·1· · · · · UNITED STATES PATENT AND TRADEMARK OFFICE
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`·2· · · · · BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·3
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`·4· _____________________________
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`·5· SYMANTEC CORPORATION,· · · · )· Case No.
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`·6· · · · ·Petitioner,· · · · · ·)· IPR2015-00375
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`·7· ·V.· · · · · · · · · · · · · )· IPR2015-00377
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`·8· THE TRUSTEES OF COLUMBIA· · ·)
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`·9· UNIVERSITY IN THE CITY OF· · )
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`10· NEW YORK,· · · · · · · · · · )
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`11· · · · ·Patent Owner.· · · · ·)
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`12· _____________________________)
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`13
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`14
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`15· · · ·VIDEOTAPED DEPOSITION OF GEORGE CYBENKO, Ph.D.
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`16· · · · · · · · ·Thursday, December 10, 2015
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`17· · · · · · · · · · · · ·9:02 a.m.
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`18· · · · · · · · · · ·Hyatt Regency Boston
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`19· · · · · · · · · ·One Avenue de Lafayette
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`20· · · · · · · · Boston, Massachusetts· 02111
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`21
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`22
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`23
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`24· ·Reporter:· Dana Welch, CSR, RPR, CRR, CBC, CCP
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`25
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`SYMC 1014
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`·2· · · · · BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·3
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`·4· _____________________________
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`·5· SYMANTEC CORPORATION,· · · · )· Case No.
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`·6· · · · ·Petitioner,· · · · · ·)· IPR2015-00375
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`·7· ·V.· · · · · · · · · · · · · )· IPR2015-00377
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`·8· THE TRUSTEES OF COLUMBIA· · ·)
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`·9· UNIVERSITY IN THE CITY OF· · )
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`10· NEW YORK,· · · · · · · · · · )
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`11· · · · ·Patent Owner.· · · · ·)
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`12· _____________________________)
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`13
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`14
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`15· · · ·VIDEOTAPED DEPOSITION OF GEORGE CYBENKO, Ph.D.
`
`16· · · · · · · · ·Thursday, December 10, 2015
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`17· · · · · · · · · · · · ·9:02 a.m.
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`18· · · · · · · · · · ·Hyatt Regency Boston
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`19· · · · · · · · · ·One Avenue de Lafayette
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`20· · · · · · · · Boston, Massachusetts· 02111
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`21
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`22
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`23
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`24· ·Reporter:· Dana Welch, CSR, RPR, CRR, CBC, CCP
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`25
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`SYMC 1014
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`·1· ·APPEARANCES:
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`·2· ·For Petitioner:
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`·3· ·Michael J. Sacksteder, Esq.
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`·4· ·Fenwick & West, LLP
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`·5· ·555 California Street
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`·6· ·12th Floor
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`·7· ·San Francisco, California· 94014
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`·8· ·msacksteder@fenwick.com
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`·9
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`10· For the Patent Owner:
`
`11· H. Annita Zhong, Esq.
`
`12· Gavin Snyder, Esq.
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`13· Irell & Manella, LLP
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`14· 1800 Avenue of the Stars, Suite 900
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`15· Los Angeles, California· 90067-4276
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`16· hzhong@irell.com
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`17· gsnyder@irell.com
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`18
`
`19· Also Present:· Shawn Budd, Videographer
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`20
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`21
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`22
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`23
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`24
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`25
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`·1· · · · · · · · · · · · · I N D E X
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`·2· WITNESS:
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`·3· · GEORGE CYBENKO, Ph.D.
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`·4
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`·5· EXAMINATION:· · · · · · · · · · · · · · · · ·PAGE:
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`·6· · BY MR. SACKSTEDER· · · · · · · · · · · · · · 5
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`·7· EXHIBITS MARKED:
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`·8· ·NO.· ·DESCRIPTION· · · · · · · · · · · · · ·PAGE:
`
`·9· · Exhibit 1015, Decision Institution of· · · ·11
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`10· · Inter Partes Review, 37 C.F.R. Section
`
`11· · 42.108, 375 IPR
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`12
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`13· EXHIBITS PREVIOUSLY MARKED:
`
`14· · Exhibit 1001 (377 IPR), U.S. Patent number· 29
`
`15· · 8,601,322
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`16· · Exhibit 1001, U.S. Patent Number 8,074,115· 28
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`17· · Exhibit 1007, U.S. Patent 5,440,723· · · · ·29
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`18· · Exhibit 1008, U.S. Patent 8,108,929· · · · ·29
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`19· · Exhibit 1010, U.S. Patent Application· · · ·29
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`20· · 2005/0108562
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`21· · Exhibit Columbia 2030-1, 375 IPR -· · · · · 10
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`22· · Declaration of George Cybenko, Ph.D. in
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`23· · Support of Columbia's Patent Owner
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`24· · Response
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`25· · --- index continues ---
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`·1· · INDEX (continued)
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`·2· · EXHIBITS PREVIOUSLY MARKED:
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`·3· · Exhibit Columbia 2030-1, 377 IPR -· · · · · 28
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`·4· · Declaration of George Cybenko, Ph.D.
