Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 1 of 153 PageID #: 21466
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`VS.
`
`VIRNETX * Civil Docket No.
` * 6:07-CV-80.
` * Tyler, Texas
` *
` * March 15, 2010.
`MICROSOFT CORPORATION * 9:00 A.M
`
`TRANSCRIPT OF JURY TRIAL
`BEFORE THE HONORABLE JUDGE LEONARD DAVIS
`UNITED STATES DISTRICT JUDGE
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`10
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`APPEARANCES:
`
`FOR THE PLAINTIFFS:
`
`MR. DOUGLAS CAWLEY
`MR. BRADLEY CALDWELL
`MR. JASON D. CASSADY
`MR. LUKE MCLEROY
` McKool-Smith
` 300 Crescent Court
` Suite 1500
`Dallas, TX 75201
`
`MR. ROBERT M. PARKER
`Parker, Bunt & Ainsworth
`100 East Ferguson
`Suite 1114
`Tyler, TX 75702.
`
`APPEARANCES CONTINUED ON NEXT PAGE:
`
`COURT REPORTERS:
`
`MS. SUSAN SIMMONS, CSR
`Ms. Judith Werlinger, CSR
`Official Court Reporters
` 100 East Houston, Suite 125
` Marshall, TX 75670
`903/935-3868.
`(Proceedings recorded by mechanical stenography,
`transcript produced on CAT system.)
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`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 1
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`VS.
`
`VIRNETX * Civil Docket No.
` * 6:07-CV-80.
` * Tyler, Texas
` *
` * March 15, 2010.
`MICROSOFT CORPORATION * 9:00 A.M
`
`TRANSCRIPT OF JURY TRIAL
`BEFORE THE HONORABLE JUDGE LEONARD DAVIS
`UNITED STATES DISTRICT JUDGE
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`APPEARANCES:
`
`FOR THE PLAINTIFFS:
`
`MR. DOUGLAS CAWLEY
`MR. BRADLEY CALDWELL
`MR. JASON D. CASSADY
`MR. LUKE MCLEROY
` McKool-Smith
` 300 Crescent Court
` Suite 1500
`Dallas, TX 75201
`
`MR. ROBERT M. PARKER
`Parker, Bunt & Ainsworth
`100 East Ferguson
`Suite 1114
`Tyler, TX 75702.
`
`APPEARANCES CONTINUED ON NEXT PAGE:
`
`COURT REPORTERS:
`
`MS. SUSAN SIMMONS, CSR
`Ms. Judith Werlinger, CSR
`Official Court Reporters
` 100 East Houston, Suite 125
` Marshall, TX 75670
`903/935-3868.
`(Proceedings recorded by mechanical stenography,
`transcript produced on CAT system.)
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`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 1
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 2 of 153 PageID #: 21467
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`2
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`APPEARANCES CONTINUED:
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`FOR THE DEFENDANT:
`
`MR. MATTHEW POWERS
`MR. JARED BOBROW
`MR. PAUL EHRLICH
`MR. THOMAS KING
`MR. ROBERT GERRITY
`Weil Gotshal & Manges
`201 Redwood Shores Parkway
`5th Floor
`Redwood City, CA 94065
`
`MS. ELIZABETH WEISWASSER
`MR. TIM DeMASI
`Weil Gotshal & Manges
`767 Fifth Avenue
`New York, NY 10153
`
`MR. DANIEL BOOTH
`Weil Gotshal & Manges
`700 Louisiana
`Suite 1600
`Houston, TX 77002
`
`MR. RICHARD SAYLES
`MR. MARK STRACHAN
`Sayles Werbner
`1201 Elm Street
`4400 Renaissance Tower
`Dallas, TX 75270
`
`MR. ERIC FINDLAY
`Findlay Craft
`6760 Old Jacksonville Highway
`Suite 101
`Tyler, TX 75703
`
`* * * * * *
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`P R O C E E D I N G S
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`(Jury out.)
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`COURT SECURITY OFFICER: All rise.
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`THE COURT: Please be seated.
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`All right. Do the parties have anything before we bring
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 2
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 3 of 153 PageID #: 21468
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`the jury in?
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`Honor.
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`MR. POWERS: A couple of matters, Your
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`One is an issue that came up at the
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`pretrial conference, and it was VirnetX's motion in
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`limine regarding our evidence that they had earlier
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`accused of infringement, PPTP, which is now being
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`asserted to be prior art.
