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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _____________________________
` UNIFIED PATENTS INC.
` Petitioners
` v.
` CLOUDING IP
` Patent Owner
` _____________________________
` Case IPR2013-00586
` Case IPR2014-00306
` Patent 6,738,799
` _____________________________
`
` DEPOSITION OF NORMAN HUTCHINSON, Ph.D.
` Vancouver, British Columbia
` Friday, July 25, 2014
`
`Reported by: Susan Steudel
`Job No. 82473
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _____________________________
` UNIFIED PATENTS INC.
` Petitioners
` v.
` CLOUDING IP
` Patent Owner
` _____________________________
` Case IPR2013-00586
` Case IPR2014-00306
` Patent 6,738,799
` _____________________________
`
` DEPOSITION OF NORMAN HUTCHINSON, Ph.D.
` Vancouver, British Columbia
` Friday, July 25, 2014
`
`Reported by: Susan Steudel
`Job No. 82473
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` Friday, July 25, 2014
` 9:00 a.m.
`Deposition of Dr. Norman Hutchinson, Ph.D., held at The
`Westin Bayshore, 1601 Bayshore Drive, Vancouver, British
`Columbia, Canada pursuant to Notice before Susan Steudel,
`Certified Realtime Reporter, in the Province of British
`Columbia.
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` APPEARANCES:
` ON BEHALF OF UNIFIED PATENTS:
` MICHAEL KIKLIS
` OBLON, SPIVAK, MCCLELLAND, MAIER & NEUSTADT
` 1940 Duke Street
` Alexandria, VA 22314
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` ON BEHALF OF CLOUDING IP:
` TAREK FAHMI
` ASCENDA LAW GROUP
` 84 West Santa Clara Street
` San Jose, CA 95113
`
` ON BEHALF OF SAP AMERICA INC.:
` S. GREGORY HERRMAN
` DICKSTEIN SHAPIRO
` 1825 Eye Street, NW
` Washington, DC 20006
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` DR. NORMAN HUTCHINSON,
` called as a witness, having been duly sworn, was
` examined and testified as follows:
` EXAMINATION
` BY MR. FAHMI:
` Q. Good morning, Dr. Hutchinson.
` A. Good morning.
` Q. As you know, my name is Tarek Fahmi. We're here
` today to take your deposition in connection with
` Interparties Review Matters 2013-00586 and 2014-00306 in
` the US Patent and Trademark Office. Do you understand
` that?
` A. Yes.
` Q. I know you've given deposition testimony
` previously so I would just like to go over a couple of
` items. One, if you can wait before answering a question
` until I've finished asking it. I'll try and do likewise
` and wait until you've finished giving an answer before I
` ask another question. That way we're not speaking over
` one another; all right?
` A. Yes.
` Q. As you're doing that, also please give audible
` answers. The court reporter is recording what's being
` said and she can't really accurately record nods of the
` head or mumbles or "uh-huhs." Audible answers are
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` appreciated; all right?
` A. Yes.
` Q. Is there any reason why you can't give your best
` testimony here today?
` A. No.
` Q. Are you taking any medications that might affect
` your memory at all?
` A. No.
` Q. Any other reason you could not give your best
` testimony today?
` A. No.
` Q. You've provided a supplemental declaration in
` connection with this proceeding; is that right?
` A. That's right.
` Q. And in connection with the preparation of that
` supplemental declaration did you review the Balcha Miller
` and Williams references?
` A. Yes.
` Q. Would you agree that each of these references
` discusses the generation of an update file?
` A. Not all of them call it an update file, but
` essentially it is called an update file.
` Q. Sometimes it is called a delta file or difference
` file?
` A. Yes.
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` Q. Can we agree they're all update files?
` A. Yes.
` Q. Regarding these update files, would you agree
` that in general such a file could contain any of three
` commands, one for insert, one for copy and one for delete?
` A. I guess they could. They could contain other
` commands. But the ones that we're discussing contain
` those three commands.
