MICHAEL FRATTO
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CERTIFIED COPY
`
`APPLE INC.,
`
`Petitioner
`
`V.
`
`VIRNETX,
`
`INC.,
`
`Patent Owner
`
`Case IPR20l4~OO237
`
`Case IPR20l4-00238
`
`Patent NO. 8,504,69
`
`7
`
`DEPOSITION OF MICHAEL FRATTO
`
`Washington, D.C.
`
`August 14, 2014
`
`Reported by:
`
`Mary Ann Payonk
`
`Job No.
`
`83382
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`CERTIFIED COPY
`
`APPLE INC.,
`
`Petitioner
`
`V.
`
`VIRNETX,
`
`INC.,
`
`Patent Owner
`
`Case IPR20l4~OO237
`
`Case IPR20l4-00238
`
`Patent NO. 8,504,69
`
`7
`
`DEPOSITION OF MICHAEL FRATTO
`
`Washington, D.C.
`
`August 14, 2014
`
`Reported by:
`
`Mary Ann Payonk
`
`Job No.
`
`83382
`
`
`
`MICHAEL FRATTO
`
`Thursday, August 14, 2014
`
`9:00 a.m.
`
`Deposition of MICHAEL FRATTO, held at
`
`the offices of Sidley Austin, 1501 K Street,
`
`NW, Washington, DC, pursuant to Notice
`
`before Mary Ann Payonk, Nationally Certified
`
`Realtime Reporter and Notary Public of the
`
`District of Columbia, Commonwealth of Virginia,
`
`States of Maryland and New York.
`
`Page 2 of 100
`
`
`
`MICHAEL FRATTO
`
`APPEARANCES:
`
`ON BEHALF OF VIRNETX INC.:
`
`NAVEEN MODI
`
`JOSEPH PALYS
`
`DANIEL ZEILBERGER
`
`PAUL HASTINGS
`
`875 15th Street, NW
`
`Washington, DC
`
`20005
`
`ON BEHALF OF APPLE INC.:
`
`SCOTT BORDER
`
`JEFFREY KUSHAN
`
`SIDLEY AUSTIN
`
`1501 K Street, NW
`
`Washington, DC 20005
`
`ALSO PRESENT:
`
`Jason Stach (By phone)
`
`Page 3 of 100
`
`
`
`MICHAEL FRATTO
`
`MICHAEL FRATTO,
`
`called as a witness, having been duly
`
`sworn, was examined and testified as
`
`follows:
`
`EXAMINATION
`
`BY MR. MODI:
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Good morning, Mr. Fratto.
`
`Good morning.
`
`How are you today?
`
`Fine. Yourself?
`
`Good,
`
`thanks.
`
`Can you state your full name for the
`
`It's Michael Fratto.
`
`What is your address?
`
`105 Marion Avenue, Syracuse,
`
`Have you ever been deposed before?
`
`I have not.
`
`Have you testified in court before?
`
`I have not.
`
`You understand you are under oath
`
`Yes,
`
`I do.
`
`And you also understand that I'll be
`
`Page 4 of 100
`
`
`
`MICHAEL FRATTO
`
`asking you questions and the questions will be
`
`transcribed by the court reporter ——
`
`A.
`
`Q.
`
`Yes, sir.
`
`—— and the answers?
`
`We will be taking breaks
`
`periodically, but if there's a pending
`
`question,
`
`I would ask that you answer that
`
`before we take a break.
`
`Is that fair?
`
`A.
`
`Q.
`
`Yes.
`
`Your lawyer may object today.
`
`You
`
`have to answer anyway unless he instructs you
`
`not to answer.
`
`Do you understand that?
`
`Yes.
`
`If you don't understand a question,
`
`A.
`
`Q.
`
`please let me know.
`
`I'll try my best to
`
`rephrase it. But if not,
`
`I'm going to assume
`
`you understand it.
`
`Is that fair?
`
`A.
`
`Q.
`
`Yes.
`
`I'm really bad at this.
`
`I'll try my
`
`best. We will have to try our best not to
`
`speak over each other today.
`
`Is that
`
`~—
`
`A.
`
`Q.
`
`Yes.
`
`You understand that?
`
`Do you have any questions before we
`
`Page 5 of 100
`
`
`
`MICHAEL FRATTO
`
`I do not.
`
`Q.
`
`Any reason you cannot testify
`
`completely and accurately today?
`
`A.
`
`Q.
`
`NO.
`
`What did you do to prepare for your
`
`deposition today?
`
`A.
`
`I read over my declarations and the
`
`references that the board instituted, as well
`
`as the '697 patent.
`
`Q.
`
`A
`
`Q.
`
`A
`
`Did you talk to anyone?
`
`Conferred with counsel.
`
`Who was that?
`
`Mr. Border, Mr. Kushan, and Tom
`
`Okay.
`
`So all Sidley attorneys?
`
`Yes.
`
`Anyone other than those three?
`
`Just those three.
`
`Q.
`
`How long did you prepare for your
`
`deposition?
`
`A.
`
`I probably spent upwards of 80 hours,
`
`perhaps.
`
`Q.
`
`A.
`
`You said 80 hours?
`
`Yes.
`
`Page 6 of 100
`
`
`
`MICHAEL FRATTO
`
`Q.
