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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
` TERREMARK NORTH AMERICA LLC, )
` VERIZON BUSINESS NETWORK )
` SERVICES INC., VERIZON SERVICES )
` CORP., TIME WARNER CABLE INC., ) Case IPR Petition
` ICONTROL NETWORKS, INC., AND ) 2015-01477
` COXCOM, LLC, )
` )
` Petitioners, )
` v. ) Patent 6,587,046
` )
` JOAO CONTROL & MONITORING )
` SYSTEMS, LLC, )
` )
` Patent Owner. )
`__________________________________)
`
` ORAL DEPOSITION OF RICHARD BENNETT
` Thursday, March 3, 2016
` Washington, D.C.
` 9:38 a.m.
`
` Reported by: Susan Ashe, RMR, CRR
`
`---------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1730 M Street NW, Suite 812
` Washington, DC 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
` TERREMARK NORTH AMERICA LLC, )
` VERIZON BUSINESS NETWORK )
` SERVICES INC., VERIZON SERVICES )
` CORP., TIME WARNER CABLE INC., ) Case IPR Petition
` ICONTROL NETWORKS, INC., AND ) 2015-01477
` COXCOM, LLC, )
` )
` Petitioners, )
` v. ) Patent 6,587,046
` )
` JOAO CONTROL & MONITORING )
` SYSTEMS, LLC, )
` )
` Patent Owner. )
`__________________________________)
`
` ORAL DEPOSITION OF RICHARD BENNETT
` Thursday, March 3, 2016
` Washington, D.C.
` 9:38 a.m.
`
` Reported by: Susan Ashe, RMR, CRR
`
`---------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1730 M Street NW, Suite 812
` Washington, DC 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
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`Page 2
` The oral deposition of RICHARD BENNETT was
`taken at the law offices of Venable LLP, 575 Seventh
`Street, Northwest, Washington, D.C. 20004, on
`Thursday, March 3, 2016, commencing at 9:38 a.m., in
`the presence of counsel for the parties.
` It was agreed that Susan Ashe, Registered
`Merit Reporter and Notary Public in and for the
`District of Columbia, would take said deposition in
`machine shorthand and, when requested, transcribe
`the same to typewriting by means of computer-aided
`transcription.
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`Page 3
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`APPEARANCES:
`
` RAYMOND A. JOAO, ESQ.
` 122 Bellevue Place
` Yonkers, New York 10703
` - and -
` SINERGIA TECHNOLOGY LAW GROUP, PLLC
` BY: RENE A. VAZQUEZ, ESQ.
` 18296 St. Georges Court
` Leesburg, Virginia 20176
` rvazquez@sinergialaw.com
` Counsel for the Patent Owner
`
` VENABLE LLP
` BY: MEGAN S. WOODWORTH, ESQ.
` BY: LESLIE A. LEE, ESQ.
` 575 Seventh Street, Northwest
` Washington, D.C. 20004
` (202) 344-4000
` mswoodworth@venable.com
` lalee@venable.com
` Counsel on behalf of the Petitioner Verizon
` and the Witness
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`APPEARANCES (Continued):
`
`Page 4
`
` KILPATRICK TOWNSEND & STOCKTON LLP
` BY: SHAYNE E. O'REILLY, ESQ.