` Q. Regarding the use of these update files, would
` you agree that a system could employ either of two basic
` methods? Either a discard by default method or retained
` by default method?
` A. Yes.
` Q. Would the discard by default method make use of
` the copy command?
` A. Let me think about that a minute.
` MR. HERRMAN: I object as to scope.
` MR. KIKLIS: I object to as to scope.
` A. I have not thought about those discard by default
` and the details for quite a while. I described that in a
` previous declaration. I don't have that with me. I would
` like to review that, if I could.
` MR. FAHMI:
` Q. You don't have any recollection as to whether
` discard by default process would make use of a copy
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` command?
` MR. KIKLIS: Objection. Scope.
` A. I would like to refresh my memory on that. I
` remember discard by default and retain by default. But
` which one uses copy and which one uses delete, the
` details, I would prefer to refresh my memory.
` MR. FAHMI:
` Q. In connection with your supplemental declaration
` you remarked on whether a person of ordinary skill in the
` art would combine the teachings of Balcha and Miller,
` didn't you?
` What's that you're referring to, Dr. Hutchinson?
` A. My supplemental declaration.
` Q. May I see that, please?
` A. Absolutely.
` Q. Thanks. I think page 17 is the operative page.
` A. Thank you. Yes, in my supplemental declaration I
` mention the result of combining Balcha and Miller.
` Q. And in page 18 you indicate that Miller teaches
` the use of a copy command; right?
` A. Yes.
` Q. Balcha doesn't specifically teach the use of a
` copy command; is that right?
` A. Balcha does teach the use of a command which
` causes copy.
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` Q. What command is that?
` A. Both the insert command, the things that the
` Balcha labels as primitive, the insert primitive and the
` delete primitive both involve a copy of the segment of the
` file as well.
` Q. How does a delete primitive cause a copying?
` A. Each of Balcha's primitives have a portion of the
` primitive that includes the number of bytes that are to be
` copied before the primitive is performed. So delete
` primitive involves copying some bytes and then deleting
` some bytes and insert primitive involves copying some
` bytes and then inserting some bytes.
` Q. Would a person of ordinary skill in the art use a
` process that included both a copy command and a delete
` command?
` MR. KIKLIS: Objection. Form.
` MR. FAHMI: I'll rephrase it.
` Q. Would a person of ordinary skill in the art use
` an update file that includes both a copy command and a
` delete command?
` MR. KIKLIS: Objection. Form.
` A. Yes. Balcha teaches use of a copy command and a
` delete command.
` MR. FAHMI:
` Q. Wouldn't it be overly pedantic to use an update
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` file that uses both a copy command and a delete command?
` A. It is not necessary. You can use one or the
` other. But there is nothing wrong with using both.
` Q. Wouldn't such an update file be inefficient?
` MR. KIKLIS: Objection. Form.
` A. It could be inefficient. In deciding the
` efficiency of such a file, you would need to look at
` exactly how the commands are encoded and how frequently
` they're used.
` MR. FAHMI:
` Q. How would that make a difference?
` MR. HERRMAN: Objection. Vague.
` A. The sizes of the commands are typically very
` small compared to the data to be inserted into -- into the
` new data that is specified in the insert command. So
` questioning the efficiency, you would need to look at how
` those commands are encoded.
` Q. Well, wouldn't you agree, then, that a person of
` ordinary skill in the art who is designing the update file
` would use either the delete command or the copy command
` but not both?
` MR. KIKLIS: Objection. Form.
` A. I would not agree. Balcha uses both, a command
` that copies and a command that deletes. In his particular
` case, they're encoded in the same command.
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` MR. FAHMI:
` Q. And you are basing that on your belief that the
` delete command actually performs a copy; is that right?
` MR. KIKLIS: Objection. Form.
` A. Both the delete primitive and insert primitive in
` Balcha form a copy, yes. Partially on delete command and
` partially on the insert command.
` MR. FAHMI:
` Q. What is copied on the insert command?
