Case: 13-1489 CASE PARTICIPANTS ONLY Document: 64-3 Page: 244 Filed: 01/03/2014Case: 13-1489 Document: 66-3 Page: 244 Filed: 01/03/2014
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` 1
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` 1 IN THE UNITED STATES DISTRICT COURT
` FOR THE EASTERN DISTRICT OF TEXAS
` 2 TYLER DIVISION
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` 3
` VIRNETX, INC. )
` 4 DOCKET NO. 6:10cv417
` -vs- )
` 5 Tyler, Texas
` ) 12:05 p.m.
` 6 APPLE, INC. November 5, 2012
`
` 7
`
` 8 TRANSCRIPT OF TRIAL
` AFTERNOON SESSION
` 9 BEFORE THE HONORABLE LEONARD DAVIS,
` UNITED STATES CHIEF DISTRICT JUDGE, AND A JURY
` 10
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` 11
`
` 12 A P P E A R A N C E S
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` 13
`
` 14 FOR THE PLAINTIFFS:
`
` 15
` MR. DOUGLAS CAWLEY
` 16 MR. BRADLEY W. CALDWELL
` MR. JASON D. CASSADY
` 17 MR. JOHN AUSTIN CURRY
` McKOOL SMITH
` 18 300 Crescent Court, Ste. 1500
` Dallas, TX 75201
` 19
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` 20
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` 21 COURT REPORTERS: MS. JUDITH WERLINGER
` MS. SHEA SLOAN
` 22 shea_sloan@txed.uscourts.gov
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` 23
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` 24 Proceedings taken by Machine Stenotype; transcript was
` produced by a Computer.
` 25
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`A2298
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`VirnetX Exhibit 2022
`Black Swamp IP, LLC v. VirnetX Inc.
`IPR2016-00693
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` 1 Let's go back to that construction and
` 2 see it real quick.
` 3 Q. (By Mr. Curry) We see that direct
` 4 communication link that provides data security through
` 5 encryption in Judge Davis's instruction.
` 6 Does Kiuchi teach a secure communication link?
` 7 A. No. Because it does not meet that
` 8 construction that we've been given by the Court. It
` 9 can't meet that. And, therefore, that claim element is
` 10 missing from Kiuchi. It doesn't teach that.
` 11 Q. And just fundamentally, why doesn't Kiuchi
` 12 teach a secure communication link?
` 13 A. Well, at a basic level, Kiuchi is teaching --
` 14 is a system that prevents direct communication. It's
` 15 keeping networks apart while still allowing a browser
` 16 computer to retrieve resources from an origin server, as
` 17 we see over here on the board.
` 18 Q. Since Kiuchi doesn't teach a secure
` 19 communication link, can it anticipate any claim of the
` 20 '504 or '211 patents?
` 21 A. No, it can't. That secure communication link
` 22 is required in all of the claims of the '504 and '211
` 23 patents. So it's missing from all of them; therefore,
` 24 those can't be anticipated.
` 25 Q. Are the proxy servers in Kiuchi terminating
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` 1 servers?
` 2 A. Yes, they are. What the proxy servers do --
` 3 as we see in the middle of the communication, a proxy
` 4 server will terminate communication from one computer.
` 5 So there will be the connection on one side of it. It
` 6 will process the data, and then there will be a
` 7 connection on the other side of it.
` 8 Q. In -- excuse me -- are all parties in
` 9 agreement that a terminating server prevents direct
` 10 communication?
` 11 A. Yes.
` 12 Q. And who told us that?
` 13 A. As we saw, that's from Mr. Desmarais, Apple's
` 14 lawyer.
` 15 Q. And does the HTTP flow through a proxy server?
` 16 A. No, it doesn't. These are HTTP proxy servers.
` 17 What they do is, they take in an HTTP request. For
` 18 example, the client-side proxy could take in an HTTP
` 19 request from one of the client computers on the left on
` 20 one connection, a TCP connection. It will process it
` 21 and generate a distinct request and forward that on by
` 22 another new connection.
` 23 Q. Now, is the failure to teach a secure
` 24 communication link the only reason that Kiuchi does not
` 25 invalidate Claim 1 of the '504 patent?
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` 1 that I've explained, Kiuchi cannot anticipate this,
` 2 because it doesn't meet each and every element
` 3 identically and, therefore, it's valid.
` 4 Q. Let me move on to Claim 13 of the '151 patent.
` 5 Is this claim similar to Claim 1 of the '151
` 6 patent?
` 7 A. Yes, it is. And the limitations that are
` 8 missing are similar as well. In the first case, it's
` 9 missing the sent-by-a-client, and in this case, the
` 10 other missing limitation is that there's not a secure
` 11 channel between the client and the server.
` 12 And for the reasons I said there wasn't an
` 13 encrypted channel, there's not a secure channel.
` 14 Q. Let's move on to the '135 patent.
` 15 Does Kiuchi teach a VPN?
` 16 A. No, it does not. The way we can look at that
` 17 is that we need to look at the construction for VPN; and
` 18 then we can see, for example, a network of computers
` 19 which privately and directly communicate with each
` 20 other. And let's just stop there for the moment.
` 21 The computers in Kiuchi don't directly
` 22 communicate. Dr. Alexander has identified the VPN as
` 23 running from the client-side proxy to the origin server.
` 24 That communication is not direct. That communication
` 25 passes through the server-side proxy.
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` 1 And as we know, a server-side proxy is a
` 2 terminating server. It's going to prevent direct
` 3 communication. Kiuchi is quite clear that there is not
` 4 to be that direct communication.
` 5 Q. So did you find this element missing in Claim
` 6 1 of the '135?
` 7 A. Yes, I did.
` 8 Q. What does that necessarily mean about all
` 9 claims of the '135 patent?
` 10 A. Well, all the claims of the '135 patent
` 11 require a VPN. Since Kiuchi doesn't teach that, then
` 12 Kiuchi can't anticipate those claims.
` 13 Q. I want to move on to Claim 8.
` 14 In this claim, what does Dr. Alexander
` 15 identify as the DNS proxy server in Kiuchi?
` 16 A. For this claim, he has identified it as the
` 17 C-HTTP name server up there at the top.
` 18 Q. Is that -- is that consistent with his
` 19 analysis for the '151 patent?
` 20 A. No. In the '151 patent, he puts the DNS proxy
` 21 at the client-side proxy.
` 22 Q. Well, in any event, does the C-HTTP name
` 23 server, the thing that Dr. Alexander identified here as
` 24 the DNS proxy server, perform this step of the claim?
` 25 A. No. What this claim is requiring is that the
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