` 1100 Peachtree Street, Northeast, Suite 2800
` Atlanta, Georgia 30309
` (404) 815-6500
` soreilly@kilpatricktownsend.com
` Counsel on behalf of the Petitioner CoxCom, LLC
`
`ALSO PRESENT:
` Kevin Parton, Verizon In-House Counsel
` Steven W. Ritcheson, Esq., Insight
` (Via Teleconference)
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` INDEX
`
`Page 5
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`WITNESS EXAMINATION BY PAGE
`RICHARD BENNETT Mr. Joao 7
` Ms. Woodworth 206
` Mr. Joao 219
`
` EXHIBITS
`
`NUMBER DESCRIPTION PAGE
`Exhibit 1 Notice of Deposition 8
`
`Exhibit 2 Declaration of Richard Bennett 26
`
`Exhibit 3 Curriculum Vitae 33
`
`Exhibit 4 "Remote Monitoring of Instrumented
` Structures Using the INTERNET
` Information Superhighway" 59
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`Exhibit 5 U.S. Patent 6,587,046 60
`
`Exhibit 6 November 23, 2007 Fax
` 17 Pages 62
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` EXHIBITS (Continued)
`
`Page 6
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`Exhibit 7 November 6, 2006 Fax
` 11 Pages 62
`
`Exhibit 8 "A Portable Multimedia Terminal" 136
`
`Exhibit 9 PCT
` 32 Pages 152
`
`Exhibit 10 Beyond the Web Abstract
` 12 Pages 160
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`Exhibit 11 U.S. Patent 4,857,912 195
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` P R O C E E D I N G S
`Whereupon,
` RICHARD BENNETT,
`the Witness, called for examination, having been
`first duly sworn according to law, was examined and
`testified as follows:
` EXAMINATION
`BY MR. JOAO:
` Q Good morning, Mr. Bennett.
` My name is Raymond Joao. I'm a
`registered patent attorney, and I'm with Joao
`Control & Monitoring Systems.
` With me is my backup counsel, Rene
`Vazquez, of Sinergia law firm.
` As I said, I'm with Joao Control &
`Monitoring Systems. And we usually shorten that by
`referring to it as "JCMS."
` Is that okay with you?
` A That's fine.
` MR. JOAO: Okay. We're here today to
` obtain your testimony regarding the IPR
` involving Terremark and JCMS and U.S. Patent
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` No. 6,542,046 [sic].
` Could you please mark this as
` Exhibit 1, the notice of deposition.
` (Whereupon, Bennett Deposition
` Exhibit 1 was marked for identification.)
` Q Mr. Bennett, have you seen this document
`before?
` A This document?
` Q Yes.
` A No, I haven't.
` Q Can you please take a minute to look it
`over.
` (Witness complies.)
` A Okay.
` Q Okay. You understand you're being
`produced here today as a witness pursuant to this
`notice?
` A Yes.
` Q Okay. Mr. Bennett, have you been deposed
`before?
` A No, I haven't.
` Q This is the first time?
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` A Yes.
` Q Do you understand the process?
` A I think I do.
` Q Okay. Well, if you need me to explain
`anything -- I'm going to ask you questions, and I'm
`going to get your answer.
` If you need me to explain anything,
`you know -- please, don't answer a question you
`don't understand. I'm happy to explain my question.
` And you're being asked to answer
`these questions under oath.
` Please be audible for the reporter.
`And I'll do the same.
` And speak slowly, so she gets
`everything.
` Pursuant to your involvement in this
`IPR -- how did you get involved in this IPR?
` A As I recall, I was contacted by a law
`firm, who gave me some general information about a
`case and asked if I had any expertise in that area
`and time available to work on the IPR.
` Q Do you know the name of the law firm that
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`reached out to you?
` A I think it probably was Venable, but I'm
`not -- I can't swear to it.
` I don't actually remember.
` Q Okay.
` A I'd have to go back and look at my e-mail
`history and see what that was.
` Q Do you remember the name of the lawyer
`that you spoke with?
` A Initially? No.
` Q Okay.
` A In fact, I'm not even sure that the first
`phone call was from a lawyer.
` It could have been from a clerk or
`someone like that.
` Q But what law firm did you become engaged
`by?
` A It was a group of law firms that were, I
`think, pretty much the named parties on the....
` Q Well, do you know the named parties on
`this IPR?
` A Well, I mean, we have Terremark,
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`Page 11
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`Verizon -- let's see....
` Terremark North America LLC; Verizon
`Business Network Services, Incorporated; Verizon
`Services Corporation; Time Warner Cable,
`Incorporated; Icontrol Networks, Incorporated; and
`CoxCom, LLC.
` Q Anyone else that you spoke to, other law
`firms or other companies, regarding your retention
`in this matter?
` A It would have been the law firms
`representing these companies.
` Q What were you asked to do in this IPR
`process?
` MS. WOODWORTH: Objection. That's
` actually getting into privileged information.
` I'm going to instruct the witness not
` to answer.
` Q You've performed certain duties pursuant
`to being retained by these law firms.
` Is that true?
` A Yes.
` Q Can you explain what you've done?
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`Page 12
` A I wrote an expert report, the exhibit that
`I'm here to discuss.
` Q By "expert report," are you referring to
`your declaration?
` A Yeah, the expert declaration.
` Q Okay. Did you do any other work, other
`than write the exhibit -- the declaration?
` You had to do something in order to
`write the declaration. Right?
` A Yeah. I had discussions.
` Q Okay. Did you review documents?
` A Yes, I reviewed documents.
` Q Can you please tell me what documents you
`reviewed?
` A Well, I reviewed the patent, the -- well,
`I'll call it the "'046" patent.
` I reviewed the prior art that's
`mentioned in my declaration, such as the paper by
`Fuhr, et al.; the paper by Goldberg; the AKNAR
`patent; the article by Sheng; the Everett patent;
`and the description of the EDC-1000 Electronic
`Imaging System.
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`Page 13
` Q Did you review the file history of the
`'046 patent?
` A No.
` Q Did you review any of the prior art that
`was considered by the patent office in the '046
`patent?
` A When I analyzed the '046 patent, I looked
`at some of the references that the patent referred
`to.
` Q Do you remember which references?
` A I would have looked at the references
`cited on page 1 of the patent.
` There's a Cushing, Tokitsu, Shave,
`Connors, Johnson, Callahan --
` Q I'm sorry. I'm sorry. Where are you
`looking on the patent?
` A On the first page of the patent.
` Q Okay.
` A There's a section on -- in Column 1 -- it
`begins in Column 1 at line 56, references cited.
` Q Yes.
` A And then there's a list of U.S. patent
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`documents.
` Q Yes. You reviewed all of these documents
`on page 1, Cushing down through Stephenson?
` A Yeah -- not in great detail, but enough to
`understand the general scope.
` Q And how about the other publications
`listed below on that same page: Author unknown,
`Onstar Literature -- down to Alper Caglayan?
` A I don't think I looked at the Onstar
`Literature.
` Bruce Schneier -- I'm familiar with
`his work. I think I probably read that book at some
`point in the past. He's an extremely well-known
`figure in cryptography.
` There's a book by Panko. I don't
`believe I would have read that.
` And I didn't read Simson Garfinkel or
`the other book by Lesnick.
` Q How about Adam; Adam, Nabil?
` A No, I didn't read that.
` Q How about the patents on page 2 of the
`patent document, '046 patent document.
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`Page 15
` On pages 2 and 3, there are a list of
`patents.
` Did you review all of those?
` A No, I didn't.
` Q Okay. You understand that these documents
`could be referred to as "prior art"?
` A Yes, I suppose they could -- certainly as
`parts of the prior art.
` Q Were you given a budget when you were
`retained --
` A No.
` Q -- for this work? No budget.
` Did you do everything that you were
`supposed to do to complete your assignment?
` A Yes.
` Q What is your hourly rate that you're being
`paid to be an expert?
` A I don't recall what I'm charging in this
`case.
` Q Do you have invoices that you've presented
`to the firms to be paid?
` A Yeah, I have presented invoices and been
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`paid.
` Q Would you have any objection to giving us
`copies?
` MS. WOODWORTH: That's not up to him.
` There are specific rules in place in
` an IPR regarding discovery, and that wouldn't
` fall within what's required.
` Q When did you first read the JCMS patents
`or any of its claims or any of their claims,
`especially this patent or any other JCMS patent?
