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`·2· ·UNITED STATES PATENT AND TRADEMARK OFFICE
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`·2· ·A P P E A R A N C E S:
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`·3· · · · -------------------------------
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`·4· · · · · · BEFORE THE PATENT TRIAL
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`·5· · · · · · · · AND APPEAL BOARD
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`·6· · · · ·------------------------------
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`·7· · · · · · · SYMANTEC CORPORATION
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`·8· · · · · · · · · ·Petitioner,
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`·9· · · · · · · · · · · · v.
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`10· · · · · · · · · ·FINJAN, INC.,
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`11· · · · · · · · · ·Patent Owner.
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`12· · · · ·------------------------------
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`13· · · · · · · ·Case IPR2015-01892
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`· · · · · · · · · Patent 8,677,494
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`·4· ·BRYAN CAVE LLP
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`·5· ·Attorneys for Petitioner
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`·6· · · · · · ·1290 Avenue of the Americas
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`·7· · · · · · ·#33
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`·8· · · · · · ·New York, New York 10104
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`·9· ·BY:· · · ·ALEX WALDEN, ESQ.
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`10· · · · · · ·JOSEPH RICHETTI, ESQ.
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`11· · · · · · ·FRANK M. FABIANI, ESQ.
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`13· ·KRAMER LEVIN NAFTALIS & FRANKEL LLP
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`14· ·Attorneys for Patent Owner
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`15· · · · -------------------------------
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`15· · · · · · ·1177 Avenue of the Americas
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`17· · · · · · · · ·DEPOSITION OF
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`18· · · · · · · · JACK W. DAVIDSON
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`19· · · · · · · FRIDAY, MAY 27, 2016
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`20· · · · · · · · · ·9:00 a.m.
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`25· ·Reported by:· Adrienne M. Mignano, RPR
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`· · · · · · · · · ·Job Number:· J0357928
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`·5· · · · · · · · · · · · May 27, 2016
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`·6· · · · · · · · · · · · 9:00 a.m.
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`·7· · · · · · · · · · · · New York, New York
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`·9· · · · · · ·Deposition of JACK W. DAVIDSON,
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`10· ·held at the offices of Bryan Cave, 1290
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`11· ·Avenue of the Americas, New York, New York,
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`12· ·pursuant to Notice, before Adrienne M.
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`13· ·Mignano, a Notary Public of the State of New
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`14· ·York.
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`16· · · · · · ·New York, New York 10036
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`17· ·BY:· · · ·MICHAEL LEE, ESQ.
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`18· · · · · · ·JEFFREY H. PRICE, ESQ.
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`·1· · · · · · · · · ·Davidson
`·2· ·J-A-C-K· ·W.· D-A-V-I-D-S-O-N, called as
`·3· · · · · a witness, having been duly sworn
`·4· · · · · by a Notary Public, was examined and
`·5· · · · · testified as follows:
`·6· ·EXAMINATION BY
`·7· ·MR. LEE:
`·8· · · ·Q· · ·Please state your full name and
`·9· ·address for the record.
`10· · · ·A· · ·My name is Jack W. Davidson, and
`11· ·I reside at 2040 Tremont Road,
`12· ·Charlottesville, Virginia.
`13· · · ·Q· · ·Do you understand why you're
`14· ·here today?
`15· · · ·A· · ·Yes, I do.
`16· · · ·Q· · ·Why are you here today?
`17· · · ·A· · ·I'm here to testify on behalf of
`18· ·Symantec regarding the IPR, regarding
`19· ·Patent '494.
`20· · · ·Q· · ·Did you offer any opinions about
`21· ·the '494 Patent?
`22· · · ·A· · ·I did.
`23· · · ·Q· · ·What is your opinion?
`24· · · ·A· · ·Can you be more specific other
`25· ·than what is my opinion?
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`·1· · · · · · · · · ·Davidson
`·2· · · ·Q· · ·Did you offer any opinions in
`·3· ·this case?
`·4· · · ·A· · ·Yes, I submitted a declaration.
`·5· · · ·Q· · ·What opinions does the
`·6· ·declaration --
`·7· · · ·A· · ·I'm sorry.· What?
`·8· · · ·Q· · ·What are the opinions in your
`·9· ·declaration?
`10· · · ·A· · ·I mean, again, can you be more
`11· ·specific?
`12· · · ·Q· · ·Would you be able to give me a
`13· ·summary of the opinions in the
`14· ·declaration?
`15· · · ·A· · ·So I looked at the claim
`16· ·language and I looked at the prior art,
`17· ·and then I basically did an analysis of
`18· ·the -- whether the prior art covered the
`19· ·claim language, and my opinion was that
`20· ·it, in fact, did.
`21· · · ·Q· · ·Which prior art?
`22· · · ·A· · ·There were several pieces that
`23· ·are cited in my declaration.