`
`·5
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`·6
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`·7
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`·8· ·Exhibits retained by reporter.
`
`·9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`·1· · · · · · · · · ·P R O C E E D I N G S
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`·2· · · · · ·THE VIDEOGRAPHER:· We are on the record.
`
`·3· ·This is the videographer speaking, Shawn Budd, with
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`·4· ·DTI Reporting.· Today's date is December 10th,
`
`·5· ·2015, and the time is 9:02 a.m.· We are here in
`
`·6· ·Boston, Massachusetts to take the video deposition
`
`·7· ·of George Cybenko, Ph.D. in the matter of Symantec
`
`·8· ·Corporation versus The Trustees of Columbia
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`·9· ·University in the City of New York.
`
`10· · · · · ·Would counsel please introduce themselves.
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`11· · · · · ·MR. SACKSTEDER:· Michael Sacksteder,
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`12· ·Fenwick & West, on behalf of Symantec.
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`13· · · · · ·MS. ZHONG:· Annita Zhong from Irell &
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`14· ·Manella on behalf of Columbia, and with me here
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`15· ·today is Gavin Snyder.
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`16· · · · · · · · GEORGE CYBENKO, Ph.D., sworn
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`17· · · · · · ·(Off-the-record discussion held.)
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`18· · · · · ·MR. SACKSTEDER:· A conversation was held
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`19· ·off the record.
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`20· · · · · · · · · · · · EXAMINATION
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`21· ·BY MR. SACKSTEDER:
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`22· · · ·Q.· Good morning, Dr. Cybenko.
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`23· · · ·A.· Good morning.
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`24· · · ·Q.· Good to see you again.
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`25· · · ·A.· Likewise.
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`·1· · · ·Q.· Let's talk about your qualifications
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`·2· ·first.· You have been teaching at Dartmouth for how
`
`·3· ·many years?
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`·4· · · ·A.· 23 years.
`
`·5· · · ·Q.· And what is your current title?
`
`·6· · · ·A.· Dorothy and Walter Graham Professor of
`
`·7· ·Engineering.
`
`·8· · · · · ·THE VIDEOGRAPHER:· Excuse me.
`
`·9· ·Dr. Cybenko, can you put your mic on your tie,
`
`10· ·please.· Would that be all right?· Thanks.
`
`11· · · · · ·THE WITNESS:· Do you want me to repeat
`
`12· ·that answer?
`
`13· · · · · ·THE VIDEOGRAPHER:· No.· I heard you
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`14· ·perfectly, thanks.
`
`15· · · ·Q.· How long have you held that endowed chair?
`
`16· · · ·A.· 23 years.
`
`17· · · ·Q.· What is involved in obtaining an endowed
`
`18· ·chair at a University like Dartmouth?
`
`19· · · ·A.· Because an endowed chair typically comes
`
`20· ·with some endowment funds, it's a carrot used to
`
`21· ·attract the professors to positions or to reward
`
`22· ·professors, senior professors.
`
`23· · · ·Q.· And you are a senior professor that
`
`24· ·Dartmouth found it appropriate to attract and
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`25· ·reward with an endowed chair, correct?
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`·1· · · ·A.· That's correct.
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`·2· · · ·Q.· Before you were at Dartmouth, what did you
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`·3· ·do?
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`·4· · · ·A.· I was a professor at the University of
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`·5· ·Illinois in Champaign-Urbana.
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`·6· · · ·Q.· How long were you there?
`
`·7· · · ·A.· Four years.
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`·8· · · ·Q.· Were you a full professor at that time?
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`·9· · · ·A.· I was.
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`10· · · ·Q.· What were your duties as a full professor
`
`11· ·at the University of Illinois?
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`12· · · ·A.· I advised graduate students, I did
`
`13· ·teaching, and I was involved in a research program,
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`14· ·a very active research program.
`
`15· · · ·Q.· What are your duties at Dartmouth?
`
`16· · · ·A.· Very similar to that:· Advising graduate
`
`17· ·students, teaching courses, formal courses, and
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`18· ·conducting research.
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`19· · · ·Q.· What are the subject matters in which you
`
`20· ·conduct your research at Dartmouth?
`
`21· · · ·A.· Computer security primarily and I do work
`
`22· ·on some aspects of machine learning.
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`23· · · ·Q.· Machine learning?
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`24· · · ·A.· Yes.
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`25· · · ·Q.· What is machine learning?
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`·1· · · ·A.· So machine learning is a subject in which
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`·2· ·the goal is to analyze a lot of data and create
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`·3· ·some sort of abstraction or model based on a large
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`·4· ·amount of data.
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`·5· · · ·Q.· And what is computer security?
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`·6· · · ·A.· Computer security is the study of
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`·7· ·techniques for preventing, detecting, and
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`·8· ·responding to computer attacks.
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`·9· · · ·Q.· What did you do before the University of
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`10· ·Illinois?
