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` UNITED STATES PATENT AND TRADEMARK OFFICE
` -----------------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------
` BRIGHT HOUSE NETWORKS, LLC
` WIDEOPENWEST FINANCE, LLC
` KNOLOGY OF FLORIDA, INC.
` BIRCH COMMUNICATIONS, INC.,
`
` PETITIONERS,
`
` V.
`
` FOCAL IP, LLC,
` PATENT OWNER.
` ----------------------------
`
` Case IPR2016-01259
` Patent Number: 8,155,298
` Case IPR 2016-01261
` Patent Number: 8,457,113
` Case IPR2016-01262
` Patent Number: 7,764,777
` Case IPR2016-01263
` Patent Number: 8,155,298
` ------------------------------
`
` DEPOSITION OF REGIS J. "BUD" BATES, JR.
` FORT WORTH, TEXAS
` MAY 9, 2017
` Volume 2
`
`Reported by: Susan S. Klinger, RMR-CRR, CSR
`Job No. 123319
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`Cisco Systems, Inc., EX 1149 Page 1
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`Page 261
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` May 9, 2017
` 10:03 a.m.
`
` Deposition of REGIS J. "BUD" BATES, JR.,
`held at the offices of Nelson Bumgardner PC, 3131
`West 7th Street, Fort Worth, Texas, before
`Susan S. Klinger, a Registered Merit Reporter
`and Certified Realtime Reporter of the State of
`Texas.
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`A P P E A R A N C E S:
`Attorneys for Petitioners:
` Mr. Christopher Tyson
` Mr. Patrick McPherson
` DUANE MORRIS
` 505 9th Street, N.W.
` Washington, DC 20004
`
` Mr. Wayne Stacy
` BAKER BOTTS
` 2001 Ross Avenue
` Dallas, Texas 75201
`
` Mr. Jaspal Singh Hare
` SPENCER FANE
` 10100 North Central Expressway
` Dallas, Texas 75231
`
`Attorneys for Patent Owner:
`
` Mr. John Murphy
` NELSON BUMGARDNER
` 3131 West 7th Street
` Fort Worth, Texas 76107
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`Mr. Hanna Madbak
`Mr. Victor Siber (telephonically)
`SIBER LAW
`28 W. 44th Street
`New York, New York 10036
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` BATES - VOLUME 2 - 5/9/17
` I N D E X
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`WITNESS PAGE
`
`REGIS J. "BUD" BATES, JR.
`EXAMINATION BY MR. TYSON 265
`EXAMINATION BY MR. MURPHY 391
`
` E X H I B I T S
` (Not attached.)
`No. Description Page
`Exhibit 1006 U.S. Patent 7,764,777 304
`Exhibit 1007 U.S. Patent 8,155,298 307
`Exhibit 2062 Substitute claim 362
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` REGIS J. "BUD" BATES,
`having been previously duly sworn testified as
`follows:
` EXAMINATION
`BY MR. TYSON:
` Q. Good morning, Mr. Bates.
` A. Good morning.
` Q. Is there any reason that you can't
`testify fully and truthfully today?
` A. No.
` Q. Are you on any medication today that
`would prevent you from testifying fully?
` A. No.
` Q. Did you talk to your counsel
`yesterday evening?
` A. Not about anything here, no.
` Q. Okay. Did you talk to your counsel
`this morning?
` A. No, other than I heard the
`conversation you were having about what was
`going on here.
` Q. Okay. But did you talk to your
`counsel about your testimony?
` A. No.
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` Q. Not yesterday evening or this
`morning?
` A. No. I left after everything was
`going on.
` Q. Okay. Yesterday you identified what
`you considered to be a faux pas in the patent
`specification; correct?
` A. I just thought it might have been
`kind of a misuse of one of the words, the end
`device and referring to the central office. I
`think that's what you're talking about.
` Q. Yeah. So let's turn to the '113
`patent, please.
` A. Okay.
` Q. And column 5, line 4 to 6.
` MR. TYSON: Go off the record just a
` second.
` (Off the record.)
` Q. So column 5, line 4 to 6 of the '113
`patent. Are you there?
` A. I'm there.
` Q. And this is the sentence in which
`it's your testimony that there is a mistake; is
`that correct?
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` MR. MURPHY: Objection, misstates
` his testimony.
` A. I'm not really saying it's a
`mistake. I just don't understand why they used
`that term while describing a central office.
` Q. Okay. Are there any other terms
`that you believe are used in the patent that
`are -- that should be a different term?
` A. Not that I can recall.
` Q. Okay. Are there any other mistakes
`in the patent?
` MR. MURPHY: Objection, form.
` A. There are some typos here and there,
`but again, things like that happen when people
`produce documents this large and so on.
` Q. Understand. Are there any other
`mistakes that are like the mistake in column 5,
`lines 4 to 6 that it's your testimony is a
`mistake?
` A. