PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`C1ark,Ph.D., D0ug1as W. - V01. I
`July 10, 2013
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD IN THE
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`TRIAL NOS.:
`
`IPR 2013—00082 through 2013—00087
`
`PATENT NOS.:
`
`5,978,791;
`
`6,415,280;
`
`7,945,544;
`
`7,945,539;
`
`7,949,662;
`
`8,001,096
`
`PATENT OWNERS:
`
`PERSONALWEB TECHNOLOGIES, LLC
`
`& LEVEL 3 COMMUNICATIONS
`
`PETITIONER:
`
`EMC CORPORATION & VMWARE,
`
`INC.
`
`INVENTOR:
`
`DAVID A. FARBER and RONALD D. LACHMAN
`
`
`
`DEPOSITION OF
`
`DOUGLAS W. CLARK, PH.D.
`
`July 10, 2013
`
`9:10 a.m.
`
`Wilmer Cutler Pickering Hale And Dorr LLP
`
`60 State Street
`
`Boston, Massachusetts
`
`Reporter: Rosemary F. Grogan, RPR, CSR No. 112993
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonle g
`
`
`C1ark,Ph.D., D0ug1as W. - V01. I
`July 10, 2013
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD IN THE
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`TRIAL NOS.:
`
`IPR 2013—00082 through 2013—00087
`
`PATENT NOS.:
`
`5,978,791;
`
`6,415,280;
`
`7,945,544;
`
`7,945,539;
`
`7,949,662;
`
`8,001,096
`
`PATENT OWNERS:
`
`PERSONALWEB TECHNOLOGIES, LLC
`
`& LEVEL 3 COMMUNICATIONS
`
`PETITIONER:
`
`EMC CORPORATION & VMWARE,
`
`INC.
`
`INVENTOR:
`
`DAVID A. FARBER and RONALD D. LACHMAN
`
`
`
`DEPOSITION OF
`
`DOUGLAS W. CLARK, PH.D.
`
`July 10, 2013
`
`9:10 a.m.
`
`Wilmer Cutler Pickering Hale And Dorr LLP
`
`60 State Street
`
`Boston, Massachusetts
`
`Reporter: Rosemary F. Grogan, RPR, CSR No. 112993
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonle g
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. I
`July 10, 2013
`
`APPEARANCES
`
`On Behalf of the PATENT OWNER:
`
`By:
`
`Joseph A. Rhea, Esquire
`
`NIXON & VANDERHYE, P.C.
`
`901 N. Glebe Road
`
`Arlington, VA
`
`22203
`
`703~816—4043
`
`jar@nixonvan.com
`
`On Behalf of EMC CORPORATION and VMHARE,
`
`INC.:
`
`By: Cynthia D. Vreeland, Esquire
`
`By: Peter M. Dichiara, Esquire
`
`By: Tyler Lacer, Esquire (afternoon session)
`
`WILMER CUTLER PICKERING HALE AND DORR LLP
`
`William Clark, Esquire, EMC Corporation
`
`60 State Street
`
`Boston, MA
`
`02109
`
`617—526—6000
`
`cynthia.vreeland@wilmerhale.com
`
`peter.dichiara@wilmerhale.Com
`
`tyler.lacey@wilmerhale.com
`
`Also present:
`
`202~220~415 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. 1
`July 10, 2013
`
`INDEX OF EXAMINATION
`
`WITNESS: DOUGLAS W. CLARK, PH.D.
`
`CROSS-EXAMINATION
`
`By Mr. Rhoa
`
`PAGE NO.
`
`5
`
`ZIP File Format(PKWARE)
`
`
`
`INDEX TO EXHIBITS
`
`EMC NUMBER
`
`DESCRIPTION
`
`PAGE NO.
`
`Exhibit 1001
`
`U.S. Patent No. 8,001,096 B2
`
`Exhibit 1004
`
`FWKCS(TM) Contents_signature
`
`49
`
`48
`
`System, Version 1.22
`
`1993 August 10 — Kantor
`
`Exhibit
`
`U.S. Patent NO. 5,649,196
`
`Exhibit
`
`Declaration of Douglas W.
`
`Clark, Ph.D.
`
`Exhibit
`
`Coda: A Highly Available File
`
`System for a Distributed
`
`Workstation Environment
`
`Satyanarayanan, et a1.
`
`Exhibit
`
`Exhibit H—54
`
`— Invalidity of
`
`U.S. Patent No. 8,001,096 over
`
`Kantor, et a1.
`
`Exhibit
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc,
`wwwhendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - V01. 1
`July 10, 2013
`
`INDEX TO EXHIBITS
`
`EMCVMW NUMBER
`
`DESCRIPTION
`
`PAGE NO.