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`11· · · ·A.· I was a professor at Tufts University.
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`12· · · ·Q.· Again, a full professor?
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`13· · · ·A.· No.· I was an associate professor at
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`14· ·Tufts.
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`15· · · ·Q.· What's the difference between being an
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`16· ·associate professor and a full professor?
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`17· · · ·A.· The three ranks of professorships
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`18· ·typically in the American universities are
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`19· ·assistant professor, which is an entry level
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`20· ·position; associate professor positions are for
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`21· ·assistant professors that have been promoted,
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`22· ·typically given tenure, so it's a stepping stone;
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`23· ·and a full professor is the highest rank.
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`24· · · ·Q.· And some full professors get endowed
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`25· ·chairs?
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`·1· · · ·A.· That's correct.
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`·2· · · ·Q.· What's your educational background?
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`·3· · · ·A.· I have -- at the college level?
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`·4· · · ·Q.· Sure.
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`·5· · · ·A.· Okay.· I was an undergraduate at the
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`·6· ·University of Toronto and did my graduate studies
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`·7· ·at Princeton University.
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`·8· · · ·Q.· Did you obtain a degree through your
`
`·9· ·graduate studies?
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`10· · · ·A.· I'm sorry?
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`11· · · ·Q.· Did you obtain a degree through your
`
`12· ·graduate studies?
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`13· · · ·A.· Yes.· I received a Ph.D.
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`14· · · ·Q.· A Ph.D. in what?
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`15· · · ·A.· Applied mathematics in electrical
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`16· ·engineering and computer science.
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`17· · · ·Q.· How much are you being paid by the hour
`
`18· ·for your work on this matter?
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`19· · · ·A.· In this particular assignment, $600.
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`20· · · ·Q.· You're being paid $600 an hour, correct?
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`21· · · ·A.· Correct.
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`22· · · ·Q.· You have how many years, about 30 years of
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`23· ·experience?
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`24· · · ·A.· At least, yes.
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`25· · · ·Q.· Plus a Ph.D., correct?
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`·1· · · ·A.· Yes.
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`·2· · · ·Q.· And you're being paid $600 an hour,
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`·3· ·correct?
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`·4· · · ·A.· Correct.
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`·5· · · ·Q.· I've put in front of you Columbia
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`·6· ·Exhibit 2030 in the 375 IPR.· Do you recognize it?
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`·7· · · ·A.· I do.
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`·8· · · ·Q.· What is it?
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`·9· · · ·A.· It is my declaration for case
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`10· ·IPR2015-00375.
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`11· · · ·Q.· All right.· And it expresses your opinions
`
`12· ·relating to that IPR, correct?
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`13· · · ·A.· It does.
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`14· · · ·Q.· All right.· Do you have any opinions
`
`15· ·relating to the IPR relating to the '115 patent
`
`16· ·that are not expressed in your declaration?
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`17· · · ·A.· All the opinions that are relevant to the
`
`18· ·material I was presented are in the declaration.
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`19· · · ·Q.· So you don't have anything else -- but as
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`20· ·you sit here today, you don't have anything else
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`21· ·you know of that you have an opinion about that's
`
`22· ·relevant to this matter?
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`23· · · · · ·MS. ZHONG:· Objection, form.
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`24· · · ·A.· There's a page limit here, and as I say, I
`
`25· ·was responsive to the material presented to me, but
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`·1· ·it's possible that in the discussion today there
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`·2· ·will be some avenues explored that may not have
`
`·3· ·been documented here.
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`·4· · · ·Q.· Was it your intention to provide a
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`·5· ·comprehensive recounting of your opinions in your
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`·6· ·declaration?
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`·7· · · · · ·MS. ZHONG:· Objection, form.
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`·8· · · ·A.· It was within the page constraints and the
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`·9· ·format provided, I was -- my goal was to be
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`10· ·responsive to the petition and the material
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`11· ·presented to me.
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`12· · · ·Q.· Did you also attempt to respond to the
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`13· ·institution decision?
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`14· · · ·A.· I reviewed that.
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`15· · · ·Q.· Did you take exception with any portion of
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`16· ·the institution decision?
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`17· · · ·A.· Yes, there are some places where I
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`18· ·disagree.
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`19· · · ·Q.· And there are places you think the board
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`20· ·got it wrong; is that correct?
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`21· · · ·A.· I wouldn't say got it wrong, but I would
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`22· ·say I disagree.
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`23· · · · · ·MR. SACKSTEDER:· This we will mark as
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`24· ·1015.
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`25· · · · · ·(Exhibit 1015, Decision Institution of
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`·1· ·Inter Partes Review, 37 C.F.R. Section 42.108, 375
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`·2· ·IPR, marked for identification.)
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`·3· · · ·Q.· Do you agree that Exhibit 1015 is the
`
`·4· ·board's institution decision for the 375 IPR?
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`·5· · · ·A.· It appears to be.
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`·6· · · ·Q.· Can you look through that and identify the
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`·7· ·places where you disagree with the board?
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`·8· · · ·A.· (Perusing document.)
