Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 1 of 10
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 1 of 10
`
`EXHIBIT 5
`
`EXHIBIT 5
`
`
`
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 1 of 10
`
`EXHIBIT 5
`
`EXHIBIT 5
`
`
`
`
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 2 of 10
`
` 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)
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:27:18
`09:27:21
`09:27:26
`09:27:26
`09:27:26
`09:27:31
`09:27:32
`09:27:36
`09:27:36
`09:27:38
`09:27:41
`09:27:43
`09:27:46
`09:27:50
`09:27:56
`09:27:59
`09:28:01
`09:28:07
`09:28:25
`09:28:25
`09:28:27
`09:28:27
`09:28:30
`09:28:33
`09:28:36
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 3 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`61
`
` 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.
`/ / /
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:28:36
`09:28:36
`09:28:39
`09:28:41
`09:28:48
`09:28:49
`09:29:04
`09:29:04
`09:29:04
`09:29:04
`09:29:10
`09:29:15
`09:29:20
`09:29:23
`09:29:26
`09:29:34
`09:29:42
`09:29:48
`09:29:53
`09:29:53
`09:29:54
`09:29:54
`09:29:57
`09:30:00
`09:30:10
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 4 of 10
`
`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.)
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:30:10
`09:30:11
`09:30:14
`09:30:14
`09:30:19
`09:30:22
`09:30:27
`09:30:30
`09:30:31
`09:30:31
`09:30:32
`09:30:34
`09:30:35
`09:31:16
`09:31:17
`09:31:19
`09:31:20
`09:31:22
`09:31:27
`09:31:32
`09:31:32
`09:31:49
`09:31:50
`09:31:53
`09:31:56
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 5 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`63
`
` 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
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:31:59
`09:32:00
`09:32:00
`09:32:02
`09:32:08
`09:32:15
`09:32:17
`09:32:21
`09:32:24
`09:32:25
`09:32:25
`09:32:27
`09:32:29
`09:32:31
`09:32:38
`09:32:39
`09:32:42
`09:32:48
`09:32:52
`09:32:55
`09:32:58
`09:33:01
`09:33:02
`09:33:05
`09:33:08
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 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.
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:33:11
`09:33:39
`09:33:39
`09:33:40
`09:33:44
`09:33:45
`09:33:46
`09:33:47
`09:33:47
`09:33:50
`09:33:51
`09:33:53
`09:34:02
`09:34:02
`09:34:03
`09:34:03
`09:34:16
`09:34:18
`09:34:28
`09:34:32
`09:34:33
`09:34:38
`09:34:40
`09:34:46
`09:34:47
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 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
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:34:58
`09:35:00
`09:35:02
`09:35:06
`09:35:09
`09:35:17
`09:35:19
`09:35:25
`09:35:28
`09:35:32
`09:35:35
`09:35:42
`09:35:42
`09:35:47
`09:35:49
`09:35:57
`09:35:59
`09:36:09
`09:36:11
`09:36:20
`09:36:22
`09:36:24
`09:36:26
`09:36:28
`09:36:32
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 8 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`66
`
`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
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:36:36
`09:36:40
`09:36:44
`09:36:46
`09:36:50
`09:36:53
`09:36:56
`09:36:57
`09:37:04
`09:37:10
`09:37:11
`09:37:13
`09:37:17
`09:37:21
`09:37:26
`09:38:16
`09:38:19
`09:38:19
`09:38:20
`09:38:22
`09:38:25
`09:38:25
`09:38:56
`09:38:58
`09:39:12
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 9 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`67
`
`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.
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`09:39:18
`09:40:04
`09:40:04
`09:40:05
`09:40:05
`09:40:05
`09:40:08
`09:40:08
`09:40:09
`09:40:12
`09:40:14
`09:40:16
`09:40:19
`09:41:02
`09:41:04
`09:41:22
`09:41:22
`09:41:22
`09:41:22
`09:41:22
`09:41:22
`09:42:06
`09:42:08
`09:42:08
`09:42:09
`
`Case 5:17-cv-04467-BLF Document 375-5 Filed 03/04/21 Page 10 of 10
`
`Transcript of Kevin Almeroth, Ph.D.
`Conducted on October 20, 2020
`
`68
`
` (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.
`
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