`
`Exhibit lOOl
`
`U.S. Patent NO. 5,978,791
`
`Exhibit 1003
`
`Email 8/7/91 from Langer
`
`Exhibit 1009 Declaration of Douglas W.
`
`133
`
`179
`
`133
`
`
`
`Clark, Ph.D.
`
`202—220—4 l 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalserviees.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. I
`July 10, 2013
`
`DOUGLAS W. CLARK, PH.D., having been
`
`satisfactorily identified by the production of a
`
`driver's license, and duly sworn by the Notary Public,
`
`was examined and testified as follows:
`
`CROSS—EXAMINATION
`
`BY MR. RHOA:
`
`Q.
`
`Please state your name and address for the
`
`How long have you held that position?
`
`A.
`
`I'm Douglas Clark.
`
`I live at 2215 St. James
`
`Place in Philadelphia.
`
`Q.
`
`A.
`
`Date of birth?
`
`October 26, 1950.
`
`Are you currently employed?
`
`Yes.
`
`By whom?
`
`Princeton University.
`
`How long have you been employed at Princeton?
`
`Just over 20 years.
`
`What‘s your current job?
`
`Professor of computer science.
`
`202—220-4 15 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. ~ V01. 1
`July 10, 2013
`
`The same, 20 —- a little more than 20 years.
`
`How many classes do you teach?
`
`It's the Ivy league.
`
`It's fairly relaxed, one
`
`programming.
`
`How many days a week are you teaching?
`
`Two or three.
`
`What
`
`types of classes are you teaching?
`
`A.
`
`I have -— I'm currently teaching a large
`
`freshman lecture.
`
`I have taught sections of that same
`
`class.
`
`I have taught, recently, computer architecture.
`
`And slightly less recently, a course on the great papers
`
`of computer science.
`
`And if we go back 20 years,
`
`there are a
`
`number of others.
`
`Q.
`
`What
`
`types of technologies do the classes that
`
`you teach involve?
`
`A.
`
`The freshman course is a general introduction
`
`to the field.
`
`It is mainly programming, but we touch on
`
`hardware. We touch on software engineering;
`
`theory of
`
`computer science;
`
`tiny bit of artificial intelligence.
`
`We try to give them a broad exposure not just
`
`202-220—4158
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.Com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`C1ark, Ph.D., Douglas W. — V01. 1
`Ju1y 10, 2013
`
`Some schools have their first course.
`
`That's not what we do.
`
`Q.
`
`Do any of your classes relate to database
`
`processing?
`
`A.
`
`I would say we touch on that in the freshman
`
`course, but not much.
`
`Q.
`
`Have you taught any classes related to
`
`database processing?
`
`A.
`
`In the great papers class, we did for a time
`
`have the classic CODD paper, C-O-D—D. And that's the
`
`closest I can think of.
`
`Q.
`
`Have you ever taught any classes that relate
`
`to file processing?
`
`A.
`
`Not completely sure what you mean by "file
`
`processing," but I think no is a fair answer.
`
`Q.
`
`And what would be your understanding of "file
`
`processing” when you answered that question?
`
`A.
`
`Actually,
`
`I -— I didn‘t have a definition in
`
`I went to Yale, and then to Carnegie—Mellon
`
`Q.
`
`Can you describe your educational background
`
`starting with undergraduate college?
`
`A.
`
`202—2204 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.corn
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. I
`July 10, 2013
`
`8
`
`for Ph.D.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`What did you get your undergrad degree in?
`
`Computer science.
`
`Did you get a degree at Carnegie—Mellon?
`
`Yes.
`
`What was that degree?
`
`I beg your pardon?
`
`I got my Ph.D. degree at
`
`Carnegie—Mellon in computer science.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Did you do a thesis?
`
`Yes.
`
`What was that thesis on?
`
`It was on LISP.
`
`It was called List Structures
`
`l
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`l3 Measurements, Algorithms, and Encodings.
`
`Q.
`
`A.
`
`How do you spell that?
`
`The language is LISP, L—I—S—P, which was a
`
`list processing. And...
`
`Q.
`
`A.
`
`Q.
`
`Is that it a programming language?
`
`That's a programming language.
`
`What year did you get your undergrad degree
`
`and your Ph.D.?
`
`A.
`
`Q.
`
`Undergrad in '72; Ph.D.
`
`in '76.
`
`Do you have any other degrees?
`
`
`
`L4
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`wwwhendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. 1
`July 10, 2013
`
`A.
`
`No.
`
`9
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`’
`
`them?
`
`You don‘t have a law degree, right?
`
`No.
`
`Have you ever taken any law classes?
`
`No.
`
`Do you have any patents?
`
`No.
`
`Have you ever applied for a patent?