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`·9· · · ·Q.· You're looking through your declaration,
`
`10· ·not the board's institution decision, correct?
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`11· · · ·A.· That's right.
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`12· · · ·Q.· Are your points of disagreement with the
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`13· ·boards's institution decision all stated in your
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`14· ·declaration?
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`15· · · ·A.· The ones that I'm -- that are significant
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`16· ·were documented.
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`17· · · · · ·(Perusing document.)
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`18· · · ·Q.· What page are you on there, Doctor?
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`19· · · ·A.· 98.
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`20· · · ·Q.· 98.· We're getting there.
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`21· · · · · ·Have you found anything yet?
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`22· · · ·A.· Not yet, but I've been looking for -- I've
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`23· ·been skimming, not reading everything word by word,
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`24· ·so . . .
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`25· · · ·Q.· I'd be amazed if you were reading that
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`·1· ·fast.
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`·2· · · ·A.· Yes.
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`·3· · · ·Q.· So you've looked through your complete
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`·4· ·declaration now?
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`·5· · · ·A.· I have.
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`·6· · · ·Q.· Did you find any points on which you
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`·7· ·disagree with the board?
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`·8· · · ·A.· So in paragraph 225.
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`·9· · · ·Q.· What is your disagreement?
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`10· · · ·A.· So the board found that there was
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`11· ·reasonable likelihood that the second model in
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`12· ·Agrawal incorporates at least a portion of the
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`13· ·first model such that a combined model is created
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`14· ·after the first model was created.
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`15· · · · · ·So this is from page 18.· Let me just
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`16· ·verify that.
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`17· · · ·Q.· Page 18 of the institution decision?
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`18· · · ·A.· Yes.
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`19· · · ·Q.· That's an issue on which you differ with
`
`20· ·the board, correct?
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`21· · · ·A.· I disagree with that conclusion.
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`22· · · ·Q.· Did you find any other areas where you
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`23· ·disagree with the board's conclusion?
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`24· · · ·A.· In my current scan and recollection, this
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`25· ·is the only one that I recall -- I'm able to
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`·1· ·recall.
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`·2· · · ·Q.· As you sit here today, can you think of
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`·3· ·any other points on which you disagree with the
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`·4· ·board's institution decision regarding the '115
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`·5· ·patent?
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`·6· · · · · ·MS. ZHONG:· Objection, form.
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`·7· · · ·A.· Well, I should read through the
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`·8· ·institutional decision, I think.
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`·9· · · ·Q.· That's what I asked you to do in the first
`
`10· ·place, so feel free.
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`11· · · ·A.· Okay.
`
`12· · · ·Q.· Before you do that, let me just direct you
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`13· ·to a couple of places.· Can you turn to page 6 of
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`14· ·the institution decision.
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`15· · · ·A.· I'm looking at it.
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`16· · · ·Q.· Page 6 is the section in which the board
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`17· ·gives its claim construction; is that correct?
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`18· · · ·A.· Right.· That's the claim construction
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`19· ·section in the analysis part.
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`20· · · ·Q.· And the board applies the broadest
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`21· ·reasonable interpretation standard, correct?
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`22· · · ·A.· Yes.
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`23· · · ·Q.· All right.· In the paragraph at the bottom
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`24· ·of page 6, the board talks about a construction for
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`25· ·the claim term "model of function calls."
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`·1· · · · · ·Do you see that?
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`·2· · · ·A.· I do.
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`·3· · · ·Q.· All right.· And patent owner, that's
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`·4· ·Columbia, argued that the construction or the
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`·5· ·broadest reasonable interpretation of that term
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`·6· ·should be "model generated in whole or in part from
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`·7· ·executing function calls."
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`·8· · · · · ·Do you see that?
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`·9· · · ·A.· I do.
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`10· · · ·Q.· And you offered an opinion concerning that
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`11· ·during the patent owner's response to the petition,
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`12· ·correct?
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`13· · · · · ·MS. ZHONG:· Objection, form.
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`14· · · ·A.· So let me take a look at my response -- or
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`15· ·my declaration.
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`16· · · ·Q.· Well, you're not going to find it in your
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`17· ·declaration, I don't think, because that is
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`18· ·something that happened before -- your declaration
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`19· ·occurred after the institution decision.
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`20· · · · · ·And what I'm asking you is, did you
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`21· ·propose a construction for the term "model of
`
`22· ·function calls" prior to the institution decision?
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`23· · · · · ·MS. ZHONG:· Objection, form.
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`24· · · ·A.· I do not recall whether I did or not.
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`25· · · ·Q.· All right.· Did you submit a declaration
`
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`15
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`·1· ·in opposition to the petition for the patent
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`·2· ·owner's response?
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`·3· · · ·A.· That's what this declaration is.
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`·4· · · · · ·Is that what you mean?
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`·5· · · ·Q.· Have you offered a separate declaration in
`
`·6· ·this matter before the declaration that's in front
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`·7· ·of you now?
`
`·8· · · · · ·MS. ZHONG:· Objection, form.
