throbber
Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 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
` v.
` VIRNETX INC.
` Patent Owner
` Case IPR2015-01046
` Patent No. 6,502,135
` ___________________________
` Case IPR2015-01047
` Patent No. 7,490,151
` ___________________________
`
` DEPOSITION Of ROCH GUERIN, PH.D.
` Washington, D.C.
` Monday, February 1, 2016
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`VIRNETX EXHIBIT 2039
`Mangrove v. VirnetX
`Trial IPR2015-01047
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`Page 1 of 165
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`

`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 2
` Deposition of ROCH GUERIN, PH.D., called
`for examination pursuant to notice, on Monday,
`February 1, 2016 in Washington, D.C. at the offices of
`Paul Hastings LLP, 875 15th Street, Northwest,
`Washington, D.C., at 8:07 a.m., before Karen Young, a
`Notary Public within and for the District of Columbia,
`when were present on behalf of the respective parties:
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 3
` ON BEHALF OF THE MANGROVE PARTNERS
` MASTER FUND, LTD.:
`
` JAMES T. BAILEY, ESQUIRE
` 504 West 136th Street, #1B
` New York, New York 10031
` JTB@JTBAILEYLAW.COM
` (917) 626-1356
`
` ON BEHALF OF APPLE, INC. AND THE WITNESS:
` SCOTT M. BORDER, ESQUIRE
` Sidley Austin LLP
` 1501 K Street, Northwest
` Washington, D.C. 20005
` sborder@sidley.com
` (202) 736-8818
`
` ON BEHALF OF VIRNETX INC.:
` JOSEPH E. PALYS, ESQUIRE
` DANIEL ZEILBERGER, ESQUIRE
` Paul Hastings LLP
` 875 15th Street, Northwest
` Washington, D.C. 20005
` danielzeilberger@paulhastings.com
` josephpalys@paulhastings.com
` (202) 551-1996
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 4
` P R O C E E D I N G S
` ROCH GUERIN, PH.D.,
` having been duly sworn, was examined as follows:
` EXAMINATION BY COUNSEL FOR VIRNETX INC.
` BY MR. PALYS:
` Q. Good morning.
` A. Morning.
` Q. Can you please state your name for the
`record?
` A. First name is Roch, R-O-C-H. Last name is
`Guerin, G-U-E-R-I-N.
` Q. And just before we start, I just want to
`make sure that we have on the record that VirnetX
`still maintains its objections on the record of
`Apple's participation in these proceedings, and that
`what appears to be Apple's counsel defending Mr. -- or
`Dr. Guerin today. Can you please state your address?
` A. Home address?
` Q. Yes, please. Sorry.
` A. It's 8025 Bonhomme Avenue, that's B as in
`boy, O-N-H-O-M-M-E, Apartment 1706, Clayton,
`C-L-A-Y-T-O-N, Missouri 63105.
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 5
` Q. Dr. Guerin, we've met before, correct?
` A. That's correct.
` Q. So -- and I understand from our previous
`meeting that you've been deposed before, correct?
` A. That is correct.
` Q. All right, so you understand how this is
`going to go today.
` A. Yes, I do.
` Q. All right. If you have any questions during
`this proceeding on how it's going, just let me know
`and I'll explain, but I'm going to assume you know all
`the ground rules.
` A. I think I do. I may have forgotten some of
`them.
` Q. Okay.
` A. But I will ask if I have any doubt.
` Q. Okay. Well, is there any reason why you
`can't truthfully and accurately answer questions
`today?
` A. No.
` Q. Okay. And if you don't understand a
`question, just let me know. If you don't, I'll assume
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 6
`you understand the question, okay?
` A. Okay.
` Q. You provided some opinions regarding certain
`VirnetX patents with respect to -- oh, strike that.
`Let me just -- I'm handing the witness a copy of a
`declaration of Dr. Roch Guerin labeled Mangrove
`Exhibit 1003 in relations -- in relation to U.S.
`patent number 6,502,135.
` A. Thank you.
` Q. Can you give one of the copies to counsel?
` A. Oh, sorry.
` Q. I'm also handing the witness a copy of a
`declaration of Dr. Roch Guerin regarding U.S. patent
`number 7,490,151. It is not labeled.
` A. Thank you.
` Q. Dr. Guerin, looking at the declaration for
`U.S. patent 6,502,135, do you recognize that document?
` A. Yes, it does look like a document I
`submitted.
` Q. Can you turn to the last page, page 26 of
`that declaration?
` A. Yes.
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 7
` Q. Is that your signature dated April 10th,
`2015?
` A. Yes, it is.
` Q. Okay. I'm going to refer to the 6,502,135
`patent as the '135 patent today, okay?
` A. Okay.
` Q. Great, and I'll -- may refer to this
`declaration relating to the '135 patent as your '135
`declaration, okay?
` A. Okay.
` Q. Can you turn to the other declaration that I
`handed you please?
` A. Yes.
` Q. And do you recognize the declaration
`relating to U.S. patent number 7,490,151?
` A. Yes, it appears to be the declaration that I
`submitted for that other patent.
` Q. And on the last page, 33, is that your
`signature dated April 10th, 2015?
` A. Yes.
` Q. And I will refer to U.S. patent number
`7,490,151 as the '151 patent today, okay?
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 8
` A. Okay.
` Q. And I may refer to this declaration as the
`'151 declaration, okay?
` A. Okay.
` Q. Let me know if you don't understand please.
`You understand that these -- the '135 declaration was
`submitted in IPR2015-01046?
` A. I do not recall the exact number, but I -- I
`mean, I will take, you know -- at your -- word for
`that. I mean, as I said, yes, it was submitted in IPR
`proceedings. You know, I don't have the exact number
`in my head.
` Q. Okay. I may refer to that proceeding as the
`1046 proceeding today.
` A. Okay.
` Q. Okay? Are you aware that your '151
`declaration was submitted in IPR2015-01047 as an
`exhibit?
` A. Again, same sort of answer. I know it was
`submitted as part of an IPR. As far as the number is
`concerned, I'll take your word for it, the fact that
`it is the right number.
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`