` A. Just like in the delete command the insert
` primitive specifies that a certain number of bytes are to
` be copied before the new bytes are inserted.
` Q. Copied from where?
` MR. KIKLIS: Maybe you should show him a copy of
` the patent.
` MR. FAHMI: He seems to be doing fine without it.
` A. I would probably give better answers if I had a
` copy of the patent but I'll continue if you want me to.
` MR. FAHMI:
` Q. Yes, sir. Please.
` A. I remember Balcha, there is a -- I can't remember
` the term -- a current location in the source file that is
` updated by these primitives and the copy portion of the
` primitive copies bytes from that location.
` Q. Do you think that Balcha specifies a copy
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` primitive, then?
` A. I do --
` MR. KIKLIS: Objection. Form.
` A. I do believe that copy -- I do believe that
` Balcha has a primitive -- performs a copy, yes. It is not
` a primitive named copy.
` MR. FAHMI:
` Q. Dr. Hutchinson, I'm handing you what has
` previously been marked 1020. Do you recognize this
` exhibit?
` A. Yes.
` Q. Do you recognize it as the Harlan patent
` 6,076,084?
` A. Yes.
` Q. Is this one of the references that you considered
` in connection with preparation of your supplemental
` declaration?
` A. Yes.
` Q. If I refer to this exhibit as "Harlan," will you
` understand that I'm referring to Exhibit 1020?
` A. Yes.
` Q. Would you agree that Harlan teaches a technique
` for transmitting files between computers?
` A. Yes.
` Q. And specifically Harlan teaches the technique for
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` transmitting files between computers where the receiving
` computer receives the file but the sending computer does
` not know the state of the file at the receiving computer;
` is that right?
` MR. KIKLIS: Objection. Form.
` MR. FAHMI:
` Q. Did you follow the question?
` A. I believe I did. The first sentence of the
` abstract describes exactly what you were describing. So
` the sending computer does not know the status or content
` of the old file which is the file that the receiving
` computer...
` Q. Does Harlan describe generating an update file?
` A. I don't remember if he calls it an update file.
` I don't think he calls it an update file.
` Q. Does Harlan describe generating a file similar to
` what we've been referring to as an update file?
` MR. KIKLIS: Objection. Form.
` A. The description of Harlan reading from column 1,
` line 64, only indicates that the sending computer sends to
` the receiving computer those segments in the new file that
` do not have a hash number, that do not match something
` from the old file. The sending computer also sends
` indication where segments of the old file should be
` inserted into the new file. The receiving computer
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` constructs a new file from the segments received. It
` doesn't indicate it is a new file. It could be sent as a
` number of separate instructions.
` MR. FAHMI:
` Q. In your opinion, does Harlan describe generating
` an update file in the context that we've been referring
` to?
` A. It describes sending the information that is in
` the update files that we've been talking about with the
` other patents. It doesn't describe how that information
` is sent. So does it send an update file, I don't know.
` It sends the same information or similar information.
` MR. KIKLIS: Could you speak up a little bit?
` THE WITNESS: Sure.
` MR. FAHMI:
` Q. Does Harlan describe selecting file segment
` delimiters?
` A. Harlan certainly describes selecting delimiters
` that are used for determining the boundaries of segments
` in the file. I don't recall that it uses the phrase "file
` segment delimiters." But it involves selecting delimiters
` that bounds segments within the file.
` Q. Referring to column 1, lines 55 to 58. Would you
` agree that Harlan describes transmitting a selected
` delimiter from the computer that made the selection to the
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` other computer?
` A. Yes.
` Q. Referring to column 4, lines 53 through 57, would
` you agree that according to Harlan if the sending computer
` selected the delimiter then the sending computer sends the
` selected delimiter to the receiving computer?
` MR. HERRMAN: Objection. Vague.
` A. Could you repeat your question again, please.