`
`·9· · · ·A.· I don't recall.
`
`10· · · ·Q.· All right.· On page 6 of the institution
`
`11· ·decision, do you see where it says, I think that's
`
`12· ·actually -- there's a typographical error in that
`
`13· ·paragraph, it says "petition proposes that model
`
`14· ·function calls means model generated in whole or in
`
`15· ·part from executed function calls."· I think that
`
`16· ·should say patent owner.
`
`17· · · ·A.· So let me underline that.· Which --
`
`18· · · ·Q.· Why don't you read that paragraph so we
`
`19· ·are all understanding what we're talking about.
`
`20· · · ·A.· (Perusing document.)
`
`21· · · · · ·So in the sentence that says specifically
`
`22· ·petitioner proposes, that "petitioner" should be
`
`23· ·replaced by "patent owner," is that the typo?
`
`24· · · ·Q.· Do you agree with that?
`
`25· · · ·A.· Do I agree with the typo?· I don't know if
`
`
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`·1· ·that's a typo or not.
`
`·2· · · ·Q.· But construction in that sentence says,
`
`·3· ·"model generated in whole or in part from executing
`
`·4· ·function calls."· Do you agree that that is the
`
`·5· ·appropriate construction for the claim term "model
`
`·6· ·of function calls"?
`
`·7· · · · · ·MS. ZHONG:· Objection, form.
`
`·8· · · ·A.· In the '115 patent we're talking about of
`
`·9· ·course, right?
`
`10· · · ·Q.· Yes, that's what I'm referring to.
`
`11· · · ·A.· Yeah.· So I did not in my declaration, I
`
`12· ·don't recall challenging the board's finding that
`
`13· ·the claim language does not expressly require a
`
`14· ·model be created by executing function calls.
`
`15· · · ·Q.· And on page 7 the board states that it
`
`16· ·declines to adopt the patent owner's proposed
`
`17· ·construction of model of function calls, correct?
`
`18· · · ·A.· Are you talking about that middle
`
`19· ·paragraph?
`
`20· · · ·Q.· Yes.
`
`21· · · ·A.· (Perusing document.)
`
`22· · · · · ·I'm just wondering how long that drilling
`
`23· ·is going to go on.
`
`24· · · ·Q.· I don't have any idea.
`
`25· · · · · ·MR. SACKSTEDER:· For the record, there is
`
`
`17
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`·1· ·some drilling happening somewhere in the building
`
`·2· ·we are sitting in or maybe just outside it and it's
`
`·3· ·coming through in our room.
`
`·4· · · ·A.· Okay.· So it's a little harder to
`
`·5· ·concentrate.
`
`·6· · · ·Q.· Understood.
`
`·7· · · · · ·So the question is whether the board
`
`·8· ·declined to adopt patent owner's proposed
`
`·9· ·construction of "model of function calls."
`
`10· · · ·A.· Yes.· The patent office says "we decline
`
`11· ·to adopt patent owner's proposed construction of
`
`12· ·model of function calls."
`
`13· · · ·Q.· And that proposed construction would have
`
`14· ·interpreted the term as it being a model generated
`
`15· ·in whole or in part from executing function calls,
`
`16· ·correct?
`
`17· · · ·A.· That's what they're declining to adopt.
`
`18· · · ·Q.· And in your declaration that you submitted
`
`19· ·most recently, you do not take issue with that
`
`20· ·decision by the board, correct?
`
`21· · · ·A.· I do not.· I do not -- I do not recall
`
`22· ·doing that and my review didn't indicate that I
`
`23· ·did.
`
`24· · · ·Q.· Is your --
`
`25· · · · · ·MR. SACKSTEDER:· Strike that.
`
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`18
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`·1· · · ·Q.· Are your opinions as expressed in your
`
`·2· ·declaration consistent with the application of a
`
`·3· ·construction of model of function calls as
`
`·4· ·construed by the board?
`
`·5· · · ·A.· I believe --
`
`·6· · · · · ·MS. ZHONG:· Objection, form.
`
`·7· · · ·A.· -- I used that interpretation, that
`
`·8· ·construction of the board in crafting the
`
`·9· ·declaration, correct.
`
`10· · · ·Q.· And the portion of that construction that
`
`11· ·patent owner was advancing was the portion
`
`12· ·regarding to being generated from executing
`
`13· ·function calls, correct?
`
`14· · · · · ·MS. ZHONG:· Objection, form.
`
`15· · · ·A.· The patent owner proposed, in quotes,
`
`16· ·model generated in whole or in part from executing
`
`17· ·function calls.
`
`18· · · ·Q.· And then the supporting evidence that is
`
`19· ·referenced from the patent owner talks about normal
`
`20· ·program execution stack behavior --
`
`21· · · ·A.· I see that.· Yes.
`
`22· · · ·Q.· -- correct?
`
`23· · · · · ·So do you understand that the portion of
`
`24· ·the construction the patent owner was advancing
`
`25· ·related to generating the model from executing
`
`
`19
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`·1· ·function calls?