`24· · · · · · ·There is a paper in the Virus
`25· ·Bulletin by a person named Morton Swimmer,
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`·1· · · · · · · · · ·Davidson
`·2· ·I think that was.
`·3· · · · · · ·Another piece of prior art that
`·4· ·I cited was a paper by Stephanie Forrest
`·5· ·about intrusion detection.· There was a
`·6· ·patent, I think it is Patent '600 by Ji.
`·7· ·I'm not sure of the number of this one,
`·8· ·but we can refer to it, Cline.
`·9· · · · · · ·I'm trying to think of other --
`10· ·I looked at a lot of other prior art I
`11· ·think in my declaration.· I would have to
`12· ·refer to it to see if I'm missing
`13· ·anything.· But those are certainly -- I
`14· ·think, you know, those are certainly the
`15· ·main ones.
`16· · · · · · ·(Whereupon, Declaration of Jack
`17· · · ·W. Davidson, dated September 10, 2015,
`18· · · ·was marked as Davidson Exhibit 1 for
`19· · · ·identification, as of this date.)
`20· ·BY MR. LEE:
`21· · · ·Q· · ·You have been handed an Exhibit
`22· ·marked as Exhibit number 1.
`23· · · · · · ·Do you recognize Exhibit number
`24· ·1?
`25· · · ·A· · ·Yes, I do.· This is my
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`·1· · · · · · · · · ·Davidson
`·2· ·declaration in support of the Petitioner's
`·3· ·petition to the IPR Board regarding the
`·4· ·'494 Patent.
`·5· · · ·Q· · ·So this is the declaration you
`·6· ·were referring to earlier?
`·7· · · ·A· · ·Yes.
`·8· · · ·Q· · ·Can you go to page 96 of your
`·9· ·declaration?
`10· · · ·A· · ·Yes.
`11· · · ·Q· · ·Is that your signature?
`12· · · ·A· · ·That is my signature.
`13· · · ·Q· · ·Did you sign that on September
`14· ·10, 2015?
`15· · · ·A· · ·Yes, I did.
`16· · · ·Q· · ·What is your understanding that,
`17· ·as of September 10, 2015, you were
`18· ·supposed to put into your declaration all
`19· ·the opinions you had in this case?
`20· · · ·A· · ·All the what?
`21· · · ·Q· · ·All the opinions you had in this
`22· ·case?
`23· · · ·A· · ·I didn't understand.· All the
`24· ·dependents?
`25· · · ·Q· · ·Opinions.
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`·1· · · · · · · · · ·Davidson
`·2· · · ·A· · ·Opinions?
`·3· · · ·Q· · ·Yes.· Let me just rephrase it so
`·4· ·it will be clear for the record.
`·5· · · · · · ·Was it your understanding that,
`·6· ·as of September 10, 2015, you were
`·7· ·supposed to put into your declaration all
`·8· ·of your opinions that you had in this
`·9· ·case?
`10· · · ·A· · ·Yes, they are in here.
`11· · · ·Q· · ·Do you have any other opinion
`12· ·that is not in this declaration?
`13· · · · · · ·MR. WALDEN:· Objection.· Form.
`14· · · ·A· · ·No.· I mean these are my
`15· ·opinions.
`16· · · ·Q· · ·Are there any corrections that
`17· ·you would like to make at this time?
`18· · · ·A· · ·There are various typos in here.
`19· ·I don't know if you want to go through
`20· ·those, you know.
`21· · · · · · ·In rereading it in preparation
`22· ·for this thing, I was going, oh, typo, oh,
`23· ·you know, it must have been a cut and
`24· ·paste error.· So there are certainly those
`25· ·kinds of errors, you know, typographical
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`·1· · · · · · · · · ·Davidson
`·2· ·errors.· But in terms of the opinions, no,
`·3· ·they are complete and accurate.
`·4· · · ·Q· · ·Please describe for me the
`·5· ·process of writing your declaration.
`·6· · · ·A· · ·So, I mean the first step was
`·7· ·counsel provided me the patent, and I
`·8· ·first did a prior art search, you know, at
`·9· ·the time of the patent, and collected, you
`10· ·know, lots of material, and read those,
`11· ·read the patent and analyzed the various
`12· ·pieces of prior art to define, you know,
`13· ·did I feel like it was relevant, you know,
`14· ·was it in the scope.
`15· · · · · · ·And then at some point, counsel
`16· ·provided me a template, you know, with a
`17· ·document that was kind of a framework, the
`18· ·kind of formatting and that kind of thing.
`19· ·I began writing.· I wrote a lot.· At some
`20· ·point, I think -- well, at some point, I
`21· ·came up here and, you know, spent time
`22· ·with counsel.· They were briefing me on
`23· ·some of the aspects of patent law.· I'm
`24· ·not an attorney so they were explaining
`25· ·pieces of that, you know, and I
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`·1· · · · · · · · · ·Davidson
`·2· ·incorporated some of that in my
`·3· ·declaration.
