·1· ·UNITED STATES PATENT AND TRADEMARK OFFICE
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`·2· · · · · · ·________________________
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`·3· · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·4· · · · · · ·______________________
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`·5
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`·6· · · · · ·Palo Alto Networks, Inc.
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`·7· · · · · · · · · Petitioner
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`·8· · · · · · · · · · ·-v-
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`·9· · · · · · · · ·Finjan, Inc.
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`10· · · · · · · · ·Patent Owner
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`11· · · · · · · · ·____________
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`12
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`13· · · · · · ·Case IPR2016-00151
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`14· · · · · · ·U.S. Patent No. 8,141,154
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 1
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`·2· · · · · · ·________________________
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`·3· · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·4· · · · · · ·______________________
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`·5
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`·6· · · · · ·Palo Alto Networks, Inc.
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`·7· · · · · · · · · Petitioner
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`·8· · · · · · · · · · ·-v-
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`·9· · · · · · · · ·Finjan, Inc.
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`10· · · · · · · · ·Patent Owner
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`11· · · · · · · · ·____________
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`12
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`13· · · · · · ·Case IPR2016-00151
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`14· · · · · · ·U.S. Patent No. 8,141,154
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 1
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`·1· · · · Videotaped Deposition of DR. AVIEL DAVID RUBIN
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`·2· · · · · · · · · · · · · ·Towson, MD
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`·3· · · · · · · · · · Friday, August 19, 2016
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`·4· · · · · · · · · · · · · · 9:31 a.m.
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`·5
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`·6
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`·7
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`·8· ·Job No:· J0395073
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`·9· ·Pages:· 1-93
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`10· ·Reported by:· Kenneth Norris
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 2
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`·1· · · · · · ·Deposition of DR. AVIEL DAVID RUBIN
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`·2· · · · · · ·Held at the Offices of:
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`·3
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`·4
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`·5· · · · · · ·SHERATON BALTIMORE NORTH
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`·6· · · · · · ·903 Dulaney Valley Road
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`·7· · · · · · ·Cole Boardroom
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`·8· · · · · · ·Towson, MD 21204
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`·9· · · · · · ·(410) 321-7400
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`10
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`11
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`12
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`13
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`14· · · · · · ·Pursuant to Notice, before Kenneth Norris, a
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`15· ·Professional Reporter and Notary Public in and for the
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`16· ·State of Maryland.
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`17
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`18
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`19
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`20
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`21
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 3
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`
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`·1· ·APPEARANCES:
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`·2· · · · · ·ON BEHALF OF THE PETITIONER:
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`·3· · · · · ·SHOUVIK BISWAS, ESQUIRE and
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`·4· · · · · ·FAHD H. PATEL, ESQUIRE
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`·5· · · · · · ·Morrison & Foerster, LLP
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`·6· · · · · · ·2000 Pennsylvania Avenue, NW
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`·7· · · · · · ·Suite 6000
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`·8· · · · · · ·Washington, DC 2006-1888
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`·9· · · · · · ·Telephone: (202)778-1658
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`10· · · · · · ·E-mail:· sbiswas@mofo.com
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`11
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`12
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`13· · · · · ·ON BEHALF OF THE PATENT OWNER:
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`14· · · · · ·MICHAEL LEE, ESQUIRE
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`15· · · · · · ·Kramer, Levin, Naftalis & Frankel
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`16· · · · · · ·990 Marsh Road
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`17· · · · · · ·Menlow Park, CA 94025
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`18· · · · · · ·Telephone: (650)752-1721
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`19· · · · · · ·E-mail:· mhlee@kramerlevin.com
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`20
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`21· · · · · · ·VIDEOGRAPHER:· ADAM NUDELMAN
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 4
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`
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`·1· · · · · · · · · · · ·CONTENTS
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`·2
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`·3· · · · EXAMINATION OF DR. AVIEL DAVID RUBIN· · · ·Page
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`·4· · · · By Mr. Lee· · · · · · · · · · · · · · · · · ·7
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`·5
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`·6
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`·7
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`·8
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`·9· ·Exhibit· · · · · · · · · · · · · · · · · · · · ·Page
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`10· ·1· · U.S. Patent No. 8,141,154 declaration· · · · 9
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`11· · · · In support of petition for inter partes
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`12· · · · Review
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`13· ·2· · U.S. patent application publication, Ross· ·30
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`14· · · · Pub. No: 2007/0113282 A1 dated
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`15· · · · May 17, 2007
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`16· ·3· · U.S. Patent Gruzman, et al., dated· · · · · 51
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`17· · · · May 20, 2012
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`18
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`19
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`20
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`21
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 5
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`·1· · · · · · · · · · ·P R O C E E D I N G S
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`·2
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`·3· · · · · · ·VIDEOGRAPHER:· Here begins tape number 1 in
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`·4· ·the videotaped deposition of Dr. Aviel Rubin in the
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`·5· ·matter of Palo Alto Networks, Inc., versus Finjan,
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`·6· ·Inc., in the U.S. Patent and Trademark Office before
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`·7· ·the Trial and Appeal Board, IPR2016-00151, U.S. Patent
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`·8· ·Number 8,141,154.