`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 9
` Q. And your opinions for the '135 and '151
`patent provide testimony relating to a reference
`entitled Kiuchi, correct?
` A. That is correct.
` Q. So I'm handing the witness a copy of a
`document labeled Mangrove 1002. It's entitled "C-HTTP
`-- The Development of a Secure Closed HTTP-Based
`Network on the Internet."
` A. Thank you.
` Q. Do you recognize Exhibit 1002?
` A. Yes, I do.
` Q. I'm going to refer to that document as
`Kiuchi today.
` A. Okay.
` Q. And so your opinions in the '135 and '151
`declaration relate to -- or includes testimony
`relating to Kiuchi, correct?
` A. That is correct.
` Q. Turn to page 4 of your '135 declaration
`please.
` A. Yes.
` Q. And on paragraph 10, you state that, "This
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 10
`declaration is organized as follows," right?
` A. Yes.
` Q. And you have a brief overview of the '135
`patent, correct?
` A. That is correct.
` Q. Another section for terminology, correct?
` A. Correct.
` Q. Another section on Kiuchi and combinations
`based on Kiuchi, correct?
` A. Correct.
` Q. And another section on publication and
`authenticity of requests for comment or RFCs, correct?
` A. Correct.
` Q. And then a conclusion.
` A. Correct.
` Q. You reviewed the '135 patent, correct?
` A. That is correct.
` Q. And you provide -- in your -- in your first
`section, a brief overview of the '135 patent, you
`provide an overview of what you believe the '135
`patent describes. Is that accurate?
` A. I provide an overview primarily of a
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 11
`specific section, which is that -- that section 3B, if
`I recall correctly. The patent has many other
`sections that I don't discuss in any real detail.
` Q. Is there a particular reason why you
`provided testimony relating to that section of the
`'135 patent?
` A. I mean, this section is the one that sort of
`is the most pertinent to, say, the claims that are in
`the patents and the one to which Kiuchi relates.
` Q. Did you review the claims of the patent, the
`'135 patent?
` A. I read them.
` Q. Did you analyze them?
` A. No, I've not done a detailed analysis of the
`claims.
` Q. How would you know that this section that
`you identify in -- in paragraphs 12 and 13 of your
`declaration are pertinent to the claims of the '135
`patent?
` MR. BORDER: Objection as to form.
` BY MR. PALYS:
` Q. Do you understand my question, sir?
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 12
` A. Yes, I do.
` MR. BAILEY: Joe, for the record, to not
`have to pipe up if he beats me to the objection, I
`will join unless otherwise stated on behalf of The
`Mangrove Partners Master Fund Limited.
` MR. PALYS: All right. Hold on. Are you
`saying that you're both defending him at the same
`time?
` MR. BAILEY: Well, there may be different --
`there may be topics that you address that are
`different with respect to this witness that may be
`only of interest to The Mangrove Partners Master Fund.
` MR. PALYS: Well, we're going to object to
`that. I'm not going to get tag-teamed today, so if
`you're going to proceed with two attorneys here
`representing him, we might want to call the board on
`it.
` MR. BAILEY: Well, the board has told us we
`have to cooperate on this. If -- if you're telling me
`that you're not going to go -- I don't think you have
`any business going into, in your continuing arguments
`on -- regarding interests of Mangrove's various
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`

