JOHN RUTTER 4/5/2017
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
` APPLE INC.
`
` )
`
` Petitioner, )
`
` v.
`
` ) CASE NO.: IPR2016-01198
`
` VOIP-PAL.COM, INC.
`
` ) Patent 9,179,005
`
` Patent Owner. )
`
` _______________________ )
`
` The discovery deposition of JOHN RUTTER (by phone),
`
`taken in the above-entitled cause, before Alyssa Fontaine,
`
`official reporter, on the 5th of April, 2017, 1055 W
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`Georgia St, Vancouver, BC V6C 2L1
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 1
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
` APPLE INC.
`
` )
`
` Petitioner, )
`
` v.
`
` ) CASE NO.: IPR2016-01198
`
` VOIP-PAL.COM, INC.
`
` ) Patent 9,179,005
`
` Patent Owner. )
`
` _______________________ )
`
` The discovery deposition of JOHN RUTTER (by phone),
`
`taken in the above-entitled cause, before Alyssa Fontaine,
`
`official reporter, on the 5th of April, 2017, 1055 W
`
`Georgia St, Vancouver, BC V6C 2L1
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 1
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`
`
`JOHN RUTTER 4/5/2017
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`Page 2
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`APPEARANCES:
`
` ERISE IP
`
` 5600 Greenwood Plaza Blvd.
`
` Suite 200
`
` Greenwood Village, CO 80111
`
` (720) 689-5441
`
` BY: MR. ADAM SEITZ (by phone)
`
` On behalf of the Petitioner;
`
` KNOBBE, MARTENS, OLSEN & BEAR, LLP
`
` 2040 Main Street, 14th Floor
`
` Irvine, CA 92614
`
` (858) 707-4000
`
` BY: MR. KERRY TAYLOR (by phone)
`
` On behalf of the Patent Owner.
`
`ALSO PRESENT:
`
` David Gileff
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 2
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`
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`JOHN RUTTER 4/5/2017
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` I N D E X
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`Page 3
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`INDEX OF EXAMINATIONS
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`EXAMINATION PAGE
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` By Mr. Seitz 4
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` By Mr. Taylor 33
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` E X H I B I T S
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`PREVIOUSLY MARKED EXHIBITS
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`NUMBER DESCRIPTION PAGE
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`Exhibit 2008: John Rutter's declaration 5
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`Exhibit 2003: Report dated July 5th, 2005 9
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`Exhibit 2005: Email from Mr. Perreault to John
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` Rutter 13
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`Exhibit 2006: Email from Mr. Perreault to John
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` Rutter 16
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`MIDWEST LITIGATION SERVICES
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`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 3
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`
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`JOHN RUTTER 4/5/2017
`
` VANCOUVER, BRITISH COLUMBIA, CANADA.
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`Page 4
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` APRIL 5, 2017
`
` *****
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` JOHN RUTTER,
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`called as a witness, having been first affirmed, was
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`examined and testified as follows:
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` EXAMINATION
`
`BY MR. SEITZ:
`
` Q. Mr. Rutter, good morning from me. I am
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`Adam Seitz, and I represent Apple in this matter. Before
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`we get started with some of the questioning, I want to ask
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`just a few basic questions about depositions. Have you
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`ever been in a deposition before, sir?
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` A. No, I haven't.
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` Q. Okay. So I'm going to be asking you questions
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`and you will be giving me answers. We're going to do our
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`best to wait for each other to finish over the phone here,
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`but as you just noted you took your affirmation so that
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`means that these questions are being recorded and are
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`under oath. Is there anything that would prevent you from
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`giving truthful testimony today?
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` A. Nothing.
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` Q. Okay. And the one thing I want to make clear is
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`that if you answer my question, I'm going to assume you
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 4
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`JOHN RUTTER 4/5/2017
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`Page 5
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`understood it. Is that agreeable to you, sir?
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` A. Yes, that's agreeable. I need to ask for
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`assistance where I don't understand, yes.
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` Q. Absolutely. And if you don't understand my
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`questions, feel free to ask for clarification and I will
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`be happy to provide it. Also Kerry, the attorney, also on
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`the phone may interrupt at times and object. That is a
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`normal part of this procedure. You'll still provide an
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`answer after he objects unless he instructs you to not
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`answer my question; okay?
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` A. Yes, that's okay.
`
` Q. Okay. Sir, can you tell me how you were
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`compensated for the work you did in connection with the
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`declaration you submitted in this matter.