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`·9· · · · · · ·Today's date is 8-19-16.· Time on the video
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`10· ·monitor is 9:29 a.m.
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`11· · · · · · ·Videographer today is Adam Nudelman
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`12· ·representing Esquire.· This video deposition is taking
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`13· ·place at Sheraton Towson, Maryland.
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`14· · · · · · ·Would counsel please voice-identify
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`15· ·themselves and state whom they represent?
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`16· · · · · · ·MR. LEE:· Michael Lee, from Kramer, Levin,
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`17· ·representing Patent Owner Finjan.
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`18· · · · · · ·MR. BISWAS:· Shouvik Biswas, from Morrison
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`19· ·Foerster representing Petitioner, Palo Alto Networks.
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`20· · · · · · ·And joining me is Fahd Patel from Morrison
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`21· ·Foerster, also representing Palo Alto Networks.
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 6
`
`
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`·1· · · · · · ·VIDEOGRAPHER:· The court reporter today is
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`·2· ·Ken Norris representing Esquire.
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`·3· · · · · · ·Would the reporter please swear in the
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`·4· ·witness?
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`·5· ·Whereupon,
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`·6· · · · · · · · · · DR. AVIEL DAVID RUBIN,
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`·7· ·a witness of lawful age, after being duly sworn to
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`·8· ·tell the truth, the whole truth and nothing but the
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`·9· ·truth, testified as follows:
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`10· · · · · · · · · · · ·EXAMINATION:
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`11· ·BY MR. LEE:
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`12· · · · Q.· ·Please state your full name and address for
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`13· ·the record?
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`14· · · · A.· ·Aviel D. Rubin, 32014 Hawk Court,
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`15· ·Pikesville, Maryland 21208.
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`16· · · · Q.· ·Do you understand why you're here today?
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`17· · · · A.· ·I'm here to give deposition testimony.
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`18· · · · Q.· ·Regarding what?
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`19· · · · A.· ·Regarding the IPR of Patent 154.
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`20· · · · Q.· ·Did you submit the declaration in this case?
`
`21· · · · A.· ·Yes.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 7
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`
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`·1· · · · Q.· ·This is the second declaration you submitted
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`·2· ·regarding Patent 154; correct?
`
`·3· · · · A.· ·That's right.
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`·4· · · · Q.· ·Why is it that you submitted another
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`·5· ·declaration for 154 Patent?
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`·6· · · · A.· ·I was asked to look at the 154 Patent with
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`·7· ·respect to a different set of references.
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`·8· · · · Q.· ·When were you engaged as an expert for this
`
`·9· ·case?
`
`10· · · · A.· ·I don't remember the exact date, but I think
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`11· ·it was sometime last summer.
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`12· · · · Q.· ·Do you recall who contacted you?
`
`13· · · · A.· ·I believe it was Michael Jacobs.
`
`14· · · · Q.· ·Michael Jacobs is from Morrison Foerster?
`
`15· · · · A.· ·Right.
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`16· · · · Q.· ·And he contacted you around the late summer
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`17· ·last year; correct?
`
`18· · · · A.· ·I don't remember when it was.· I think it
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`19· ·was sometime last summer.
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`20· · · · Q.· ·Can you describe for me the process of
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`21· ·writing your declaration?
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 8
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`
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`·1· · · · A.· ·Yes.· I reviewed materials like the 154
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`·2· ·Patent, some prior art references.· I looked at
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`·3· ·various documents.
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`·4· · · · · · ·I need to look at my report to refresh my
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`·5· ·memory of which ones, but then I worked with an
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`·6· ·assistant and with the lawyers.· We drafted up drafts
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`·7· ·of the document, sent it back and forth, and had phone
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`·8· ·calls and meetings to discuss various aspects of it.
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`·9· · · · · · ·And then when I was happy that the report
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`10· ·represented all of my opinions, then I finalized it
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`11· ·and signed it.
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`12· · · · · · ·(Rubin Exhibit No. 1 was marked for
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`13· ·identification.)
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`14· ·BY MR. LEE:
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`15· · · · Q.· ·You've been handed an exhibit marked as
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`16· ·Exhibit No. 1.· Exhibit No. 1 is entitled "Declaration
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`17· ·of Dr. Aviel D. Rubin in Support of Petition for Inter
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`18· ·Partes Review."· For Inter Partes Review No. IPR
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`19· ·2016-00151.
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`20· · · · · · ·Do you recognize Exhibit No. 1?
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`21· · · · A.· ·Yes.
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 9
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`
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`·1· · · · Q.· ·What is Exhibit No. 1?
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`·2· · · · A.· ·This was the declaration that I submitted in
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`·3· ·this case.
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`·4· · · · Q.· · Did you say you needed your declaration to
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`·5· ·refresh your memory regarding certain things?
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`·6· · · · A.· ·I believe I said that -- which documents I
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`·7· ·reviewed would be in there.