`
`Yes.
`
`How many?
`
`Two.
`
`Are they still pending? What happened to
`
`A.
`
`It was when I was working for Digital
`
`Equipment Corporation in the 1980s, and there was a
`
`flurry of patent filing just before the product was
`
`announced.
`
`I think that's what happened.
`
`And I was a named inventor on two of them
`
`and I don't know what happened with them.
`
`Q.
`
`Can you identify all the places you've been
`
`employed since you've got your degrees?
`
`A.
`
`Yes.
`
`l
`
`2
`
`3
`
`4
`
`5
`
`5
`
`7
`
`8
`
`9
`
`l0
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`202~220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. 1
`July 10, 2013
`
`10
`
`MS. VREELAND: Objection.
`
`A.
`
`Employed full—time?
`
`So you mean, for example,
`
`you want to hear about summer
`
`jobs?
`
`Q.
`
`If they're related to computer science, yes.
`
`If not, no.
`
`MS. VREELAND: Objection to form.
`
`A.
`
`Okay.
`
`So in college,
`
`the summer
`
`jobs included
`
`would like to introduce Exhibit EMC 1009.
`
`working at a laboratory in St. Louis at Washington
`
`University, where I programmed minicomputers. And I
`
`think that's two summers. Another summer I went to
`
`England and worked at a hospital for programming
`
`minicomputers.
`
`My other summer employment, my relevant
`
`other summer employment, would be at a place I went to
`
`work after getting my Ph.D. which was at Xerox Park.
`
`I
`
`was there for a few summers in graduate school, and then
`
`they hired me.
`
`So that was my first employer, Xerox
`
`Palo Alto Research Center. That was for four years.
`
`Then I left to go to Digital Equipment
`
`Corporation.
`
`Q.
`
`Tell you what,
`
`let me out you off there.
`
`I
`
`202—220—4 l 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.Com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. 1
`July 10, 2013
`
`(Exhibit No. 1009 marked for identification)
`
`BY MR. RHOA:
`
`Do you have Exhibit EMC 1009 in front of you?
`
`Yes.
`
`What is this?
`
`This is...
`
`Yes.
`
`(Witness reviewing)
`
`My declaration in the '096 IPR, unless it's a
`
`of them stapled together.
`
`Is this your declaration in the IPR relating
`
`
`
`'096 patent?
`
`Yes.
`
`Is that your signature on page 60?
`
`Yes.
`
`Behind your signature,
`
`there’s an appendix.
`
`see that?
`
`Yes.
`
`Is that, basically, your resume?
`
`A.
`
`Yes.
`
`Q.
`
`Is that resume true and accurate, as you sit
`
`here today?
`
`A.
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. I
`July 10, 2013
`
`12
`
`Q.
`
`So there's an employment section that begins
`
`on the first page of your resume, right?
`
`A.
`
`Yes.
`
`Q.
`
`Since you got your undergrad degree, have you
`
`been employed by anyone that is not identified here on
`
`the front page of your resume?
`
`A.
`
`Q.
`
`Since undergrad? No.
`
`Have you been employed continuously at
`
`Princeton since 1993?
`
`architecture, about the VAX systems.
`
`A.
`
`Yes.
`
`I went to go back and correct a tiny
`
`misimpression I may have given you.
`
`Some of these
`
`people didn't pay me.
`
`So when I was on sabbatical, for
`
`example, at Penn in the spring of 2003,
`
`I was still
`
`being paid by Princeton.
`
`I had an office and worked at
`
`Penn.
`
`And similarly, when I had a sabbatical at
`
`Harvard from Digital, Digital was still paying me.
`
`I
`
`was just teaching a course at Harvard.
`
`Q.
`
`When you were at Digital, between 1980 and
`
`1982, what
`
`type of work did you do?
`
`A.
`
`'80 and '82 was architecture, computer
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.henderson1egalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. 1
`July 10, 2013
`
`A.
`
`V—A-X.
`
`How do you spell that?
`
`Q.
`
`Same stuff for your entire tenure at Digital
`
`Equipment?
`
`A.
`
`No. Digital moved from the VAX architecture
`
`to the Alpha architecture. That happened in the early
`
`1990's, and I moved with that.
`
`I mean,
`
`I moved to
`
`working on Alphas instead of VAXes.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`20
`
`In the early '80s or the early '90s?
`
`In the early '903.
`
`When did you stop working for Digital?
`
`In '93.
`
`And did you begin to teach classes any place
`
`while you were employed at Digital?
`
`A.
`
`Yes,
`
`I was -~ in '90,
`
`'91, it was like a
`
`reverse sabbatical.
`
`I took a sabbatical at a university
`
`and taught a computer architecture class there.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`At Harvard?
