IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`Page 1
`
`VIRNETX, INC.
`
` -vs-
`
`APPLE, INC.
`
`)
`
`)
`
`DOCKET NO. 6:10cv417
`
`Tyler, Texas
`) 12:42 p.m.
`November 2, 2012
`
`TRANSCRIPT OF TRIAL
`AFTERNOON SESSION
`BEFORE THE HONORABLE LEONARD DAVIS,
` UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY
`
`A P P E A R A N C E S
`
`FOR THE PLAINTIFFS:
`
`MR. DOUGLAS CAWLEY
`MR. BRADLEY W. CALDWELL
`MR. JASON D. CASSADY
`MR. JOHN AUSTIN CURRY
`McKOOL SMITH
`300 Crescent Court, Ste. 1500
`Dallas, TX 75201
`
`COURT REPORTERS:
`
`MS. JUDITH WERLINGER
`MS. SHEA SLOAN
`shea_sloan@txed.uscourts.gov
`
`Proceedings taken by Machine Stenotype; transcript was
`produced by a Computer.
`
`Smartflash - Exhibit 2082
`Apple v. Smartflash
`CBM2015-00121
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`1
` P R O C E E D I N G S
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` (Jury out.)
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` COURT SECURITY OFFICER: All rise.
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` THE COURT: You may be seated while we
`5
`wait for the jury.
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` (Pause in proceedings.)
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` COURT SECURITY OFFICER: All rise for the
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`jury.
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` (Jury in.)
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` THE COURT: Please be seated.
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` All right. Ladies and Gentlemen, hope
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`you had a good lunch, and we're ready to go for this
`13
`afternoon.
`14
` Before we go back with the previous
`15
`witness, we have Dr. Weinstein back on the phone (sic).
`16
` We had a question from the jury, Dr.
`17 Weinstein, for you that I'd like for you to answer at
`18
`this time, and the question is: Why is VirnetX not
`19
`selling this product?
`20
` THE WITNESS: Yes, Your Honor. Thank
`21
`you.
`22
` My answer is: VirnetX is selling this
`23
`product. It has sold this product. It licensed its
`24
`product to Microsoft. It licensed its product to other
`25
`entities. We saw all those license agreements.
`Page 5
` Q. The products you're talking about right then
`are products that are made, manufactured, marketed, and
`sold by companies -- by Microsoft or Aastra, not by
`VirnetX. Correct?
` A. Right. And they are made and sold pursuant to
`the VirnetX license.
` Q. And the product that VirnetX has is called
`Gabriel. You heard that testimony?
` A. Yes, sir, I did.
` Q. And they have never sold Gabriel to anybody,
`correct?
` A. As far as I know, that's true.
` MR. ALBRITTON: Pass the witness, Your
`Honor.
` THE COURT: All right. Any follow-up?
` MR. CASSADY: Just a little bit, Your
`Honor.
` REDIRECT EXAMINATION
`BY MR. CASSADY:
` Q. Mr. Weinstein, why hasn't VirnetX sold
`Gabriel?
` A. Well, my understanding is that VirnetX has
`been heavily engaged in licensing its intellectual
`property to entities like Microsoft, and it's here to
`try and license its intellectual property to Apple, and
`
`2
`
`1
`FOR THE PLAINTIFF:
`2 MR. ROBERT M. PARKER
`MR. ROBERT CHRISTOPHER BUNT
`3
`PARKER BUNT & AINSWORTH
`100 East Ferguson, Ste. 1114
`4
`Tyler, TX 75702
`
`5678
`
`FOR THE DEFENDANT:
`
`9
`MR. DANNY L. WILLIAMS
`10 MR. TERRY D. MORGAN
`MR. RUBEN S. BAINS
`11 MR. CHRIS CRAVEY
`MR. MATT RODGERS
`12 MR. DREW KIM
`MR. SCOTT WOLOSON
`13 WILLIAMS, MORGAN & AMERSON, P.C.