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`·8· · · · Q.· ·With Exhibit 1 in front of you, do you
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`·9· ·recall which documents you reviewed?
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`10· · · · A.· ·Yes.
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`11· · · · Q.· ·Which documents did you review?
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`12· · · · A.· ·So, I reviewed the documents that are
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`13· ·listed, the second physical page of the -- the first
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`14· ·page after the table of contents that has the exhibit
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`15· ·list.
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`16· · · · Q.· ·So this is pages I and double I?
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`17· · · · A.· ·Right.
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`18· · · · Q.· ·And this lists Exhibits A through M; right?
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`19· · · · A.· ·Right.
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`20· · · · Q.· ·Do Exhibits A through M identify all of the
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`21· ·materials you considered in this case?
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 10
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`
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`·1· · · · A.· ·No.· I also reviewed the Ross Patent and the
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`·2· ·Palo Alto Patent as well as the 154 Patent.
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`·3· · · · Q.· ·That's not listed in the exhibit list?
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`·4· · · · A.· ·I don't see it listed there.
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`·5· · · · Q.· ·Is there any other documents you reviewed
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`·6· ·other than what's on the exhibit list and the Palo
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`·7· ·Alto Patent and the Ross Patent?
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`·8· · · · · · ·MR. BISWAS:· Objection compound.
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`·9· ·BY MR. LEE:
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`10· · · · Q.· ·And the 154?
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`11· · · · A.· ·So, I believe I looked at other documents as
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`12· ·well.· I think I looked at the file history.· But I
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`13· ·don't think that I listed documents here, if I didn't
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`14· ·have some citation to them in -- in the report.
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`15· · · · Q.· ·Anything else in the file history that you
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`16· ·can recall sitting here today?
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`17· · · · · · ·MR. BISWAS:· Objection.· Foundation.
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`18· · · · · · ·THE WITNESS:· I think there were other
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`19· ·documents, because I remember looking at a lot of
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`20· ·things, but I don't -- as I'm sitting here, I don't
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`21· ·remember which ones.
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 11
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`
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`·1· ·BY MR. LEE:
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`·2· · · · Q.· ·Can you go to page 65 of your declaration?
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`·3· · · · · · ·And let me know when you're there.
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`·4· · · · A.· ·I'm there.
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`·5· · · · Q.· ·This is your signature on page 65?
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`·6· · · · A.· ·Yes.
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`·7· · · · Q.· ·Do you understand what date you signed the
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`·8· ·declaration?
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`·9· · · · A.· ·I usually include the date on this page, but
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`10· ·it looks like I left it off here, so I don't see it.
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`11· · · · Q.· ·Do you recall what date you signed your
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`12· ·declaration?
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`13· · · · A.· ·I think it was sometime last fall when I
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`14· ·remember doing this, but I don't have the exact date
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`15· ·in my mind.
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`16· · · · Q.· ·When you signed your declaration, was it
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`17· ·your understanding that you were supposed to put into
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`18· ·your declaration all the opinions you had in this
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`19· ·case?
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`20· · · · A.· ·All the things that I had?
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`21· · · · Q.· ·All the opinions you had in this case.
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 12
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`
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`·1· · · · A.· ·Oh, yes.
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`·2· · · · Q.· ·Do you have another opinion that is not in
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`·3· ·this declaration?
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`·4· · · · A.· ·No.
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`·5· · · · Q.· ·Are there any corrections you would like to
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`·6· ·make at this time?
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`·7· · · · A.· ·Yes.
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`·8· · · · · · ·On page 15, in the fourth line where it
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`·9· ·says, "i.e., the original function" in parenthesis,
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`10· ·that's a mistake.· It shouldn't have anything there.
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`11· · · · Q.· ·All right.· Anything else?
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`12· · · · A.· ·No, I don't think so.
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`13· · · · Q.· ·As you sit here on August 19, 2016, is there
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`14· ·anything that you're aware of concerning the bases of
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`15· ·your opinion that is not included in Exhibit No. 1?
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`16· · · · A.· ·No.
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`17· · · · Q.· ·You mentioned that you worked with Seth
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`18· ·Neilson and Paul Martin, correct, in your declaration?
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`19· · · · A.· ·It's true.· I'm not sure if it's in here or
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`20· ·not, but I did work with them.
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`21· · · · Q.· ·I thought you testified to that earlier,
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 13
`
`
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`·1· ·that you've worked with Seth Neilson and Paul Martin?
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`·2· · · · A.· ·Today?
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`·3· · · · Q.· ·Yes.· When I asked about the process.
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`·4· · · · A.· ·I said I worked with my assistants, and
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`·5· ·that's who I was referring to, but I don't remember
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`·6· ·naming them.
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`·7· · · · Q.· ·All right.
`
`·8· · · · · · ·What role did Seth Neilson play in the
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`·9· ·process of writing your declaration?