`
`And this was during the course of how
`
`long?
`
`For how many days was this?
`
`A.
`
`So it was actually spread out.
`
`It
`
`was a couple hours a day for the last,
`
`I think,
`
`six weeks when I was notified that I'd be
`
`deposed.
`
`Q.
`
`And how long did you meet with your
`
`attorneys to prepare for your deposition?
`
`A.
`
`Q.
`
`The last two days.
`
`Did you bring anything with you today
`
`to help you testify?
`
`A.
`
`Q.
`
`I did not.
`
`Can you tell me about your education
`
`since high school?
`
`A.
`
`Sure.
`
`How much detail do you want me
`
`to get
`
`into?
`
`Q.
`
`Why don't you just give me high level
`
`for now, and we can follow up if necessary.
`
`A.
`
`Okay.
`
`So I went to —— when I was 21,
`
`I started going to junior college in Florida.
`
`Went for two years, ended up transferring to
`
`Towson State University. Went to Towson State
`
`for a couple of years, moved to New York. Went
`
`to a junior college in preparation of going —~
`
`in preparation for going to Syracuse
`
`Page 7 of 100
`
`
`
`MICHAEL FRATTO
`
`University,
`
`then I got my degree at Syracuse
`
`University.
`
`Q.
`
`A.
`
`And that was in 2001?
`
`Yes. Yeah,
`
`that was when the degree
`
`was conferred, yeah.
`
`I think.
`
`Q.
`
`When did you start going to the
`
`college in Florida?
`
`A.
`
`Q.
`
`A.
`
`If I recall, it was 1984.
`
`And what did you study?
`
`It was a general curriculum in
`
`preparation for going on to a four~year degree,
`
`so basic math, writing, science.
`
`Q.
`
`So that was for two years you said,
`
`I
`
`believe.
`
`A.
`
`Q.
`
`For two years, yes.
`
`And then you also said you went to
`
`Towson State; correct?
`
`A.
`
`Correct.
`
`Q.
`
`A.
`
`And when was that?
`
`I don't recall the dates offhand.
`
`I
`
`think it was somewhere late '80s, early '90s,
`
`I
`
`believe.
`
`Q.
`
`A.
`
`Q.
`
`And what did you study there?
`
`I was majoring in philosophy.
`
`And how long did you go to Towson
`
`Page 8 of 100
`
`
`
`MICHAEL FRATTO
`
`State?
`
`A.
`
`I think it was three years, maybe,
`
`all told, as far as I recall.
`
`Q.
`
`Did you end up getting a degree in
`
`philosophy?
`
`A.
`
`Q.
`
`I did not.
`
`Any other ~— actually, let's go to
`
`Syracuse. What was your degree in at Syracuse?
`
`A.
`
`It was —— actually, it's —— it was
`
`misentered in the declaration.
`
`It's a BA in
`
`information science and technology.
`
`I
`
`mentioned it was a BS. That was a typo, a
`
`misprint.
`
`Q.
`
`A.
`
`And how long did you go to Syracuse?
`
`If I recall, it was two years to get
`
`the degree.
`
`Q.
`
`And what
`
`type of courses did you take
`
`at Syracuse?
`
`A.
`
`There were a variety of courses
`
`covering information technology, networking,
`
`systems analysis, as well as some general
`
`courses to fill out, you know, electives and to
`
`fill in other requirements, advanced writing.
`
`Q.
`
`And when did you start at Syracuse?
`
`I believe it was 1995,
`
`if I recall
`
`Page 9 of 100
`
`
`
`MICHAEL FRATTO
`
`correctly.
`
`Q.
`
`So you went there approximately for
`
`six years?
`
`A.
`
`No. Actually,
`
`I went for two years.
`
`I completed all my course work in '97.
`
`I
`
`just —— I had some paperwork to submit which I
`
`just kept forgetting to submit until 2001 or
`
`whenever the degree was conferred.
`
`Q.
`
`So after 1997, you did not take any
`
`courses at Syracuse?
`
`A.
`
`Q.
`
`submit?
`
`A.
`
`Q.
`
`Correct.
`
`What paperwork did you have to
`
`I don't recall, honestly.
`
`Any other education other than what
`
`you've told me so far?
`
`A.
`
`I took a training course probably in
`
`'98 or '99 given by Cisco.
`
`It was their
`
`introduction to Cisco routers. That was a
`
`week—long course that I took in New York.
`
`No
`
`certification or anything came out of it, and
`
`that's everything.
`
`Q.
`
`And how long was that course?
`
`It was a week.
`
`It was five days.
`
`You said this was on routers?
`
`Page 10 of 100
`
`
`
`MICHAEL FRATTO
`
`A.
`
`Yes.
`
`Q.
`
`What was the reason you changed from
`
`philosophy to information technology,
`
`if any?
`
`A. Well,
`
`there wasn't a reason to switch
`
`from one to the other specifically.
`
`I mean,
`
`I
`
`just stopped taking courses at Towson.
`
`I was
`
`in my final semester.
`
`I lost interest in the
`
`topic.
`
`I realized it wasn't a career I wanted
`
`to pursue.