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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 13
`entities. Obviously I don't think Roch knows about
`it, but if that's something you're going to bring up,
`you know, I -- I'm going to have to object to that on
`my own on behalf of my client.
` MR. PALYS: Okay, so I want to just make
`sure that you're planning on raising objections, and
`Apple's counsel's planning on raising objections today
`for this witness? Is that how we're going to proceed
`today?
` MR. BORDER: Not necessarily. I'm here
`representing Apple. I'm also representing Dr. Guerin.
`I'm going to object to questions. If there's
`questions directed to something that I have no
`knowledge of, for example, prior to entering the
`proceeding, then --
` MR. BAILEY: Right.
` MR. BORDER: Mr. Bailey has to protect his
`own client's interests.
` MR. BAILEY: For convenience, Scott will do
`most of this, but there are privilege issues, work
`product issues that go back to last year that he has
`no interest in, and I would have to step in and do
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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 14
`that, and I think that's just an efficient way to do
`it.
` MR. PALYS: All right, let's take a break
`please.
` (Recessed at 8:20 a.m.)
` (Reconvened at 8:37 a.m.)
` MR. PALYS: Okay, so VirnetX is going to
`object to having counsel for Apple and counsel for
`Mangrove defend this witness today. We reserve the
`right to seek relief regarding this deposition. We're
`going to go ahead and proceed and see how it plays
`out, but as we mentioned, we reserve the right to
`possibly call the board or seek relief from the board
`regarding the testimony that's elicited today. We
`think -- also, we think having Mangrove's counsel and
`Apple's counsel defend this witness today is contrary
`to the board's order in paper number 13 in
`IPR2016-00063.
` MR. BORDER: For the record, Apple
`disagrees.
` MR. BAILEY: Same.
` BY MR. PALYS:
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`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 15
` Q. So Dr. Guerin, referring back to your -- on
`paragraph 10, providing the different sections that
`you provided in your -- in your '135 declaration, your
`'135 declaration does not provide any opinions whether
`Kiuchi discloses any feature of any claim of the '135
`patent, correct?
` A. I didn't do a claim analysis, so yeah, I
`have not sort of gone and try to identify, you know,
`how Kiuchi would map among the claims.
` Q. So your '135 declaration does not provide an
`opinion on whether Kiuchi anticipates any claim of the
`'135 patent, correct?
` A. I mean, yes, I have not done any claim
`analysis, so I have not gone to that extent.
` Q. And your '135 declaration doesn't provide
`any opinion regarding whether Kiuchi renders obvious
`any claim of the '135 patent, correct?
` A. Again, I've not done any claim analysis.
`Therefore, I haven't sort of rendered any opinion as
`far as -- you know, going to the specifics of the
`claims.
` Q. In turning to your '151 declaration please,
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`Roch Guerin
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`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 16
`on paragraph 1, you have a similar type of category
`listing of your opinions for the '151 declaration,
`correct?
` A. That is correct.
` Q. And your -- your '151 declaration does not
`provide any opinion whether Kiuchi discloses any
`feature of any claim of the '151 patent, correct?
` A. So again, yes, I have not done a claim
`analysis for '151 either, and so I have not gone to
`that level of details.
` Q. And your '151 declaration doesn't provide
`any opinion whether Kiuchi anticipates any claim of
`the '151 patent, correct?
` A. Again, yes, I've not done any claim
`analysis. I've not rendered specific opinions in
`terms of the claims and relation to Kiuchi.
` Q. And your '151 declaration doesn't provide
`any opinion regarding whether Kiuchi renders obvious
`any claim of the '151 patent, correct?
` A. Again, I've not done any claim analysis,
`therefore, I've not provided any specific opinion
`regarding obviousness in relationship to Kiuchi and
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`Roch Guerin
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`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
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`February 1, 2016
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`Page 17
`the claims.
` Q. Can you turn to the first page of Kiuchi? I
`think it's actually page 64.
` A. Yes.
` Q. In looking at the abstract of Kiuchi on page
`64, do you agree that Kiuchi proposes a technique
`called closed HTTP, also known as C-HTTP, for
`providing secure HTTP communications within a closed
`group of institutions on the internet where each
`member is protected by its own firewall?
` A. That is what is stated at the beginning of
`the abstract, yes.
` Q. Do you agree with that?
` A. It is what -- how the authors are
`describing, you know, the mechanisms that is, you
`know, sort of discussed in the paper, and that's one
`of the functionality that that mechanism provides,
`yes.
` Q. And looking at the section 1 introduction
`paragraph down below the abstract, do you agree that
`according to Kiuchi, C-HTTP is useful in the medical
`community, where there is a strong need of closed
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`