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`And Your Honor granted that motion in
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`limine. At Page 7, you said, I'll look at it closer
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`between now and then. Bring it back up with me prior to
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`trial. I think you're zeroing in on something that
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`would probably be an admission. So if you want to use
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`it to impeach their expert, to raise it now, and that's
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`what we're doing now.
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`So the basic --
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`THE COURT: So you want to raise -- oh,
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`yeah. Go ahead. Explain it to me a little further.
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`MR. POWERS: So the basic issue is this:
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`As Your Honor knows, we're relying on PPTP to be a piece
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`of prior art in the case. It's a Microsoft product that
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`was done in 1996.
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`We believe that the fact that VirnetX's
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`lawyers originally accused it of infringement and
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`withdrew it only when they learned of the date is
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 3
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 4 of 153 PageID #: 21469
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`evidence that should be allowed to be used in
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`cross-examination of their validity expert on the
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`question of whether PPTP does, in fact, come within the
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`scope of the claims.
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`THE COURT: Response?
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`MR. McLEROY: Yes, Your Honor.
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`The short answer is, we never accused it
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`of infringement. PPTP is not mentioned in our
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`infringement contentions. I believe what Counsel is
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`referring to is a letter that VirnetX's lawyers --
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`former lawyers sent to Microsoft clarifying the
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`definition of accused features in an interrogatory we
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`propounded to Microsoft.
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`And as you can see from the context of the
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`letter, as well as the interrogatories themselves, it's
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`a broad definition of accused features that VirnetX used
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`at the very beginning of the case, in November of 2007,
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`to identify every possible infringing feature to do our
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`analysis to see which infringed and which did not.
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`THE COURT: Okay. Is there a document or
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`something that you would rely on, Mr. Powers?
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`MR. POWERS: There is, Your Honor. It's
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`Exhibit 3252. I can hand up my copy, if you'd like.
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`THE COURT: All right. Bring up a copy of
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`that.
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 4
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 5 of 153 PageID #: 21470
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`And specifically --
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`MR. POWERS: The specific portion I
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`believe is highlighted in that copy, Your Honor. And it
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`is exactly as Counsel has characterized it. It's their
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`lawyers saying, yes, the accused functionality includes
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`PPTP and L2TP.
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`THE COURT: And let me see the
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`interrogatory.
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`MR. McLEROY: May I approach?
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`THE COURT: Okay. When do you need to get
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`into this with him?
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`MR. POWERS: It would be with their
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`invalidity expert, who will be on this morning.
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`THE COURT: Next or --
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`MR. POWERS: No. It will be in their
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`rebuttal case.
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`THE COURT: Right.
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`MR. POWERS: So we have -- it will be an
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`hour and a half at least.
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`THE COURT: All right. Let me study on it
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`a little bit.
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`What else?
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`MR. POWERS: Understood.
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`Your Honor, there were two offers of proof
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`filed late last night on issues that have been
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 5
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 6 of 153 PageID #: 21471
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`previously raised and subject of motions in limine, and
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`we wanted to make those offers of proof and obtain
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`indictment rulings from the Court on them.
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`The two issues are, I know, familiar to
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`the Court from the motions in limine.
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`One is the question of the reexaminations.
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`And that, of course, is relevant also to the witness
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`coming up. It's relevant to various issues in the case
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`and -- including, particularly, willfulness.
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`And so we wanted to obtain a definitive
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`ruling from the Court on that issue.
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`THE COURT: It's overruled.
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`MR. POWERS: Understood.
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`THE COURT: Okay.
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`MR. POWERS: And the second one on which
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`we wanted a definitive ruling is the question of
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`Microsoft patents which are covering the accused
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`functionality. On that one, Your Honor had earlier
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`ruled as well. There is one change that has happened
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`during the trial that does affect that issue.
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`The change is that their damages expert
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`testified on direct examination that one of the reasons
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`he believed some of the licenses he was relying upon
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`were particularly relevant was that they included PNRP
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`patents owned by Microsoft.
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 6
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 7 of 153 PageID #: 21472
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`So this is now a situation that is
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`different from how it was presented to Your Honor in the
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`motions in limine, because now VirnetX has made -- has
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`affirmatively opened the door to the relevance and
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`relied upon the relevance of Microsoft's patents on the
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`accused functionality.
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`And, therefore, we think that that opening
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`of the door should allow Microsoft to introduce those
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`patents into evidence.
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`THE COURT: All right. Response?
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`MR. CASSADY: Your Honor, I don't think
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`it's actually a fair representation to say that we've
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`done anything outside of what we've always intended for
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`these licenses.