`10333 Richmond, Ste. 1100
`14
`Houston, TX 77042
`15
`MR. ERIC ALBRITTON
`16 MR. STEPHEN E. EDWARDS
`MS. DEBRA COLEMAN
`17 MR. MATTHEW C. HARRIS
`ALBRITTON LAW FIRM
`18
`P.O. Box 2649
`Longview, TX 75606
`19
`20 MR. JOHN M. DESMARAIS
`MR. MICHAEL P. STADNICK
`21
`DESMARAIS, LLP - NEW YORK
`230 Park Avenue
`22
`New York, NY 10169
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`Page 4
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`So that's my -- that's my short answer, sir.
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` THE COURT: All right. Thank you.
`3
` Any follow-up questions from Plaintiff's
`4
`counsel?
`5
` MR. CASSADY: No, Your Honor.
`6
` THE COURT: All right.
`7
` From the Defendants' counsel?
`8
` MR. ALBRITTON: Yes. Thank you, Your
`9
`Honor.
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` ROY WEINSTEIN, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
`11
` RECROSS-EXAMINATION
`12
`BY MR. ALBRITTON:
`13
` Q. The products that you just referred to are not
`14
`VirnetX products; the products you're referring to are
`15
`products that are made, manufactured, marketed, and sold
`16
`by Microsoft or one of these other companies?
`17
` A. Actually, what I was referring to is VirnetX
`18
`patents, so I was referring to VirnetX products.
`19
` Q. The products that you're referencing, those
`20
`are not products that are manufactured and sold by
`21
`VirnetX, correct?
`22
` A. The products that are covered by the license
`23
`agreements are made and manufactured by others, but I
`24
`understood the question to involve VirnetX, and VirnetX
`25
`has been licensing its patents.
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`it's done so with respect to others.
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` So that's my general understanding. That's a
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`time-consuming process.
`4
` Q. Okay. And what about others in the
`5 marketplace would affect whether or not Gabriel could be
`6
`sold?
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` A. Well, the ability to sell Gabriel depends, at
`8
`least in part, on VirnetX's ability to protect its
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`intellectual property. If others are using its
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`intellectual property, it's going to make it difficult
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`for VirnetX to sell Gabriel or any other product that
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`involves that intellectual property until others have
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`taken a license.
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` Q. Okay.
`15
` MR. CASSADY: Thank you, Mr. Weinstein.
`16
` THE COURT: All right. Thank you.
`17
` Anything further?
`18
` MR. ALBRITTON: Yes, Your Honor.
`19
` RECROSS-EXAMINATION
`20
`BY MR. ALBRITTON:
`21
` Q. Now, Mr. Weinstein, you gave an expert report
`22
`in this case?
`23
` A. Yes, sir.
`24
` Q. And in that report, you said that VirnetX has
`25 met with representatives from Google, for instance, and
`Page 8
`JOHN KELLY, Ph.D., DEFENDANT'S WITNESS, PREVIOUSLY SWORN
` DIRECT EXAMINATION (CONTINUED)
`BY MR. WILLIAMS:
` Q. Good afternoon, Dr. Kelly.
` A. Good afternoon, Mr. Williams.
` Q. Now, where we left off was at the end of VPN
`On Demand. Before we jump right into FaceTime, I have a
`couple of questions I want to follow up with you on.
` With Apple's VPN On Demand function, would it
`be fair to say that the user can actually provide
`security in situations where the VirnetX technology
`would not provide security?
` A. Yes, I think that is fair.
` Q. And with sort of a -- but in what situation
`would that be, for example?
` A. Well, if you want to initiate a VPN, a secure
`connection to an unsecure website, you can't do that
`with the VirnetX patents, because it only will initiate
`a VPN for secure websites.
` But if you wanted to protect the
`communications, the anonymity, the privacy of the
`communications, you could set up a VPN to an unsecure
`website. So that's increased security in that
`situation.
` Q. Now, earlier I asked you if there would be
`
`Page 7
`1
`companies like Samsung and Motorola. Correct?
`2
` A. I said that, yes.
`3
` Q. Yes. Paragraph 139 on Page 47 of your report.
`4
` A. Okay.
`5
` Q. Those companies were approached by VirnetX
`6
`about these patents in this case, correct?
`7
` A. As far as I know.
`8
` Q. And VirnetX's technology, correct?
`9
` A. Yes, sir.
`10
` Q. And those companies have not incorporated
`11
`VirnetX's technology into any of its products, correct?
`12
` A. I don't know the answer to that.
