CLAY PERREAULT 4/12/2017
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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` APPLE INC.
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` )
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` Petitioner, )
`
` v.
`
` ) CASE NO.: IPR2016-01198
`
` VOIP-PAL.COM, INC.
`
` ) Patent 9,179,005
`
` Patent Owner. )
`
` _______________________ )
`
` The discovery deposition of CLAY PERREAULT, taken
`
`in the above-entitled cause, before Alyssa Fontaine,
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`official reporter, on the 12th of April, 2017, 1055 W
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`Georgia St, Vancouver, BC V6C 2L1
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`Fax: 314.644.1334
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`IPR2016-01201
`Apple EX1010 Page 1
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`
`
` 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 CLAY PERREAULT, taken
`
`in the above-entitled cause, before Alyssa Fontaine,
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`official reporter, on the 12th of April, 2017, 1055 W
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`Georgia St, Vancouver, BC V6C 2L1
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`IPR2016-01201
`Apple EX1010 Page 1
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`CLAY PERREAULT 4/12/2017
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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. PAUL HART
`
` 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
`
` Adam Seitz (by phone)
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`Fax: 314.644.1334
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`IPR2016-01201
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`CLAY PERREAULT 4/12/2017
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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. Hart 4
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` By Mr. Taylor 95
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` E X H I B I T S
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`NUMBER DESCRIPTION PAGE
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`Exhibit 2017: Email from Konstantin Kropivny 38
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`Exhibit 1001-1: Perrault patent 8,542,815 B2 63
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`Exhibit 2014: Source code for the RBR server 66
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`Exhibit 2013: Perrault declaration 005 69
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`Exhibit 2020: Overview of the Digifonica
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` system 88
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`CLAY PERREAULT 4/12/2017
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` VANCOUVER, BRITISH COLUMBIA, CANADA.
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`Page 4
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` April 12, 2017
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` *****
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` CLAY PERRAULT,
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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
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`BY MR. HART:
`
` Q. Can you please state your full name for the
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`record.
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` A. Clay Steven Perrault.
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` Q. Have you been disposed before, Mr. Perrault?
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` A. It's my first time.
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` Q. Let me go through a few ground rules. It is my
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`job to ask good questions, clear questions that you can
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`understand. If you don't understand any part of any
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`question I ask you, please ask me to rephrase, restate or
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`clarify, is that ...?
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` A. Okay.
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` Q. Okay. Your attorney may object but unless you
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`are instructed not to answer the question, please let him
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`enter his objection and then go ahead and proceed with
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`your answer.
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` A. Okay.
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`Fax: 314.644.1334
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`CLAY PERREAULT 4/12/2017
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` Q. Two major rules for the benefit of Alyssa the
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`court reporter, we can't talk over each other. I'll do my
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`best to not speak when you're speaking; I would ask that
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`Page 5
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`you do the same for me.
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` A. Okay.
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` Q. And finally audible answers only. No head shakes
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`or head nods. She can't get those on the record.
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` A. Okay.
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` Q. All right. What did you do to prepare for
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`today's deposition?
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` A. Yesterday I sat with Mr. David Gileff and Kerry
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`and we went over the process of what was about to happen
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`today.
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` Q. Okay. Have you talked to anyone other than
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`attorneys in preparation for today's deposition?
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` A. I have not.
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` Q. Did you go to college?
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` A. University.
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` Q. University. Where did you go to university?
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` A. Simon Fraser here in Vancouver.
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` Q. And did you obtain a degree from Simon Fraser?
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` A. No.
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` Q. When did you begin your studies at Simon Fraser?
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` A. 1984.
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` Q. What were you studying?
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` A. Computer engineering.
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` Q. How long did you study computer engineering at
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`Page 6
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`Simon Fraser?
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` A. For five years.
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` Q. Did you study anything else while you were at
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`Simon Fraser?
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` A. When you're in computer engineering you study all
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`sorts of courses, so English, French -- English, Spanish,
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`all the rest of the other breadth courses you have to
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`take.
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` Q. Is it fair to say your entire time at university
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`you were under the umbrella of a computer engineering
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`program?
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` A. Correct.
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` Q. Why did you leave university?
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` A. They didn't like the style of education. It
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`wasn't about me learning. It was about trying to weed out
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`the process and starting with 200 people and getting it
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`down to 50 at the end. Bell curving every class. It
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`wasn't an education. It was a -- it wasn't a useful way
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`to get an education.
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` Q. Where did you go after you left university?
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` A. Back up to the Yukon where I was from.
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` Q. And what did you do when you returned to the
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`Yukon?
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`Page 7
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` A. Continued to be an entrepreneur which I was
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`before and during university and I started a couple of
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`companies up there and doing a variety of things.
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` Q. Let's take a step back. You said you were an
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`entrepreneur before university. What type of
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`entrepreneurship were you engaged in prior to university?
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` A. Back in the early 80s, late 70s, I had created
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`some software programs.
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` Q. What types of software programs?
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` A. Mostly animated preparatory programs for a friend
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`of mine who actually worked in the legal field to help
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`prepare children to -- that were going into court. There
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`was an animated program to help them go through that
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`process. We ended up selling that to the Canadian
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`government.
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` Q. Any other entrepreneurship endeavours prior to
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`university?
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` A. That was a primary one prior to university.
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` Q. You said you were also engaged as an entrepreneur
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`during university.
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` A. M'mm-hmm.
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` Q. What various projects were you working on during
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`your time at university?
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` A. I was beginning the process of beginning a
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`company that worked with buy and sell, sort of like a buy
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`Page 8
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`and sell magazine. I was basically automating the process
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`to create publications in a very rapid fashion and
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`utilizing that in a -- for a commercial project being a
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`printed buy and sell magazine.
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` Q. Okay. Did that endeavour become profitable at
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`any point?
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` A. Mildly profitable. I ended up shutting it down
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`and blending it into another company that I had started in
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`the desktop publishing field. Again, a lot of the
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`processes and technologies that we were using were
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`directly applicable to rapid publications and it was more
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`lucrative to be working in the desktop publishing field of
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`that era, so we moved all the processes and staff into
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`that process.
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` Q. Did the print endeavour have a name?
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` A. The print endeavour, Yukon buy and sell was the
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`actual name of the product that we were selling.
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` Q. Okay. And how about the desktop publishing
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`endeavour that Yukon was ported into?
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` A. Inkspirations.
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` Q. Approximately what year did you begin the
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`Inkspirations endeavour?
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` A. Approximately 1990, 1991.
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` Q. And was Inkspirations profitable?
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` A. Yes.
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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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`Page 9
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` Q. What time period was Inkspirations active?
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` A. Inkspirations continued to be active after I
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`left. I was there for a couple of years and in 1992, '93,
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`I had formed another company called Hypertech North which
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`was a computer company.
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` Q. Were you the sole founder of Inkspirations?
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` A. No.
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` Q. How many people formed Inkspirations?
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` A. Two of us.
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` Q. Okay. And that was in the 1990, 1991 time frame?
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` A. Yes.
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` Q. Was your cofounder involved in the print Yukon
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`endeavour, the print based Yukon endeavour that ported
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`into Inkspirations?
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` A. I don't know. I don't recall.
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` Q. Who was your cofounder of Inkspirations?
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` A. Stephanie and I don't recall her last name.
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`Going back a few years.
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` Q. Sure. What did Hypertech North do?
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` A. It was a computer retailer primarily.
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` Q. Were you the sole founder of Hypertech North?
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` A. Yes.
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` Q. And how long was Hypertech North active?
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` A. Until 1998-ish, from what I recall.
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` Q. What happened to Hypertech North in 1998?
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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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` A. I shut it down. I had been running a parallel
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`company called Internet Yukon starting in 1996 which was
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`significantly more profitable selling internet. Back in
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`that era -- during that time frame, margins from computer
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`sales fell from 30 percent to 5 percent, so it was less
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`profitable than it was initially and internet, of course,
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`was going crazy at that point.
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` Q. Was Hypertech North a brick and mortar retailer?
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` A. Primarily, yes.
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` Q. Did it also have a web retailer presence?
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` A. Not particularly in that era. There was -- it
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`was not a web based company. You're pre-dating the --
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`internet based sales.
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` Q. I'm old enough to remember.
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` A. Yeah.
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` Q. Internet Yukon, I believe you said the primary
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`business was selling internet; is that correct?
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` A. Correct. We were one of the largest internet
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`providers in the Yukon.
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` Q. Were you the sole founder of Internet Yukon?
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` A. I was.
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` Q. And how long was Internet Yukon active?
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` A. Until about -- I sold it in 2001 to a company in
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`Yellowknife.
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` Q. I'm sorry, to a company --
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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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` A. To a company out of Yellowknife.
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` Q. Yellowknife.
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` A. Yeah.
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` Q. Were you working on any other projects or
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`companies prior to the sale of Internet Yukon?
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` A. Yes, I was. I was a co-founder of a company here
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`in Vancouver called Netgenetics.
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` Q. Any others?
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` A. Not that I recall at that point.
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` Q. When did you co-found Netgenetics?
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` A. Probably -- if I recall correctly 1999, 2000. In
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`that era.
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` Q. And what was the business of Netgenetics?
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` A. Web design, database integration, original
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`content. It was like art, music.
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` Q. And how long was Netgenetics active?
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` A. Still active today in a -- in its -- it's morphed
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`over the years, of course, but it's still active today and
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`the co-founder is still with me -- is still the director
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`or CEO of the company.
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` Q. Do you still have any role in Netgenetics?
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` A. No, I reduced my role significantly in late
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`2000s, when I was busy doing other things.
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` Q. You still have a stake in Netgenetics?
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` A. No.
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` Q. Okay. So Internet Yukon began in '96 and refresh
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`my recollection, when did Internet Yukon end -- or when
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`did you sell it?
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` A. It didn't end. I sold it between 2000, 2001.
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` Q. And you reduced your role in Netgenetics
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`around -- mid 2000s?
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` A. Mid 2000s, 2004, give or take a year.
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` Q. What other endeavours were you involved in in the
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`early 2000s to mid 2000s?
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` A. In 2003, give or take a year, I was -- one of the
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`co-founders in a company called Galaxy Telecom. Maybe it
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`was closer to 2003, come to think of it.
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` Q. What was the business of Galaxy Telecom?
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` A. Galaxy Telecom was a voice over IP hardware
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`manufacturer. I recognized the dearth of hardware for
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`voice over IP at that time. Cisco was really the only
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`guys that were producing a quality product and it suffered
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`from a lot of technology choices that Cisco had made at
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`that point. I recognized that -- an opportunity to create
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`a new product.
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` Q. I'm sorry, which entity suffered as a result of a
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`Cisco's monopoly?
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` A. Cisco was making some poor choices at that time
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`in the voice over IP sphere in terms of their choice of
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`protocols they were supporting, namely H.323 and sippy
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`Fax: 314.644.1334
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`[phonetic], which is one of their -- or skinny [phonetic],
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`Page 13
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`I'm sorry, which was one of their own proprietary call
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`control products. And in that era there was other
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`technologies available primarily namely SIP, which is
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`session initiation protocol, and we decided that a
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`hardware product based on SIP would be a much more capable
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`and future looking product, so that was the main focus of
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`Galaxy Telecom.
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` Q. What specific components were you designing at
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`Galaxy Telecom?
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` A. The primary product was an ATA or analog terminal
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`adapter. It's basically ethernet in the back connected to
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`the internet and a telephone cord in the front connected
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`to a regular PSTN telephone. Internet conversion into
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`voice over IP.
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` Q. So a home premises gateway essentially?
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` A. Home or commercial. You could plug it into the
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`back of a PBX, for example, an analog PBX and it would
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`provide voice over IP call services.
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` Q. Any other equipment designed by Galaxy Telecom?
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` A. Primarily no, Galaxy was using off the shelf IP
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`PBX equipment at that time and suffering through some of
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`the challenges associated with using available commercial
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`projects including Cisco's own IP PBX product.
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` Q. What was your specific role at Galaxy Telecom?
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` A. CEO, founder.
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` Q. How about daily roles and responsibilities?
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` A. Standard CEO stuff. I'm a very technical person,
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`of course, with my background, so everything from
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`directing technology to managing day-to-day operations,
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`hiring, firing, signing paycheques, guiding the company.
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` Q. On the technology directing front, what types of
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`activities or roles did you play? Were you designing at a
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`high level system? Were you writing code? What kind
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`of --
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` A. I'm not a coder. I more of a conceptual -- I
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`have vision, corporate vision. Technology literally
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`enough to understand components at a flow chart type basis
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`and we work directly with the coders and ensure that they
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`were producing code that gave the desired results, not
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`necessarily reviewing how they coded it, but if I do this,
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`does that happen, for example.
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` Q. Okay. How long were you at Galaxy Telecom?
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` A. Couple of years.
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` Q. What happened to Galaxy Telecom?
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` A. I was bought out by my partners.
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` Q. And did Galaxy Telecom continue as an operating
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`company for some period of time after you were bought out?
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` A. It did. I understand it may have even gone
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`public. I didn't follow it but it continued.
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`www.midwestlitigation.com
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` Q. Between the time around 2003 when you co-founded
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`Galaxy Telecom in the time you were bought out by your
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`co-founders, were you involved in any other commercial
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`Page 15
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`endeavours?
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` A. No.
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` Q. Okay. What did you do after you were bought out
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`of Galaxy Telecom?
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` A. I immediately formed another company.
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` Q. Which company?
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` A. If I recall correctly it's name was Vista.
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` Q. And what did Vista do?
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` A. Vista was focused on the provision of internet
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`and voice over IP services to multiple dwelling units.
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` Q. Apartment complexes?
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` A. Apartment complexes, exactly. So we would
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`install internet into the entire complex for the owners
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`and then resell that basically into all the tenants.
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` Q. I see. Were you the sole founder of Vista?
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` A. Co-founder with my brother.
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` Q. Okay. And how long were you involved in Vista?
`
` A. Vista was about a year.
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` Q. And what happened to Vista after a year?
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` A. We slowly morphed the company into a greater
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`vision of voice over IP software development. We
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`recognized that there was -- in that process there was
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`Page 16
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`significant limitations in terms of both software and
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`hardware in servicing that market and we began to really
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`kind of make some changes to the company. And just out of
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`being a sales oriented company associated with selling
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`internet, we began to look at more seriously some of the
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`limitations that were in place at that time in delivering
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`voice over IP services.
`
` Q. Okay. Did the name change as a result of the
`
`change in focus?
`
` A. At first, no.
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` Q. Eventually, it did?
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` A. Eventually we ended up forming another company
`
`called Digifonica in late 2004, May 2004.
`
` Q. All right. Who were your co-founders of
`
`Digifonica?
`
` A. When I founded Digifonica, I had around me a
`
`couple of engineers, Steve Nicholson, Fuad Arafa,
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`Emil Bjorsell. And our first financier in Digifonica was
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`Emil Malik.
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` Q. And Mr. Malik is strictly a financier, he's not
`
`an engineer or a designer in any way; is that correct?
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` A. Yes, don't let him touch anything that's
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`electronic.
`
` Q. All right. What was your title when you founded
`
`Digifonica?
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`Page 17
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` A. CEO.
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` Q. And how long do you -- were you CEO at
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`Digifonica?
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` A. Until I left in 2005. December 2005.
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` Q. Why did you leave in December 2005?
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` A. I felt that the current board of directors was
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`not taking the company along the path that I originally
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`envisioned.
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` Q. From your perspective what path was the board
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`taking Digifonica on?
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` A. My vision was to create the world's first global
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`white labeled wholesale phone company using voice over IP
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`technologies. And that meant offering services in every
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`country in the world. It involved significant investment
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`and infrastructure and they were basically saying they
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`didn't want to do that at that point.
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` Q. What scale, if you recall, was the board
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`envisioning for Digifonica in 2005?