`
`·2· · · ·A.· That's -- I think the board rejected that.
`
`·3· · · ·Q.· Exactly.
`
`·4· · · · · ·That's what the board rejected, correct?
`
`·5· · · ·A.· Yes.· Yes.
`
`·6· · · ·Q.· All right.· And so you did not apply such
`
`·7· ·a limited construction in your analysis in your
`
`·8· ·declaration, correct?
`
`·9· · · ·A.· I used the board's construction.
`
`10· · · ·Q.· All right.· In the next paragraph on
`
`11· ·page 7 of the decision, it talks about a
`
`12· ·construction that was proposed by the patent owner
`
`13· ·for the phrase "the model reflects attacks against
`
`14· ·the at least a portion of the program."
`
`15· · · · · ·Do you see that?
`
`16· · · ·A.· I do.
`
`17· · · ·Q.· And it said that "the patent owner
`
`18· ·proposes that that term means the model
`
`19· ·incorporates information about known or suspected
`
`20· ·attacks against the at least a portion of the
`
`21· ·program," correct?
`
`22· · · ·A.· Well, you're reading part of the sentence,
`
`23· ·but I see that.
`
`24· · · ·Q.· Yes.
`
`25· · · · · ·And the words "known or suspected attacks"
`
`
`20
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`·1· ·is in boldface, correct?
`
`·2· · · ·A.· Yes, it is.
`
`·3· · · ·Q.· Do you understand that emphasis to
`
`·4· ·indicate the portion of the proposed construction
`
`·5· ·that the board is then talking about in this
`
`·6· ·paragraph?
`
`·7· · · · · ·MS. ZHONG:· Objection, form, foundation,
`
`·8· ·calls for speculation.
`
`·9· · · ·A.· So could you repeat the question, please.
`
`10· · · ·Q.· Sure.
`
`11· · · · · ·In your reading of the institution
`
`12· ·decision, do you understand that from the boldface,
`
`13· ·the board emphasized that as what was important
`
`14· ·about what it was talking about in the paragraph?
`
`15· · · · · ·MS. ZHONG:· Objection, foundation.
`
`16· · · ·A.· I'm not sure why the board highlighted
`
`17· ·that.
`
`18· · · ·Q.· Do you have an understanding of why people
`
`19· ·normally emphasize words in quotes in documents?
`
`20· · · · · ·MS. ZHONG:· Objection, foundation.
`
`21· · · ·A.· Sometimes it's a typo.
`
`22· · · ·Q.· Do you think it was a typo here?
`
`23· · · ·A.· I have no idea.
`
`24· · · ·Q.· Okay.· In any event, the second to the
`
`25· ·last sentence of that paragraph says, "we find that
`
`
`21
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`·1· ·the claim language does not expressly require known
`
`·2· ·or suspected attacks," correct?
`
`·3· · · ·A.· That's what the board wrote.
`
`·4· · · ·Q.· And accordingly, the board rejected the
`
`·5· ·patent owner's proposed construction, correct?
`
`·6· · · ·A.· So let me read that whole paragraph.
`
`·7· ·We've been reading pieces of it.
`
`·8· · · · · ·(Perusing document.)
`
`·9· · · · · ·So let me review my declaration on this.
`
`10· · · ·Q.· What portion of your declaration are you
`
`11· ·looking at?
`
`12· · · ·A.· I'm looking at paragraph 30 to 37.
`
`13· · · ·Q.· What do those relate to?
`
`14· · · ·A.· The '115 patent.
`
`15· · · ·Q.· Do you see anything in those paragraphs
`
`16· ·that relates to the subject matter we're talking
`
`17· ·about?
`
`18· · · ·A.· Yes.· It talks about model of function
`
`19· ·calls, so my understanding is that the board -- so
`
`20· ·looking at the last sentence here, "The board finds
`
`21· ·that the claim language does not expressly require
`
`22· ·known or suspected attacks and declines to adopt
`
`23· ·the patent owner's proposed construction."· So --
`
`24· · · ·Q.· Let me ask you another question.
`
`25· · · ·A.· So --
`
`
`22
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`·1· · · ·Q.· Go ahead.
`
`·2· · · ·A.· Am I answering your question?
`
`·3· · · ·Q.· Why don't you go ahead and say what you're
`
`·4· ·going to say.
`
`·5· · · ·A.· That's what I was going to say.· Am I
`
`·6· ·answering your question?
`
`·7· · · ·Q.· Yeah, that the board rejected the patent
`
`·8· ·owner's proposed construction, correct?
`
`·9· · · ·A.· That's what was in the board response,
`
`10· ·right.
`
`11· · · ·Q.· There's a paragraph in your declaration,
`
`12· ·paragraph 11, that identifies the materials you
`
`13· ·considered in preparing your declaration.
`
`14· · · ·A.· I'm looking at paragraph 11.
`
`15· · · ·Q.· Is paragraph 11 intended to be an
`
`16· ·exhaustive list of the materials you considered in
`
`17· ·preparation of your declaration?