` MR. FAHMI:
` Q. So I'm referring to column 4, lines 53 to 57, and
` would you agree that at that section, according to Harlan,
` if it is the sending computer that has selected the
` delimiter, then it is the sending computer that sends the
` selected delimiter to the receiving computer?
` A. Yes. Yes, I agree with that.
` Q. And if I can have you refer back to column 1,
` lines 60 to 62. Would you agree that Harlan describes
` calculating a hash code of each segment defined by a
` selected delimiter?
` MR. KIKLIS: Objection. Form.
` A. Yes. Line 60 to 62 says that the SPT, segment
` profile table, is generated by calculating a hash code for
` each segment that is defined by the selected delimiter.
` MR. FAHMI:
` Q. In the column line 62 to 64, would you agree that
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` Harlan indicates that the hash codes from the computer
` that has the old file are transmitted to the computer that
` has the new file?
` MR. KIKLIS: Objection. Form.
` A. It says the hash codes from the old file are
` transmitted to the sending computer. The sending commuter
` is the one that is specified to have the new file, yes.
` MR. FAHMI:
` Q. Would you agree that the this transmission of the
` hash codes is part of the procedure for sending the
` information that would be included as part of an update
` file?
` MR. HERRMAN: Objection. Vague.
` A. Your question was is this process -- ask your
` question again, please?
` MR. FAHMI:
` Q. Sure. Is this process of sending the hash codes
` between the computers part of the overall process of
` sending the information that would be included in an
` update file?
` MR. HERRMAN: Objection. Vague. Misstates
` testimony.
` A. It is part of the process of preparing or
` computing the information that would be sent from the
` sending computer to the receiving computer. Not part of
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` sending it.
` MR. FAHMI:
` Q. If I could have you refer to column 4, lines 44
` to 46. Would you agree that Harlan indicates experience
` will show that the particular segment delimiter criteria
` will determine what will work most satisfactorily with
` each type of file?
` MR. KIKLIS: Objection. Form.
` A. Yes. He says that experience will show the
` particular criteria that work most satisfactorily with
` each type of file.
` MR. FAHMI:
` Q. Does Harlan state how that experience will be
` gained?
` MR. KIKLIS: Objection. Form.
` A. I don't recall any discussion of how that
` experience will be gained with the Harlan patent.
` MR. FAHMI:
` Q. Based on your review of Harlan, do you have any
` opinion of how Harlan indicates that experience would be
` gained?
` A. Harlan indicates a couple of different selection
` criteria in the lines preceding the ones you were just
` quoting. But doesn't, as far as I can recall, explain how
` that experience will be gained.
`
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` Q. In May 1999 did you have any experience with file
` segmentation or techniques for file segmentation?
` MR. KIKLIS: Objection. Form.
` A. Yes. Before May of 1999 I had written a number
` of programs that transmit files between computers
` involving segmenting those files.
` MR. FAHMI:
` Q. In your opinion, by May of 1999, was file
` segmentation a well-understood field of art?
` MR. HERRMAN: Objection. Vague.
` A. I'm not entirely sure what the phrase
` "well-understood field of art" is. I believe that by May
` of 1999 there were a number of systems that had explored a
` number of techniques for segmenting files for the purpose
` of efficiently communicating them between computers.
` MR. FAHMI:
` Q. So would it be your opinion, then, that by May of
` 1999 techniques for file segmentation rested on
` well-understood principles?
` MR. HERRMAN: Objection. Vague.
` A. Well-understood principles. The phrase
` "well-understood principles" is causing me to hesitate. I
` believe that significant experience had been gained in the
` process of segmenting files. The principles on which that
` segmentation was done, I'm not sure that I would say that
`
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` the principles -- that there are well-understood
` principles that underlay the experience that had been
` gained. I think a number of systems developed techniques
` that worked, and worked well. I'm not sure that you could
` say there were well-understood principles underlying those
` techniques.
` Q. Dr. Hutchinson, I've now handed you what's
` previously been marked as Exhibit 1006. Do you recognize
` this exhibit.
` A. Yes.