`·4· · · · · · ·We also talked about the prior
`·5· ·art, you know, and I explained to them my
`·6· ·understanding of the patent, you know, and
`·7· ·read the patent.· I explained some of the
`·8· ·prior art, you know, and why I thought it
`·9· ·may be relevant to this litigation or, you
`10· ·know, this IPR.· We discussed those, you
`11· ·know, and then I would write more. I
`12· ·would discuss what I was writing and
`13· ·points with the attorney.
`14· · · · · · ·And that was kind of an
`15· ·iterative process.· I mean, it is almost a
`16· ·hundred page document; well, you know,
`17· ·several iterations.· I think I made a
`18· ·couple of trips up here.
`19· · · ·Q· · ·You mentioned you performed a
`20· ·prior art search?
`21· · · ·A· · ·Yes.
`22· · · ·Q· · ·Was any of the prior art that
`23· ·you searched the Morton Swimmer reference?
`24· · · ·A· · ·Say that again.
`25· · · ·Q· · ·You say there was a prior art
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`·1· · · · · · · · · ·Davidson
`·2· ·reference by Morton Swimmer?
`·3· · · ·A· · ·Yes, and that's, you know, one
`·4· ·of the -- it's cited in my declaration.
`·5· · · ·Q· · ·Did you locate the Swimmer
`·6· ·reference or was that provided to you by
`·7· ·counsel?
`·8· · · ·A· · ·That's a good -- I don't know.
`·9· ·I don't remember, you know, who actually
`10· ·found that.· I do subscribe to the Virus
`11· ·Bulletin, which is where the Morton
`12· ·Swimmer paper appeared.· It is a
`13· ·publication I was very familiar with and
`14· ·knew to go look in their archives.
`15· · · · · · ·At one point, I had subscribed
`16· ·to it.· It was kind of the place that
`17· ·people -- when I was teaching, I taught a
`18· ·course, and, you know, it is the place
`19· ·that you go to, you know, to know what's
`20· ·going on in this area.
`21· · · · · · ·So it is entirely possible, but,
`22· ·sorry, I can't remember who, you know,
`23· ·identified it.· I might be able to answer
`24· ·that if I got on my laptop and looked
`25· ·back, you know, but off the top of my
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`·1· · · · · · · · · ·Davidson
`·2· ·head, I couldn't tell you.
`·3· · · ·Q· · ·Sitting here today, which are
`·4· ·the prior references that you personally
`·5· ·located as opposed to ones that counsel
`·6· ·provided to you?
`·7· · · ·A· · ·I think I located Forrest.
`·8· ·Again, you know, I think that I did, but,
`·9· ·again, I would have to go look at my
`10· ·records, you know, to be absolutely sure.
`11· · · ·Q· · ·Can you go to paragraph 9 of
`12· ·your declaration?
`13· · · ·A· · ·I'm on paragraph 9.
`14· · · ·Q· · ·Do you see where you talk about
`15· ·"innovative security solutions targeted
`16· ·mainly for U.S. Department of Defense
`17· ·applications"?
`18· · · ·A· · ·Yes, sir.
`19· · · ·Q· · ·Can you describe these computer
`20· ·security solutions?
`21· · · ·A· · ·So right now, Zephyr Software
`22· ·has two contracts that we're working on.
`23· ·One is with the -- with DARPA.· DARPA is
`24· ·the Defense Advanced Research Project
`25· ·Agency.· And this project is looking at
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`·1· · · · · · · · · ·Davidson
`·2· ·securing embedded systems and industrial
`·3· ·control systems, and I think that would be
`·4· ·of interest to the military.· And so this
`·5· ·project is looking at how to analyze the
`·6· ·code for those things, identify
`·7· ·vulnerability.· Vulnerability is a
`·8· ·weakness in code that can be exploited by
`·9· ·a malicious adversary, who would like to
`10· ·potentially take over the system.
`11· · · · · · ·The kinds of systems that we
`12· ·would be talking about here might be the
`13· ·power grid, or, you know, a system for
`14· ·controlling water purification, or that
`15· ·kind of thing.· And so, you know, we're
`16· ·developing solutions that analyze that
`17· ·code, find vulnerabilities, and patch
`18· ·those vulnerabilities.
`19· · · · · · ·The other project I have is
`20· ·being funded by ONR, the Office of Naval
`21· ·Research.· And there we are looking at a
`22· ·different kind of system, mainly servers,
`23· ·you know, web servers or critical servers
`24· ·that are providing service to the
`25· ·military, and, again, similarly analyzing
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`·1· · · · · · · · · ·Davidson
`·2· ·the code and attempting to -- here it is
`·3· ·very specific, we're looking at trying to
`·4· ·prevent a certain kind of exploiting
`·5· ·called "program hijacking", and this is
`·6· ·where an adversary is able to take control
`·7· ·of the program, you know, and then carry
`·8· ·out malicious actions.