`
`I did a few other things in between
`
`and decided I wanted to move into information
`
`technology,
`
`so that's when I went to Syracuse
`
`University.
`
`Q.
`
`A.
`
`Q.
`
`school?
`
`So that was in 1995?
`
`In '95, yes.
`
`What year did you graduate from high
`
`A.
`
`I didn't.
`
`I have a GED that was
`
`awarded in 1983 maybe,
`
`I think.
`
`Q.
`
`Let's talk about your job since high
`
`school.
`
`Can you sort of give me a high—level
`
`overview of your jobs since high school?
`
`A.
`
`Q.
`
`A.
`
`Since high school?
`
`Yes.
`
`I was in the Navy for four years,
`
`Page 11 of 100
`
`
`
`MICHAEL FRATTO
`
`from 1979 to 1983. After that,
`
`I held a
`
`Variety of odd jobs.
`
`I don't remember the
`
`dates.
`
`I mean,
`
`I worked at a Meals on Wheels
`
`factory.
`
`I worked at a print shop. Actually,
`
`two print shops.
`
`I worked at a video
`
`warehouse, a video store managing a warehouse.
`
`I was a bartender, bartender, waiter, bar
`
`manager, etc.
`
`I owned a commercial cleaning
`
`business for a year.
`
`I worked for a storage
`
`company for a couple of years.
`
`I did some
`
`consulting,
`
`some IT consulting. This would
`
`have been early '90s at this point.
`
`I worked in a carpet store when I
`
`moved to central New York.
`
`Then while I was
`
`going to school
`
`I started freelancing in
`
`Network Computing, was hired in Network
`
`Computing, and stayed there for 15 years until
`
`my current position.
`
`I think that about sums
`
`it up.
`
`Q.
`
`And your current position is with
`
`which company?
`
`A.
`
`I'm a principal analyst with Current
`
`Analysis.
`
`They want me to make it clear that
`
`my opinions are my own and don't reflect the
`
`Page 12 of 100
`
`
`
`MICHAEL FRATTO
`
`company.
`
`Q.
`
`In terms of computers, what would you
`
`say your first job was?
`
`A.
`
`I was —— back in the early '90s,
`
`I
`
`was doing some consulting with some small
`
`businesses.
`
`Q.
`
`And what did you do as part of that
`
`consulting?
`
`A.
`
`Remote office automation, so
`
`scripting, gluing programs together and etc.
`
`Q.
`
`When you said "remote office
`
`automation," what does that mean?
`
`A.
`
`At the time,
`
`I was writing programs
`
`that would pull information out of a computer
`
`system on a periodic basis,
`
`typically nightly,
`
`and then reformat that data into —— sorry,
`
`format that could be consumed by another, so
`
`taking —— basically,
`
`just automating that
`
`process. Was also doing some automation around
`
`distributing notices, you know,
`
`to multiple
`
`offices,
`
`so things of that nature.
`
`Q.
`
`And you said you wrote programs.
`
`What
`
`language were they in?
`
`A.
`
`So back then,
`
`the programs would have
`
`been written in,
`
`if I —— again,
`
`I'm recalling.
`
`Page 13 of 100
`
`
`
`MICHAEL FRATTO
`
`This is 20, 17 years ago, 20 years ago.
`
`C,
`
`the
`
`C language. Pascal, perhaps. And then there
`
`was some scripting languages for some
`
`communication programs, packages.
`
`I don't
`
`recall the name.
`
`Q.
`
`How did you learn those languages?
`
`Self—taught.
`
`Are you familiar with any languages
`
`Yes.
`
`Which ones?
`
`A.
`
`C, Pascal, Turbo Pascal, PERL, PHP,
`
`JAVA, Javascript, a little bit of Python. And
`
`then there are a couple of scripting languages,
`
`shell scripting, couple different shell --
`
`scripting languages within shells themselves.
`
`Q.
`
`So you can write programs in these
`
`languages?
`
`A.
`
`Yes.
`
`Q.
`
`A.
`
`In every single one of them?
`
`Yes.
`
`I probably wouldn't be able to
`
`sit down and bang one out without
`
`looking at
`
`references, but —~
`
`Q.
`
`You also mentioned scripting.
`
`Can
`
`you tell us a little bit more about scripting
`
`Page 14 of 100
`
`
`
`MICHAEL FRATTO
`
`in your job,
`
`in the consulting job that you do?
`
`A.
`
`Certainly.
`
`So scripting would have
`
`been using —— at that time, it would have been
`
`DOS batch files, which just basically glues
`
`together MS DOS commands and programs running
`
`in MS DOS into a script.
`
`So there's —— there are some control
`
`functions like loops and whatnot that are in
`
`there, but really, it's really more whatever
`
`you would type on the command line,
`
`I just take
`
`those and put them into a batch file and put
`
`some logic around them,
`
`so —~
`
`Q.
`
`A.
`
`file, yes.
`
`Q.
`
`A.
`
`So like an autoexec.bat?
`
`That would be an example of a batch
`
`And who was this consulting for?
`
`They were for a variety of companies.
`
`They were all small.
`
`I don't remember who they
`
`were at this point. There were some small
`
`offices. There was a storage company;
`
`there
`
`was an insurance company.
`
`I don't remember the
`
`names offhand.
`
`Q.