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` A. This is the work when I was working for Smart421
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`as a lead consultant. The work was my regular rate and I
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`was employed by that company in the UK.
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` Q. Okay. Let me ask you a slightly different
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`question a little clearer maybe on my end. Do you have
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`Exhibit 2008 in front of you?
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` (Exhibit 2008 was marked for identification
`
` and was retained by plaintiff's counsel)
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` THE WITNESS: Yes, I do.
`
` MR. SEITZ:
`
` Q. Exhibit 2008 should be a copy of a declaration
`
`www.midwestlitigation.com
`
`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 5
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`
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`JOHN RUTTER 4/5/2017
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`Page 6
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`you submitted; is that correct?
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` A. Yes, it is.
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` Q. Okay. How were you compensated for that
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`declaration?
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` A. The declaration itself I was compensated for the
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`time to read through the copies of documents and to
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`provide back feedback to Digifonica VoIP-PAL and that was
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`an hourly charge for a couple of hours work.
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` Q. And what was that hourly charge, sir?
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` A. I don't have it in front of me, but it's not
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`huge. Do I need to find that?
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` Q. No, that's okay. Do you know at least what your
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`hourly rate is?
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` A. It's probably under 100 pounds.
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` Q. Okay. And were you provided any shares of stock
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`in VoIP-PAL in exchange for this?
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` A. No, not at all.
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` Q. Okay. Do you own any shares of stock or any
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`interest -- any ownership interest in VoIP-PAL?
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` A. No, I don't have any.
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` Q. Okay. And are you being paid for your time
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`today?
`
` A. Yes, on the same basis as the declaration, a few
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`hours work.
`
` Q. Can you tell me who first contacted you about
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 6
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`JOHN RUTTER 4/5/2017
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`Page 7
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`providing the declaration, the Exhibit 2008 declaration?
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` A. Yes, that was Emil from -- who I had at
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`Digifonica.
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` Q. Okay. And what did Mr. Emil ask you to do?
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` A. He asked if I would confirm why I had -- the
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`report that we did at Smart, that I can confirm that that
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`is a report that I wrote at that time.
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` Q. Okay. Did you speak with anyone else in
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`connection with preparing your declaration?
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` A. The legal team gave me a walk through of the
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`process.
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` Q. So Emil and the legal team. Anyone else?
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` A. Not in terms of producing this at all, no.
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` Q. Who wrote your declaration, Exhibit 2008?
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` A. That was a template from legal team, I think.
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`When it was provided I changed the job title, otherwise it
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`was -- I agree with those things.
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` Q. Did you select the specific quotations that were
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`included in paragraph 7 or was that done by your legal
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`team?
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` A. That was inserted by the legal team.
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` Q. Did you ever any other changes besides changing
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`the job title to the declaration?
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` A. No.
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` Q. And did you do anything to prepare for today's
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 7
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`JOHN RUTTER 4/5/2017
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`Page 8
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`deposition?
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` A. I had a short discussion again with the legal
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`team just talking through what the process is and to
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`ensure that I don't discuss it with anyone.
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` Q. And did you discuss the deposition with anybody
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`other than the legal team?
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` A. No, not at all.
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` Q. Mr. Rutter, I may have pauses between my
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`questions to make sure that I am not repetitive and I'm
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`looking at the questions I want to ask you so bear with me
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`when I have a pause.
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` A. Okay.
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` Q. Besides Emil, have you spoken with any of the
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`prior Digifonica employees in connection with your
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`declaration or your deposition?
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` A. No, not since the visit when I did it originally.
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` Q. The 2005 visit, is that what you mean?
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` A. Yes.
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` Q. Okay. Let's talk about the work that you did in
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`2005. You were an employee with a company called
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`Smart421; is that correct?
`
` A. That's correct.
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` Q. And around June 2005, Smart421 or you conducted a
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`review of Digifonica's system; is that correct?
`
` A. That is correct.
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`www.midwestlitigation.com
`
`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 8
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`JOHN RUTTER 4/5/2017
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`Page 9
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` Q. In paragraph 2 of your declaration you describe
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`that as a high level technical review. Do you see that?
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` A. Paragraph 2, yes. I see that, yes.
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` Q. Can you tell me what you mean by "high level
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`technical review."
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` A. It would be in the process of how the software --
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`the approach taken to the design -- it's a high level, not
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`a low level, so not diving down into the fuctionality of
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`code.
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` Q. Not looking at the fuctionality of code, is that
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`what you said?
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` A. Not in detail. So high level, not low level.