`·9· · · ·Q· · ·These computer security
`10· ·solutions related the '494 Patent?
`11· · · ·A· · ·They are related in the sense
`12· ·that the '494 Patent discusses a
`13· ·downloadable scanner that parses code, and
`14· ·that is one of the things that locate
`15· ·these vulnerabilities that I mentioned
`16· ·that you would certainly do, you know, and
`17· ·analyze the code.· So in that sense, yes,
`18· ·very related.
`19· · · ·Q· · ·What do you mean by "parses the
`20· ·code"?
`21· · · ·A· · ·So to be able to understand the
`22· ·code in the context of my project, you
`23· ·know, these two projects, as I said, we're
`24· ·looking to identify vulnerabilities in the
`25· ·code.· These are weaknesses that, again,
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`·1· · · · · · · · · ·Davidson
`·2· ·may be exploited by a malicious adversary.
`·3· · · · · · ·So we are analyzing code, and to
`·4· ·do that, you have to parse the code to
`·5· ·determine the structure, to determine what
`·6· ·the program is attempting to do, you know,
`·7· ·and that requires different kinds of
`·8· ·analysis.· So, again, we are looking for
`·9· ·what are called "unintentional weaknesses"
`10· ·in the code.
`11· · · · · · ·I'll make a distinction between
`12· ·the '494 Patent and the techniques they
`13· ·used, but there is a difference in terms
`14· ·of the '494 in the specification is really
`15· ·talking -- it seems to be focused on what
`16· ·I'll call "malicious code" that
`17· ·intentionally, you know, has code in it
`18· ·that is going to do something maybe bad in
`19· ·some way.· And that's not in scope for,
`20· ·you know, the projects that I'm working
`21· ·on.· The projects that I'm working on, it
`22· ·is assumed that the code is, you know --
`23· ·it doesn't include stuff that's been added
`24· ·by, let's say, a malicious adversary.
`25· · · ·Q· · ·I'm looking to understand what
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`·1· · · · · · · · · ·Davidson
`·2· ·you meant by parses or parsing.
`·3· · · · · · ·How would you explain what
`·4· ·parsing is to a layperson?
`·5· · · ·A· · ·So, let's see, let me think
`·6· ·about that.· How would I explain that to a
`·7· ·layperson?
`·8· · · · · · ·So are you asking me in the
`·9· ·context of the '494 Patent, you know, or
`10· ·are you just talking about, again, in
`11· ·general to not paying any -- you know,
`12· ·relevant to the '494?· Because the term
`13· ·"parsing", you know, can have, depending
`14· ·on the context, different meanings.
`15· · · ·Q· · ·How is it different in the '494
`16· ·Patent as opposed to outside the '494
`17· ·Patent?
`18· · · ·A· · ·So, in the '494, they are
`19· ·talking about parsing a downloadable.· So,
`20· ·you know, that's the context of that
`21· ·patent.
`22· · · ·Q· · ·How is parsing different if it
`23· ·is not downloadable?
`24· · · ·A· · ·Well, I can parse a sentence. I
`25· ·mean, this is a common thing like, you
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`·1· · · · · · · · · ·Davidson
`·2· ·know, children learn how to parse a
`·3· ·sentence.· So, you know, that might be
`·4· ·something you would say to a layperson.
`·5· · · ·Q· · ·How would you explain what it
`·6· ·means to parse a downloadable to a
`·7· ·layperson?
`·8· · · ·A· · ·I think, you know, I would do it
`·9· ·in very -- for a layperson, I would do it
`10· ·in general terms that I would explain what
`11· ·a downloadable was in this context.
`12· · · · · · ·So a downloadable is information
`13· ·that includes program code, code that
`14· ·could be executed.· And then, in this
`15· ·case, you know, in that context, the
`16· ·parsing would be to take that code and
`17· ·analyze it in some way, which means you
`18· ·would have to, you know, again try to --
`19· ·for instance, if it was machine code, you
`20· ·might want to, again in the context of the
`21· ·patent, decode the instructions for the
`22· ·particular machine, and, you know,
`23· ·understand what those functions are that
`24· ·would, you know, apply for what I'll call
`25· ·a "binary program".
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`·1· · · · · · · · · ·Davidson
`·2· · · ·Q· · ·You mentioned a decoding.
`·3· · · · · · ·What is decoding?
`·4· · · ·A· · ·Again, in the context of the
`·5· ·patent and some of the prior art, and
`·6· ·specifically Swimmer, you're looking at
`·7· ·what I will call a binary executable.
`·8· · · · · · ·So it consists of instructions
`·9· ·for a specific processor, and they are
`10· ·encoded using basically a mapping, so,
`11· ·say, a number, you know, that is the op
`12· ·code might indicate a particular function
`13· ·that is to be performed by the processor.