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`When Mr. Sayles and I argued the
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`admissibility of the MCPP and WSPP licenses, I
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`specifically referred to the PNRP-related technologies
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`that has to go into those licenses. That was Wednesday.
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`Here we are Monday morning. That never got brought up
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`for five days that somehow that opened the door to any
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`issue related to these patents.
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`Furthermore, Dr. Ugone --
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`THE COURT: So what are you raising,
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`untimeliness in their --
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`MR. CASSADY: Well, that's one, Your
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 7
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 8 of 153 PageID #: 21473
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`Honor, or this is just a hail Mary at the end, that they
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`never thought it was relevant, and they're bringing it
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`in now. That's one.
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`Number two, Your Honor, Dr. Ugone never
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`talked about these patents in his report. He doesn't
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`specifically refer to these patent numbers. He doesn't
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`specifically refer to the Microsoft technology patents.
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`Three, Dr. Johnson, who he has to rely on
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`for the technical knowledge of these patents, didn't
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`refer to these patents either with regards to the
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`technology in this case.
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`THE COURT: But Mr. Reed did.
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`MR. CASSADY: Mr. Reed said that these
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`patents are related to technologies that Microsoft
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`licenses out.
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`Now what the Defendant's trying to do is
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`come in and say that these patents are for Microsoft
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`Windows products. So if the Windows product is
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`accused -- or is covered by one of our patents, then it
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`can't possibly infringe this patent.
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`They're trying to bring in or backdoor in
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`an inadmissible argument based on their own patents.
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`MR. POWERS: May I respond briefly, Your
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`Honor?
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`THE COURT: Yes.
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 8
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 9 of 153 PageID #: 21474
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`MR. POWERS: Mr. Reed went beyond merely
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`saying these are patents that Microsoft licenses out.
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`Mr. Reed attempted to increase the relevance of those
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`licenses in the eyes of the jury by saying that these
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`patents related to the accused functionality, and it was
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`that link that clearly opened the door.
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`THE COURT: Okay. And for what purpose do
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`you want to introduce these patents?
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`MR. POWERS: As evidence of Microsoft's
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`patents on its own functionality.
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`If he's relying on them and introducing
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`them and affirmatively relying on them, the patents
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`themselves should be in evidence before the jury.
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`THE COURT: But are you -- are you wanting
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`to use them to rebut his testimony regarding the damages
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`issue?
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`MR. POWERS: In part, yes, but in part,
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`they should be admissible now that he's opened the door.
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`He's opened the door to the relevance of those patents.
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`THE COURT: But --
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`MR. POWERS: And one purpose would be to
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`rebut his testimony. One purpose would be that
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`Microsoft --
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`THE COURT: And what would you rebut about
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`his testimony?
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 9
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 10 of 153 PageID #: 21475
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`MR. POWERS: The relevance in relationship
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`between those patents and the accused functionality, and
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`to the extent they actually do cover the accused
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`functionality, that's relevant to the jury as well.
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`MR. CASSADY: Your Honor, the only
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`question that these go to is comparability of the
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`licenses. Mr. Reed testified about the comparability of
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`the MCPP and WSPP license programs.
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`And he said, one reason they're comparable
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`is they include PNRP-related patents and other
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`technologies. He specifically said that this is what
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`Windows -- or this is what Microsoft uses to license
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`that technology out.
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`He did not say they're related to Windows.
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`He did not say they're related to server. He did not go
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`into that detail.
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`Dr. Ugone can easily get on the stand and
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`say that these licenses are not comparable without those
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`patents in his hand, as evidenced by the fact that he
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`never referred to those patents --
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`THE COURT: I'm not going to allow the
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`patents to be introduced. I will allow Dr. Ugone to
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`testify as to the damages aspect with regard to the
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`patents.
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`MR. CASSADY: And, so, Your Honor, just so
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 10
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 11 of 153 PageID #: 21476
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`11
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`we're clear, you mean he can get up and say that these
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`cover the Windows products, and they cover the products
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`in this case, those patents?
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`THE COURT: No. No.
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`MR. CASSADY: Okay. Thank you, Your
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`Honor.
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`THE COURT: Okay.
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`MR. POWERS: One housekeeping matter, Your
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`Honor. I think there's an agreement between the
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`parties. In that large list of exhibits that we offered
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`on the first day, Microsoft inadvertently included
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`DX3455, which is a physical hard drive of the source
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`code.
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`And so the parties have agreed that we'll
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`have a placeholder for that where there will be a
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`picture of the hard drive, and Microsoft will retain the
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`physical hard drive in case it's needed for anything.
