throbber
Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 1
` UNITED STATES PATENT AND TRADEMARK OFFICE
` --------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` --------------------
`
` THE MANGROVE PARTNERS MASTER FUND, LTD., and
` APPLE INC.,
` Petitioners,
` vs.
` VIRNETX INC,
` Patent Owner.
` --------------------
` Case No. IPR2015-01046
` Patent No. 6,502,135
` --------------------
` THE MANGROVE PARTNERS MASTER FUND, LTD.,
` APPLE INC., and BLACK SWAMP, LLC,
` Petitioners,
` vs.
` VIRNETX INC.,
` Patent Owner.
` --------------------
` Case No. IPR2015-01047
` Patent No. 7,490,151
` --------------------
`
` DEPOSITION OF FABIAN MONROSE, Ph.D.
`
` Washington, D.C.
` Thursday, April 28, 2016
`REPORTED BY:
` SARA A. WICK, RPR, CRR
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 1
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 2
` Deposition of FABIAN MONROSE, Ph.D., called for
`examination pursuant to notice of deposition, on
`Thursday, April 28, 2016, in Washington, D.C., at
`the offices of Paul Hastings LLP, 875 15th Street
`Northwest, at 8:02 a.m., before SARA A. WICK, RPR,
`CRR, and a Notary Public within and for the District
`of Columbia, when were present on behalf of the
`respective parties:
`
` JEFFREY KUSHAN, ESQ.
` SCOTT BORDER, ESQ.
` Sidley Austin LLP
` 1501 K Street Northwest
` Washington, D.C. 20005
` 202-736-8000
` jkushan@sidley.com
` On behalf of Petitioner Apple Inc.
`
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 2
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`APPEARANCES (continued):
`
`April 28, 2016
`
`Page 3
`
` THOMAS MARTIN, ESQ.
` Martin & Ferraro, LLP
` 1557 Lake O'Pines Street, NE
` Hartville, Ohio 44632
` 330-877-0700
` tmartin@martinferraro.com
` On behalf of Petitioner Black Swamp, LLC
`
` JAMES BAILEY, ESQ.
` The Law Office of James T. Bailey
` 504 West 136th Street, #1B
` New York, New York 10031
` 917-626-1356
` On behalf of Petitioner The Mangrove
` Partners Master Fund, Ltd. (via
` telephone for morning session)
`
` -- continued --
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 3
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`APPEARANCES (continued):
`
`April 28, 2016
`
`Page 4
`
` MICHAEL KASDAN, ESQ.
` Wiggin and Dana LLP
` 450 Lexington Avenue, 38th Floor
` New York, New York 10017
` 212-490-1700
` mkasdan@wiggin.com
` On behalf of Petitioner The Mangrove
` Partners Master Fund, Ltd. (via
` telephone for afternoon session)
`
` DANIEL ZEILBERGER, ESQ.
` IGOR TIMOFEYEV, ESQ.
` Paul Hastings LLP
` 875 15th Street Northwest
` Washington, D.C. 20005
` 202-551-1792
` danielzeilberger@paulhastings.com
` On behalf of Patent Owner VirnetX Inc.
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 4
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 5
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` P R O C E E D I N G S
`Whereupon,
` FABIAN MONROSE, Ph.D.,
`was called as a witness and, having first been duly
`sworn, was examined and testified as follows:
` CROSS-EXAMINATION
` BY MR. KUSHAN:
` Q Good morning, Dr. Monrose. Could you
`state your full name for the record.
` A Fabian Monrose.
` Q And you have been deposed a number of
`times; correct?
` A That's correct.
` Q So you are familiar with the basic rules?
`If you don't understand a question, for example,
`that I've presented to you, just let me know, and I
`will try to ask it in a better way so that you
`understand the question.
` A Okay.
` Q Also, when your attorney objects, let him
`finish his objection, and then respond to the
`question posed to you. And you understand that
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 5
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 6
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`unless your attorney directs you to not answer a
`question due to privilege, then you have to answer
`the question, then, put to you; right?
` A I do.
` Q Before we get going, under the Board's
`order, we are directed to designate one individual
`to take the deposition today of the three
`Petitioners, and I've been designated by the other
`Petitioners to do so. That's just for the record.
` Just by way of background, since -- let's
`just take from your last deposition, have you had
`any changes in your employment?
` A I have not.
` Q And have you had any additional positions
`or other titles, awards, anything like that? Can
`you recall?