`14· · · · · · ·So the process of decoding is,
`15· ·you know, taking that binary and first
`16· ·determining kind of, okay, which groups of
`17· ·bits correspond to an instruction.· And
`18· ·then once you have done that in
`19· ·determining, okay, what does this
`20· ·instruction do, what is the operation it's
`21· ·going to perform, and what are the
`22· ·operands, O-P-E-R-A-N-D-S.
`23· · · · · · ·So that would be very common,
`24· ·you know, to analyze a binary operation
`25· ·process that you would do, you know, to
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`·1· · · · · · · · · ·Davidson
`·2· ·identify the operation that this
`·3· ·downloadable in this case would
`·4· ·potentially carry out.
`·5· · · ·Q· · ·I think you mentioned that
`·6· ·Swimmer is regarding binary executable
`·7· ·programs?
`·8· · · ·A· · ·So Swimmer in the paper
`·9· ·discusses doing virus detection on
`10· ·programs that are received, and the
`11· ·examples that he discusses are yes, for
`12· ·the 8086 processor.
`13· · · ·Q· · ·What do you mean by a binary?
`14· · · ·A· · ·So normally a binary -- when
`15· ·we're talking about a binary program, that
`16· ·typically would mean a program that is
`17· ·designed on a particular processor at that
`18· ·level, I mean at the level of the
`19· ·processor.
`20· · · · · · ·So, for instance, there are many
`21· ·different processors, but in the context
`22· ·of the Swimmer paper, he discusses the
`23· ·8086.· That's a processor that's made by
`24· ·Intel, manufactured by Intel.· So we're
`25· ·talking about, you know, a program that is
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`·1· · · · · · · · · ·Davidson
`·2· ·going to run directly on that -- designed
`·3· ·to run directly on that particular
`·4· ·processor, designed to run.
`·5· · · ·Q· · ·What does it mean when a
`·6· ·program, a file, is in binary format?
`·7· · · ·A· · ·In some sense -- again, the
`·8· ·question is difficult to answer because,
`·9· ·you know, in some sense, everything on the
`10· ·computer is binary.· That's the way our
`11· ·digital computers work.· So, you know, it
`12· ·is difficult to answer your question
`13· ·without being more specific, but
`14· ·everything ultimately is a binary.
`15· · · ·Q· · ·What do you mean by --
`16· · · · · · ·MR. LEE:· Strike that.
`17· · · ·Q· · ·What does "binary" mean?
`18· · · ·A· · ·Binary means there are two
`19· ·states of a bit, zero and one.
`20· · · ·Q· · ·So would it be fair to say that
`21· ·binary means a mathematical representation
`22· ·where there is only two states, one or
`23· ·zero?
`24· · · ·A· · ·Again, you know, it depends on
`25· ·the context.· I mean typically you group
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`·1· · · · · · · · · ·Davidson
`·2· ·what we -- you know, bits together.· Yeah,
`·3· ·I mean, I'm not sure how to answer your
`·4· ·question.
`·5· · · ·Q· · ·Would it be incorrect to say
`·6· ·that binary means a mathematical
`·7· ·representation where there is only two
`·8· ·states, one or zero?
`·9· · · ·A· · ·I'm not -- sorry, "mathematical
`10· ·representation"?
`11· · · ·Q· · ·Have you heard of the term
`12· ·mathematical representation?
`13· · · ·A· · ·That can mean lots of different
`14· ·things.· In the computer, for instance, it
`15· ·might be -- there is different ways to
`16· ·represent zero and 1.
`17· · · ·Q· · ·So you can't say either way what
`18· ·period -- you couldn't agree with that
`19· ·definition?
`20· · · · · · ·MR. WALDEN:· Objection.· Asked
`21· · · ·and answered.
`22· · · ·A· · ·Again, the question is so
`23· ·open-ended, I can't answer.· If you could
`24· ·be more specific.
`25· · · ·Q· · ·How can I be more specific?
`Page 22
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`·1· · · · · · · · · ·Davidson
`·2· · · ·A· · ·What?
`·3· · · ·Q· · ·You are asking me to be more
`·4· ·specific.
`·5· · · ·A· · ·I said unless the question is
`·6· ·more specific, it is difficult to answer
`·7· ·such a general question.
`·8· · · ·Q· · ·Just to be clear, I'm just
`·9· ·asking about the word "binary".
`10· · · ·A· · ·Yes, and I think I answered
`11· ·that.· I mean, binary typically means or
`12· ·does mean you are talking about a
`13· ·representation of information as zero or
`14· ·1.
`15· · · ·Q· · ·Is it fair to say that a file in
`16· ·binary format is a file whose alphabet is
`17· ·restricted to zero and one?
`18· · · ·A· · ·Again, at the very lowest level
`19· ·of the machine, yes.· I mean, everything
`20· ·is a zero or one.