`
`At Harvard.
`
`How many classes?
`
`One.
`
`Q.
`
`Was that a one—semester course?
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`
`
`18
`
`19
`
`2O
`
`21
`
`22
`
`
`
`202—220-4 l 5 8
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.corn
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`C1ar1<, Ph.D., D0ug1as W. — V01. I
`July 10, 2013
`
`A.
`
`Yes.
`
`Q.
`
`Why does it say '90,
`
`'91,
`
`if it was one
`
`semester?
`
`A.
`
`I did combination of teaching and research,
`
`and more research in that other semester.
`
`Q.
`
`A.
`
`What was your research in?
`
`It was on things left over. Things that I got
`
`interested in while working on hardware at Digital.
`
`I
`
`remember working on clocking, on pipelines.
`
`I did a
`
`paper on debugging.
`
`And there's a ~~ maybe I did something on
`
`write buffers but I can't remember.
`
`Q.
`
`So you stopped working for Digital in 1993,
`
`
`
`didn't start teaching until September, when they started
`
`A.
`
`Yes.
`
`Q.
`
`And is that when you started teaching at the
`
`University of Pennsylvania?
`
`A.
`
`No.
`
`So I left ~—
`
`Q.
`
`A.
`
`Sorry, sorry.
`
`I mean Princeton.
`
`Right.
`
`So I left Digital in July of
`
`'93 and
`
`drove to New Jersey and started working at Princeton.
`
`I
`
`202-220—4 1 5 8
`
`,
`Henderson Legal Services, Inc.
`WWW.hendersonlega1services.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. 1
`July 10, 2013
`
`15
`
`their classes.
`
`Q.
`
`Have all of your classes that you've taught at
`
`Princeton since 1993 been related to computers?
`
`A.
`
`No. Let me explain my hesitancy.
`
`I taught
`
`one writing seminar for freshman whose subject was
`
`artificial intelligence, but, really,
`
`the course was
`
`about writing.
`
`O.
`
`A.
`
`Other than that?
`
`Other than that, no.
`
`two
`
`O.
`
`Other than that one class, have all the
`
`classes you've taught at Princeton been related to
`
`computers?
`
`A.
`
`Yes.
`
`Q. Would you say you‘ve taught more than 15
`
`classes at Princeton related to computers?
`
`MS. VREELAND: Objection,
`
`form.
`
`A.
`
`I believe you mean different classes, not
`
`times of teaching the same class.
`
`Q.
`
`I actually meant times of teaching classes.
`
`So if you taught the same class five times,
`
`I would
`
`consider that five classes.
`
`A.
`
`Okay.
`
`So since ‘93, that's 20 years,
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.corn
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. I
`July 10, 2013
`
`16
`
`semesters a year, minus two semesters of sabbatical.
`
`So
`
`I guess that's 38.
`
`Q.
`
`So you've taught pretty much one class per
`
`semester?
`
`A.
`
`Yes.
`
`Two or three days a week?
`
`Yes.
`
`On average?
`
`And my focus there was computer
`
`Your degree at Yale, engineering and
`
`applied science, can you describe that?
`
`Is that a
`
`general engineering degree?
`
`Is there any focus there?
`
`A.
`
`This is so long ago that Yale didn't have a
`
`computer science department.
`
`It had -— actually,
`
`I
`
`think it started its computer science —— it was getting
`
`going in the computer science department just as I was
`
`
`
`leaving.
`
`So my degree was from the w— was there a
`
`department back then?
`
`I don't think it was a school.
`
`I
`
`think it was the department of engineering and applied
`
`science. And everybody with any engineering interest at
`
`Yale got a degree in that.
`
`202—220-4 l 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservicescom
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`C1ark, Phil, D0ug1as W. - V01. 1
`Ju1y 10, 2013
`
`programming.
`
`I didn't do mechanical engineering and
`
`that sort of thing.
`
`Q.
`
`And is it fair to say since you received your
`
`Ph.D.
`
`in 1976, other than being a professor at a
`
`university,
`
`the only company that you have been employed
`
`by is Digital Equipment?
`
`A.
`
`No, because I started at the Xerox Palo Alto
`
`Research Center.
`
`So that's another company.
`
`Q. Would it be fair to say the only companies
`
`you‘ve been employed by during that time frame were
`
`Xerox and Digital Equipment?
`
`A.
`
`That's correct.
`
`Q.
`
`Did you ever have your own company? Did you
`
`ever start your own company, have your own business,
`
`anything like that?
`
`A.
`
`No.
`
`Q.
`
`You never had any businesses related to
`
`in today's
`
`Bulletin Boards?
`
`A. Different Clark.
`
`So that's a no?
`
`That's a no.