`
`18· · · ·A.· Let's see.· So it's not exhaustive in the
`
`19· ·sense that when I want to verify some terms or in
`
`20· ·some of these documents there were references to,
`
`21· ·in the bibliographies I did consult additional
`
`22· ·references to make sure I had the right
`
`23· ·understanding.
`
`24· · · ·Q.· One of the things that paragraph 11
`
`25· ·doesn't list is the board's institution decision,
`
`
`23
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`·1· ·correct?
`
`·2· · · ·A.· It doesn't explicitly say that, but it
`
`·3· ·was -- it was in the material that I was given. I
`
`·4· ·had access to that.
`
`·5· · · ·Q.· You reviewed the board's institution
`
`·6· ·decision?
`
`·7· · · ·A.· I did look at it, yes.
`
`·8· · · ·Q.· So you were aware of the claim
`
`·9· ·constructions that the board had arrived at in the
`
`10· ·process of working on your declaration.
`
`11· · · ·A.· So my goal was to be consistent with the
`
`12· ·claims as constructed except for any disagreements
`
`13· ·that I voiced.
`
`14· · · ·Q.· What's your understanding of the level of
`
`15· ·ordinary skill in the art regarding the '115
`
`16· ·patent?
`
`17· · · ·A.· (Perusing document.)
`
`18· · · · · ·As I opine in paragraph 26, level of
`
`19· ·ordinary skill in the art as of the application
`
`20· ·date, October 2005, would be a person with an
`
`21· ·undergraduate degree in computer science or
`
`22· ·mathematics and one or two years of experience in
`
`23· ·the field of computer security.
`
`24· · · ·Q.· And Dr. Goodrich had a different view of
`
`25· ·the level of ordinary skill?
`
`
`24
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`·1· · · ·A.· He proposed a master's degree with two to
`
`·2· ·three years of experience.
`
`·3· · · ·Q.· So your level of skill is lower, correct?
`
`·4· · · ·A.· It is.
`
`·5· · · ·Q.· And your disagreement with Dr. Goodrich
`
`·6· ·boils down to the difference between a bachelor's
`
`·7· ·and a master's degree and perhaps a year's
`
`·8· ·difference in professional experience, correct?
`
`·9· · · ·A.· Yes.
`
`10· · · ·Q.· Does that really make any difference in
`
`11· ·determining whether or not the claims of the '115
`
`12· ·or '322 patents are invalid?
`
`13· · · ·A.· I've got them out of order.· As I
`
`14· ·indicate, I disagree with Dr. Goodrich's proposed
`
`15· ·level, but the conclusions and validity --
`
`16· ·conclusions regarding claim construction, validity
`
`17· ·are the same, regardless.
`
`18· · · ·Q.· Are there any areas relating to the
`
`19· ·validity of the '115 patent that you can identify
`
`20· ·where a person with a master's degree and two to
`
`21· ·three years of professional experience would be
`
`22· ·able to understand them, but a person with a
`
`23· ·bachelor's degree and one to two years of
`
`24· ·experience wouldn't?
`
`25· · · ·A.· There are -- at that time, so we're
`
`
`25
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`·1· ·talking about the 2005, machine learning was
`
`·2· ·probably more of an advanced topic taught at a
`
`·3· ·graduate level than it is today.· So today it's
`
`·4· ·sort of trickled down.· But at that time it would
`
`·5· ·be considered --
`
`·6· · · ·Q.· In your opinion, machine learning is
`
`·7· ·disclosed in the '115 patent, correct?
`
`·8· · · ·A.· It's certainly described, many examples.
`
`·9· · · ·Q.· Is it your testimony that a person with a
`
`10· ·bachelor's degree and one to two years of
`
`11· ·experience wouldn't be able to understand the
`
`12· ·machine learning concepts in the '115 patent?
`
`13· · · ·A.· There are concepts that typically arise in
`
`14· ·a full semester course or a textbook at that level.
`
`15· · · ·Q.· At the bachelor's degree level?
`
`16· · · ·A.· In the 2005, I think that would have been
`
`17· ·very rare.
`
`18· · · ·Q.· So you think that an undergraduate would
`
`19· ·not have encountered machine learning concepts such
`
`20· ·as those in the '115 patent?
`
`21· · · ·A.· It would be unlikely.· I wouldn't consider
`
`22· ·that to be a person of ordinary skill at that time.
`
`23· · · ·Q.· A person with a bachelor's degree and one
`
`24· ·to two years of experience?
`
`25· · · ·A.· (No verbal response.)
`
`
`26
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`·1· · · · · ·MS. ZHONG:· Objection, form.
`
`·2· · · ·A.· Could you ask a question as a full
`
`·3· ·sentence?
`
`·4· · · ·Q.· Oh, sure.
`
`·5· · · · · ·You said "I wouldn't consider that to be a
`
`·6· ·person of ordinary skill at that time," and I said
`
`·7· ·"a person with a bachelor's degree and one to two
`
`·8· ·years of experience," clarifying what you were
`
`·9· ·referring to.