`
`So I believe on your CV you list that
`
`as 1987 to 1992 as the consulting job. Would
`
`that be fair, sort of the consulting that you
`
`Page 15 of 100
`
`
`
`MICHAEL FRATTO
`
`did,
`
`the scripting and remote office
`
`automation?
`
`A.
`
`Q.
`
`If that was listed in the CV, yes.
`
`I believe your CV lists it from 1987
`
`to 1992. Does that sound right to you?
`
`A.
`
`I don't have it in front of me, but
`
`if it says that in the CV,
`
`then yes.
`
`Q.
`
`Then you said after that consulting,
`
`these series of consulting jobs, you went to
`
`Network Computing;
`
`is that right?
`
`A.
`
`Yes,
`
`I went to Syracuse.
`
`What made you move to Syracuse?
`
`My wife. Well,
`
`then girlfriend, now
`
`You said you held a series of
`
`positions for Network Computing;
`
`is that right?
`
`A.
`
`Q.
`
`A.
`
`When I was fully employed, yes.
`
`And when you were not fully employed?
`
`I was a freelance editor, so I would
`
`take jobs on contract, basically.
`
`Q.
`
`So that was not a full—time job is
`
`what you're saying?
`
`A.
`
`It wasn't full—time employment.
`
`It
`
`was 40, 50 hours a week.
`
`Q.
`
`What do you consider to be full—time
`
`Page 16 of 100
`
`
`
`MICHAEL FRATTO
`
`employment?
`
`A.
`
`Q.
`
`40, 50 hours a week.
`
`Okay. Because I just asked you,
`
`"That wasn't a full—time job," and I think --
`
`so I'm a little confused.
`
`A.
`
`I'm sorry,
`
`let me be specific.
`
`I was
`
`not employed by Network Computing at that time
`
`in a full—time position, but I was taking
`
`enough contracts to fill 40, 50 hours a week.
`
`Q.
`
`Okay,
`
`thank you.
`
`And I believe your CV lists you as a
`
`freelance editor with Network Computing from
`
`April
`
`'94 to June '97?
`
`A.
`
`Q.
`
`If that's what's in the CV,
`
`then yes.
`
`And during your during that position,
`
`the position you held as a freelance editor,
`
`what did you do?
`
`A.
`
`I did a variety of things.
`
`I was
`
`testing products.
`
`I was writing product
`
`evaluations.
`
`I was writing workshops and
`
`how—to's.
`
`I was writing some opinions,
`
`some,
`
`you know, market analysis, product analysis.
`
`I
`
`was interacting with vendors on a variety of
`
`levels, both getting product briefings as well
`
`as troubleshooting any issues that I found,
`
`Page 17 of 100
`
`
`
`MICHAEL FRATTO
`
`verifying results, resolving any conflicts.
`
`I
`
`was doing equipment setup,
`
`teardown, creating
`
`network environments,
`
`IT environments for
`
`testing.
`
`Q.
`
`So this was all during '94 to '97?
`
`Correct.
`
`Q.
`
`You mentioned that you tested
`
`products in that position.
`
`How many products
`
`did you test?
`
`A.
`
`I don't recall. More than one.
`
`I
`
`don't know. Many. Many, many products.
`
`Q.
`
`A.
`
`Less than five?
`
`No, it was —~ no, it —— more than
`
`one,
`
`less than a thousand.
`
`I mean,
`
`there were
`
`a lot of products that I was looking at at the
`
`time.
`
`I —— honestly,
`
`I don't recall the
`
`number.
`
`Q.
`
`A.
`
`Do you remember what products?
`
`I remember the class of products.
`
`I
`
`remember a couple product names. At that
`
`point,
`
`I was looking at remote access servers,
`
`both for large enterprise, small offices.
`
`I
`
`was looking at modems.
`
`I was looking at VPN
`
`products.
`
`I was looking at other security
`
`products.
`
`Those are the major classes that ——
`
`Page 18 of 100
`
`
`
`MICHAEL FRATTO
`
`I looked at a couple of routers.
`
`Those are the
`
`things that sort of off the top of my head that
`
`I remember as far as classes go.
`
`Q.
`
`And you tested each one of those
`
`products?
`
`A.
`
`The products that I tested,
`
`I tested.
`
`I mean,
`
`I didn't —— I wouldn't say that I
`
`tested every single product in a particular
`
`product class, but the ones that I had in the
`
`lab were the ones that I tested.
`
`Q.
`
`And you don't remember which ones you
`
`tested?
`
`A.
`
`Not exact models.
`
`I mean,
`
`I remember
`
`many of the vendors that I tested.
`
`Q.
`
`A.
`
`What were the vendors?
`
`So at that time, it would have been
`
`vendors like Ascend Communications, Cisco, HP,
`
`Livingston, U.S. Robotics, Nortel, Emulex,
`
`Checkpoint, products from VPNet, products from
`
`Aventail, products from a vendor, Red
`
`something.
`
`I forget the last name. They're
`
`gone.
`
`Red Creek. Many more.
`
`Q.
`
`But you don't remember which ones of
`
`the products from any of these vendors you
`
`tested?
`
`Page 19 of 100
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`
`MICHAEL FRATTO
`
`A.
`
`Q.