`13
` Q. If they had, you would know that, wouldn't
`14
`you?
`15
` A. No. Actually, I don't think I would.
`16
` Q. Okay.
`17
` MR. ALBRITTON: Pass the witness.
`18
` THE COURT: Anything further?
`19
` MR. CASSADY: Nothing further.
`20
` THE COURT: All right. Thank you.
`21
` You may step down.
`22
` THE WITNESS: Thank you, sir.
`23
` THE COURT: All right, Mr. Williams. You
`24 may continue with your witness.
`25
` MR. WILLIAMS: Thank you, Your Honor.
`Page 9
`reasons why someone, a user, would, in fact, put a
`non-secure website into their configuration file for VPN
`On Demand. Right?
` A. Yes.
` Q. And are you aware of, in fact, someone who has
`put a non-secure website in their VPN On Demand file?
` A. Yes, I am.
` Q. Now, this is some testimony from Mr.
`Christophe Allie. Do you know who he is?
` A. Yes. He's an Apple engineer.
` Q. And Mr. Allie was one who basically
`designed -- he and a team member designed VPN On Demand,
`right?
` A. That's correct.
` Q. And what does Mr. Allie say? And starting, if
`we could, about almost halfway -- a little over halfway
`down where it says: Why don't you configure...
` Can you read that for us, questions and
`answers?
` A. Sure. He's being asked: Why don't you
`configure your VPN On Demand to trigger a VPN based on
`the host name ebay.com instead of using, say,
`web.apple.com?
` And the answer is: Sometimes I do.
` And the lawyer asking the question said:
`
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`Page 10
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`You do?
` Answer: Uh-huh.
` Question: And you actually configure
`your VPN On Demand to trigger a VPN to Apple's private
`network based on ebay.com?
` And his answer is: Sometimes I do.
` Q. Now, going beyond the unsecure name or
`non-secure name in the file, in some of your examples --
`one of your examples in particular, you used a made-up
`name, the notarealdomain.com name?
` A. I did.
` Q. Now, are you saying users will actually set up
`their files using a fake name?
` A. Well, you can't say exactly what users would
`do. Perhaps they would. But I'm not suggesting that
`that would be a routine occurrence.
` Q. Okay. Well, then what was the reason for
`using that illustration?
` A. Just to show how VPN On Demand actually works.
`It doesn't determine whether or not the website being
`requested is secure. A fake domain name can cause a VPN
`to be initiated.
` Q. Okay. Now, you're aware, aren't you,
`Dr. Kelly, that Dr. Jones says that the -- there are a
`number of different connection types that are used in
`Page 12
`
` A. That's correct.
` Q. You've heard that phrase batted around this
`courtroom a fair amount the last couple of days?
` A. I certainly have.
` Q. Now, you understand, right, that VirnetX and
`Dr. Jones say that Apple's FaceTime servers infringe two
`of their patents, namely, the '504 and '211 patents.
`Right?
` A. Yes. I know that they have alleged that.
` Q. Do you agree?
` A. I do not agree.
` Q. Now, I want to make sure that we're clear that
`what they're saying is that it's the Apple FaceTime
`servers that are infringing the patent. Is that
`correct?
` A. That's correct.
` Q. And the operation of those servers?
` A. Yes, that's correct.
` Q. Now, Dr. Jones is not saying that it's the
`Apple iPhones or the iPods or the iPads that themselves
`are actually infringing these two patents. Isn't that
`right?
` A. That is correct.
` Q. Nevertheless, you heard Mr. Weinstein, their
`damages expert, on the stand yesterday. Right?
`
`Page 11
`1
`the VPN On Demand feature with the Apple products.
`2
`Right?
`3
` A. Yes, I am.
`4
` Q. And in particular, he lists -- listed on the
`5
`stand Cisco AnyConnect, Juniper SSL, F5 SSL, SonicWALL
`6 Mobile Connect, and Aruba VIA as connections that are
`7
`used with the Apple iPhone that he says uses VirnetX
`8
`patents. Is that correct?
`9
` A. Yes.
`10
` Q. Do you agree with that?
`11
` A. I do not agree with that.
`12
` Q. Why not?
`13
` A. Well, for all the same reasons that I
`14
`discussed with respect to the Cisco IPsec, which was the
`15
`one we were talking about before. And those same
`16
`reasons apply to all of these other connection types as
`17
`well.