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` A. They wanted to scale it back and basically sell
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`services only in Europe and not execute on the global
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`vision.
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` Q. Did Digifonica have any paying customers when you
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`left in December 2005?
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` A. No.
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` Q. Do you know if Digifonica ever had paying
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`customers?
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` A. I don't know.
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` Q. What were your roles and responsibilities as CEO
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`in Digifonica?
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` A. It changed over time. In the initial stages I
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`was directly involved with guiding and technology
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`development and that morphed slowly as the company grew
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`and we added more technical competence and engineers. And
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`in the fall of 2005 it was more sales oriented, working
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`with large tier one carriers in Europe or deal making
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`versus technology at one stage.
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` Q. Did you have any North American sales
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`responsibilities or efforts at that time?
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` A. During the fall of 2005, most of our sales
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`efforts were in Europe. We did have a note here in
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`Canada, but most of the sales efforts were in Europe.
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` Q. What was the vision for providing -- let me start
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`over.
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` I suppose my question is what type of
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`connectivity were you trying to offer customers in Europe?
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` A. I don't understand "type of connectivity."
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` Q. Was there a long haul component -- an IP based
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`long haul component? Was it all local? What was the
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`vision there?
`
` A. Probably the quick review of the vision of the
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`Page 19
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`company is probably -- would lay this out better.
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`Digifonica's vision was to create the technology and the
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`physical infrastructure that would enable other parties
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`which we -- are our clients, to resell the services to the
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`end subscriber, okay.
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` So Digifonica would never sell service to you as
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`a person. They might sell services to a phone company,
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`like, Vodafone in the UK, for example. Vodafone would
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`then brand that as their product. They would then resell
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`that service directly to their subscribers. And
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`Digifonica would be basically be invisible, we would
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`handle all of the call routing and all of the technology
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`required, we would integrate into their customer
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`management systems and their provisioning systems, for
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`example. But the entire thing would be transparent to the
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`end user. They would never know we existed. We would
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`offer those service on a global scale in, in theory,
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`300-and-some countries in the world at some point.
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` Q. Okay. Are you familiar with the term "supernode"
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`as it's used in the Digifonica system?
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` A. Absolutely. That's part of my vision is to how
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`the system would operate.
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` Q. What was your vision in terms of number and
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`location of supernodes in the Digifonica system?
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` A. The role of a supernode was a continental
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`www.midwestlitigation.com
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`Page 20
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`aggregator.
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` Q. And what does that mean?
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` A. That means any traffic that's destined for
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`another continent would -- the supernode would play a role
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`in handling the routing of that traffic most appropriately
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`within the zone of -- it's sphere of influence.
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`Therefore, for example, if a call from Vancouver was
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`placed from a subscriber to another subscriber in France,
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`the supernode in Vancouver would hand that call off and
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`route that call directly to the supernode in London and
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`then from London they would then distribute that call to
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`the end user in France through either directly or through
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`a node or a micro-node depending on the architecture
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`that's deployed. That enabled us to manage the call
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`quality of the call routes across the world.
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` Q. Am I correct that when you left in 2005 there
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`were two supernodes deployed in the system?
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` A. There were two commercial supernodes and one
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`development supernode.
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` Q. And where was the -- where were the two
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`commercial supernodes located?
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` A. Vancouver and the UK.
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` Q. London?
`
` A. London specifically, yes.
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` Q. Where was the development supernode located?
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` A. In our office. In the fall -- in June of 2005 we
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`had two, and in the mid summer we had three. We had built
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`one in our office in order for massive scaleability
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`testing. We needed to have equipment right in the office.
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`Page 21
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`I couldn't depend on the public internet.
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` Q. And was your office in Vancouver?
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` A. Here in Richmond.
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` Q. Sorry, is that in the Vancouver area?
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` A. Yes. The district of Richmond.
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` Q. All right. If I understand this correctly, all
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`customers -- the vision of Digifonica would be for all
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`customers on a continent to be handled by a single
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`supernode; is that correct, for their calls to ingress and
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`egress that single supernode --
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` A. The supernode would manage the continental calls.