` A I have not.
` Q So your CV, as was presented, is still
`current relative to when it was presented in this
`proceeding?
` A I believe it is.
` Q Okay. I'm going to mark -- or give you
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 6
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 7
`copies of -- first, we have two declarations. This
`is a proceeding relating to -- there are two
`different proceedings. We're going to be addressing
`both of them during the course of the deposition
`today.
` First is Exhibit 2043, which is your
`deposition -- I'm sorry, your declaration in the
`IPR2015-1046, which concerns the '135 patent.
` (Exhibit 2043 marked for identification.)
` MR. KUSHAN: And then this is Exhibit
`2038, which is your declaration in case IPR2015-1047
`concerning the '151 patent.
` (Exhibit 2038 marked for identification.)
` BY MR. KUSHAN:
` Q Just verify for me that each of those are
`your declarations that you've submitted in those two
`proceedings.
` A These are my declarations.
` Q Thank you. And then a couple of other
`documents. First, I'm going to give you a copy of
`Exhibit 1001 in IPR2015-1047.
` (Exhibit 1001 marked for identification.)
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 7
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 8
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` BY MR. KUSHAN:
` Q This is the '151 patent, right, that
`you've expressed opinions about?
` A That's correct.
` Q And then I'm going to give you a copy of
`Exhibit 1001 in the 1046 proceeding, which is the
`'135 patent, just for convenience.
` (Exhibit 1001 marked for identification.)
` MR. KUSHAN: And the last thing I'm going
`to give you is what's been marked as Exhibit 1002 in
`each of the two proceedings the document that we've
`been calling Kiuchi. I can give you two copies of
`this, but it's identical in both proceedings. I
`think we can assume it's the same document, and it
`has the same exhibit number in each of the
`proceedings.
` (Exhibit 1002 marked for identification.)
` BY MR. KUSHAN:
` Q All right. During the course of the
`deposition today, if I refer to the '135 declaration
`or the '135 patent, you will understand that's
`referring to the -- your declaration in the
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 8
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 9
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`proceeding 1046 which concerns the '135 patent?
` A I will.
` Q And then the same thing for the '151? If
`I refer to the '151 declaration, you know I'm
`referring to that declaration concerning the '151
`patent. Okay?
` A Uh-huh.
` Q All right. Now, you've offered before
`today testimony concerning the teachings and content
`of the Kiuchi patent -- or Kiuchi reference; right?
` A I have in the past.
` Q Just by way of background, what did you do
`to prepare for your deposition today?
` A I went back over my declaration, the
`patents, the two patents, the '135 and the '151, the
`decision, and the petition.
` Q Did you read any other prior art?
` A And the references mentioned here.
` Q And so you are familiar with the contents
`of all those documents after reviewing them?
` MR. ZEILBERGER: Objection to form.
` THE WITNESS: I am familiar with the
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 9
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 10
`contents of those documents as it pertains to the
`declaration I have here today.
` BY MR. KUSHAN:
` Q When you prepared your declaration --
`let's start with the '135 declaration -- were you
`asked to make any assumptions in preparing your
`opinions?
` MR. ZEILBERGER: Hold on. I'm going to
`instruct the witness not to answer the question to
`the extent it calls for privileged or confidential
`information. Subject to that, you may answer.
` THE WITNESS: I was asked to review the
`decision, the petition and the decision and
`statements, opinions made by the expert Dr. Guerin.
` BY MR. KUSHAN:
` Q So in your declarations, in both the '135
`and '151 declarations, you express some views about
`claim constructions. Do you recall that?
` A I do.
` MR. ZEILBERGER: Objection; foundation.
` BY MR. KUSHAN:
` Q And in the course of forming your
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 10
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 11
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`opinions, did you independently come to those
`constructions, or were you provided those
`constructions by counsel for your analysis?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: So the constructions that
`are in my declarations are constructions that I
`didn't come up with these constructions. They were
`constructions that I gave an opinion on based on
`whether or not I believed that these constructions
`were in keeping with the specific patent, the claims
`and the specifications.
` BY MR. KUSHAN:
` Q So they weren't your constructions, but
`you were asked to express views about them?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: They were constructions that
`I evaluated, and as expressed in my declarations, I
`adopted many of the constructions of the Patent
`Owner because I believe they're in keeping with the
`specification, the patent and the specifications.