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`THE COURT: Yes. And that should be the
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`practice with any physical objects. Substitute a
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`photograph for it.
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`MR. POWERS: The last thing, Your Honor,
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`on the housekeeping side, I thought Your Honor might
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`want the times for the depositions that are going to be
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`read today, so you'll have that in advance.
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`THE COURT: Okay.
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 11
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 12 of 153 PageID #: 21477
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`12
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`MR. POWERS: I'll give you the sequence,
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`if you like. There's going to be four depositions
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`played before Mr. Ugone goes on. Those will be Becker,
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`Hopen, Sterne, and then Kindred, and then Dr. Ugone will
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`go on.
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`And then the final two witnesses will also
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`be by deposition. That will be Victor Larson with an O
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`and then Kindell Larsen with an E. And the times for
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`all of those depositions are 50 minutes for Microsoft,
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`5-0, and 17 and a half minutes for VirnetX.
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`THE COURT: Okay. Very good.
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`All right.
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`MR. POWERS: I understand that VirnetX's
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`rebuttal case includes two depositions, which as I
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`understand it, are about four and a half minutes.
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`So the total -- and I think almost none
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`for Microsoft. So the totals for all the depositions
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`will be 50 for Microsoft and about 22 for VirnetX.
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`THE COURT: Is that correct?
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`MR. CALDWELL: I think it actually is
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`correct, with the exception of the part that VernetX
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`will not play in its rebuttal case. I think we will
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`play that by ear. So 50 and 17.
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`THE COURT: Okay. We'll go --
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`MR. CASSADY: 50 minutes and 17 and a
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 12
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 13 of 153 PageID #: 21478
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`13
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`half.
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`THE COURT: Yeah. We'll do the 50 and the
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`17 and a half, and you remind me if you put in those two
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`later depositions.
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`MR. CALDWELL: Yes, Your Honor.
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`THE COURT: All right. Anything further?
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`MR. POWERS: Nothing further, Your Honor.
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`THE COURT: All right. Bring the jury in.
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`(Jury in.)
`
`THE COURT: Please be seated.
`
`Good morning, Ladies of the Jury.
`
`Did you like your flowers?
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`JUROR: Yes. Very good. Thank you.
`
`THE COURT: Well, that's complement of
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`both parties. I told them of your desire to have a --
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`after such a pretty week, to be locked up in here with
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`no windows all week, I think those flowers are very
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`appropriate, and both Plaintiff and Defendant split the
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`cost of those, and we hope that you like them.
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`JUROR: Thank you.
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`THE COURT: All right. Very good then.
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`Thank you for your jury service last week
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`again. And today is, hopefully, our final day, if we --
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`we're going to try to work very hard and move through
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`the evidence.
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 13
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 14 of 153 PageID #: 21479
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`14
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`We have about a little less than three
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`hours of testimony to hear this morning, so we're going
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`to get started.
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`With that, Mr. Powers, you may call your
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`first witness.
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`MR. McLEROY: Your Honor, may we handle a
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`couple of exhibits?
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`THE COURT: Certainly, uh-huh.
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`MR. McLEROY: There are two exhibits. We
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`move to admit Plaintiff's Exhibits 985 and 1034. I do
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`not believe there are any objections.
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`MR. POWERS: No objection, Your Honor.
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`THE COURT: Be admitted.
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`MR. McLEROY: And, Your Honor, may I also
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`bring to the front a copy of our exhibits -- list of
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`exhibits admitted Friday?
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`THE COURT: All right. You certainly may.
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`That will be accepted without objection.
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`MR. POWERS: And similarly, Your Honor, we
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`have a list of exhibits to be admitted today as to which
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`there's no objection and a cumulative list of exhibits
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`admitted through Friday, including the list to be
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`admitted today.
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`THE COURT: Any objection to those to be
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`admitted today?
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 14
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 15 of 153 PageID #: 21480
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`15
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`MR. McLEROY: No, Your Honor.
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`THE COURT: All right. Be admitted, and
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`the other list is accepted without objection.
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`All right. Who will be your first witness
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`today?
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`MR. POWERS: Our first witness, Your
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`Honor, will be Mr. Becker from SafeNet by video
`
`deposition.
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`THE COURT: Okay. Thank you.
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`I'll tell the ladies of the jury, we have
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`four depositions, I'm advised, of four different
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`witnesses coming up, and the runtime on them is going to
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`be a little over an hour, about an hour and ten minutes.