` A I don't recall the date.
` I'd have to check.
` Q Do you understand the JCMS patent, '046,
`sufficiently to support the opinions you're going to
`give in this case?
` A I believe I do.
` Q When did you first believe that one or
`more claims of the JCMS patent, '046, was invalid?
` A When I read the '046 patent for the first
`time, I had serious doubts as to the validity of the
`entire set of claims or certain of the -- certain of
`the claims, anyway.
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`Richard Bennett
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`Page 17
` Q Have you ever provided expert testimony
`regarding patent invalidity?
` A No; this is the first time.
` I've given testimony on infringement.
` Q So without having any experience in
`invalidity, you made a determination that the claims
`were invalid?
` A Um-hum.
` Q Can you please give me a yes --
` A Yes -- yes, I did. That was my
`impression.
` Q And when did you first communicate your
`belief regarding that one or more claims of the JCMS
`patent, '046, was invalid?
` A That would have taken place within a week
`or so of my initial reading of the '046 patent.
` Q Any idea as to when in time that was?
` A It seems like it was somewhere around last
`August or September.
` I mean, I'd have to check my calendar
`or my e-mail logs to see when I first began
`communicating with the lawyers that were handling
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`Richard Bennett
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`Page 18
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`this case.
` Q Basically, it's your recollection that you
`first believed in August or September that the '046
`claims in the IPR were invalid?
` A Like I said, the time -- my recollection
`of the date is not precise. It could have been
`earlier in the year.
` I mean, but it was -- once I read --
`when -- my initial reading of the '046 patent raised
`a lot of questions in my mind regarding the validity
`of the patent.
` Q Do you have any training in patent
`examination?
` A No. I have no training in it.
` I had experience.
` Q Experience?
` A (Witness nods head.)
` Q What kind of experience?
` A I've written other expert reports before
`in other patent cases.
` Q But nothing ever on invalidity?
` A Nothing on invalidity.
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`Richard Bennett
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`Page 19
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` Q All right. When you made your
`determination, whom did you tell?
` MS. WOODWORTH: I'm going to object
` to this entire line as to relevance.
` I mean, he's here to testify about
` the declaration that he gave, not his initial
` impressions.
` And I understand that the question
` that you've asked only asks who. But we're not
` going to go any farther into what was
` discussed.
` So I would just ask that you move on
` very quickly.
` Q Are you currently retained as an expert or
`a consultant for any other person or entity?
` A Well, I have several engagements -- which
`I suppose you could call "consultant," but they're
`not directly related to patents or intellectual
`property rights or things of that nature.
` Q Mr. Bennett, what fields are you an expert
`in?
` A I consider --
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`
`Richard Bennett
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`Page 20
` MS. WOODWORTH: Objection; beyond --
` THE WITNESS: Oh.
` MS. WOODWORTH: -- the scope.
` Again, Mr. Joao --
` Q Do you claim to be an expert in the field
`of distributed control systems?
` MR. VAZQUEZ: Well, wait a minute.
` Are you instructing the witness not
` to answer?
` Objection's noticed. But --
` MS. WOODWORTH: Mr. Vazquez, first of
` all, you should not be speaking. So I'll ask
` you to keep it down.
` But with respect to your current
` question, he's here again to talk about his
` declaration that he gave.
` If you want to ask him about his
` background, it's all there. His CV was
` provided.
` Whether he is an expert in certain
` fields that have been undefined is just totally
` irrelevant.
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`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
`
`Richard Bennett
`
`Page 21
` MR. JOAO: He wrote a declaration
` claiming to be an expert in patent invalidity.
` All right?
` I think I'm entitled to ask him
` questions about that.
` MS. WOODWORTH: Patent invalidity is
` a legal issue.
` He wrote an expert report or provided
` a declaration to give his opinions as to
` technical issues and the way that a person of
` ordinary skill in the art would understand
` certain references.
