not been
`satisfied; is that right?
` A. I believe that is correct, yes.
` Q. Okay. And in each of those sections, you
`conclude with a statement -- and I'll direct you to
`it -- about the scope of the claims.
` If you could turn to paragraph 662.
` (Technician complied.)
` THE WITNESS: Yes, I'm there.
`BY MR. WOLFF:
` Q. Okay. Now, is this a conditional
`written-description argument?
` Is that fair?
` (Document reviewed by the witness.)
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 5 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`63
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` THE WITNESS: I -- I think it's conditional
`in the context of what's set forth in 662, yes.
`BY MR. WOLFF:
` Q. And that is your opinion on 112, that if
`the claims covered the accused -- missed limitation
`in the accused products, then they failed the
`written-description requirement; correct?
` A. Could you repeat --
` MR. DOTSON: Object to the form.
` THE WITNESS: Could you repeat the
`question?
` MR. WOLFF: Could you read back the
`question, please -- strike that.
` I'll just ask the question again now that
`it's been cleared up.
` Is it fair that your position on whether
`this limitation satisfies the written-description
`requirement is conditional on whether the particular
`limitation you're analyzing covers the accused
`product?
` MR. DOTSON: Object to the form.
` THE WITNESS: I -- I think if the claims
`are interpreted to be broad enough to cover the
`accused products, then they would be invalid for
`failing to meet the written-description
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 6 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`64
`
`requirement.
`BY MR. WOLFF:
` Q. And in your noninfringement report, your
`position is that these limitations are not satisfied
`by the accused products; right?
` A. That's correct, for the reasons set forth
`in the noninfringement report.
` Q. So there's two different scopes of the
`claims here.
` There's your view of the scope of the
`claims, and there's Finjan's view of the scope of the
`claims.
` And under your view, you don't offer an
`opinion on written description; is that fair?
` A. Under what I believe to be the proper
`interpretation of the scope of the claims using the
`Court's claim construction, I do not offer
`written-description opinions that the -- would be
`invalid for failure to meet written description.
` Q. And that's true for both of the limitations
`in the '154 patent that you analyzed; correct?
` A. That's correct.
` Q. Is that also the case in the limitations
`you analyzed for the '844 patent?
` A. That is also correct.
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 7 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`65
`
` Q. Okay. Is your invalidity --
` (Technical difficulty in proceeding.)
` MR. DOTSON: Sorry. That broke up for me.
`I don't know if anybody else --
` COURT STENOGRAPHER: For me, too.
` MR. WOLFF: Let me strike that and start
`over.
`BY MR. WOLFF:
` Q. Could you turn to paragraph 524 of your
`report.
` Let me see if I can get a page number for
`you.
` (Technician complied.)
` THE WITNESS: I'm there. It's 216.
`BY MR. WOLFF:
` Q. All right. Thank you.
` So for this particular limitation, you're
`also analyzing this with respect to what you
`understand to be Finjan's scope of the claims; is
`that right?
` A. That is correct. This -- this particular
`limitation -- or this particular analysis is with
`respect to the obviousness and view of SWEEP and
`InterCheck.
` Q. Right. And so if the Court clarifies or
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 8 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`66
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`resolves some issue on the -- on the scope of the
`claims -- understanding the Court's already issued
`it's claim construction order -- your opinion on this
`particular reference and this particular combination
`is contingent upon whose scope is correct; is that
`fair?
` MR. DOTSON: Object to the form.
` THE WITNESS: This analysis is dependent on
`applying the scope of the claims as given by Finjan
`both in its infringement contentions and then, in
`this case, later supported by Dr. Cole.
`BY MR. WOLFF:
` Q. But you disagree with that scope of the
`claims; is that right?
` A. I do.
` Let -- let me say it this way: I don't
`believe that Dr. Cole or Finjan has identified any
`sort of substitute function that is the first
`function, and so what they have identified is just
`instances where there are functions.
` And so they appear to be, in this
`particular instance, ignoring the substitute function
`requirement of the Court's claim construction.
` And so they're interpreting it as broadly
`to mean "You have functions initially that are
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 9 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`67
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`executed, and then a second set of functions that are
`executed later," that that would be sufficient to
`meet the Court's construction.
` Then under that kind of interpretation,
`then I believe InterCheck and SWEEP would -- would do
`something similar to that, would -- would teach that
`same functionality.
` Q. So, again, it's conditional upon which
`scope of the claims is correct, this particular
`combination of references; right?
` A. The analysis in this particular section
`that you've pointed me to, which I think was
`paragraph 524, is for InterCheck and SWEEP, and it is
`predicated based on a claims scope used by Finjan in
`its infringement allegations.
` Q. Could you turn to paragraph 994 of your
`report -- I'm sorry.
` I want to make sure that that's right.
` A. I don't think that's right.
` Q. That's right, yeah.
` It's an old report here that you don't
`have, huh?
` Could I have the Reporter mark as Exhibit 6
`the document SonicWall-Finjan_01031983.
` VIDEO TECHNICIAN: Stand by.
`
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`Case 5:17-cv-04467-BLF Document 348-6 Filed 01/21/21 Page 10 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`68
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` (Technician complied.)
` (Whereupon, Defendant's Exhibit 6 was
` marked for identification.)
` COURT STENOGRAPHER: Exhibit 6 marked for
`the record.
` VIDEO TECHNICIAN: Sharing Exhibit 6.
`BY MR. WOLFF:
` Q. Do you recognize Exhibit 6?
` A. I have seen affidavits of Chris Butler
`before.
` As to Exhibit 6, I'd have to look through
`materials considered just to confirm that it was on
`the list.
` MR. WOLFF: Can I have the Reporter mark as
`Exhibit 7 the document SonicWall-Finjan-PA_00014847.
` VIDEO TECHNICIAN: Please stand by.
` (Technician complied.)
` (Whereupon, Defendant's Exhibit 7 was
` marked for identification.)
` COURT STENOGRAPHER: Exhibit 7 marked for
`the record.
` VIDEO TECHNICIAN: Sharing Exhibit 7.
`BY MR. WOLFF:
` Q. Do you recognize Exhibit 7?
` A. I do.
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