` BY MR. KUSHAN:
` Q And you just mentioned that you adopted
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 11
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 12
`many of them. Were there any constructions that you
`did not agree with?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: Sitting here today, I don't
`know.
` BY MR. KUSHAN:
` Q Did you review the entirety of the Guerin
`declarations in each proceeding?
` A I had to review the Guerin declarations.
` Q You read all of them?
` A I had to review it.
` Q I'm sorry. I'm just confirming. You read
`the complete declaration? You didn't skip any
`parts; right?
` A I read the complete declaration.
` Q Okay. Have you reviewed any deposition
`transcripts from depositions of Dr. Guerin?
` THE WITNESS: For these declarations, I
`don't believe I have.
` BY MR. KUSHAN:
` Q Okay. If you could look at your -- the
`last page of your declaration. Just pick the '135
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 12
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 13
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`declaration. Did you bring that book with you?
` A I asked them to bring it for me.
` Q Just so we have it clear for the record,
`what are the documents in that book?
` A These are the same documents that you gave
`me, my two declarations. I can use those. The '135
`patent, '151, the Kiuchi reference, RC 1034, and
`Exhibit 104, Rescorla, RC 2600.
` Q Did you make any annotations in the
`documents in that book?
` A I did not.
` Q So if you would turn to the '135
`declaration first. You can go to either. As long
`as you're representing they're the same, we're fine.
` A Can I turn to?
` Q The last page, your signature page.
`There's an electronic signature. It just has your
`name typed above your other name; right?
` A Uh-huh.
` Q Do you recall when you executed the
`declaration?
` A On the 20th day of March.
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 13
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 14
` Q And how did you cause the declaration to
`become executed?
` A By signing the declaration.
` Q Did you type your name above the line
`there?
` A I did.
` Q You did? So that's a result of your --
` A (Nodded head.)
` Q Okay. And the same question for your '151
`declaration. Can you go to that? In the '151
`declaration, you submitted the typed letters above
`your name on the last page, which is 33. You typed
`those letters in?
` A That's correct.
` Q And you typed those letters in on the date
`of the 20th of March, 2016?
` A That's correct.
` Q Okay. Are you aware of any -- and after
`you typed these letters in, your name in each of the
`declarations, did you transmit the files that had
`the typed-in letters to counsel?
` A What do you mean by "the typed-in
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 14
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 15
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`letters"?
` Q I assume you had a document, a Word
`document --
` A Uh-huh.
` Q -- that had the text of your declaration.
`Is that right?
` A Correct.
` Q And then you typed in your name at the end
`of the declaration, as you indicated; right?
` A Correct.
` Q And then did you transmit that file to
`counsel?
` A As the final, correct.
` Q And after you had done that, were you
`aware of any changes or edits to the file that you
`had transmitted to counsel?
` A I'm not aware of any.
` Q Okay. All right. So let's go to the '135
`declaration, if you turn to paragraph 15 of your
`declaration. This is under a heading that's
`titled "Virtual Private Network" and then recites
`"Claims 1, 4, 7, 10, and 12."
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 15
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 16
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` Do you see that?
` A I do.
` Q And in paragraph 15 is a table which
`lists -- has three cells in it. One is the "Patent
`Owner's Proposed Construction," "Petitioners'
`Proposed Construction," and the "Decision's
`Construction."
` Do you see that?
` A I do.
` Q And in the far left cell under the "Patent
`Owner's Proposed Construction," you see a sentence
`set out there? And that's the construction that you
`used in forming your opinions in this declaration
`for the term "virtual private network"?
` MR. ZEILBERGER: Objection to foundation.
` THE WITNESS: So I adopted, as I express
`here in my declaration, the Patent Owner's proposed
`construction, which I evaluated, and I adopted it as
`I believe it is in keeping with the specifications.
` BY MR. KUSHAN:
` Q So you formed an opinion during your work
`in this case that this sentence that says "A network
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 16
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 17
`
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`of computers which privately and directly
`communicate with each other by encrypting traffic
`over insecure communication paths between computers"
`is in your understanding the meaning of the
`term "virtual private network" as is used in claims
`1, 4, 7, 10, and 12; is that right?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: So I believe I just answered
`your question in that I said that I evaluated the
`Patent Owner's proposed construction. I believe
`that this construction is supported by the -- in
`view of the specification, and I have adopted that
`construction in my analysis that follows.
` BY MR. KUSHAN:
` Q So you believe the construction is
`correct?