`
`Specific model numbers, no.
`
`But sitting here today, you can tell
`
`me you tested a product
`
`from each of those
`
`vendors?
`
`A.
`
`And more. These are the ones that I
`
`can recall, sitting here today.
`
`Q.
`
`A.
`
`Q.
`
`And this was between '94 and '97?
`
`Yes.
`
`When you tested the products, what
`
`did that entail?
`
`A.
`
`Are you asking about specific product
`
`or just in general?
`
`Q.
`
`A.
`
`Q.
`
`Let's start generally.
`
`General?
`
`So in general --
`
`Again, let's focus on that
`
`'94 to '97
`
`time frame.
`
`A.
`
`Okay, that's fine. Between '94 and
`
`'97 in general,
`
`I would —— there's a lengthy
`
`process that simply repeated over and over
`
`again.
`
`I would be notified of the product in
`
`some way. Either I found it or I was briefed
`
`by the vendor. We would make arrangements to
`
`get the product to me.
`
`You know, we'd have
`
`conversations beforehand talking about what was
`
`Page 20 of 100
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`
`MICHAEL FRATTO
`
`the product supposed to do, what were its
`
`goals, how it was supposed to function, what
`
`kind of environment was required, you know,
`
`what was —— what were the relevant kinds of
`
`tests.
`
`I would take all this input in
`
`formulating a test plan and a methodology to go
`
`about testing.
`
`I would get the product
`
`in.
`
`I would
`
`create the environment that was needed to
`
`support the task,
`
`so that includes not only the
`
`infrastructure for the network development or
`
`the product to communicate but also the
`
`adjacent services,
`
`so DNS, DHCP, directory
`
`services if those are required, authentication
`
`services if those are required.
`
`So all of that stuff would be set up
`
`and established.
`
`I'd put the product into the
`
`network.
`
`I would —— or into that environment,
`
`do the integration.
`
`I would run through the
`
`tests,
`
`come up with some initial conclusions,
`
`and notify the vendor of my conclusions, what I
`
`was finding.
`
`If during this process there were
`
`ever any problems or bugs that I found,
`
`I would
`
`notify the vendor that —— of the issues that I
`
`Page 21 of 100
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`MICHAEL FRATTO
`
`found.
`
`I would work with them to get those
`
`problems resolved or addressed in some way, and
`
`then I would write up my report.
`
`Q.
`
`Now, you said —~ if I'm using the
`
`incorrect terminology, you can correct me.
`
`You
`
`said you were essentially a contractor for
`
`Network Computing at that time.
`
`A.
`
`Q.
`
`That's correct.
`
`How did you get the equipment you
`
`needed to test the various products?
`
`A.
`
`The products I was testing, or all
`
`the other infrastructure products?
`
`Q.
`
`A.
`
`What do you mean?
`
`I'm asking you to clarify. Asking
`
`how did I get the products to test, or how did
`
`I get the products to create the
`
`infrastructure,
`
`the test environment?
`
`Q.
`
`I'm talking about the testing
`
`environment.
`
`A.
`
`So that was -— typically, it would be
`
`onsite already in the lab that we were using,
`
`so it —— there would be a mix of commercial
`
`products that we had either purchased or on
`
`long—term loan for commercials, or I would use
`
`open source products to build the environment.
`
`Page 22 of 100
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`
`
`MICHAEL FRATTO
`
`Q.
`
`So you mentioned a lab. Where was
`
`this lab?
`
`A.
`
`Q.
`
`It was on Syracuse University.
`
`So the lab at Syracuse that you used,
`
`was it also the one you used for your studies?
`
`A.
`
`I'm not sure I understand the
`
`question.
`
`Q.
`
`So you said you used a lab at
`
`Syracuse to test the products.
`
`A.
`
`Yes.
`
`Q.
`
`So that was obviously owned by
`
`Syracuse but a university, not Network
`
`Consulting; right.
`
`A.
`
`Q.
`
`A.
`
`Network Computing.
`
`Or network Computing.
`
`Is that right?
`
`The space was actually leased.
`
`The
`
`space for the lab was leased from Syracuse
`
`University by —— at that point,
`
`the company was
`
`CNP Media, but they owned Network Computing,
`
`and the equipment was either variously owned by
`
`CNP Media or was on long—term loan from the
`
`vendors.
`
`We received basic infrastructure,
`
`networking, a network drop, end power, and
`
`space initially from Syracuse University.
`
`Page 23 of 100
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`
`
`MICHAEL FRATTO
`
`Q.
`
`Did you review any of the source code
`
`for any of the products you tested?
`
`A.
`
`If it was a commercial product, no.
`
`If it was an open source product,
`
`I may have.
`
`I don't recall if I —— any specific instance.
`
`Let me correct that. Let me correct
`
`that.
`
`If the commercial product used scripting
`
`language that was in plain text, again,
`
`I don't
`
`recall any particular instances, but I may have
`
`looked at that,
`
`those scripts.
`
`Q.
`
`A.
`
`Can you write source code?
`
`I can.
`
`Q. Which languages?
`
`A.
`
`The eight or nine that I listed
`
`previously.
`
`Q. With the qualification that you may
`
`need to refer to books to do that?
`
`A.
`
`Q.