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`10· · · · A.· ·If I remember correctly, Seth served as a
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`11· ·sounding board for me with ideas and he works in
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`12· ·parallel with me on some of the opinions.· He would
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`13· ·think about it for awhile, come back to me, and we
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`14· ·would discuss it.· And then he basically served as an
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`15· ·assistant in writing the report.
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`16· · · · Q.· ·Did he write any portion of your
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`17· ·declaration?
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`18· · · · A.· ·I believe he drafted some of the text in
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`19· ·here and created the initial draft, which I looked at
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`20· ·and either approved or edited myself.
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`21· · · · Q.· ·Do you recall which portion?
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 14
`
`
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`·1· · · · A.· ·No.
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`·2· · · · Q.· ·What role did Paul Martin play?
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`·3· · · · A.· ·Seth left my company, so Paul replaced him.
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`·4· ·And so at the time that Seth left, Paul took over.
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`·5· · · · Q.· ·Did Paul Martin draft any portion of your
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`·6· ·declaration?
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`·7· · · · A.· ·No.
`
`·8· · · · Q.· ·Do you recall when did Paul Martin start
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`·9· ·work on your declaration?
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`10· · · · A.· ·I don't -- Paul worked for me part-time for
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`11· ·the last four years and only full-time since this past
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`12· ·February, and I don't remember at what point he got
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`13· ·involved in this.· He might have only been involved in
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`14· ·helping prepare me for this deposition.· I don't think
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`15· ·he was involved when we were working on the report.
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`16· · · · Q.· ·Do you recall what date did Seth Neilson
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`17· ·leave?
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`18· · · · A.· ·When he left my company?
`
`19· · · · Q.· ·Yes.
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`20· · · · A.· ·Yes.· I believe that November 30th was his
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`21· ·last day.· He continued to work for me as a contractor
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 15
`
`
`
`·1· ·for several months to finish up some projects he was
`
`·2· ·on after he left, but his full-time employment ended
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`·3· ·November 30th.
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`·4· · · · Q.· ·Before you were engaged as an expert in this
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`·5· ·case, you heard of Finjan before; right?
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`·6· · · · A.· ·Yes.
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`·7· · · · Q.· ·How were you involved in Finjan?
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`·8· · · · A.· ·At some time in the '90s, I think it was mid
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`·9· ·to late '90s, I was on the technical advisory board of
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`10· ·Finjan.
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`11· · · · Q.· ·Why were you on the technical advisory board
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`12· ·of Finjan?
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`13· · · · A.· ·I was a recent PhD graduate and I was
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`14· ·working in the same area, the same field that Finjan
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`15· ·was in, and they formed an advisory board to pick
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`16· ·people out who were known in the field to -- I think
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`17· ·part of it was public relations to show that they were
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`18· ·engaging experts in the field on their board.· They
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`19· ·could put that on their website and attribute quotes
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`20· ·to us and things like that.· And part of it was
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`21· ·because we would have meetings with them and we would
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`Patent Owner Finjan, Inc., Exhibit 2038, p. 16
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`
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`·1· ·discuss ideas and technology with them.
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`·2· · · · Q.· ·But my question was why did you choose to be
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`·3· ·part of the technical advisory board of Finjan?
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`·4· · · · A.· ·It was an opportunity for me to be involved
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`·5· ·in a startup that's in the industry and I got stock
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`·6· ·options for that.· Never ended up amounting to
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`·7· ·anything because they dissolved the board after a year
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`·8· ·and cancelled all of our options, but it seemed like a
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`·9· ·chance for me to do some interesting work and make
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`10· ·some money.
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`11· · · · Q.· ·Why were your options cancelled?
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`12· · · · A.· ·Because they terminated all the advisors on
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`13· ·the advisory board.· The company was having financial
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`14· ·problems and so they had a new CEO.· They
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`15· ·restructured, and as part of that they basically
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`16· ·cancelled all the options of all the advisors and
`
`17· ·terminated the board.
`
`18· · · · Q.· ·So, when did you hold the stock options for
`
`19· ·Finjan, which date?
`
`20· · · · A.· ·I think in '96 to '97 time frame, give or
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`21· ·take a year.· I don't really remember.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 17
`
`
`
`·1· · · · Q.· ·And in 1997 the stock options were
`
`·2· ·cancelled?
`
`·3· · · · A.· ·You know, it was a rough time period.· It
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`·4· ·wasn't after 2000.· It could have been '95.· It could
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`·5· ·have been '98.· I don't remember.
`
`·6· · · · Q.· ·Did Finjan give any other types of
`
`·7· ·compensation other than stock options?
`
`·8· · · · A.· ·They may have paid us for our time when we
`
`·9· ·came to meetings, but I don't remember.· It was my
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`10· ·practice -- in that time period I was on other
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`11· ·advisory boards too, and it was my practice to bill
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`12· ·for my time something like half of my normal rate.
`
`13· ·But I don't remember if I made that arrangement with
`
`14· ·Finjan.· That was my first advisory board.
`
`15· · · · Q.· ·Who do you primarily engage with at Finjan?
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`16· · · · A.· ·A guy named Ron Morris.