`
`Are you represented by counsel
`
`202—220-4 1, 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalserviees.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. I
`July 10, 2013
`
`18
`
`1
`
`2
`
`3
`
`4
`
`10
`
`ll
`
`12
`
`13
`
`
`
`18
`
`19
`
`20
`
`21
`
`22
`
`deposition?
`
`A.
`
`Yes .
`
`Q.
`
`Who?
`
`A.
`
`Cindy Vreeland to my left.
`
`MS. VREELAND:
`
`To be clear,
`
`I‘m here on behalf
`
`of EMC and VMware.
`
`BY MR. RHOA:
`
`Q.
`
`Are you working as a consultant for EMC and
`
`VMware?
`
`MS. VREELAND: Objection to the form.
`
`I think
`
`he's been disclosed as a retained expert.
`
`A.
`
`I don't know.
`
`I don't know if "consultant"
`
`has any special meaning, but EMC sends me checks.
`
`Q.
`
`A.
`
`Q.
`
`When were you first retained by EMC?
`
`In this matter?
`
`Yes.
`
`A.
`
`I think —— I know it was last year.
`
`I think
`
`it was the fall.
`
`It might have been the summer.
`
`Q.
`
`When I say "this matter," I mean these six
`
`IPRs?
`
`A.
`
`Yes.
`
`Q.
`
`Is it okay if I call these six IPRs,
`
`the ”True
`
`
`
`
`
`202—220—4 l 5 8
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. I
`July 10, 2013
`
`Name matter"?
`
`Is that okay? Will you know what I'm
`
`talking about?
`
`A.
`
`Q.
`
`Certainly.
`
`So you were first retained by EMC in
`
`connection with the True Name matter in 2012, at some
`
`point either the summer or fall;
`
`is that right?
`
`A.
`
`Yes, unless I'm wrong, and it was the spring,
`
`but that's also possible.
`
`Q.
`
`Were you first retained by EMC and VMware at
`
`the same time?
`
`A.
`
`Q.
`
`I think so.
`
`I'm not positive.
`
`Who is the first company that retained you in
`
`connection with the True Name matter?
`
`So I know about EMC and VMware and nobody
`
`A.
`
`I do not recall.
`
`Q.
`
`Was it EMC?
`
`MS. VREELAND: Objection.
`
`A.
`
`I do not recall.
`
`Q.
`
`When EMC retained you, were you retained by a
`
`bunch of companies at the same time?
`
`MS. VREELAND: Objection,
`
`form.
`
`202—220—4 l5 8
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. 1
`July 10, 2013
`
`Q.
`
`Have you been retained by any company other
`
`than EMC and VMware in connection with the True Name
`
`matter?
`
`A.
`
`Yes,
`
`indeed, NetApp with a piece of
`
`declaration for about three days in,
`
`I think ~-
`
`actually,
`
`I don't know, maybe June, maybe May.
`
`Q.
`
`Of 2013?
`
`A.
`
`Q.
`
`This year.
`
`And other than EMC, VMware and NetApp, have
`
`you been retained by any other company in connection
`
`WilmerHale is regarding this matter?
`
`with the True Name matter?
`
`A.
`
`No.
`
`Q. Who's the first person at EMC to contact you
`
`regarding the True Name matter?
`
`A.
`
`I'm pretty sure it was not a person from EMC
`
`but one of the WilmerHale attorneys.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Do you know who?
`
`I believe Mr. Dichiara to my left.
`
`Peter, who is sitting here?
`
`That's the one.
`
`Q.
`
`Who would you say your main contact at
`
`202—220—4 l 5 8
`
`Henderson Legal Services, Inc.
`wwwhendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — V01. 1
`July 10, 2013
`
`A.
`
`Peter Dichiara.
`
`Q.
`
`Who else do you talk to at WilmerHale about
`
`this matter?
`
`A.
`
`I've talked to Miss Vreeland to my left,
`
`to
`
`Tyler Lacey, and three other associates whose last names
`
`I don't know and I only one of whom's first name I can
`
`recall.
`
`Q.
`
`Do you have an agreement with either
`
`WilmerHale or EMC regarding your retainer in this
`
`What does that agreement concern?
`
`matter?
`
`A.
`
`Q.
`
`So what do you mean by "retainer"?
`
`You've been retained by WilmerHale in
`
`connection with this matter, right?
`
`A.
`
`So EMC and VMware sends the check.
`
`So I think
`
`of myself as being retained by them. But if there's
`
`nuances that I'm missing...
`
`Q.
`
`Do you have any type of written agreement with
`
`Yes.
`
`—— regarding this matter?
`
`Yes.
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.Com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`C1ar1<,Ph.D.,D0ug1as W. — Vol. I
`July 10, 2013
`
`A.