` MR. JOAO: That's not what he said.
` He said he determined that the patent
` claims were invalid.
` MS. WOODWORTH: Point that to me in
` his declaration.
` MR. JOAO: He just said it in his
` testimony here.
` MS. WOODWORTH: He's here to talk
` about his declaration, Mr. Joao.
` MR. JOAO: And I am here too.
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`JCMS - EXHIBIT 2006
`CoxCom, LLC v. JCMS
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`3/3/2016
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`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
`
`Richard Bennett
`
`Page 22
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` THE WITNESS: And I was --
` MS. WOODWORTH: No, no, no. There's
` no question pending, Mr. Bennett.
` THE WITNESS: Okay.
`BY MR. JOAO:
` Q Mr. Bennett, are you an expert in the
`field of distributed control systems for premises or
`vehicles?
` MS. WOODWORTH: Objection to
` relevance, beyond the scope.
` A I'm instructed not to answer.
` MR. JOAO: Objection is noted.
` He can answer, and you can make a
` motion to exclude that later on if you think.
` But, I'm here to ask questions.
` MS. WOODWORTH: I haven't told him
` not to answer.
` MR. JOAO: Okay.
` MS. WOODWORTH: He's free to answer.
` But I am going to, at some point,
` shut questioning down that goes beyond the
` scope.
`
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`JCMS - EXHIBIT 2006
`CoxCom, LLC v. JCMS
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`
`3/3/2016
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`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
`
`Richard Bennett
`
`Page 23
` There are rules in place in IPRs --
` MR. JOAO: Right.
` MS. WOODWORTH: -- I'm sure that
` you're familiar with them -- as to what the
` scope of cross-examination is supposed to be.
` MR. JOAO: Right.
` MS. WOODWORTH: You've already spent
` 20 of the 30 minutes, you know, well beyond his
` declaration.
` MR. JOAO: What was the last question
` I asked, please?
` Can you read it back.
` (Whereupon, the question was
` repeated to the witness from the audio, as
` follows:
` "Q Mr. Bennett, are you an
` expert in the field of distributed control
` systems for premises or vehicles?")
` A That's a broad field.
` There are some portions of it in
`which I'm an expert and some portions in which I'm
`not.
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`JCMS - EXHIBIT 2006
`CoxCom, LLC v. JCMS
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`
`
`3/3/2016
`
`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
`
`Richard Bennett
`
`Page 24
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` Q What portions are you an expert in?
` MS. WOODWORTH: The same objection.
` Q Mr. Bennett?
` A The subjects that I discussed in the
`expert report are things that I feel I have
`sufficient expertise to analyze and comment on.
` Q Are you an expert in the area of
`distributed monitoring systems?
` A To the extent that I discussed distributed
`monitoring systems in the expert report, then I
`would consider myself an expert on those subareas.
` Q Are you familiar with the term "POSITA,"
`person of ordinary skill in the art?
` A Yes, I am.
` Q What is your understanding regarding how
`important it is to identify a POSITA in a case
`involving invalidity?
` MS. WOODWORTH: Objection to form.
` A I'm not sure I understand that question.
` That sounds like you're asking me to
`give you a legal opinion. And I'm not a lawyer.
` Q Okay. But you are a person of ordinary
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`JCMS - EXHIBIT 2006
`CoxCom, LLC v. JCMS
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`
`3/3/2016
`
`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
`
`Richard Bennett
`
`Page 25
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`skill in the art for purposes of this IPR.
` Is that true?
` A Yes, I believe I am.
` Q Do you understand why it's important that
`you are -- that you be a person of ordinary skill in
`the art?
` A I'm not sure I understand that question.
` In my declaration, I offered a
`definition of the level of skill that I believe a
`person of ordinary skill in the art would have.
` Q Well, why do you think that's important?
` A It's important insofar as it relates to
`the notion of obviousness.
` Q And why?