` A I believe that the specifications support
`this construction.
` Q Did you reach a view about whether the
`specification supports a different construction of
`"VPN"?
` MR. ZEILBERGER: Objection; form.
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 17
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 18
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` THE WITNESS: I have not provided an
`opinion on that.
` BY MR. KUSHAN:
` Q No, I'm asking whether you have an opinion
`that the disclosure supports any other meaning of
`the term "VPN."
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: I believe that the
`construction proposed by the Patent Owner is
`supported by the specifications, and I've adopted
`it.
` BY MR. KUSHAN:
` Q Just so you are understanding my question,
`I recognize that you testified a couple times now
`that you believe the specification supports the
`construction that was provided to you about the
`meaning of the term "VPN."
` And I just want to understand whether,
`when you reviewed the patent specification, you
`found support for any other meaning of "VPN" in it.
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: So I have not expressed an
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 18
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 19
`opinion on any other meaning. In past proceedings,
`I believe I have expressed an opinion to what degree
`I felt that the Petitioners' construction was not
`supported by the specifications.
` BY MR. KUSHAN:
` Q Just so we are clear, I don't want to
`belabor the point, but I understand what you've
`expressed as opinions in your declaration. I'm just
`asking whether there were any other opinions you
`reached that you didn't express in your declaration
`about the meaning of "VPN" based on your review of
`the '135 disclosure.
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: I believe all my opinions
`about VPN as it relates to the '135 patent are
`expressed in my declaration.
` BY MR. KUSHAN:
` Q Now, for a term like "VPN," based on your
`analysis of it in the specification in the '135
`patent, did you conclude in your review of, for
`example, the '151 patent, which has essentially the
`same disclosure as the '135 patent, that the "VPN"
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 19
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 20
`term might mean something different in the context
`of the '135 -- I'm sorry, the '151 patent?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: That was a very loaded
`question.
` BY MR. KUSHAN:
` Q Sorry. I will unpack it. That was too
`many threads in that one.
` When you reviewed the disclosure of the
`'135 patent and you reach your conclusion about the
`meaning of "VPN," is it fair to say that your view
`about the meaning of "VPN" is based on the
`disclosure, so that if there were other patents with
`the same disclosure in this family, you would reach
`the same conclusion about "VPN"?
` MR. ZEILBERGER: Objection; scope and
`form.
` THE WITNESS: Again, so I think taking
`things one at a time, for each one of the -- of my
`declarations and for each one that pertains to the
`patents, there are certain claim terms that are
`individually in each one, and I did an assessment of
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`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 20
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 21
`these claim terms, the language of the claims, and
`an evaluation as to whether or not the
`specifications support those.
` BY MR. KUSHAN:
` Q So you're aware that the '135 and '151
`patents are a part of a family of related patents
`owned by VirnetX; right?
` A I am aware.
` Q And you are aware that those patents share
`the disclosure with some other patents in that
`family; correct?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: There are similarities in
`these patents, that's correct.
` BY MR. KUSHAN:
` Q And the similarities are of a nature that
`there may be additional information in some of the
`patents, but there's a common text shared by many of
`the patents; right?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: To a high level, that's a
`rough approximation, though the patents have very
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`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 21
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 22
`specific embodiments and differences across them.
` BY MR. KUSHAN:
` Q Right. I'm just talking about the
`disclosure portion of the patent. You know what
`that is; right?
` A Yes.
` Q Okay. So to the extent that the
`disclosures between the patents in the VirnetX
`family are the same, is it fair to say that your
`understanding of a term such as "VPN" would be
`consistent among all those different patents?
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: I haven't provided an
`opinion as to whether or not the term here -- you
`asked VPN -- would have been consistent across all
`of those. I've done it for the cases that I've been
`involved with, and I had to look at the claim terms
`for these cases.
` BY MR. KUSHAN:
` Q And my question is pretty simple. When
`you read the '135 disclosure and you reached your
`conclusion about the meaning of "VPN," if you read
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`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 22
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 23
`the identical text in another VirnetX patent, would
`you reach the same conclusion of the meaning of VPN
`for that patent?
` MR. ZEILBERGER: Objection; form, scope.
` THE WITNESS: If it's the identical text,
`my opinion holds.
` BY MR. KUSHAN:
` Q Your opinion was yes or no, that you would
`reach the same interpretation of the meaning
`of "VPN"?