`21· · · ·Q· · ·You also mentioned an 808
`22· ·processor?
`23· · · ·A· · ·8086.
`24· · · ·Q· · ·8086 processor.
`25· · · · · · ·Did you mention that?
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`Page 23
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`·1· · · · · · · · · ·Davidson
`·2· · · ·A· · ·Yes.
`·3· · · ·Q· · ·Can you explain what that is?
`·4· · · ·A· · ·I think I did say that that is a
`·5· ·processor manufactured by Intel.
`·6· · · ·Q· · ·So that is a processor that runs
`·7· ·on, say, like a desktop computer?
`·8· · · ·A· · ·I wouldn't say it that way, runs
`·9· ·on a desktop.· It could be included in a
`10· ·desktop computer.· It could be the chip
`11· ·that is in a desktop computer, yes.
`12· · · ·Q· · ·Is there any other understanding
`13· ·that you have of an 8086 processor --
`14· · · · · · ·MR. WALDEN:· Objection to form.
`15· · · ·Q· · ·-- other than a processor in a
`16· ·desktop computer?
`17· · · ·A· · ·I didn't say that it was only in
`18· ·a desktop computer.· What I said was it
`19· ·was a processor manufactured by Intel.· It
`20· ·may have many uses.
`21· · · ·Q· · ·What is the typical use of the
`22· ·8086 processor?
`23· · · ·A· · ·I actually don't know that part
`24· ·of -- you would have to understand who
`25· ·Intel sells those chips to and how they
`Page 24
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`·1· · · · · · · · · ·Davidson
`·2· ·are going to be used, and that's not
`·3· ·something I'm an expert on.
`·4· · · · · · ·They were certainly used in
`·5· ·desktop computers, you know, back in the
`·6· ·time of this patent.
`·7· · · ·Q· · ·You mentioned the term "op
`·8· ·code"?
`·9· · · ·A· · ·Yes.
`10· · · ·Q· · ·What is an op code?
`11· · · ·A· · ·So an op code is an encoding of
`12· ·bits that basically specify an operation
`13· ·to be performed.· In the case of the Intel
`14· ·8086, it specifies a particular operation
`15· ·that that processor is to perform.
`16· · · · · · ·So you could have an op code
`17· ·encoding that says, oh, this is, you know,
`18· ·perform an add instruction.· Another
`19· ·encoding would specify perform a subtract
`20· ·operation.
`21· · · ·Q· · ·So is it fair to say that an op
`22· ·code is a computer operation?
`23· · · ·A· · ·In the context of the 8086, yes.
`24· ·There are other kinds of op codes for
`25· ·other kinds of things, and in those cases,
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`Page 25
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`·1· · · · · · · · · ·Davidson
`·2· ·it might not be necessarily an operation
`·3· ·although, so -- but in the context of the
`·4· ·8086, yes, it specifies an operation.
`·5· · · ·Q· · ·What do you mean by "specifies
`·6· ·an operation"?
`·7· · · ·A· · ·In a company like Intel or a
`·8· ·processor manufacturer, when they design a
`·9· ·computer, they specify the operations that
`10· ·this particular processor computer can
`11· ·perform, and they also design the
`12· ·instruction set for that machine, and, you
`13· ·know, those op codes are specifying within
`14· ·that instruction set what operations the
`15· ·processor performs.
`16· · · ·Q· · ·Are op codes specified by Intel
`17· ·in the context of the 8086 processor?
`18· · · ·A· · ·Yes.· I mean, they are the
`19· ·manufacturer of that, so I assume that
`20· ·they would be the -- I don't know how they
`21· ·decide how to design op codes.
`22· · · ·Q· · ·Can you give me an example of an
`23· ·op code?
`24· · · ·A· · ·Off the top of my head, no. I
`25· ·mean, you know, I would have to refer to
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`Page 26
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`·1· · · · · · · · · ·Davidson
`·2· ·an Intel manual to tell you what the op
`·3· ·codes are.
`·4· · · ·Q· · ·Can you tell me what format is
`·5· ·an op code in?
`·6· · · ·A· · ·It depends on the processor.
`·7· ·So, again, we would have to go look at a
`·8· ·particular processor reference manual and
`·9· ·then -- because it is different for every
`10· ·processor.
`11· · · ·Q· · ·Can you give me an example of an
`12· ·operation that an op code specifies?
`13· · · · · · ·MR. WALDEN:· Objection.· Form.
`14· · · · · · ·THE WITNESS:· Can you read back
`15· · · ·the question?
`16· · · · · · ·(Record read)
`17· · · ·A· · ·Again, I would have to have the
`18· ·context, you know, of which processor
`19· ·we're talking about, and then refer to the
`20· ·manual to be -- you know, this is all
`21· ·documented in the processor reference
`22· ·manuals provided by the manufacturer.