` A It's my understanding, from what I have
`been told, that the law -- the concept of the person
`of ordinary skill in the art is important for making
`a legal determination of obviousness.
` So on -- in paragraph 14 of my
`declaration --
` Q Okay. We'll get to your declaration,
`Mr. Bennett. And we'll go through your declaration
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`JCMS - EXHIBIT 2006
`CoxCom, LLC v. JCMS
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`
`
`3/3/2016
`
`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
`
`Richard Bennett
`
`Page 26
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`in a minute. Thank you.
` MS. WOODWORTH: No, Mr. Joao. I'm
` going to object.
` He was explaining -- I mean, he was
` using paragraph 14 to explain his testimony.
` MR. JOAO: Okay, fine. Okay, fine.
` MS. WOODWORTH: So --
` MR. JOAO: Fine, fine, fine, fine.
` Then let me mark his expert
` declaration.
` (Whereupon, Bennett Deposition
` Exhibit 2 was marked for identification.)
` MR. JOAO: Can I just see what you
` just marked -- can I just see it, please.
` (Counsel perusing.)
` MR. JOAO: Thank you.
` THE WITNESS: Okay. As I was saying:
` In paragraph 14 of my report, which is on
` page 4 -- if we go to the last sentence on the
` page, I said: I understand that an obviousness
` analysis involves a consideration of; one, the
` scope and content of the prior art; and two,
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`
`Richard Bennett
`
`Page 27
` the differences between the claimed invention
` and the prior art; three, the level of ordinary
` skill in the pertinent field; and four,
` secondary considerations of nonobviousness.
`BY MR. JOAO:
` Q Okay. So in your declaration, you
`acknowledged the importance of a POSITA?
` A Yes.
` Q Okay. The scope and content of the prior
`art, No. 1 of that paragraph 14 that you just
`read -- wouldn't it have been important for you to
`review all of the references that were considered by
`the patent office and listed on the '046 patent?
` That is considered the body of the
`prior art -- or at least some of the body of the
`prior art?
` MS. WOODWORTH: Objection to form.
` Q Did you -- Mr. Bennett, did you -- did
`you -- you testified earlier that you did not review
`all of the references that were considered by the
`patent office on pages 1, 2, and 3 of the '046
`patent.
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`JCMS - EXHIBIT 2006
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`3/3/2016
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`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
`
`Richard Bennett
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`Page 28
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` A Yes.
` Q Is that true?
` A That's true.
` Q Okay. And that is part of the body of the
`prior art. Right?
` A Um-hum.
` Q Okay. But yet you did not review it all?
` A Um-hum.
` Q Okay.
` A Yes.
` Q Yes, you did not review it?
` A Yes, I did not review it all.
` Q Okay. Thank you.
` Mr. Bennett, who found the references
`in your report; the Fuhr, Sheng -- I mean -- well,
`did you find all of those references yourself?
` A No, I didn't.
` Q How did you obtain them?
` A Let's see, the -- these references were
`found by the attorneys and provided to me.
` But there are additional references
`on -- in Section 4, "State-of-the-Art at the Time of
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`JCMS - EXHIBIT 2006
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`Terremark North America LLC, et al., v. Joao Control & Monitoring Systems, LLC
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`Richard Bennett
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`Page 29
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`the Invention."
` Paragraph 21 through 23, I list some
`additional prior art; such as the AT&T picture
`phone, which was made in 1956, exhibited at the 1964
`World Fair, and introduced as a mass-market product
`in 1970; additional remote video products, such as
`the Apple video phone kit, the Microsoft net meeting
`videoconferencing system, the digital subscriber
`line technology, and quality network/quality of
`service enhancements to support video streaming, and
`network traffic engineering studies.
` Then in paragraph 23, I mention the
`IBM token ring, 10Base-T Ethernet, broadband
`integrated services, digital network or ISDN, WiFi,
`digital subscriber line and cable modem, and
`fiberoptic networking
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