`18
` Q. Now, what I'd like to do is, I'd like to move
`19
`on to the FaceTime feature. All right?
`20
` Now, this is a different feature. It's
`21
`completely separate from VPN On Demand, right?
`22
` A. Yes, it is.
`23
` Q. Okay. Now, this is the feature in the Apple
`24
`products that -- when we discussed this notion of direct
`25
`communication, right?
`
`Page 13
`
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` A. I was here. I heard him.
`2
` Q. And you heard him calculate damages based on
`3
`iPhone and iPod and iPad, right, including for the
`4
`FaceTime patents. Right?
`5
` A. Yes, he did.
`6
` Q. Okay. So there's no misunderstanding, VirnetX
`7
`is actually not saying that those devices infringe;
`8
`they're saying it's the Apple servers that are back up
`9
`in the corner. Right?
`10
` A. That is correct.
`11
` Q. Now, why do you disagree with Dr. Jones'
`12
`opinion that the Apple FaceTime servers and their
`13
`operation infringe these two VirnetX patents?
`14
` A. The VirnetX patents require direct
`15
`communication, and there is no direct communication in
`16
`Apple's FaceTime.
`17
` Q. Now, Dr. Kelly, I want to use an analogy that
`18 may help us understand what it means to have direct
`19
`communication.
`20
` And, by the way, the direct communication
`21
`language comes from His Honor, Judge Davis. Correct?
`22
` A. Yes, it does.
`23
` Q. Okay. So Judge Davis has told us -- and I
`24
`think we will see this shortly -- that the secure
`25
`communication link that the VirnetX technology is
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`Page 14
`supposed to support is this secure communication link,
`and it must have a direct communication between the
`devices. Right?
` A. That is correct, yes.
` Q. So the direct communication that we're looking
`at in the FaceTime context is the communication between
`the two FaceTiming devices, for example, two iPhones.
`Is that correct?
` A. That's correct.
` Q. And I think we all agree in the courtroom that
`the connections can be made in two -- at least two
`different ways, right, the two ways we've talked about?
` A. Right.
` Q. One is referred to sometimes as a peer-to-peer
`connection.
` A. Correct.
` Q. And the other is sometimes referred to as the
`relay connection?
` A. That's correct.
` Q. And we all agree, I believe, as Dr. Jones told
`us yesterday, that the connection through the relays,
`when the -- when the FaceTime calls are routed through
`the relays, that that's not infringing VirnetX's
`patents. Correct?
` A. Yes, that's correct.
`
`Page 16
` So that's the scenario that's an analogy of
`the indirect addressing.
` Q. (By Mr. Williams) So because, although the
`card was intended for the niece and ultimately got
`there, but because it was actually in an envelope
`addressed to the sister and it didn't even have the
`niece's address, that's indirect communication. Is that
`correct?
` A. Correct.
` Q. Now, how does the analogy apply to direct
`communication?
` A. Well, in that case, you'd have direct
`addressing. So it's a direct communication from the man
`to the niece.
` Now, it may well be that the man sends an
`envelope to the sister.
` THE WITNESS: Let's proceed.
` A. But then when you open this up, you see that
`there is a letter inside it, and that letter is indeed
`directly addressed to the niece. So it's got the
`niece's address on it.
` Q. (By Mr. Williams) So in this case, there was
`direct communication with her, because he directly
`addressed that to her, notwithstanding that it went
`through some intermediary. Is that correct?
`
`Page 15
`1
` Q. So the fight that we have going on here is
`2
`about the connection -- the NAT-to-NAT or peer-to-peer
`3
`connection. Is that right?
`4
` A. Correct.
`5
` Q. Okay. Now, let's look at this analogy, and I
`6
`want to ask you, generally, can you describe this
`7
`analogy?
`8
` A. Certainly. The idea here is that there is a
`9 man who wants to address a letter or a card to his
`10
`niece, wants to deliver something to his niece; and what
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`he's going to do is, he's going to send it first to his
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`sister. And there are two possible ways of doing this.
`13
` THE WITNESS: Let's back up just for a
`14 moment.
`15
` A. The first way is what we'll call indirect
`16
`addressing. And in this scenario, the man addresses an
`17
`envelope to his sister.