`23· · · ·Q· · ·So without looking at the Intel
`24· ·manual, you can't tell me what kind of
`25· ·operation does an op code specify for an
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`Page 27
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`·1· · · · · · · · · ·Davidson
`·2· ·8086 processor?
`·3· · · ·A· · ·I can't tell you, you know, how
`·4· ·the op codes correspond to the operations,
`·5· ·no.
`·6· · · ·Q· · ·And you can't give me any
`·7· ·specific examples of an op code, correct,
`·8· ·for the 8086 processor?
`·9· · · ·A· · ·Not the actual op code.· I would
`10· ·have to take a look at the manual, I mean,
`11· ·you know, to see which -- you know, this
`12· ·op code does the following, you know --
`13· ·well, I just don't -- it's not the kind of
`14· ·detail that I keep in my head.
`15· · · ·Q· · ·Regardless of whether you can
`16· ·remember whether or not a specific op code
`17· ·corresponds to a specific operation, can
`18· ·you tell me any specific op codes?
`19· · · · · · ·MR. WALDEN:· Objection.· Form.
`20· · · ·A· · ·I think I've already said I
`21· ·can't tell you that without looking at a
`22· ·reference manual for the specific
`23· ·processor that we would be talking about.
`24· · · ·Q· · ·You also mentioned the term
`25· ·"instruction"?
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`Page 28
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`·1· · · · · · · · · ·Davidson
`·2· · · ·A· · ·Yes, I believe I did.
`·3· · · ·Q· · ·What is an "instruction"?
`·4· · · ·A· · ·Again, not without more context.
`·5· ·Can you give me the context that you're
`·6· ·asking?· An instruction for a layperson
`·7· ·might be, oh, shut the door.· That's an
`·8· ·instruction.
`·9· · · · · · ·So here what is the context; can
`10· ·you be specific about the context of your
`11· ·question?
`12· · · ·Q· · ·I'm asking about in the context
`13· ·where you were discussing instruction.
`14· ·You mentioned the term instruction.
`15· · · ·A· · ·You're asking, sorry?
`16· · · ·Q· · ·You mentioned the term
`17· ·instruction.
`18· · · ·A· · ·We'd have to read back where I
`19· ·said instruction so that I know what the
`20· ·context is.
`21· · · ·Q· · ·Just to be clear, you don't
`22· ·remember mentioning the word instruction?
`23· · · ·A· · ·No, I think I did, you know,
`24· ·because I was talking about instruction,
`25· ·the processor, reference manual
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`Page 29
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`·1· · · · · · · · · ·Davidson
`·2· ·instructions.
`·3· · · · · · ·But, you know, you're asking me
`·4· ·specifically and I want to understand the
`·5· ·context you're asking the question in.
`·6· · · ·Q· · ·In the context of your
`·7· ·declaration, can you tell me what
`·8· ·instruction is?
`·9· · · · · · ·(Witness reviewing document)
`10· · · ·A· · ·So on paragraph 98, the -- where
`11· ·I was discussing Swimmer.· It says, "The
`12· ·emulator, in order to produce this data
`13· ·stream 'accepts the entire instruction set
`14· ·of a processor'."
`15· · · · · · ·So the instruction set is this
`16· ·set of instructions that this processor
`17· ·can perform.
`18· · · ·Q· · ·Can you give me an example of an
`19· ·instruction?
`20· · · ·A· · ·Again, without referring to the
`21· ·instruction processor manual, I can say,
`22· ·you know, oh, it performs an add
`23· ·operation, but I can't tell you what the
`24· ·instruction -- you know, the encoding of
`25· ·that instruction is.
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`Page 30
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`·1· · · · · · · · · ·Davidson
`·2· · · ·Q· · ·Can you go to page 12 of your
`·3· ·report?
`·4· · · ·A· · ·Page 12?
`·5· · · ·Q· · ·Yes, correct.
`·6· · · · · · ·Sorry, not page 12.· Page 13,
`·7· ·footnote 1.
`·8· · · ·A· · ·Yes.
`·9· · · ·Q· · ·Let me know when you have read
`10· ·it.
`11· · · · · · ·(Witness reviewing document)
`12· · · ·A· · ·Okay.
`13· · · ·Q· · ·Your declaration applied the
`14· ·technical meaning of obvious, correct?
`15· · · ·A· · ·Yes, that's what I say, to the
`16· ·technical meaning.
`17· · · ·Q· · ·What do you mean by "technical
`18· ·meaning"?
`19· · · ·A· · ·I say it there, "whether subject
`20· ·matter was within the technical grasp of a
`21· ·person of ordinary skill at the time of
`22· ·the '494 Patent".
`23· · · ·Q· · ·What do you mean by the legal
`24· ·meaning of obvious?
`25· · · · · · ·MR. WALDEN:· Objection.