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`So just sit back and enjoy.
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`(Video playing.)
`
`QUESTION: Good morning, Mr. Becker. You
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`are Mr. Bill Becker?
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`employed?
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`ANSWER: Yes.
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`QUESTION: Okay. Thank you very much.
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`Mr. Becker, where are you currently
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`ANSWER: I work at SafeNet, Incorporated.
`
`QUESTION: And what is SafeNet,
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`08:18
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`Incorporated?
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`08:18
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`ANSWER: It's an information security
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 15
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 16 of 153 PageID #: 21481
`
`16
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`company located on -- headquartered in Belcamp,
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`Maryland.
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`QUESTION: Okay. How long have you been
`
`an employee of SafeNet?
`
`ANSWER: Since July 1996, 13 years.
`
`QUESTION: Do you recall that at some
`
`period in time, you met with individuals from a company
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`called SAIC?
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`ANSWER: Yes.
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`QUESTION: What -- what do you
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`specifically recall about the technology that you were
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`shown?
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`ANSWER: It was a -- it was a solution
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`to -- they called it EasyVPN. It was a solution to have
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`their software distribute policy to an IP SEC client and
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`IP SEC gateway, and they were trying to make it easier
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`and more intuitive for the end user.
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`QUESTION: Was SAIC trying to get you at
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`SafeNet interested in their technology?
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`ANSWER: In some degree, yeah.
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`QUESTION: Do you recall -- I'm going to
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`show you, in connection with that evaluation, a document
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`bearing Bates No. SAFE-0006. I'm going to mark it as
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`Exhibit 371.
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`And I'd like to know if this refreshes
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 16
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 17 of 153 PageID #: 21482
`
`17
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`your recollection of your conclusions about the EasyVPN
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`technology.
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`ANSWER: It's an accurate summary.
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`QUESTION: Does this document, Mr. Becker,
`
`appear to be an accurate summary of SafeNet's evaluation
`
`of the EasyVPN technology that would have been created
`
`in the ordinary course of its business?
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`ANSWER: Yes.
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`QUESTION: And what was your conclusion as
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`to whether the EasyVPN technology would actually
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`accomplish the simplicity that it was trying to
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`accomplish?
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`ANSWER: The concept of -- for the users,
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`it might be simpler, but there was a lot of complexity
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`in the software in actually implementing it, especially
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`with trying to load stuff into a router.
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`QUESTION: So in your view, would the
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`technology that SAIC had shown you actually accomplish,
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`ultimately, any real simplicity?
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`ANSWER: No, not really.
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`QUESTION: Is it accurate, as this memo
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`says, that it seemed that the -- that the complexity it
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`was trying to eliminate had simply been moved from one
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`place to another?
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`08:21
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`ANSWER: That's accurate, yes.
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 17
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 18 of 153 PageID #: 21483
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`18
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`QUESTION: What exactly does it mean that
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`the complexity that they were trying to eliminate had
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`simply been moved from one place to another?
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`ANSWER: Their -- the complexity at the
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`time of VPNs was configuring policy of who could talk to
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`who, what different gateways and clients could talk to
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`each other.
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`So they were trying to simplify it from
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`the user's perspective in that they could just use .scom
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`extensions, and if something was .scom, it would go
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`secure there.
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`But the complexity would get moved from
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`the user's interface now into their software, and from
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`their software, it would be complex to get it -- to get
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`the keys derived and load it into like a Cisco router or
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`a VPN client.
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`So they were moving the complexity kind of
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`from the user interface down further into the -- into
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`the networking stack.
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`QUESTION: So would you call this solution
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`that SAIC claimed to have, would you call it really just
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`something that was, in reality, complex?
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`ANSWER: Yeah. The implementation was
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`complex, yes.
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`08:22
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`QUESTION: And do you know whether
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 18
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 19 of 153 PageID #: 21484
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`19
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`SafeNet, in fact, ultimately adopted this EasyVPN
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`technology?
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`ANSWER: We did not.
`
`QUESTION: Okay. Can you name some VPN
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`companies that have failed?
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`ANSWER: There's a company called Open
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`Reach that failed. I remember the -- there were -- I
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`don't remember the names of them all. There are a
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`number of them that have disappeared over the years.
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`QUESTION: Can you estimate how many VPN
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`companies have failed in the market?
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`ANSWER: A guess is maybe ten.
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`QUESTION: Is setting up a VPN a hard
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`problem?
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`08:23
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`15
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`08:23
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`16
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`ANSWER: It -- it can be.