`
`17· · · · Q.· ·He was the CEO?
`
`18· · · · A.· ·No.· He was the CTO.
`
`19· · · · Q.· ·You also mentioned that Finjan was in the
`
`20· ·same technical field that you were working on?
`
`21· · · · A.· ·Right.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 18
`
`
`
`·1· · · · Q.· ·What was the technical field?
`
`·2· · · · A.· ·Network security.
`
`·3· · · · Q.· ·What do you mean by network security?
`
`·4· · · · A.· ·Protecting networks from hackers.
`
`·5· · · · Q.· ·Can you explain what you mean by networks?
`
`·6· · · · A.· ·Systems of computers that are able to
`
`·7· ·communicate with each other.
`
`·8· · · · Q.· ·What's the difference between networks and
`
`·9· ·say, like, a personal computer?
`
`10· · · · A.· ·Well, a personal computer would need to be
`
`11· ·on a network in order to talk to other computers.
`
`12· · · · Q.· ·So, protecting networks also protects PCs,
`
`13· ·but PCs within a network; is that correct?
`
`14· · · · A.· ·So network security can be defined at
`
`15· ·different levels of granularity.· So you could imagine
`
`16· ·one person when they say network security is referring
`
`17· ·to protections against an IO service attacks and
`
`18· ·against border gateway protocol and dominion system
`
`19· ·attacks, so all the protocols of the network.
`
`20· · · · · · ·Some people when they say network security
`
`21· ·encompass the machines that are on the network as
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 19
`
`
`
`·1· ·well, so protecting against viruses and malware. I
`
`·2· ·would view myself in that time period, as well as
`
`·3· ·today, in the broad field of networking computer
`
`·4· ·security.
`
`·5· · · · Q.· ·How about Finjan?· Does Finjan protect
`
`·6· ·against the denial of services acts?
`
`·7· · · · · · ·MR. LEE:· Objection.
`
`·8· · · · · · ·THE WITNESS:· In those days or now?
`
`·9· ·BY MR. LEE:
`
`10· · · · Q.· ·In those days or now?
`
`11· · · · A.· ·Are you asking me what Finjan did when I was
`
`12· ·on the advisory board or what they do today?
`
`13· · · · Q.· ·Oh.· I'm just asking when you say it's the
`
`14· ·same technical field of technical security, does that
`
`15· ·include denial of service attacks, you know, when you
`
`16· ·saw Finjan is in the same field?
`
`17· · · · A.· ·So when I was saying that, you asked me why
`
`18· ·I was on Finjan's advisory board.
`
`19· · · · · · ·So they were working broadly in the field of
`
`20· ·network security, so was I.· So they approached me. I
`
`21· ·don't recall them having any technology aimed at
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 20
`
`
`
`·1· ·denial of service attacks.
`
`·2· · · · Q.· ·What was their technology aimed at?
`
`·3· · · · A.· ·They were aimed at protecting against mobile
`
`·4· ·code attacks.
`
`·5· · · · Q.· ·Can you explain how Finjan protected against
`
`·6· ·mobile code attacks?
`
`·7· · · · A.· ·They had a product -- they had two main
`
`·8· ·products, surfing gate and surfing shield.· Surfing
`
`·9· ·gate was a product that was out of Gateway and Surfing
`
`10· ·Shield was a product that was at an end machine.· My
`
`11· ·understanding was they used very similar technologies,
`
`12· ·but they just placed them in different places and they
`
`13· ·looked for the behavior of the mobile code to see if
`
`14· ·it did anything bad.
`
`15· · · · Q.· ·What do you mean by behavior?
`
`16· · · · A.· ·Like, what were the instructions in the
`
`17· ·code.
`
`18· · · · Q.· ·Can you give me an example of a behavior?
`
`19· · · · A.· ·A behavior could be to print out a picture
`
`20· ·of a landscape on the screen.
`
`21· · · · Q.· ·Is behavior something that is written in the
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 21
`
`
`
`·1· ·code itself, or is it something that the code is
`
`·2· ·intended to do?
`
`·3· · · · A.· ·The behavior of the code is what's written
`
`·4· ·in the code.
`
`·5· · · · Q.· ·So it's not a -- like, a resulting operation
`
`·6· ·from executing the code; right?
`
`·7· · · · · · ·MR. BISWAS:· Objection.· Asked and answered.
`
`·8· · · · · · ·THE WITNESS:· I don't see the difference
`
`·9· ·there.
`
`10· ·BY MR. LEE:
`
`11· · · · Q.· ·So, there is no difference from -- let me
`
`12· ·back up.· Strike that.
`
`13· · · · · · ·What do you mean by instruction?
`
`14· · · · A.· ·A line in a computer program.
`
`15· · · · Q.· ·So a line in a computer program would, when
`
`16· ·executed, would perform some sort of operation;
`
`17· ·correct?
`
`18· · · · A.· ·Most of them would.
`
`19· · · · Q.· ·But there is no difference between the
`
`20· ·behavior and the line written in the program itself;
`
`21· ·right?