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` Q. Okay.
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` A. The high level components and how they hook up
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`together. That was more the focus to the software.
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` Q. I want to make sure I understood your last
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`statement. The high level components and how they hook up
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`rather than the software; is that what you said?
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` A. Well, they are components -- yes, more of a broad
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`level, not a deep dive.
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` MR. SEITZ: And the result of that work you
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`prepared a report which should be Exhibit 2003; is that
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`correct.
`
` (Exhibit 2003 was marked for identification
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` and was retained by plaintiff's counsel)
`
`www.midwestlitigation.com
`
`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 9
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`JOHN RUTTER 4/5/2017
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`Page 10
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` THE WITNESS: That is correct.
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` MR. SEITZ:
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` Q. And that was the report that you prepared what
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`you're looking at in 2003?
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` A. Yes, I have that here, yes.
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` Q. And that report is July 5th, 2005; is that
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`correct on the date at the bottom left of that first page?
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` A. Yes, that would be the correct date.
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` Q. In that report, Mr. Rutter, you refer to a
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`version 1 and version 2. Can you tell me what version 1
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`is and what version 2 is or was.
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` MR. TAYLOR: Objection. Foundation.
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` THE WITNESS: I continue, yes?
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` MR. SEITZ:
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` Q. Yes, please.
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` A. The versions there were phases of the software.
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`Version one was the core networking component. Version 2
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`is when enhancing the system with web applications to
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`assist managing.
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` Q. And was version one the system that you reviewed?
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` A. They had version one and they had embarked on
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`version 2 development so some of the that fuctionality was
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`in phase two.
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` Q. So when you refer to, for example, software or
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`code that was reviewed as part of this project, would that
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 10
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`JOHN RUTTER 4/5/2017
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`Page 11
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`have been code from version one?
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` A. I believe it's from both parts. We saw some of
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`the web code from version two.
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` Q. For the system that you saw in operation which
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`we'll get into a little bit more in detail later, do you
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`know whether that system would have been version 1 or
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`version 2?
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` A. I would say it was version 2 in progress, so more
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`than just version 1.
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` Q. As part of the work that you did in looking at
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`Digifonica's system, did you find that it was lacking in
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`detailed design documentations?
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` A. One of the statements that refers to that -- the
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`level of detail, it was an area for improvement. It
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`certainly had documentation with some detail.
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` Q. Another finding if you want to look at page 17 of
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`your report, Exhibit 2003. Actually let me give you time
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`to pull that up so I'm not misdirecting you. Page 17 of
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`Exhibit 2003 there's a figure, let me know when you see
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`that.
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` A. Is it in 327, the design overview?
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` Q. Correct, thank you.
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` Right underneath that is a paragraph that states?
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` This area of system documentation that is
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` currently lacking and would be helpful in
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 11
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`JOHN RUTTER 4/5/2017
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` documenting specific system features and
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`Page 12
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` interactions."
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`Do you see that?
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` A. Yes.
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` Q. Is it correct that the system documentation
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`knowledge on how that system was set up was held by key
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`individuals?
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` A. Yes, that is in the document. There's a large
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`amount in individuals, yeah.
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` MR. TAYLOR: Objection. Form.
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` MR. SEITZ:
`
` Q. Okay. Mr. Rutter, you described that as a not
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`ideal situation; is that correct?
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` A. Correct.
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` Q. Then describe to me why that was not ideal.
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` A. From a company perspective it was not ideal that
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`knowledge is only held by individuals. The ideal is to
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`have everything documented and everyone works towards an
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`ideal.
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` Q. If it not documented does it make it more likely
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`that information could be lost or confused over time?
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` A. I would say the code is actually where the
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`answers are. It makes it easier to understand the code
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`because there's more documentation for it so you wouldn't
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`lose the information, it's just harder to ascertain.
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 12
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`JOHN RUTTER 4/5/2017
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` Q. Let me flip back to your declaration, sir,
`
`Exhibit 2008. From that declaration, specifically
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`paragraph 3, it appears that Mr. Perreault provided you
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`with two different emails containing two different sets of
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`Page 13
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`documentation; is that correct?
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` A. Yes, that's correct.
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` MR. SEITZ: Okay. The first set of information
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`appears to be Exhibit 2005, so if you could pull
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`Exhibit 2005, that would be great.
`
` (Exhibit 2005 was marked for identification
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` and was retained by plaintiff's counsel)
`
` THE WITNESS: I have that now.