`
`Yes.
`
`And then after —— in '97, you moved
`
`to a full—time position at Network Computing;
`
`is that right?
`
`A.
`
`Q.
`
`position?
`
`Correct.
`
`What did you do in that full—time
`
`A.
`
`So it was basically the same thing as
`
`Page 24 of 100
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`
`
`MICHAEL FRATTO
`
`I described to you as a freelance editor.
`
`I
`
`would do the product testing.
`
`I also had
`
`additional duties basically in, you know,
`
`maintaining relationships with vendors, more
`
`responsibilities in creating the editorial
`
`calendar, more responsibilities in assisting
`
`colleagues and peers and coworkers, going to
`
`trade shows.
`
`So there were some more
`
`responsibilities involved.
`
`Q.
`
`And that was from June '97 to
`
`June 2004?
`
`A.
`
`Correct.
`
`I went
`
`from an associate
`
`technology editor to position of senior
`
`technology editor,
`
`I recall. Again, it's in
`
`the CV, and my duties expanded.
`
`Q.
`
`And then in July 2004, you started
`
`working for the Secure Enterprise magazine;
`
`is
`
`that right?
`
`A.
`
`Q.
`
`Computing?
`
`If the date's correct in the CV.
`
`Is that connected to Network
`
`A.
`
`Owned by the same parent company.
`
`I
`
`believe at that point, CNP Media was acquired
`
`by United Business Media, but yeah, so same
`
`company,
`
`same lab space, different magazine.
`
`Page 25 of 100
`
`
`
`MICHAEL FRATTO
`
`Q.
`
`And what did you do for Secure
`
`Enterprise magazine?
`
`A.
`
`So as editor of Secure Enterprise
`
`magazine,
`
`I did all the testing and all the
`
`things I did up to being a senior technology
`
`editor at Network Computing.
`
`So all of those
`
`duties transferred over, but I was focusing
`
`specifically on security products in the
`
`security market.
`
`And,
`
`in addition,
`
`I was solely
`
`responsible for creating the editorial
`
`calendar, sourcing freelance writers, making
`
`sure that all the content was acceptable.
`
`I was involved in decisions on
`
`design, on the content side of creating the
`
`magazine, and I would represent Secure
`
`Enterprise going out to trade shows both as an
`
`attendee as well as presenting.
`
`Q.
`
`During that time, did you test any
`
`products?
`
`A.
`
`I did.
`
`Q. Which products?
`
`A.
`
`I couldn't tell you.
`
`I mean, again,
`
`I could tell you names of vendors that I would
`
`have dealt with.
`
`I can't recall what
`
`the
`
`Page 26 of 100
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`
`
`MICHAEL FRATTO
`
`actual products were.
`
`Q.
`
`And then you moved back to Network
`
`Computing;
`
`is that right?
`
`A.
`
`Q.
`
`Correct.
`
`And that was —— your CV says it was
`
`in April 2006.
`
`Is that right?
`
`A.
`
`Q.
`
`If that's what the CV says, yes.
`
`And what did you do when you moved
`
`back to Network Computing in April 2006?
`
`A.
`
`Pretty much doing the same thing
`
`except for I wasn't the editor of the magazine,
`
`so I was —— the roles would have been back to
`
`doing product testing,
`
`talking to vendors
`
`representing Network Computing at trade shows,
`
`presenting, working with my coworkers, helping
`
`them get their things done.
`
`Q.
`
`And your CV also states that you were
`
`a lab manager at that time.
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`What was that?
`
`If that —— so lab manager at that
`
`time,
`
`so 2007,
`
`I was managing the lab, so I was
`
`responsible for the budget for our two labs.
`
`I
`
`think at that time we had two labs.
`
`I was
`
`managing the equipment allocations.
`
`I was
`
`Page 27 of 100
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`
`MICHAEL FRATTO
`
`managing the lab at Syracuse University so I
`
`would work with other freelance editors we had
`
`working out of that particular lab to create
`
`test beds,
`
`to create —~
`
`to allocate equipment,
`
`to receive and ship product,
`
`troubleshoot the
`
`network, make sure that everything was working
`
`and available in addition to my own product
`
`testing and other duties.
`
`Q.
`
`You said there were two labs.
`
`These
`
`were at Syracuse University?
`
`A.
`
`No. We had one lab at Syracuse
`
`University, at some point,
`
`two locations. We
`
`had another lab in Wisconsin, a separate lab in
`
`Wisconsin.
`
`Q.
`
`When you say "we had," you were
`
`referring to Network Computing; correct?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`I'm sorry, Network Computing, yes.
`
`I just wanted to be clear.
`
`Yes.
`
`And when did you start working at the
`
`lab in Wisconsin?
`
`A.
`
`I didn't work at the lab in
`
`Wisconsin. We had separate people —— Network
`
`Computing had editors located in Wisconsin.
`
`I
`
`was responsible solely for their budget and
`
`Page 28 of 100
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`MICHAEL FRATTO
`
`fulfilling equipment requests.
`
`Q.
`
`So the lab that you worked at was the
`
`one in Syracuse?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Correct.
`
`At Syracuse University?
`
`Correct.
`
`And then your CV states you moved to
`
`Information Week in January of 2008.