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`QUESTION: How can setting up a VPN be a
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`08:23
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`17
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`hard problem?
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`08:23
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`18
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`ANSWER: If -- if a user interface or the
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`08:23
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`19
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`rules are -- are complex for a -- for a system, it could
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`08:23
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`20
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`be hard to -- hard to set up and hard to get
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`08:23
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`21
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`operational.
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`08:24
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`22
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`QUESTION: Did you think VirnetX's EasyVPN
`
`08:24
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`23
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`technology was a bad idea?
`
`08:24
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`24
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`ANSWER: No. I didn't -- I didn't think
`
`08:24
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`25
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`it was a bad idea.
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 19
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 20 of 153 PageID #: 21485
`
`20
`
`QUESTION: Just hard to implement?
`
`ANSWER: It's hard to implement, yes.
`
`QUESTION: And I think you said that
`
`moving the complexity from one place to another -- what
`
`did you mean by that?
`
`ANSWER: I was referring to moving the --
`
`the complexity from -- from the user to the -- to the
`
`software that interfaces to load keys into the gateway
`
`and into the client.
`
`1 2 3 4 5 6 7 8 9
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`08:24
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`08:24
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`08:24
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`08:24
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`08:24
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`08:24
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`08:24
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`08:24
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`08:24
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`08:25
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`10
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`QUESTION: So would you agree that EasyVPN
`
`08:25
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`11
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`technology, once implemented, would make it easier for a
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`08:25
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`12
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`user to set up or create a VPN?
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`08:25
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`13
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`ANSWER: It might compared to certain
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`08:25
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`14
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`products, and it might not compared to other products.
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`08:25
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`15
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`08:25
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`16
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`(End of video clip.)
`
`MR. POWERS: Your Honor, the next witness
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`08:25
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`17
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`will be Mr. Hopen from Aventail, and the total time will
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`08:25
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`18
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`be 14 minutes.
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`08:25
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`19
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`THE COURT: All right. You've already
`
`08:25
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`20
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`given me the times, haven't you?
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`08:25
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`21
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`MR. POWERS: I've given you the cumulative
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`08:25
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`22
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`times, yes.
`
`08:25
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`23
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`08:25
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`24
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`08:25
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`25
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`THE COURT: All right.
`
`(Video playing.)
`
`QUESTION: Can you please introduce
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple Inc. - Exhibit 1059, p. 20
`
`
`
`Case 6:07-cv-00080-LED Document 398 Filed 04/05/10 Page 21 of 153 PageID #: 21486
`
`21
`
`yourself?
`
`ANSWER: I'm Chris Hopen. I was a
`
`cofounder of Aventail Corporation back in 1996.
`
`QUESTION: Okay. What were your job
`
`titles while at Aventail?
`
`ANSWER: I ran engineering, so I was Vice
`
`President of engineering and Chief Technology Officer.
`
`QUESTION: What was Aventail Connect
`
`Version 3.1?
`
`1 2 3 4 5 6 7 8 9
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`08:25
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`08:25
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`08:25
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`08:25
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`08:25
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`08:26
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`08:26
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`08:26
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`08:26
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`08:26
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`10
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`ANSWER: Aventail connect 3.1 was a piece
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`08:26
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`11
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`of software that would run on an end user's PC that
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`08:26
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`12
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`would provide additional secure communications services
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`08:26
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`13
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`to applications running on that PC. It would -- it was
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`08:26
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`14
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`a client in a pair of a client/server solutions that we
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`08:26
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`15
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`sold.
`
`08:26
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`16
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`So it was one component of what we
`
`08:26
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`17
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`referred to as Aventail ExtraNet Center. And so
`
`08:26
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`18
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`Aventail Connect was the component that was the
`
`08:26
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`19
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`client-side software that would be distributed and run
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`08:26
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`20
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`on individual users' systems.
`
`08:26
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`21
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`QUESTION: What was the name of the other
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`08:26
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`22
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`component of the -- of the Aventail ExtraNet Center?
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`08:26
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`23
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`ANSWER: Yeah. So, typically, ExtraNet
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`08:26
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`24
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`Center was sort of the umbrella name, if you will, for
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`08:27
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`25
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`the entire product. The -- I believe at that point in
`
`Sunbelt Reporting & Litigation Services
`HOUSTON*DALLAS/FT. WORTH*CORPUS CHRISTI*AUSTIN*EAST TEXAS*SAN ANTONIO
`
`Apple v. VirnetX, IPR2015-00871
`Petitioner Apple In
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