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` MR. SEITZ:
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` Q. Okay. And this is the email from Mr. Perreault
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`to you with the first batch of information provided about
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`Digifonica?
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` A. That certainly looks like it, yes.
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` Q. And is it correct that no source code or software
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`was provided with this batch of information?
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` A. Well, I'm just looking through. I can't recall
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`which is which.
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` Q. Take your time.
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` A. That email that refers to the documentation as
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`PDF mostly, not source code.
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` Q. In Exhibit 2005?
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 13
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`JOHN RUTTER 4/5/2017
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`Page 14
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` A. Yes, correct.
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` Q. Is it true that that first set of information in
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`Exhibit 2005 was directed more towards an external or
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`sales focus rather than telling you how the features
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`worked within a code base?
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` A. I don't recall right now but I assume they were
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`often technical rather than marketing. They would have
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`been a bit of both.
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` Q. Okay. Let's take a look at page 12 of
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`Exhibit 2003, the Smart421 report.
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` A. I have page 12.
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` Q. Section 4.3.1; do you see that?
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` A. Yes.
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` Q. The first paragraph describes that Digifonica
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`provided a large set of documents for the initial stage of
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`the review process. And then the next paragraph states:
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` These documents did appear to be biassed more
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` towards an external or sales focus describing
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` features and benefits of the Digifonica software
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` and hardware platform rather than indicating how
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` those features exist within the code base."
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`Do you see that?
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` A. Yes, I see that.
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` Q. Does that accurately describe the content of the
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`first set of documents?
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 14
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`JOHN RUTTER 4/5/2017
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`Page 15
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` A. On the basis that's what I reported because I
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`cannot remember the document content now.
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` Q. Okay. And if we continue into the second
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`paragraph, we're still talking about the first set of
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`documents provided by Mr. Perreault. You stated:
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` It was not easy to ascertain which features were
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` already implemented in the live service as
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` opposed to those that were able to be added in a
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` future release."
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`Do you see that?
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` A. Yes, I see that statement.
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` Q. And was that a correct statement about the
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`documents provided in the first set by Mr. Perreault?
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` A. If it's in the document, I would have to say it's
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`correct, yes, as my review document.
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` Q. And that goes on -- that paragraph goes on
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`saying:
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` Being a high level document, technical issues
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` were not covered in depth."
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`Is that also an accurate statement about the first set of
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`documents provided by Mr. Perreault?
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` A. I'm not sure which statement you refer to if it's
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`in there, then, it has to be correct. Which paragraph is
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`that?
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` Q. It is the third full paragraph under 4.3.1 the
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
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`JOHN RUTTER 4/5/2017
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`Page 16
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`second sentence starting "being high level."
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` A. Yeah, I see that now. That would be a correct
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`statement based on what we provided at that stage.
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` MR. SEITZ: Okay. In Exhibit 2006 is an email
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`from Mr. Perreault to you with the second batch of
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`documents. Do you have that exhibit in front of you?
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` (Exhibit 2006 was marked for identification
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` and was retained by plaintiff's counsel)
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` THE WITNESS: Yes, I have that.
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` MR. SEITZ:
`
` Q. And this is the second set of documentation
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`provided by Digifonica to Smart421?
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` A. Yes.
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` Q. Am I correct that this documentation only
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`included samples of code and not a full body of the code?
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` A. Yes, definitely. That's a very small set.
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` Q. And do you know, sir, what version of code this
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`was that you were provided?
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` A. I can't say now. I don't recall which part
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`that -- so ...
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` Q. So sitting here today, you don't know if that was
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`version 361, for example?
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` A. No, it doesn't say so in the email, so I wouldn't
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`know which version.
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` Q. Feel free to look at the list of codes for this
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 16
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`JOHN RUTTER 4/5/2017
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`next question, Mr. Rutter. My question is did any of
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`these code samples include RBR code modules?
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` A. Let me have a look through that list, if you hold
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`Page 17
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`on.
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` Q. Yes, thank you.
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` A. On that list there's no -- it's mostly the Java
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`script, the web application in BC. The RBR piece is not
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`in the BC component.
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` Q. Okay. I'm going to ask you some code names, file
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`names and I appreciate this will be difficult because code
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`names are never easy to read out as normal English. So
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`let me tell you the name of the code module and I'd like
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`you to tell me if it's included in Exhibit 2006. The
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`first code module is call_E164.class.PHP.
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` A. Just looking through. Not in that list, in that
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`email.
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` Q. Next code module is call_routes.class.PHP.