`
`It is an engagement letter of a couple of
`
`pages; names the matter.
`
`Q.
`
`Is that engagement agreement with EMC or both
`
`EMC and VMware?
`
`A.
`
`I think it's with both, but I wouldn't be
`
`surprised if there were actually two separate ones.
`
`Q.
`
`And that would have been executed at some
`
`point in the summer or fall of 2012?
`
`A.
`
`Q.
`
`Yes, unless I'm off by a season.
`
`And you do not have a similar engagement
`
`letter with any other company regarding the True Name
`
`patents other than EMC, VMware and NetApp?
`
`A.
`
`Q.
`
`There was a NetApp's one also.
`
`Other than those three companies, nothing
`
`It is my normal hourly rate for 2012.
`
`That's right.
`
`What's your hourly rate in that agreement?
`
`625.
`
`$625 per hour?
`
`Yes.
`
`Is that your normal hourly rate?
`
`202-220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. I
`July 10, 2013
`
`23
`
`Q.
`
`How much money have you received so far from
`
`EMC in connection with this matter?
`
`A.
`
`It might be 40,000.
`
`It might be 30.
`
`I just
`
`don't know.
`
`They pay me separately.
`
`Is it more than $25,000, do you think?
`
`I think it's likely more than 25.
`
`Is it less than $100,000?
`
`It it's certainly less than $100,000.
`
`When was the last time you were paid by EMC?
`
`MS. VREELAND: And just to be clear, your
`
`questions are just EMC or not VMware or did you
`
`mean it to be both?
`
`MR. RHOA:
`
`I‘ll get there.
`
`I said "EMC.“
`
`I
`
`was going to follow up on VMware after he answered
`
`the questions.
`
`MS. VREELAND:
`
`I‘ll object to the form.
`
`A.
`
`So their money robot sent my bank robot a
`
`check in ~-
`
`in the end of —— while I was on vacation.
`
`So the end of July —~
`
`the end of June.
`
`Sorry.
`
`Q.
`
`Now, does only EMC pay you or do both EMC and
`
`VMware pay you separately?
`
`A.
`
`202-220-415 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`(Hark, Ph.D., Douglas W. - V01. 1
`July 10, 2013
`
`Is it split up equally?
`
`A.
`
`Yes.
`
`Q.
`
`So that amount of money you received from EMC,
`
`you would also receive the same amount of money from
`
`VMware?
`
`to be clear since you're asking about questions
`
`MS. VREELAND: Objection to the form.
`
`A.
`
`Yes.
`
`Q.
`
`To your knowledge you only have one agreement
`
`and that's with EMC; possibly both signed onto it?
`
`A.
`
`It's —- I work with the understanding that I
`
`have an agreement with both.
`
`I am uncertain as to
`
`whether I have a letter from each.
`
`Q.
`
`Approximately how much ~—
`
`MS. VREELAND:
`
`I can handle this on —— on
`
`redirect,
`
`if it's your preference.
`
`I just want
`
`the
`
`record to be clear on the payments.
`
`It is split by patent, but VMware is not
`
`involved in all of the —— So it‘s split by IPRS,
`
`but VMware is not
`
`involved in the latter four IPRs.
`
`So the payments have not been equal.
`
`And, you know, again,
`
`I just want
`
`the record
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`www.henderson1ega1services.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. I
`July 10, 2013
`
`that are current
`
`in the middle of.
`
`If you prefer me to say things like that for
`
`redirect,
`
`I will, but I want to make sure the facts
`
`are correct.
`
`THE WITNESS: Well, actually,
`
`I mean,
`
`there's
`
`no question, but I do just split the time between
`
`them.
`
`MR. RHOA:
`
`I'd prefer if you handle those on
`
`redirect.
`
`MS. VREELAND: Okay.
`
`I‘ll be happy to handle
`
`For what matter?
`
`them on redirect.
`
`BY MR. RHOA:
`
`
`
`Q.
`
`Approximately how much time have you spent
`
`working on this matter on behalf of the EMC and VMware
`
`since you were first engaged?
`
`A.
`
`Q.
`
`Ballpark, over 100, not over 200 hours.
`
`Prior to the True Name matter, have you ever
`
`been engaged by EMC before?
`
`A.
`
`Yes.
`
`Q.
`
`How many times?
`
`Once.
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`wwwhendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. 1
`July 10, 2013
`
`A.
`
`It was a patent lawsuit against a company
`
`which was bought by HP.
`
`So it ended up being EMC
`
`against HP.
`
`Q.
`
`Do you remember the technology that was
`
`involved in that case?
`
`A.
`
`Q.
`
`It was a duplication of files remotely.