`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 18
`network among hospitals and related institutions to
`handle patient data and other sensitive medical
`information?
` A. This was the motivation that the authors
`sort of put forward that led them to do this work, and
`it is an environment where the type of functionality
`that -- that the system that is described in the paper
`provides is -- is certainly useful.
` Q. Looking back at the abstract, last sentence,
`do you agree that the aim of C-HTTP is to assure
`institutional-level security and is different in scope
`from other secure HTTP protocols currently proposed
`which are oriented towards secure end-to-end HTTP
`communications in which security protection is
`dependent on each end user?
` A. So this sentence in the abstract is actually
`sort of summarizing a discussion that is at the end of
`the paper where this is a conference publication which
`I'm assuming is a peer-reviewed publication, and in
`most such publications, you have to articulate to what
`extent what you're proposing is different from other
`alternative that may already be known, and -- and
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`

`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 19
`they're discussing in that last paragraph of the
`abstract something that they expand upon at the end,
`which is the -- the difference between what they call
`sort of the end-to-end or S-HTTP is I think the
`reference to which they're pointing to in that
`discussion, and what it is that they're doing here.
` Q. And do you agree, looking at the abstract
`again, that Kiuchi describes a client-side proxy and
`server-side proxy that communicate with each other
`using a secure encrypted protocol while communications
`between a user agent and a client-side proxy or an
`origin server and server-side proxy are performed
`using current HTTP slash 1.0?
` A. I mean, yeah, the client-side proxy and the
`server-side proxy are communicating using C-HTTP, and
`you have user agent and origin servers that are only
`running HTTP/1.0 in the context of a particular
`version that -- that is contemplated in the paper.
` Q. And to participate in C-HTTP, you agree that
`Kiuchi describes that the use of the components which
`you kind of identify, which is client-side proxy on
`the firewall of one institution, a server-side proxy
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`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 20
`on the firewall of another institution, and three, a
`C-HTTP name server which manages a given C-HTTP-based
`network and the information for all its proxies.
` MR. BORDER: Objection as to form.
` BY MR. PALYS:
` Q. Do you understand my question?
` A. So I -- is the question as you're reading
`from that -- that section 2.1 and you're asking me
`that's -- you read it correctly, or I mean -- I think
`that what you just read is section 2.1 that lists the
`components, so yes, from -- from listing the
`components, that's what the section 2.1 describes as
`being, you know, the components of the C-HTTP system.
` Q. I believe you mentioned earlier, and it's
`mentioned on page 64 in section 2.1, you agree that a
`client-side proxy and server-side proxy communicate
`with each other using a secure encrypted protocol,
`C-HTTP, correct?
` A. Yes.
` Q. And communications between the proxies and
`HTTP/1.0 compatible server slash user agents are
`performed based on HTTP/1.0, correct?
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`

`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 21
` A. Yes, that is what is stated in that section
`2.1 of the Kiuchi paper.
` Q. The encrypted communications in the C-HTTP
`connection between the proxies -- that doesn't extend
`past the -- the proxies to the origin server or the
`user agent, correct?
` A. That is correct.
` Q. And Kiuchi describes a process where the
`user agent is going to request the -- a resource,
`correct?
` A. Correct.
` Q. And that resource is located at the origin
`server, correct?
` A. So the resource is specified by way of a
`URL, which identifies, for example, a page, and that
`page is going to be stored somewhere, and that
`somewhere will point to, you know, a storage location
`that is -- and I think Kiuchi describes that from the
`point of view of the user on the client-side proxy,
`everything looks as if it's, excuse me, attached to
`the server-side proxy, and so you have storage where
`that page, that resource is located that is going to
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`

`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 22
`be accessible through the server-side proxy that is
`attached in some sense to the server-side proxy, and
`the origin server is the entity that is used to
`characterize that storage location.
` Q. So the origin server is where the actual
`resource is located, correct?
` MR. BORDER: Objection as to foundation.
` A. So the origin server is a storage where --
`where the particular piece of information is going to
`be located.
` Q. And that particular piece of information is
`what the user agent would be requesting, correct?
` A. So when you're clicking on the URL, that URL
`is a long string of things that identifies a
`particular resource that you're looking for and that's
`going to be delivered to the server-side proxy, that's
`going to determine where that piece of information is
`stored, and it needs some -- some identifier to
`determine where that storage is, and that's -- that's
`going to be pointing to the storage location, which is
`the origin server.
` Q. Referring to the abstract again on page 64,
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`

`
`Roch Guerin
`
`The Mangrove Partners Master Fund, LTD. and Apple, Inc. v. Virnetx Inc.
`
`February 1, 2016
`
`Page 23
`you agree that Kiuchi describes that in a C-HTTP-based
`network, instead of DNS, a C-HTTP-based secure,
`encrypted name and certification service is used?
` A. Ye

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