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 22
`
`
`
`·1· · · · A.· ·Well, I mean, there's a difference in level
`
`·2· ·of abstraction, so a behavior is something that the
`
`·3· ·code does.· When I mentioned printing out a landscape,
`
`·4· ·that would take multiple instructions to do that.· You
`
`·5· ·don't have, like, a print landscape instruction
`
`·6· ·usually.· So it is the combination of instructions
`
`·7· ·that results in a behavior.
`
`·8· · · · Q.· ·Why did you leave the advisory -- technical
`
`·9· ·advisory board with Finjan?
`
`10· · · · A.· ·They terminated their board and they let
`
`11· ·everybody go and said they are not going to have an
`
`12· ·advisory board anymore.
`
`13· · · · Q.· ·Do you understand why Finjan made that
`
`14· ·decision?
`
`15· · · · · · ·MR. BISWAS:· Objection.· Asked and answered.
`
`16· · · · · · ·THE WITNESS:· Yes.· They said that there was
`
`17· ·a management change and that they had financial
`
`18· ·troubles, so they were going to go in another
`
`19· ·direction, which I can't think of the exact words they
`
`20· ·used when they told me.· So they weren't going to have
`
`21· ·an advisory board anymore.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 23
`
`
`
`·1· ·BY MR. LEE:
`
`·2· · · · Q.· ·I guess I don't understand, like, why a
`
`·3· ·management change and going in a different technical
`
`·4· ·direction would force the end of the technical
`
`·5· ·advisory board.
`
`·6· · · · · · ·MR. BISWAS:· Objection.· There's no question
`
`·7· ·there.
`
`·8· ·BY MR. LEE:
`
`·9· · · · Q.· ·Can you explain why?
`
`10· · · · A.· ·You would have to ask the management, the
`
`11· ·new management that came in why they did that.
`
`12· · · · Q.· ·That was just the explanation they gave?
`
`13· · · · A.· ·That's what they told us.
`
`14· · · · Q.· ·Which technical direction did they change
`
`15· ·into?
`
`16· · · · A.· ·So, after I left the advisory board of
`
`17· ·Finjan, I stopped keeping track of Finjan.· And I
`
`18· ·wasn't really aware of them or familiar with anything
`
`19· ·to do with them until I was engaged as an expert many
`
`20· ·years later.
`
`21· · · · Q.· ·When were you engaged as an expert many
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 24
`
`
`
`·1· ·years later?
`
`·2· · · · A.· ·I don't remember the year.· It was a few
`
`·3· ·years ago, two or three years ago.
`
`·4· · · · Q.· ·Do you recall who contacted you to be an
`
`·5· ·expert against Finjan?
`
`·6· · · · A.· ·I don't remember who first contacted me.
`
`·7· · · · Q.· ·Do you have any current understanding of
`
`·8· ·Finjan?
`
`·9· · · · A.· ·I understand that they're a company that is
`
`10· ·trying to enforce a lot of its patents.
`
`11· · · · Q.· ·Do you have any technical understanding of
`
`12· ·Finjan since you left the board?
`
`13· · · · · · ·MR. BISWAS:· Objection.· Ambiguous.
`
`14· · · · · · ·THE WITNESS:· I'm just familiar with the
`
`15· ·patents that I've looked at as an expert.
`
`16· ·BY MR. LEE:
`
`17· · · · Q.· ·You're currently engaged as an expert for
`
`18· ·Palo Alto Network; correct?
`
`19· · · · A.· ·Yes.
`
`20· · · · Q.· ·Do you have any understanding of what Palo
`
`21· ·Alto Networks does?
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 25
`
`
`
`·1· · · · A.· ·Yes.
`
`·2· · · · Q.· ·What does Palo Alto Networks do?
`
`·3· · · · · · ·MR. BISWAS:· Objection.· Ambiguous.
`
`·4· · · · · · ·THE WITNESS:· Palo Alto Networks is a
`
`·5· ·company that sells security appliances for networks.
`
`·6· ·BY MR. LEE:
`
`·7· · · · Q.· ·Do you have any other understanding?
`
`·8· · · · · · ·MR. BISWAS:· Objection.· Ambiguous.
`
`·9· · · · · · ·THE WITNESS:· I'm not sure what you mean.
`
`10· ·BY MR. LEE:
`
`11· · · · Q.· ·Do you have any other understanding of Palo
`
`12· ·Alto Networks other than the seller of security
`
`13· ·appliances for networks?
`
`14· · · · · · ·MR. BISWAS:· Same objection.
`
`15· · · · · · ·THE WITNESS:· That's how I would describe
`
`16· ·them.· I'm not sure what exactly you want me to say
`
`17· ·beyond that.
`
`18· ·BY MR. LEE:
`
`19· · · · Q.· ·All right.
`
`20· · · · · · ·Do you have any understanding of how Palo
`
`21· ·Alto Networks security appliances work?
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 26
`
`
`
`·1· · · · A.· ·Yes.
`
`·2· · · · Q.· ·What's your understanding?