` Q. Do you recognize it as the Williams patent
` 5,990,810?
` A. Yes.
` Q. Is this one of the references you considered in
` connection with the supplemental declaration?
` A. Yes.
` Q. If I refer to it as "Williams" you'll understand
` I'm referring to Exhibit 1006?
` A. Yes.
` Q. I'd ask you to turn to column 20 beginning at
` about line 33. Do you see that Williams makes reference
` to an MD5 digest?
` A. Yes.
` Q. Would you agree that Williams indicates the MD5
` digest is included in the incremental back-up file so as
`
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`Page 19
` to provide a check later that the incremental back-up file
` is not being applied to the wrong version of Y?
` A. Yes. That is what it says.
` Q. Do you know what Williams means when he refers to
` "Y" in that statement?
` MR. KIKLIS: Objection. Form.
` A. Yes.
` MR. FAHMI:
` Q. What does Williams mean when he refers to "Y"?
` A. In this example application, "Y" refers to the
` old version of the file as E2 which is ended to be kept up
` to date with the file at E1.
` Q. Does Williams describe segmenting files?
` A. He uses the word "sub-block." He uses the word
` "sub-block" rather than "segment," as I recall. But the
` identity is the same: dividing a block into pieces or a
` file into segments.
` Q. As part of the description of dividing files into
` sub-blocks or segments, does Williams describe techniques
` to select delimiters for those sub-blocks or segments?
` A. I don't recall that Williams uses the term
` "delimiter." He uses the term "block partitioning
` constraint." And "sub-block boundaries." Placing
` sub-block boundaries and positions in the data. But the
` idea is the same.
`
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` Q. Would you consider the sub-block boundaries to be
` segment delimiters?
` A. The sub-block boundaries mark the boundaries of
` the segments that the file is being partitioned into. Or
` the sub-blocks that the block is being partitioned into.
` So they are delimiters.
` Q. And referring to columns 13 and 14, would you
` agree Williams describes the use of hash functions in a
` process for selecting these boundaries or delimiters?
` A. Yes, I agree.
` Q. Considering the particular example that Williams
` shows in column 14, it is about line 27, is that an
` example of a hash function that is used for selecting a
` sub-block boundary or delimiter?
` A. Yes. Williams describes it as an example of a
` narrow hash function used for that purpose.
` Q. In that expression there is a vertical line that
` is indicated as designating modulo.
` A. That's right.
` Q. What does "modulo" mean?
` A. Refers to the remainder when one number is
` divided by another. When a whole integer number is
` divided by...
` Q. Sorry?
` A. When one whole number, when one integer, is
`
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` divided by another.
` Q. In that example set forth at column 14, line 27,
` there is a constant P. Do you see that?
` A. Yes.
` Q. Do you agree that Williams indicates that
` constant P can be set to an integer value in the range of
` 0 to 65,535?
` A. Yes.
` Q. According to Williams, how is P selected?
` A. Williams gives advice on the selection of the
` value P. He suggests that it is advantageous to choose
` values that are prime. Prime seems to work well, he says.
` He also suggests that P, because it is the inverse of the
` probability of placing a boundary at an arbitrary
` position, can be used in general to control the size of
` the sub-blocks.
` Q. Is there anything else that Williams indicates
` about how to select P? The value for P?
` A. On -- in column 14, lines 49 and 50, he suggests
` that in their real implementation P was set to 511.
` Q. You mentioned probability. Would you agree
` possibility is a measure of likeliness that a particular
` event will occur?
` A. Yes.
` MR. FAHMI: I don't have any other questions.
`
`TSG Reporting - Worldwide 877-702-9580
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` Thank you.
` EXAMINATION
` BY MR. KIKLIS:
` Q. Unified Patents is going to have some questions.
` Dr. Hutchinson, does Harlan disclose selecting
` segment delimiters that are statistically determined to be
` optimal division points for the segments?
` MR. FAHMI: Objection. Form.
` A. Yes.