`18
` THE WITNESS: Continue, please.
`19
` A. And then his sister opens this, and there is a
`20
`letter inside that for his niece, but there's no address
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`on that. It's not addressed to his niece.
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` So his sister is going to deliver it to the
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`niece. That's indirect. It's intended for the niece.
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`It's going to get to the niece. But the niece's address
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`is not on the letter.
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`Page 17
`
` A. Correct.
` Q. Okay. Now, how does this analogy apply to the
`FaceTime communications?
` A. Well, we can consider simply that the man is
`one iPhone, say, and the niece is the other iPhone.
` And the question is: Does the -- does the
`FaceTime call go -- is it a direct communication with
`the niece, or does it go through some intermediary that
`causes it to be indirect communication?
` And we'll -- we'll -- in this example, the
`sister is the NAT that we've been talking about.
` Q. Now, before we go further, let me ask you,
`have you seen anything from Dr. Jones where he's --
`pardon me -- where he's commented on this direct
`communication, what it refers to?
` A. Yes. In his expert report --
` MR. WILLIAMS: 39.
` A. -- he told us that directly -- that's the
`directly in direct communication -- refers to direct
`addressability.
` Q. (By Mr. Williams) Okay. And do you agree with
`that?
` A. I do.
` Q. Well, let's look specifically at how
`communications in the FaceTime situation are
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`Page 18
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`communicated or addressed.
` And can you use Mr. Gates' illustration that
`we saw him talk about this morning to explain how the
`communications in FaceTime are indirect communication?
` A. Yes, I can.
` This is a situation in which -- we've seen
`this one already -- there's a black iPhone that's going
`to -- there's going to be a FaceTime call between the
`black iPhone and the white iPhone; and that's why you
`see the picture of the woman on the left and the picture
`of the man on the right.
` The idea here is that the packets of
`information -- these are IP packets -- that leave the
`black iPhone are addressed to the red NAT. They are not
`addressed to the white iPhone.
` So you can see that the -- each packet has an
`address and a payload. That's the information in the
`packet. And these packets that come from the black
`iPhone go to the red NAT, and they have the address of
`the red NAT on them.
` Q. What happens to the packets and the address
`when they get to the NAT 2?
` A. The NAT 2 does network address translation.
`It changes the address. And you can see that it
`re-addresses the packet -- we'll blow it up here. It
`Page 20
`
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`it's a private IP address.
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` Similarly, the white iPhone's address can't be
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`handled out between NAT 1 and NAT 2. That's the nature
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`of this type of communication.
`5
` And that's exactly what the network address
`6
`translator is doing. It's -- it's allowing -- it's
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`compensating for the fact that the address of the black
`8
`iPhone cannot be sent between NAT 1 and NAT 2.
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` Q. Now, looking at this picture we have in front
`10
`of us right now where the white iPhone is sending
`11
`packets to the black iPhone, what would happen if the
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`white iPhone sent its packet -- the one we see on the
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`right blown up -- but instead of having the NAT 1
`14
`address in there, it had the black iPhone address in it?
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` What would happen to that packet?
`16
` A. Well, the packet would -- would get to the NAT
`17
`2 on the way out, and it wouldn't know what to do with
`18
`it. So it couldn't be sent. It wouldn't get anywhere
`19
`in the Internet.
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` Q. And why would the NAT not know what to do?
`21 Why is it that the Internet wouldn't know what to do
`22
`with this packet?
`23
` A. Because the -- the black iPhone address is
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`what's called a private address, and that private
`25
`address can't be moved around on the Internet. We call
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`Page 19
`comes in with the red NAT 2 address, and it goes out
`with the white iPhone address. It's been re-addressed.
` Q. Now, how does the -- how does it get from the
`white iPhone to the black iPhone? In like manner?
` A. In very like manner, yes. It's just going
`back in the other direction.
` In that direction, the packets from the white
`iPhone are addressed to the blue NAT. They're not
`addressed to the black iPhone. They're addressed to the
`blue NAT.
` And the blue NAT takes that packet -- and
`you'll see here in the animation, it takes the blue NAT
`address, and it replaces it, it re-addresses it with the
`black iPhone's address.