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`Page 31
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`·1· · · · · · · · · ·Davidson
`·2· · · ·Q· · ·Do you see where you referred to
`·3· ·legal meaning of obvious?
`·4· · · ·A· · ·Yes, and there I relied on
`·5· ·counsel.· I'm not an attorney so, you
`·6· ·know, they advised me on the meaning, the
`·7· ·legal meaning of obvious.
`·8· · · ·Q· · ·Sitting here today, can you tell
`·9· ·me any understanding that you have of the
`10· ·legal meaning of obvious?
`11· · · ·A· · ·It is in my declaration,
`12· ·paragraph 32.· And, again, this was -- you
`13· ·know, I was informed of this by counsel.
`14· · · ·Q· · ·How is paragraph 32 different
`15· ·from the technical meaning of obvious?
`16· · · · · · ·MR. WALDEN:· Objection.· Legal
`17· · · ·conclusion.
`18· · · ·A· · ·You know, again, this was
`19· ·information provided to me by counsel.
`20· · · ·Q· · ·What do you mean that this was
`21· ·information provided to you by counsel?
`22· · · ·A· · ·Well, as I said in paragraph 31,
`23· ·I'm not an attorney, you know, but I was
`24· ·informed of these legal principles, which
`25· ·I have written here in terms of the
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`Page 32
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`·1· · · · · · · · · ·Davidson
`·2· ·instruction, "must teach or suggest each
`·3· ·and every claim feature", and then
`·4· ·"obvious at that time to one of ordinary
`·5· ·skill in the art", at the time of the
`·6· ·invention.
`·7· · · ·Q· · ·But your declaration didn't
`·8· ·apply the legal meaning of obvious,
`·9· ·correct?· It applied the technical meaning
`10· ·of obvious?
`11· · · ·A· · ·Yes, that subject matter, you
`12· ·know, was within the technical grasp of a
`13· ·person of ordinary skill at the time of
`14· ·the '494 Patent.
`15· · · ·Q· · ·Do you agree that proper
`16· ·obviousness analysis requires ascertaining
`17· ·the differences between the claimed
`18· ·invention and the prior art?
`19· · · · · · ·MR. WALDEN:· Objection.
`20· · · ·A· · ·Can you repeat that?
`21· · · ·Q· · ·Do you agree that proper
`22· ·obviousness analysis requires ascertaining
`23· ·the differences between the claimed
`24· ·invention and the prior art?
`25· · · ·A· · ·Again, I'm not an attorney, but
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`Page 33
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`·1· · · · · · · · · ·Davidson
`·2· ·my analysis in looking at the prior art
`·3· ·and seeing, you know, whether it taught or
`·4· ·suggested the claim features in the
`·5· ·patent.· That was my analysis.
`·6· · · ·Q· · ·Did your analysis determine any
`·7· ·differences between the claimed invention
`·8· ·and the prior art?
`·9· · · ·A· · ·I'll have to think in terms
`10· ·of -- in terms of the claim language of
`11· ·the '494, no.
`12· · · ·Q· · ·So just to be clear:· In your
`13· ·opinion, there is no difference between
`14· ·the claim language of the '494 and the
`15· ·Swimmer reference?
`16· · · ·A· · ·The Swimmer reference teaches
`17· ·each and every aspect of the claim, what's
`18· ·claimed in the '494, the asserted claims.
`19· · · ·Q· · ·Is it fair to say that the
`20· ·Swimmer reference explicitly teaches every
`21· ·limitation of the '494 Patent?
`22· · · · · · ·MR. WALDEN:· Objection.· Legal
`23· · · ·conclusion.
`24· · · ·A· · ·Again, I can only say that, you
`25· ·know, the Swimmer patent teaches each and
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`Page 34
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`·1· · · · · · · · · ·Davidson
`·2· ·every claim of both the independent and
`·3· ·dependent claims.
`·4· · · ·Q· · ·When you say "teaches", does it
`·5· ·mean expressly discloses every limitation
`·6· ·of the '494 Patent?
`·7· · · · · · ·MR. WALDEN:· Same objection.
`·8· · · ·A· · ·One skilled in the art at the
`·9· ·time, you know, would have been able to
`10· ·basically read the Swimmer Patent and
`11· ·produce and exercise each and every claim
`12· ·of the patent.
`13· · · ·Q· · ·That's what you mean by teaches?
`14· · · ·A· · ·Right.· If I read that paper, I
`15· ·would be able to produce that invention.
`16· · · ·Q· · ·And when you use the word
`17· ·"teaches", you don't mean that it
`18· ·expressly discloses every claim in the
`19· ·invention, correct?
`20· · · ·A· · ·When I say "teaches", if you
`21· ·read that, again, one skilled in the art,
`22· ·by reading that and having their, you
`23· ·know, knowledge at the time of the patent,
`24· ·would be able to, you know, produce that
`25· ·inv