`
`10· · · ·A.· No.· No.· I'm saying that as my
`
`11· ·declaration says, a person of ordinary skill in the
`
`12· ·art in the subject matter in computer security
`
`13· ·would be somebody with a bachelor's degree with one
`
`14· ·or two years of experience.
`
`15· · · ·Q.· And my question was, would that person of
`
`16· ·ordinary skill have been capable at the time of
`
`17· ·understanding the machine learning concepts that
`
`18· ·are disclosed in the '115 patent?
`
`19· · · ·A.· So if they were exposed to it and
`
`20· ·motivated to learn it, I suspect they would.
`
`21· · · ·Q.· Would they typically be exposed to it at
`
`22· ·that level?
`
`23· · · ·A.· I don't believe so.
`
`24· · · ·Q.· Just for completeness, I'm also going to
`
`25· ·put in front of you your declaration regarding the
`
`
`27
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`·1· ·'322 patent.· That also has the Exhibit Number 2030
`
`·2· ·or 2030, although it's for IPR 377 instead of for
`
`·3· ·IPR 375.
`
`·4· · · · · ·Is the copy that I put in front of you
`
`·5· ·your declaration, sir?
`
`·6· · · ·A.· It appears to be.
`
`·7· · · ·Q.· And many of the discussions in the '322
`
`·8· ·declaration are the same as the ones in your '115
`
`·9· ·declaration, correct?
`
`10· · · ·A.· They're very similar patents and very
`
`11· ·similar declarations.
`
`12· · · ·Q.· They are similar in that they have
`
`13· ·identical specifications, correct?
`
`14· · · ·A.· I would have to look to see if the
`
`15· ·specifications are identical as you phrased.· Do
`
`16· ·you want me to do that?
`
`17· · · ·Q.· I don't want you to compare them word for
`
`18· ·word.· One is a continuation of the other, correct?
`
`19· · · ·A.· So one is a continuation of the other, so
`
`20· ·I believe the specifications are very similar.
`
`21· · · ·Q.· And there are some differences in the
`
`22· ·claims, correct?
`
`23· · · ·A.· That's the difference, yes.
`
`24· · · ·Q.· So we'll have it, here's the '115 patent.
`
`25· ·It is Exhibit 1001.· I'm afraid I'm going to get a
`
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`·1· ·stack of paper in front of you pretty quickly.· But
`
`·2· ·once we're done with it, there will be little else
`
`·3· ·to give you.
`
`·4· · · · · ·This is from the 377 IPR, Exhibit 1001,
`
`·5· ·which is the '322 patent.
`
`·6· · · · · ·Do you understand that there are some
`
`·7· ·prior art references that were asserted in the
`
`·8· ·petitions on these two IPRs?
`
`·9· · · ·A.· I do.
`
`10· · · ·Q.· And one of those is what has been called
`
`11· ·the Khazan application, or Khazan?
`
`12· · · ·A.· Yes.
`
`13· · · ·Q.· That's Exhibit 1010.· I'm putting that in
`
`14· ·front of you.
`
`15· · · ·A.· Thank you.
`
`16· · · ·Q.· And there is also the Arnold patent,
`
`17· ·correct?
`
`18· · · ·A.· That was also cited.
`
`19· · · ·Q.· It's Exhibit 1007.· You can kind of keep
`
`20· ·these in a stack for now.· I'm just making sure you
`
`21· ·have all of them in case we need to reference any
`
`22· ·of them.
`
`23· · · · · ·And finally, there is the Agrawal patent,
`
`24· ·that's Exhibit 1008.
`
`25· · · · · ·Do you recognize the Agrawal, Arnold, and
`
`
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`·1· ·Khazan references as those you've been discussing
`
`·2· ·in your declaration?
`
`·3· · · ·A.· I do.
`
`·4· · · ·Q.· Turn to paragraph 96 of your declaration,
`
`·5· ·please.
`
`·6· · · · · ·MS. ZHONG:· And which declaration?
`
`·7· · · · · ·MR. SACKSTEDER:· Let's just start with the
`
`·8· ·375.
`
`·9· · · · · ·MS. ZHONG:· Okay.
`
`10· · · ·Q.· And that begins your discussion of whether
`
`11· ·Khazan discloses identifying a function call as
`
`12· ·anomalous, correct?
`
`13· · · ·A.· Oh, I turned to page 96, not paragraph 96.
`
`14· · · ·Q.· I meant paragraph 96, if I didn't say it.
`
`15· · · ·A.· I'm looking at that.
`
`16· · · ·Q.· All right.· And what is your opinion,
`
`17· ·generally stated, with regard to whether Khazan
`
`18· ·discloses identifying a function call as anomalous?
`
`19· · · ·A.· So Khazan does not disclose the limitation
`
`20· ·of identifying a function call corresponding to at
`
`21· ·least one of the indicators as anomalous under the
`
`22· ·board's construction of anomalous as deviating or a
`
`23· ·deviation from a model of normal computer system
`
`24· ·usage.
`
`25· · · ·
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