` Q. And each packet that comes down the trail in
`that direction undergoes the same change as the NAT 1?
` A. Yes, it does.
` Q. Well, why can't the black iPhone address the
`packets directly to the white iPhone and vice versa;
`that is, the white iPhone directly addresses packets to
`the black iPhone?
` A. The black iPhone's address is not routable.
`It's not -- it doesn't make sense on the Internet.
`Between NAT 1 and NAT 2, that communication link can't
`handle the IP address that the black iPhone has because
`Page 21
`that routing. It can't be routed from -- from one
`device to another out on the Internet.
` Q. So does this mean that the white iPhone cannot
`directly communicate or communicate directly, either
`way, with the black iPhone?
` A. Yes, it does.
` Q. And does it also mean that the black iPhone
`cannot communicate directly with the white iPhone?
` A. Yes, it does.
` Q. Now, you mentioned this a while ago, but I
`want to talk about this a minute.
` What does N-A-T stand for?
` A. Network address translation.
` Q. And so is this a name like lawnmower that
`is -- the name tells us what the thing does?
` A. Exactly.
` Q. So what does a NAT do?
` A. It translates addresses. And what type of
`addresses? They're network addresses. And it's going
`to translate these IP network addresses from one IP
`address to another IP address. One of them is the
`address of the NAT, and the other is the address of the
`iPhone.
` MR. WILLIAMS: Now, Mr. Sadowitz, could
`we move back to that previous slide? I want to see the
`
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`Page 22
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`Page 23
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`blown-up packets. Okay. Here we go.
` Q. (By Mr. Williams) I want to take a look at --
`I want to take a closer look at the NAT and then have
`you explain to the jury how it is that this -- these
`addresses are changed when you're coming from the
`Internet into the private network where the iPhone is.
` A. Yes. The -- the packet here coming in,
`this -- this -- it has the payload. It's got the
`address, NAT 2. It's actually -- it's actually the
`address of the NAT itself.
` So the packet arrives at the NAT because it's
`addressed to the NAT. And then what the network address
`translator does is takes that address and replaces it
`with the white iPhone address and then sends it on to
`the white iPhone.
` Q. Okay. Well, does it work the same way in the
`other direction?
` A. Yes, it does.
` Q. Explain to us how that works.
` A. Well, again, the packets coming in -- these IP
`packets coming in have the address on -- the address on
`the packet is, in fact, the address of the NAT.
` And then the NAT takes its own address out and
`puts the black iPhone address in, it re-addresses the
`packet, and then sends it on to the -- to the black
`Page 24
`iPhone cannot use -- cannot put the other iPhone's
`address on the packet. Right?
` A. That's correct.
` Q. So that's different from the -- from the
`direct communication.
` A. It is.
` Q. Now, I understand that FaceTime doesn't use
`the direct communication, but why is that important in
`this case?
` A. It's important because all of the claims of
`the patents that VirnetX is alleging Apple is using
`require direct communication.
` Q. Okay.
` MR. WILLIAMS: Let's look at Slide 50, if
`we could.
` Q. (By Mr. Williams) Now, this slide shows Claim
`1 of VirnetX's '504 patent. Can you show me where it is
`that requires -- or that direct communication is
`required?
` A. Sure. The -- the words of the claim include a
`secure communication link. And now, Judge Davis has
`told us what a secure communication link means, and,
`that is, a direct communication link that provides data
`security.
` So in order to meet this claim, you need a
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`iPhone.
` Q. Now, can you apply the mail analogy that we
`started off with to the FaceTime communication?
` A. Yes.
` Q. Please do that.
` A. The -- what's -- what's happening here is, you
`can think of this as the letter is being sent from one
`of the iPhone devices. That's the man. And the man
`wants to send a letter to the -- this -- this woman
`here, would be the niece, and NAT 2 would be the sister.
` So what he's doing is, he can't address the
`letter directly to the niece, so he has to address it to
`his sister, NAT 2, instead. And his sister then will
`deliver it to the niece.
` Q. All right. So this is a situation where
`the -- he cannot use the niece's address, so he sends it
`to his sister. That's -- who delivers it to the niece.
`That's indirect communication.
` A. That is indirect communication, because the
`niece's address is not on that -- that letter.