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` A. No, that's not included in that list.
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` Q. The next module is call_TTL.class.PHP.
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` A. No, that's not in the list either.
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` Q. Okay. I just have two more. Next code module is
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`invite_stop.PHP.
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` A. No, I don't see that in this list either.
`
` Q. The last code module is register.PHP.
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` A. Don't see that either.
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 17
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`JOHN RUTTER 4/5/2017
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` Q. Okay. Mr. Rutter, they're not listed there; is
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`it fair to say that you were not provided with those code
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`Page 18
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`modules?
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` A. I think the only file we received were in that
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`list. I think the review document would have a list as
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`well. I would have to check.
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` Q. You're referring to Exhibit 2003, what might have
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`a list of additional documents; is that correct?
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` A. It may. I would have to check.
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` Q. Feel free to look. It appears to me in
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`Exhibit 2003 to start maybe around appendix B which is
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`page 30.
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` A. Yes, that was the list. I'm not checking just
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`now, but I would expect that to be the same list that was
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`in the email, the two emails. So it didn't include any
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`class dot files that you referred to earlier, so I would
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`say that list is the same -- if those documents you
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`referred to and they're not in the mail or the report and
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`I've not seen them.
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` Q. Which would mean that you were not -- Smart421
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`was not provided with those code files; is that correct?
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` A. Not as the sample files we asked for, no.
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` Q. I want to talk a little bit more about Smart421's
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`review of the code itself. Is it correct, Mr. Rutter,
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`that you only performed a minimal review of sample code
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 18
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`JOHN RUTTER 4/5/2017
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`Page 19
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`elements?
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` A. Yes, it was minimal looking more at design and
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`layout and style, yes.
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` Q. And if you look at page 22 of Exhibit 2003. Let
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`me know when you're there and I will direct you to the
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`correct portion.
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` A. Page 22, yes.
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` Q. Section 4.3.5 "source code." Do you see that?
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` A. Yes.
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` Q. The first full paragraph there, the second
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`sentence in that paragraph reads:
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` This was necessarily limited by time and also by
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` the view that the approach and style of code
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` development was being reviewed rather than the
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` actual quality of the source code running within
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` the system."
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`Do you see that?
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`Mr. Rutter, I'm assuming David just joined us. Did you
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`hear my question or do you want me to rephrase that?
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` A. I didn't hear a question.
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` Q. Okay. Let me wait a second here until the
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`background noise is gone.
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` Okay. Mr. Rutter, I was looking at the second
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`sentence in the first full paragraph under section 4.3.5
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`and it states:
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 19
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`JOHN RUTTER 4/5/2017
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` This was necessarily limited by time and also by
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` the view that the approach and style of code
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` development was being reviewed rather than the
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` actual quality of the source code running within
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`Page 20
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` the system."
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`Do you see that sentence?
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` A. Yes, I see that.
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` Q. So is that a correct description of what Smart421
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`did for the code review?
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` A. Yes, I was -- that's what I reported there. We
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`were looking at the approach to how they were doing the
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`software.
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` Q. And the style of the software?
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` A. And style, yes. Approach, style, and then there
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`were different processes.
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` Q. Is it correct that you were not looking at the
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`code to verify it's fuctionality?
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` A. That's correct.
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` Q. And is it correct you were not looking at the
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`code to verify that it included certain features or
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`functionalities?
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` A. That's correct. That wasn't our focus for the
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`review.
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` Q. Is it correct based on your review that you would
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`not know whether certain features were or were not
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 20
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`JOHN RUTTER 4/5/2017
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`Page 21
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`included in the source code as of June 2005?
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` A. That's correct. I wouldn't know either way.
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` Q. Okay. I want to ask still somewhat about the
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`code but also generally about the status of the Digifonica
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`system. In June 2005 when you conducted your review, is
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`it correct that the Digifonica VoIP system was not yet
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`complete?
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` A. I would say any software is complete. It was
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`functional and working and they were looking to do more
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`work as per the report. It's not 100 percent complete for
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`their vision at that time.
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` Q. Was it a commercial system at the time?
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` A. We were shown how it sold as a white label
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`product. We weren't reviewing their business sales.
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` Q. I'm not familiar with the phase "white label
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`product." Can you tell me what that means.
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` A. That means where the same software or application
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`may be sold with different branding so it would become
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`resolved with a different content looking like the
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`company. The white label is the code that doesn't have
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`its own branding and you can run the same copy for
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`different companies.
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` Q. Okay. Thank you.