`
`·3· · · · · · ·MR. BISWAS:· Objection.· Ambiguous.· Vague.
`
`·4· · · · · · ·THE WITNESS:· Well, they sell several
`
`·5· ·different products.· I know the best is the firewall
`
`·6· ·product that basically has a slow path and a fast path
`
`·7· ·packets come in.· There is a flow table that is
`
`·8· ·consulted.· And, ultimately, a decision is made
`
`·9· ·whether to allow or disallow the packet.
`
`10· ·BY MR. LEE:
`
`11· · · · Q.· ·How did you learn how Palo Alto Networks
`
`12· ·security appliance worked?
`
`13· · · · A.· ·So, the way that I learned the most about it
`
`14· ·was -- and by the way, everything that I've told you
`
`15· ·so far about how their appliances work is public
`
`16· ·knowledge, but I had access to things that I can't
`
`17· ·tell you about because I was an expert against them in
`
`18· ·a case and had access to their code.
`
`19· · · · Q.· ·When were you an expert against Palo Alto
`
`20· ·Networks?
`
`21· · · · A.· ·So in the 2013 and 2014 time frame.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 27
`
`
`
`·1· · · · Q.· ·Which page are you referring to in your
`
`·2· ·declaration?
`
`·3· · · · A.· ·My vitae.· Page 13 and 16 of the vitae.
`
`·4· · · · Q.· ·And which case are you referring to in here?
`
`·5· · · · A.· ·Case 1:11-CV-01258-SLR.
`
`·6· · · · Q.· ·So you were an expert for -- against Palo
`
`·7· ·Alto Networks?
`
`·8· · · · A.· ·Yes.
`
`·9· · · · Q.· ·Is it fair to say that the portions -- the
`
`10· ·parties that are highlighted in bold are the parties
`
`11· ·you represented here?
`
`12· · · · A.· ·Right.· That's the way I coded this.
`
`13· · · · · · ·So now I see that I can give a better answer
`
`14· ·to your question earlier about Finjan, is that that
`
`15· ·was in 2012.
`
`16· · · · Q.· ·So you're also an expert for Symantec;
`
`17· ·correct?· Is that what this says on page 13?
`
`18· · · · A.· ·I was an expert in the Intellectual Ventures
`
`19· ·versus Symantec Insurance case.
`
`20· · · · Q.· ·And you represented Symantec; correct?
`
`21· · · · A.· ·I was -- Symantec and Trend together were my
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 28
`
`
`
`·1· ·clients.
`
`·2· · · · Q.· ·Are you currently an expert for Symantec?
`
`·3· · · · · · ·MR. BISWAS:· Objection.· And I'm going to
`
`·4· ·ask you not to answer that question to the extent that
`
`·5· ·it would reveal any confidential information and would
`
`·6· ·violate his attorney work product obligation.
`
`·7· · · · · · ·THE WITNESS:· I'm not going to answer that.
`
`·8· ·BY MR. LEE:
`
`·9· · · · Q.· ·How long were you an expert for Symantec for
`
`10· ·this case?
`
`11· · · · A.· ·I believe that case was about two years
`
`12· ·long.
`
`13· · · · Q.· ·So then you were an expert until 2015?
`
`14· · · · A.· ·No.· The· -- my deposition in that case was
`
`15· ·in 2013.· I don't see on here, but that case actually
`
`16· ·went to trial, I think, in 2014, although not with
`
`17· ·Symantec.· The case was split and so I worked for
`
`18· ·Trend as an expert.· And the Symantec trial -- my
`
`19· ·recollection is that in the case that I worked, the
`
`20· ·patents were found to be invalid, so the Symantec
`
`21· ·trial never happened.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 29
`
`
`
`·1· · · · Q.· ·I'm sorry.· When you say two years, from
`
`·2· ·what year to what year?
`
`·3· · · · A.· ·My recollection is a little fuzzy, but if I
`
`·4· ·had my deposition in 2013, I probably started on the
`
`·5· ·case a year before that and the trial was probably a
`
`·6· ·year after that.· So I'm going to guess 2012 to 2014
`
`·7· ·is probably a good guess as to the time frame.
`
`·8· · · · Q.· ·Do you recall who you've worked with at
`
`·9· ·Symantec?
`
`10· · · · · · ·MR. BISWAS:· Objection, relevance.
`
`11· · · · · · ·THE WITNESS:· Yes.· A guy -- a lawyer named
`
`12· ·Neil Rubin.· No relation to me.
`
`13· · · · · · ·(Rubin Exhibit No. 2 was marked for
`
`14· ·identification.)
`
`15· ·BY MR. LEE:
`
`16· · · · Q.· ·You have been handed an exhibit marked as
`
`17· ·Exhibit No. 2.· Exhibit No. 2 is your print
`
`18· ·application publication No. 2007/0113282 by Ross.· You
`
`19· ·mentioned that's -- do you recognize Exhibit No. 2?
`
`20· · · · A.· ·Yes.
`
`21· · · · Q.· ·What is Exhibit No. 2?