`
`Is that
`
`right?
`
`A.
`
`Q.
`
`I assume so, yes.
`
`Is Information Week connected to
`
`Network Computing?
`
`A.
`
`It's also —— it was also owned by the
`
`same company,
`
`so we worked somewhat
`
`collaboratively together.
`
`Q.
`
`And what did you do for Information
`
`Week?
`
`A.
`
`So I don't have my CV in front of me.
`
`I don't recall the dates. What was the date?
`
`Q.
`
`It states January I, 2008 to
`
`August 2009.
`
`A.
`
`Okay.
`
`So at that point, we had
`
`closed the lab at Syracuse University. We had
`
`removed all the equipment. We had —— so my
`
`product testing duties at that point ended
`
`Page 29 of 100
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`
`MICHAEL FRATTO
`
`almost entirely. And for Information Week,
`
`I
`
`was doing product analysis and writing news and
`
`news analysis.
`
`Q.
`
`When you say you were doing product
`
`analysis, what does that mean?
`
`A.
`
`It means that a Vendor would —— when
`
`they were going to come out with a product,
`
`I
`
`would get a prebriefing ahead of the product
`
`announcement and perform an analysis. What
`
`does it mean?
`
`The market. What are the major
`
`functions?
`
`I would do an analysis on the
`
`claims that were made and then, based on my
`
`understanding of the technology and talking
`
`with the vendor, how well that product might
`
`meet those claims.
`
`Q.
`
`But that did not
`
`include the testing?
`
`A. After 2008, correct. After that --
`
`after I moved —— I'm sorry, after I moved to
`
`Information Week, correct.
`
`Q.
`
`Now, your CV also states that you
`
`managed the lab in CENT.
`
`A.
`
`That was prior to 2008.
`
`Q. Well, actually, it states as part of
`
`the Information Week duties, it says:
`
`"I managed the lab in CENT and
`
`Page 30 of 100
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`
`MICHAEL FRATTO
`
`provided guidance to certain lab
`
`assistant who work in CENT."
`
`A.
`
`So I was working at that point in
`
`collaboration with Syracuse University.
`
`It's
`
`the Center of Emerging Network Technologies at
`
`Syracuse University that a friend and colleague
`
`ran, so I was providing some professional
`
`guidance and assistance to them in their
`
`testing and in their product analysis.
`
`Q.
`
`I'm sorry,
`
`I'm confused. Was that
`
`during your job at Information Week?
`
`A.
`
`If the dates line up to that time,
`
`then yes.
`
`Q.
`
`A.
`
`It says "I managed the lab in CENT."
`
`Probably poor choice of words at that
`
`point.
`
`I was working with students at that
`
`point helping them to manage the lab.
`
`Q.
`
`And what was the lab used for?
`
`Mainly for student education.
`
`Q.
`
`So this was at Syracuse University
`
`again?
`
`A.
`
`Syracuse University, student
`
`education,
`
`so they could get hands—on
`
`experience with products and tests.
`
`Q.
`
`This is a different lab from the one
`
`Page 31 of 100
`
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`
`MICHAEL FRATTO
`
`we have been talking about at Syracuse
`
`University that you worked at?
`
`A.
`
`Q.
`
`As I recall, yes.
`
`And then you moved back to Network
`
`Computing in August of 2009;
`
`is that right?
`
`If that's what the CV says. As
`
`Yes.
`
`Correct.
`
`Q.
`
`A.
`
`What did you do as editor?
`
`So as editor,
`
`I was responsible for
`
`writing news stories, putting the news stories
`
`into our content management system, sourcing
`
`freelancers, developing an editorial calendar,
`
`working with our publisher and sales
`
`department, representing Network Computing at
`
`industry events,
`
`things of that nature.
`
`Q.
`
`But no product testing?
`
`I may have done one or two,
`
`I don't
`
`But generally no, no product testing.
`
`And you held that position until what
`
`Would have been 2011, whatever my CV
`
`The CV says "August 2009 to present,
`
`Page 32 of 100
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`
`MICHAEL FRATTO
`
`editor, Network Computing."
`
`A.
`
`Okay,
`
`so that was written before I --
`
`before I left Network Computing.
`
`So I started
`
`in my current position in October of —— it's
`
`20l4 —— 2012.
`
`Q.
`
`And that's for Current Analysis?
`
`Current Analysis, yes.
`
`Q.
`
`And what do you do for Current
`
`Analysis?
`
`A.
`
`Today,
`
`I am a principal analyst for
`
`enterprise network —— networking and systems.
`
`I do a variety of things.
`
`I perform
`
`competitive analysis. We do qualitative
`
`analysis on the industry.
`
`The competitive analysis is aimed to
`
`help our clients create actually a little bit
`
`of market strategies to understand the impacts
`
`and the effects of their competitors‘
`
`go—to—market strategies and product
`
`announcements.
`
`I write various short— and
`
`long—form reports and interact with vendors and
`
`represent Current Analysis at trade show
`
`events.
`
`Q.
`
`A.
`
`What about product testing?
`
`We do not do any product testing.
`
`Page 33 of 100
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`
`
`MICHAEL FRATTO
`
`Q.
`
`So would it be fair that since
`
`January of —— January I of 2008 to the present,
`
`you haven't done product testing?