`
`Who was the patent owner?
`
`EMC.
`
`Q.
`
`So EMC was suing HP or the company that HP
`
`
`
`acquired for patent infringement?
`
`A.
`
`Yes.
`
`Q.
`
`Is that case still going on?
`
`No,
`
`that was about 10 years ago.
`
`Who won?
`
`EMC.
`
`On what basis?
`
`I'm not sure how to answer that.
`
`They -— the
`
`Q.
`
`A.
`
`Did you testify in that trial?
`
`patents were found valid and infringed, and that‘s as
`
`much as I know.
`
`Q.
`
`A.
`
`By a jury or a judge?
`
`A jury.
`
`202—220—4 l 58
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`C1ar1<, Ph.D., D0ug1as W. — V01. 1
`July 10, 2013
`
`A.
`
`I did.
`
`27
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`So were you an expert witness in that case?
`
`Yes.
`
`On behalf of EMC?
`
`Yes.
`
`Q.
`
`What did you testify about?
`
`MS. VREELAND: Objection,
`
`form.
`
`A.
`
`I testified about matters of validity and
`
`infringement, but it —— I do not recall the details.
`
`Also,
`
`I should say,
`
`I just recalled that —— this is a
`
`little —— not exactly an engagement, but before that
`
`relationship with EMC,
`
`I advised a judge in a patent
`
`case on the Markman phase of a lawsuit between EMC and
`
`IBM. And the deal with them was that I would bill them
`
`equally after the judge approved the bill.
`
`So I don't know whether you call that an
`
`engagement, but EMC and IBM were both paying me to help
`
`the judge.
`
`Q.
`
`A.
`
`So you were a special master in a patent case?
`
`I didn't have that title.
`
`Q.
`
`You advised the judge on how you thought the
`
`claims should be construed?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.henderson1ega1services.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - Vol. I
`July 10, 20l3
`
`Yes.
`
`What
`
`judge; do you remember?
`
`Gorton, Nathaniel Gorton in Massachusetts.
`
`How do you spell that?
`
`G—O—R—T—O~N like the fish sticks.
`
`And what year was that approximately?
`
`'99, maybe 2000. Maybe both.
`
`Have you ever done that again since that time?
`
`A.
`
`No.
`
`Q.
`
`And how did you advise the court to construe
`
`the claims,
`
`in favor of EMC or against EMC?
`
`MS. VREELAND:
`
`I'm going to object and
`
`instruct the witness —— I don’t know whether he had
`
`a confidentiality agreement with the court or not.
`
`MR. RHOA:
`
`I'll withdraw the question.
`
`BY MR. RHOA:
`
`Q.
`
`Do you know if your recommendation to
`
`judge was publicly—available or not?
`
`I do not know.
`
`I believe the Markman order is public.
`
`Is there any public record indicating that you
`
`A.
`
`Q.
`
`did this?
`
`A.
`
`202—220—4 l 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservlces.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — V01. 1
`Ju1y 10, 2013
`
`29
`
`Q.
`
`A.
`
`Do you know the name of the case?
`
`I think it's EMC versus —— sorry. No,
`
`I
`
`don't. Actually, it was —— I forget who was suing who
`
`on what basis. Maybe they were each suing the other.
`
`Q.
`
`A.
`
`three.
`
`Q.
`
`A.
`
`Q.
`
`How many patents were involved?
`
`Small number. More than one.
`
`I'm thinking
`
`What was the technology again?
`
`Computer architecture.
`
`How were you approached? Who approached you
`
`for that matter? Did someone initiate contact with you
`
`and asked you to do that?
`
`How did that come about?
`
`A.
`
`A lawyer for each of the two came to my office
`
`in Princeton and pitched.
`
`Q.
`
`Had you ever worked with or for either of them
`
`before?
`
`A.
`
`No.
`
`Q.
`
`A.
`
`How did they come about contacting you?
`
`I often think it was because Princeton was the
`
`same difference from their two offices in Delaware and
`
`New York, but I actually have no idea.
`
`Q.
`
`So in that prior case —— I'm switching gears
`
`1
`
`2
`
`3
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`l6
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`wwwhendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — Vol. I
`July 10, 2013
`
`back to the other case that you've testified for EMC,
`
`you said you testified at trial on behalf of the EMC
`
`regarding validity and infringement, right?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Were you deposed in that case?
`
`Yes.
`
`How many times?
`
`One and l/8th. Let me explain. There was a
`
`last—minute deposition about a supplemental report and
`
`each expert was ~- had an hour of deposition,
`
`I think,
`
`just before or maybe during the trial.
`
`Q.
`
`A.
`
`Do you recall what
`
`judge handled that case?
`
`That was Gorton again.
`
`Same judge?