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 30
`
`
`
`·1· · · · A.· ·It's what I referred to as the Ross
`
`·2· ·reference.
`
`·3· · · · Q.· ·You mentioned that you reviewed the Ross
`
`·4· ·reference in drafting your declaration; correct?
`
`·5· · · · A.· ·Yes.
`
`·6· · · · Q.· ·Did you find the Ross reference?
`
`·7· · · · · · ·MR. BISWAS:· Objection.· Vague.· Ambiguous.
`
`·8· · · · · · ·THE WITNESS:· I don't recall who found it.
`
`·9· ·BY MR. LEE:
`
`10· · · · Q.· ·Have you ever seen the Ross reference before
`
`11· ·you were engaged as an expert in this case?
`
`12· · · · A.· ·No.
`
`13· · · · Q.· ·Can you go to figure 1?
`
`14· · · · · · ·Do you see around figure 1 it says "prior
`
`15· ·art"?
`
`16· · · · A.· ·Yes.
`
`17· · · · Q.· ·Why does Ross label figure 1 as prior art?
`
`18· · · · · · ·MR. BISWAS:· Objection.· Foundation.· Also
`
`19· ·objection.· Calls for speculation.
`
`20· · · · · · ·THE WITNESS:· Paragraph 15, there is the
`
`21· ·description of the drawing, and it's a brief
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 31
`
`
`
`·1· ·description, and it says that figure 1 shows the
`
`·2· ·traditional client service system, including a client
`
`·3· ·network device and the server network device that can
`
`·4· ·communicate with each other over a communications
`
`·5· ·network such as the Internet.
`
`·6· · · · · · ·So they labeled this as prior art, I
`
`·7· ·believe, because he wants to show that this is what it
`
`·8· ·looked like prior to this invention.
`
`·9· ·BY MR. LEE:
`
`10· · · · Q.· ·How is figure 1 different from Ross's
`
`11· ·system?
`
`12· · · · · · ·MR. BISWAS:· Objection.· Vague.
`
`13· · · · · · ·THE WITNESS:· Figure 1 is missing pretty
`
`14· ·much everything in the Ross invention.· It just shows
`
`15· ·what a client and the server and the Internet looked
`
`16· ·like, but pretty much everything else in this document
`
`17· ·represents the difference from that.
`
`18· ·BY MR. LEE:
`
`19· · · · Q.· ·What do you mean by pretty much everything
`
`20· ·else is missing?
`
`21· · · · A.· ·Well, this document describes an invention.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 32
`
`
`
`·1· ·The title is "The system and method for detecting and
`
`·2· ·disabling malicious script code."· And the document
`
`·3· ·goes on to describe several embodiments of that, and
`
`·4· ·none of those are shown in figure 1.
`
`·5· · · · Q.· ·You see how there is a server, a web server,
`
`·6· ·in the figure?
`
`·7· · · · A.· ·Yes.
`
`·8· · · · Q.· ·The server is not part of Ross's invention;
`
`·9· ·right?
`
`10· · · · · · ·MR. LEE:· Objection.· Vague and ambiguous.
`
`11· · · · · · ·THE WITNESS:· Well, Ross didn't invent
`
`12· ·servers, but his invention works on a network that
`
`13· ·includes servers.
`
`14· ·BY MR. LEE:
`
`15· · · · Q.· ·I'm sorry, does Ross's system work on the
`
`16· ·server?
`
`17· · · · · · ·MR. BISWAS:· Objection.· Asked and answered.
`
`18· ·BY MR. LEE:
`
`19· · · · Q.· ·Or are you saying it's part of it?
`
`20· · · · A.· ·Well, Ross's invention assumes that there
`
`21· ·are servers, but he didn't invent servers.
`
`Patent Owner Finjan, Inc., Exhibit 2038, p. 33
`
`
`
`·1· · · · Q.· ·Does Ross's system utilize the server to
`
`·2· ·perform any kind of functionality?
`
`·3· · · · A.· ·Well, if there weren't servers, there
`
`·4· ·wouldn't be a need for Ross's invention.· But the
`
`·5· ·servers serve up pages that contain JavaScript and
`
`·6· ·HTML, and if that weren't the case, then there would
`
`·7· ·be no need to protect against malicious scripts.
`
`·8· · · · Q.· ·Is part of Ross's invention to serve up web
`
`·9· ·pages?
`
`10· · · · A.· ·Serving up web pages was around well before
`
`11· ·Ross, and I don't think Ross is claiming to have
`
`12· ·invented that.
`
`13· · · · Q.· ·Do you see on figure 2 of Ross there is a
`
`14· ·script conjecture, parentheses, browser plug-in?
`
`15· · · · A.· ·I see that.
`
`16· · · · Q.· ·What is a browser plug-in?
`
`17· · · · A.· ·So a browser plug-in is a program that's --
`
`18· ·so the browsers are best to be extensible meaning they
`
`19· ·were intentionally designed to be able to have
`
`20· ·functionality added to them.· And a plug-in is a
`
`21· ·program that fits into t
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