` MR. KIKLIS:
` Q. Now, I would like to direct your attention to
` column 4, lines 44 through 46, where Mr. Fahmi had
` directed you to. Do you see that sentence?
` A. Yes.
` Q. What does that sentence mean to you?
` A. In the preceding sentences, Harlan discloses
` statistically determined optimal division points for the
` segments and then he suggests that experience will allow
` you to improve on the quality of those physically
` determined optimal division points. Experience may allow
` to you improve on the quality of those.
` Q. But Harlan discloses selecting segment delimiters
` that are statistically determined to be optimal division
` points.
` MR. FAHMI: Objection. Form.
`
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` A. Yes.
` MR. KIKLIS:
` Q. Now, by May 1999, was file segmentation
` techniques well understood by one of ordinary skill in the
` art?
` A. Yes, there were a number of systems that
` segmented files for a number of purposes. All the prior
` art that we've talked about in this case gave us examples
` of that.
` Q. What priority are you referring to?
` A. Williams, Harlan, Balcha.
` Q. And you have written two declarations, in fact,
` that discuss that these file segmentation techniques are
` well-understood by May of 1999 in one of ordinary skill in
` the art; right?
` MR. FAHMI: Objection. Form.
` A. Right.
` MR. KIKLIS:
` Q. I think you testified earlier, Dr. Hutchinson,
` that the principles underlying file segmentation may not
` have been well understood. Do you recall saying something
` to that effect?
` A. Yes.
` Q. What did you mean by that?
` A. What I meant is that while there was a lot of
`
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`
` experience, a lot of practical experience with file
` segmentation, there is no unifying theory that I'm aware
` of -- I'm not aware of theory in 1999 that brings all of
` that together.
` Q. But by May of 1999 file segmentation was well
` understood by one of ordinary skill in the art; correct?
` A. Yes.
` Q. In fact, by May of 1999, file segmentation
` techniques that selected segment delimiters that were
` statistically determined to be optimal division points
` were also well understood by one of ordinary skill in the
` art; correct?
` MR. FAHMI: Objection. Form.
` A. Yes.
` MR. HERRMAN: I don't have any questions.
` MR. KIKLIS: No more questions from the
` petitioners.
` (Brief recess)
` MR. FAHMI: I don't have any further questions for
` Dr. Hutchinson. Thank you.
` MR. KIKLIS: This deposition is closed.
` (Deposition adjourned at 10:33 A.M.)
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`Page 25
` I, Norman Hutchinson, Ph.D., do hereby certify under
` penalty of perjury that I have read the foregoing
` transcript of my deposition taken on July 25, 2014,
` that I have made such corrections as appear noted
` herein in ink, initialed by me; that my testimony as
` contained herein, as corrected, is true and correct.
`
` __________________________________
` Norman Hutchinson, Ph.D.
` Dated: ___________________
`
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`
` CERTIFICAITON
` I, Susan Steudel, Official Reporter in the Province of British
` Columbia, Canada, BCSRA No. 441, do hereby certify that
` the proceedings were taken down by me in shorthand at the
` time and place herein set forth and thereafter
` transcribed, and the same is a true and correct and
` complete transcript of said proceedings to the best of my
` skill and ability.
`
` I further certify that I am not related to any of the
` parties to this action by blood or by marriage, and that I
` am in no way interested in the outcome of this matter.
` IN WITNESS WHEREOF, I have hereunto set my hand this 1st
` day of August, 2014.
`
` _______________________________________
` SUSAN STEUDEL, Shorthand Reporter
`
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`Page 27
`
` - INDEX TO WITNESSES -
` WITNESS PAGE
` DR. NORMAN HUTCHINSON
` Examination by Mr. Fahmi..... 4
` Examination by Mr. Kiklis.... 22
`
` - INDEX TO EXHIBITS -
` NONE MARKED
`
` - EXHIBITS REFERENCED -
` Previously marked)
` NO. REFERENCED
` Exhibit No. 1006 . . .
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