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` Do you know as of June 2005 if there were any
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`customers that Digifonica had?
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
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`JOHN RUTTER 4/5/2017
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`Page 22
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` A. I don't know.
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` Q. Were you told whether they had any customers at
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`that time?
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` A. I can't recall. There was certainly discussions
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`about the business. I can't recall the details now. I
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`was looking on the technical processes.
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` Q. Okay. Do you have any understanding of how close
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`Digifonica was to going live with their system to the
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`public?
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` A. No, I was under the impression that it was
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`operational and live as in it was functional and they
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`could sell the service whether they were or not.
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` Q. Okay. Can you turn to page 4 of Exhibit 2003,
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`the Smart421 report.
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` A. Page 4?
`
` Q. Yes, please.
`
` A. Yes, I'm there.
`
` Q. Section 2.2 includes a box. Do you see that box
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`there?
`
` A. Yes.
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` Q. The box includes a column for version 1 and a
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`column for version 2 and then it also includes two rows,
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`"average percentage complete" and "average percent
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`surety." Do you see that?
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` A. Yes, I see that.
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 22
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`JOHN RUTTER 4/5/2017
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`Page 23
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` Q. Is it correct to say that the overall system was
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`only 56 percent complete at that time for version 1?
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` A. That is correct in terms of how my figures are
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`produced in the report, yeah.
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` Q. And it only had a 63 percent surety; is that
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`correct?
`
` A. Yes, that's what the average was across all of
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`the sections in the report.
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` Q. And so this box is averaging all of the
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`individual components that you looked at through the rest
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`of your report?
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` A. Yes, the different aspects. I would have to
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`refer later in the document, but, yes, that's one big
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`summary, yes.
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` Q. And can you describe to me what surety is.
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` A. I'm trying to think back how -- it's more the
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`confidence that it achieved what was desired.
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` Q. So there was only 63 percent confidence level
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`that it would achieve what it was designed to do?
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` A. I think this is in terms of business process
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`for -- development process for delivering ongoing service,
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`but yes, that's the figure I've got there.
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` Q. Turn to page 22, please, Mr. Rutter.
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` A. Yes, 22.
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` Q. There's a similar chart in section 4.3.5 for the
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2016-01198
`Apple EX1011 Page 23
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`JOHN RUTTER 4/5/2017
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`Page 24
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`source code. Do you see that?
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` A. Yes, I see that.
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` Q. You indicated here that for the core components
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`of the Digifonica system it was only 60 percent complete
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`as of your review; is that correct?
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` A. I'm not sure because at the time there's a
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`version 1 and version 2 so 60 percent for version 1
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`functionality and 80 percent version 2. I can't recall
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`the distinction too well these days, but it's between
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`those two figures.
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` Q. Okay. And then for the web applications, the
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`code for that was 35 percent complete for version 1 and
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`85 percent for version 2; is that correct?
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` A. Yes, that would be correct.
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` Q. Based on the level of completeness that you found
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`from your review, would you say there was still work left
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`to be done on Digifonica system?
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` A. Yes, there was work to be done. The plan was
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`underway.
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` Q. Would you describe the code as still being in the
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`beta phase?
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` A. From my perspective I would not have called that
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`beta, I would say that was live operational. Flip side
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`is, Google products [indiscernible] and they're for the
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`operational. It's a subjective phrase to me.
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 24
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`JOHN RUTTER 4/5/2017
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` Q. Okay. I understand. Would you describe the code
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`Page 25
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`as a work in progress?
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` A. In terms that it was still being developed and
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`enhanced, yes, it was still a work in progress, but there
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`is functional stages.
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` Q. Just a second please.
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` Okay. Can you turn with me to page 5 of
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`Exhibit 2003.
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` A. Yeah, page 5.
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` Q. Section 2.4.4.
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` A. Yes, performance testing.
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` Q. Correct. Thank you.
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` And that first sentence reads:
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` Performance metrics for the system have not yet
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` been proven."
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`Do you see that?
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` A. Yes, I see that.
`
` Q. Can you describe to me what that means.
`
` A. It means they have not been able to run a high
`
`volume low test to measure peak capacity.
`
` Q. And that was due to an unavailability of a test
`
`environment; is that correct?
`
` A. Yes, that's correct. Elsewhere in a document it
`
`refers to a hammer system which I don't know anything
`
`about, as I mentioned.
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`www.midwestlitigation.com
`
`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1011 Page 25
`
`
`
`JOHN RUTTER 4/5/2017
`
`Page 26
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