`
`Same judge.
`
`In the District of Massachusetts?
`
`A.
`
`Yes.
`
`Q.
`
`Do you know if your trial testimony was public
`
`expert witness in a patent case?
`
`in that case?
`
`A.
`
`I do not know.
`
`Q.
`
`How many times have you been retained as an
`
`202—220-4 1 5 8
`
`Henderson Legal Services, Inc.
`www.henderson1egalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., DougIas W. — V01. 1
`July 10, 2013
`
`31
`
`A.
`
`Let's say. Ballpark, 20, but it might be 25.
`
`I don't think 30.
`
`Q.
`
`Are those engagements identified in your CV
`
`that's attached to your declaration?
`
`A.
`
`No.
`
`Q.
`
`Can you give me a list of all the times you've
`
`been retained as an expert witness in a patent case and,
`
`if you can recall,
`
`just identify the party that retained
`
`you?
`
`A.
`
`I could not, off the top of my head, produce
`
`an accurate list.
`
`If you wish,
`
`I can prepare a list and
`
`get it to you.
`
`Q.
`
`Do you recall any other company that has ever
`
`retained you as an expert witness in a patent case?
`
`A.
`
`Q.
`
`A.
`
`I recall some companies, yes.
`
`Please identify them.
`
`Intel,
`
`IBM, Analog Devices, Broadcom, and
`
`others whose names I do not recall.
`
`Q.
`
`How many times have you testified during a
`
`trial in a patent case?
`
`A.
`
`Two.
`
`Q.
`
`The EMC case was one?
`
`10
`
`ll
`
`l2
`
`l3
`
`14
`
`15
`
`16
`
`
`
`20
`
`21
`
`22
`
`
`
`
`202-220-2115 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., D0ug1as W. - V01. 1
`July 10, 2013
`
`Yes.
`
`What's the other?
`
`form.
`
`A.
`
`It was Telcordia versus Cisco and possibly
`
`Alcatel. There was some jockeying around —— some
`
`defendants disappeared by the time of trial, but it was
`
`at least Cisco.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`What court was that in?
`
`Delaware.
`
`What year?
`
`‘03 -~ wait, no. That would have
`
`was the other trial.
`
`I think it was
`
`'07.
`
`(Witness reviewing)
`
`Yes, more like '07, plus or minus.
`
`Approximately how many times have you had your
`
`A.
`
`Q.
`
`deposition taken in cases where you were an expert
`
`witness in a patent case?
`
`A.
`
`About a dozen.
`
`Q.
`
`Have you ever been retained as a technical
`
`expert
`
`in a case that was not a patent case?
`
`A.
`
`Yes.
`
`Q.
`
`By whom and how many times?
`
`MS. VREELAND: Objection,
`
`202—220—4 1 5 8
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegalservices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. - V01. 1
`Ju1y 10, 2013
`
`A.
`
`I will recall the best I can. There was a
`
`trade —— not trade.
`
`It was a contract interpretation
`
`case involving Intel and Invidia, which was a matter
`
`before the Court of Chancery and did not involve
`
`patents.
`
`Q.
`
`Just once?
`
`Email.
`
`A.
`
`Just one non—patent engagement? No, because I
`
`think there's another. Yes. There was a matter in
`
`front of the FTC, where a health—care company was
`
`concerned that another company was doing something
`
`vaguely monopolistic and wanted to protest to the FTC.
`
`And I advised that first company.
`
`I advised their
`
`attorneys.
`
`Q.
`
`For these IPRs,
`
`in connection with the True
`
`Name matter, you've submitted six different
`
`declarations, right?
`
`A.
`
`Yes.
`
`Q.
`
`Who prepared the first draft of each of those
`
`declarations?
`
`The attorneys prepared the first draft.
`
`And how did they send them to you?
`
`A.
`
`Q.
`
`A.
`
`202—220—4158
`
`Henderson Legal Services, Inc.
`WWW.hendersonlegaIserVices.com
`
`
`
`PATENT NOS: 5,978,791; 6,415,280; 7,945,544; 7,945,539; 7,949,662; 8,001,096
`Clark, Ph.D., Douglas W. — V01. I
`July 10, 2013
`
`They emailed you Word documents?
`
`Typically, yes.
`
`And you would redline them and send them edits
`
`A.
`
`Q.
`
`back;
`
`is that a fair statement?
`
`A.
`
`That is part of the process. There were also
`
`phone calls and sometimes, as I recall, email things
`
`that weren't the same as a redlined doc file. You know,
`
`change this paragraph to this paragraph,
`
`that sort of
`
`thing, without being in a Word format.
`
`Q.
`
`How many different emails approximately were
`
`exchanged concerning drafting these six dec
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