`
`A.
`
`Q.
`
`Correct.
`
`Sitting here today, can you recall
`
`any products that you've tested in your career?
`
`A.
`
`Yes.
`
`Q. Which ones?
`
`A.
`
`Specific?
`
`Do you want specific
`
`product names and model numbers?
`
`Q.
`
`A.
`
`Let's start with product names.
`
`Product names? Red Creek, Ravlin,
`
`Aventail, Check Point Firewall 1, Cisco ASA,
`
`Cisco X, Cisco 2600, Cisco 3500, Cisco 6500.
`
`Juniper M. No, scratch that. Did not review
`
`any Juniper products.
`
`Q.
`
`A.
`
`Maybe slow down just for her sake.
`
`Yes,
`
`I'm sorry. Netscreen firewalls,
`
`Netopia SSL VPN.
`
`Those are the product names
`
`that —— the publications I'm sure are
`
`searchable,
`
`I just can't bring them all up
`
`right now.
`
`Q.
`
`A.
`
`Q.
`
`You mentioned Red Creek.
`
`Yes.
`
`When did you test that?
`
`Page 34 of 100
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`
`MICHAEL FRATTO
`
`A.
`
`If I recall correctly, it would have
`
`been probably starting somewhere around 1995 or
`
`'96.
`
`Q.
`
`A.
`
`Did it end at some point?
`
`It did.
`
`It ended when the company
`
`was either folded or got acquired.
`
`I don't
`
`recall when that was.
`
`Q.
`
`And what product was it for Red
`
`Creek?
`
`A.
`
`If I recall correctly,
`
`the name was
`
`Ravlin,
`
`some model number.
`
`Q.
`
`A.
`
`Q.
`
`What did it do?
`
`It was an IPSec VPN gateway.
`
`What about
`
`~— you also mentioned
`
`Check Point.
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`When did you test that?
`
`It would have been in the same time
`
`period,
`
`so starting somewhere in the mid '90s
`
`to perhaps 2005,
`
`if I recall. Again,
`
`I don't
`
`have the dates handy.
`
`Q.
`
`A.
`
`So you test a product for five years?
`
`I'm sorry,
`
`I was imprecise.
`
`I would
`
`test a product at Various points throughout
`
`that time period,
`
`so the products were not
`
`Page 35 of 100
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`
`MICHAEL FRATTO
`
`under constant test.
`
`They would come out with
`
`a new product and I would test it.
`
`Q.
`
`So Check Point is a name of a company
`
`or a product?
`
`A.
`
`I'm sorry, it was the name of a
`
`product.
`
`I'm sorry, a company. Firewall 1.
`
`The name went
`
`through a number of iterations.
`
`Firewall 1 is the name that I recall. There
`
`were other names for the same product.
`
`Q.
`
`Then you mentioned a bunch of Cisco
`
`products.
`
`A.
`
`Q.
`
`Correct.
`
`When did you test those products?
`
`A. Would have been in the same time
`
`period.
`
`I don't recall specific instances of
`
`testing specific products, or I should say I
`
`don't recall specific dates of testing specific
`
`products.
`
`Q.
`
`So for all these products would be
`
`anywhere from '95 through 2008?
`
`A. Whenever I started freelancing, so
`
`'94 up through 2008.
`
`Q.
`
`As part of your product review, did
`
`you look at standards?
`
`A.
`
`YES.
`
`Page 36 of 100
`
`
`
`MICHAEL FRATTO
`
`Q. Which standards?
`
`A.
`
`I don't recall specific standards,
`
`just specific products.
`
`It would have been
`
`whatever standards were relevant to the product
`
`that I was reviewing,
`
`the nature of the review
`
`that I was undertaking.
`
`It varied.
`
`Q.
`
`Sitting here today, you don't recall
`
`any standards?
`
`A.
`
`I don't recall —— well,
`
`I recall
`
`specific standards, not specific standards
`
`related to specific products,
`
`if that's what
`
`you're asking.
`
`Q.
`
`Right.
`
`So you don't recall any
`
`standards related to any products you tested?
`
`A.
`
`That's incorrect.
`
`I do not recall
`
`any standards in relation to specific products.
`
`In other words,
`
`I couldn't say I tested this
`
`product and I looked at this standard.
`
`Q.
`
`What are some of the standards you
`
`reviewed?
`
`A.
`
`Q.
`
`In relation to?
`
`In relation to your job doing the
`
`product reviews.
`
`A. Might be difficult, but what —— which
`
`products?
`
`Page 37 of 100
`
`
`
`MICHAEL FRATTO
`
`Q.
`
`A.
`
`Any of them.
`
`Any?
`
`In the case of IPSec VPN, it
`
`would have been the IPSec RFCs, both the draft,
`
`the early drafts and then when they
`
`transitioned over to an RFC status,
`
`I would
`
`have looked at standards around the SOCKS 4 and
`
`SOCKS 5 protocol and the additional standards
`
`around those.
`
`I would have looked at the
`
`standards around IPTCP EPP networking
`
`protocols.
`
`I would have looked at protocols
`
`around DNS and all of the DNS extensions.
`
`I
`
`would have looked at —— there were some testing
`
`standards that I w
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