` Q. Now, in the analogy, we had a situation of
`direct communication where the -- the letter to the
`niece actually had her address on it. Right?
` A. Correct.
` Q. And you're saying, in this situation, one
`Page 25
`secure communication link; and in order to have a secure
`communication link, you must have a direct communication
`link that provides data security.
` Q. Now, Judge Davis, I believe, then construed
`later -- said why -- he provided more information about
`the secure communication link, and he says that the data
`security is through encryption. Right?
` A. Through encryption, correct.
` Q. But that part of the -- of his definition is
`not what we're focused on at this point, correct?
` A. Correct. We are focusing on the direct
`communication link.
` Q. The direct communication link.
` Well, where does -- we've talked about
`addresses changing. Where does that -- that concept
`come from?
` A. Well, if we -- if we look at, for example, Dr.
`Jones' expert report on the next slide, this is one in
`which he says: The word directly refers to direct
`addressability.
` Q. Okay.
` A. So in order to have direct communications, we
`require direct addressability.
` Q. And there's no dispute about that in this
`case?
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`Page 26
`
` A. Correct.
` Q. We all agree, then, direct communication
`refers to direct addressability, right?
` A. Yes.
` Q. So where the claims of the '504 and '211
`patents talk about a secure communication link that must
`be supported, one of the requirements of that is that it
`be a direct communication link. Correct?
` A. That's correct.
` Q. Now, Mr. Gates mentioned in his testimony
`earlier that there are two different types of
`connections that can be set up, and I referenced that
`earlier. Right?
` A. Yes, indeed.
` Q. One we've been referring to from time to time
`is the peer-to-peer connection, which is the one that
`we've been showing in some of these illustrations.
`Right?
` A. That's right.
` Q. And the other is through the relay servers?
` A. That's right.
` Q. Now, again, there's -- there's no disagreement
`on the relay server connection, that there's
`non-infringement -- there's no infringement by FaceTime
`when they use the relay servers. Correct?
`
`Page 28
`communication or direct addressing, does the relay
`server perform when it's involved in this connection?
` A. Well, what it's going to do is, just like the
`NATs, it's going to readdress the IP packets. It's
`going to take one address out, and it's going to put
`another one in. And this is what I'm showing here.
` Now, the black iPhone wants to ultimately
`communicate with the white iPhone, and what it does is
`it sends its packets addressed to the green relay
`server, and that's the first one up on top here. It
`says the address is the address of the relay.
` The relay server changes, takes that address
`out, the green address out, re-addresses it to the red
`NAT 2, and that sends the packet on to NAT 2 with the
`red address, and then NAT 2 does what we've already
`seen.
` It takes the red -- its own red NAT 2 address
`out, and it puts the address of the iPhone and sends it
`out. So there's re-addressing occurring in the relay
`server and in the red NAT in this direction.
` Q. All right. So in a situation where NAT 1
`can't talk to NAT 2 and vice versa -- obvious situation
`where two people are not talking, right -- then NAT 1
`instead will just say send it to relay server and say
`this needs to go to NAT 2. Right?
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` A. That's correct. We've all agreed to that.
` Q. Okay. Now, FaceTime can use either type of
`connection, right?
` A. It can.
` Q. Okay. Now, I'd like to talk about the relay
`server connection just a little bit so that we can
`better understand the peer-to-peer connection. Is that
`all right?
` A. That would be fine, yes.
` Q. Okay. So we're going to start with the
`scenario -- that everyone agrees -- does not use
`VirnetX's technology.
` I'd like to take a look at an animation and
`have you explain to us how it is that the relay servers
`work with respect to this notion of direct communication
`or direct addressability.
` A. Yes.
` Q. Now, first of all, why would a relay server --
`can you give us an example of why the relay server would
`become involved in the first place?
` A. Well, sometimes the two NATs can't talk to
`each other without going through a relay server. Some
`NATs can, and some NATs can't. So in the case that they
`can't, you require a relay server.
` Q. Now, what function, in terms of direct
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` A. Yes.
`2
` Q. Okay. So then it will do this re-addressing.
`3
`So this is an example that we all agree is not direct
`4
`communication. Right?
`5
` A. Correct.
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` Q. Okay. And that's why it would not infringe,
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`right, not direct communication?
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` A. Correct