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`They were mainly micro-nodes and other nodes below the
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`supernodes. But the architecture was if calls were going
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`continent to continent, they would be handled to the
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`supernodes and a smaller version of the same software
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`would exist, for example, in a regular node or a
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`micro-node. It was more or less a capacity level. We
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`wouldn't have to install $100,000 worth of equipment in a
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`micro-node, for example. It might be 10,000. But its
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`capacity would be limited but it would be closer to the
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`subscriber.
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` Q. Okay. As the system existed in 2005, any
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`theoretical customer in North America would have been
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`handled by the Vancouver node and any theoretical customer
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`in Europe would have been handled by the London node; is
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`that correct?
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` A. That's correct. At that time we only had two
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`nodes that existed, Vancouver and London. That's two
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`commercial nodes; right. We had our private testing node
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`as well by mid summer of 2005.
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` Q. And how did the private testing node work?
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` A. A lot of the development efforts in the spring of
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`2005, March, April, May, were no longer focused on
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`fuctionality of the node itself. They were focused on
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`performance optimisation. Our goal was to exceed
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`250 calls per second into a supernode and be able to
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`handle that. So the spring -- in March or April, it was
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`functioning very, very well up to about 100 calls per
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`second and we were optimising the process. So the role of
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`the supernode in our offices, for example, was -- the
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`public internet wasn't fast enough. We had to actually
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`use gigabit internet between two nodes in order to get the
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`performance requirements up. We had to hammer our own
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`systems to try to break them.
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` Q. I see. In both those nodes when you were doing
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`this performance testing, both those nodes were located in
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`a single physical location here outside of Vancouver?
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` A. That's correct. In Vancouver.
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`Page 23
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` Q. In Vancouver?
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` A. Correct.
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` Q. Were you involved in the performance testing on
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`that development system?
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` A. Yes, absolutely. During the spring of 2005 I was
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`directly involved with the technology implementation. I
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`was getting regular reports from my staff.
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` Q. And what type of tests were they performing as
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`part of this performance testing?
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` A. Some of the design criteria that I had
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`established were massive scaleability, massive
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`performance, redundancy, resiliency in terms of collapse,
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`hardware failure, node failure. And that testing was
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`really to try to break the vision of what those things --
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`you know, how they operated in an environment where
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`equipment failures could occur or internet could have
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`dropped off or internet performance between two nodes was
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`deteriorating. And so a lot of that testing was really
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`about resiliency, performance, redundancy in those
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`scenarios.
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` Q. Am I correct that the Digifonica system generally
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`relied on SIP for its IP based call setup signal?
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` A. SIP was -- at that time there were three
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`protocols associated with voice over IP. H.323 which I
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`mentioned before that Cisco was using. There was a Cisco
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`protocol called skinny that was a Cisco proprietary
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`protocol. And there was a protocol called SIP. There was
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`three of them. And yes, we based our entire system design
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`on SIP. We believed that would be the future of where
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`voice over IP was going to go. We designed it using that
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`protocol.
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` Q. Okay. Were SIP messages being generated and
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`communicated within this development system you had set up
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`in Vancouver in 2005?
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` A. Correct. SIP is the primary language or
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`structure of all communications in our system, so that
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`would have been -- we would have -- we would -- we based
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`our entire development on SIP started in 2004. It was a
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`primary protocol that we used.
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` Q. Do you know what, I guess -- would mock calls be
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`the correct way to describe what was being placed on the
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`development program? You weren't actually completing
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`calls anywhere since it was self contained; correct?
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` A. At what time? I don't --
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` Q. Sure, let's do summer of 2005. You have a
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`development system that we have been talking about where
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`you are testing performance of the system and trying to
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`get up to a certain number of calls per second.
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
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` A. M'mm-hmm.
`
` Q. What kind of calls were being used to test the
`
`system at that time?
`
` A. By the summer 2005, we had both the Vancouver
`
`node and the London node live. Digifonica had used the
`
`Digifonica system that we had designed and built as our
`
`internal call control system in our offices between the
`
`two countries. So it was our primary p
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