` MR. ZEILBERGER: Same objections.
` THE WITNESS: Again, I still think that it
`also involves looking at the claims and the claim
`language and seeing -- and everything as a whole.
` BY MR. KUSHAN:
` Q Right. So when you reached your
`conclusion about the meaning of "VPN" based on the
`'135 patent disclosure -- we're starting on that
`assumption.
` A Uh-huh.
` Q I'm just confirming that, if you saw the
`identical text in another VirnetX patent, you would
`
`1
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`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 23
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 24
`reach the same conclusion about the meaning of "VPN"
`for that other patent.
` MR. ZEILBERGER: Objection to form and
`scope.
` THE WITNESS: I don't like hypotheticals.
`I want something -- for me to do my job, I would
`take the specifics of what's provided, look at that,
`look at -- make sure that they are the same, and
`review the patents and the specifications as a whole
`before coming up to a judgment that something in
`patent 1, even though it's of the same family, is
`immediately applicable to another patent. I can't
`do that sitting here today.
` BY MR. KUSHAN:
` Q Yeah, I don't want to make -- this isn't a
`broader question. It's just a simple question,
`which is you went through the '135 disclosure. You
`found passages that support your opinion about the
`meaning of "VPN." And I'm just confirming that, if
`you went through another VirnetX patent and you saw
`the same disclosures, you would reach the same
`conclusion about the meaning of the term "VPN" for
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`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 24
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 25
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`those other patents.
` MR. ZEILBERGER: Objection; form and
`scope.
` THE WITNESS: Again, if it's the same text
`and I'm relying on my evaluation for that term and
`how it's used in view of the specifications, sitting
`here today, I can't see why I would come up with a
`different opinion, but again, it has to be evaluated
`based on the specifics of those patents.
` BY MR. KUSHAN:
` Q And that would be true for each of the
`terms that you've construed in this proceeding
`relating to the '135 patent?
` MR. ZEILBERGER: Objection; form and
`scope.
` THE WITNESS: So for one, I have not
`construed any terms here. As I said before, there
`were terms that have been construed in these
`proceedings. I evaluated them and decided whether
`or not -- gave an opinion whether or not I thought
`the Patent Owner's constructions were supported by
`the specifications.
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 25
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 26
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` BY MR. KUSHAN:
` Q And so as you've stated that last answer,
`I just want to confirm that your belief is that the
`meaning of the term "VPN," for example, in the '135
`patent is as it's set forth in the left cell of the
`table in paragraph 15.
` MR. ZEILBERGER: Objection to form.
` THE WITNESS: So as clearly stated in
`paragraphs 16, 17, 18, 19, and 20 of my declaration,
`I gave my reasoning why I believe that the
`construction that you pointed to in the left column
`of that table is supported on the various aspects of
`that construction, including the component that has
`to do with the network of computers which can
`privately and directly communicate with each other
`by encrypting traffic over insecure communication
`paths between these computers.
` I have provided evidence and my opinion on
`why I believe that proposed construction is
`supported by the specifications.
` BY MR. KUSHAN:
` Q Yes. And I think you've made that clear
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 26
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 27
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`that you were looking at it to see if it was
`supported. I'm just asking, based on your own
`personal belief, whether it's correct.
` MR. ZEILBERGER: Objection; form.
` THE WITNESS: My opinion here is that that
`proposed construction is correct and that it's in
`keeping with the specifications. So I think I've
`answered your question.
` BY MR. KUSHAN:
` Q Thank you. I appreciate that. So you
`would agree, under VirnetX's construction of the
`term "virtual private network" which is in paragraph
`15 of your declaration, that a VPN can include
`communications that are only encrypted when they are
`transiting over an insecure path; is that right?
` A Could you repeat your question?
` Q Sure. So you would agree, under VirnetX's
`construction of "VPN" as it's set forth in paragraph
`15 of your declaration, that a VPN can include
`communications that are only encrypted when they are
`transiting over an insecure path; right?
` A I believe that the construction here
`
`866-928-6509
`
`Ace-Federal Reporters, Inc.
`
`202-347-3700
`
`Petitioners The Mangrove Partners Master Fund, Ltd., and Apple Inc.
`IPR2015-01046, Ex. 1036, p. 27
`
`

`
`Fabian Monrose
`
`Mangrove Partners Master Fund v. Virnetx
`
`April 28, 2016
`
`Page 28
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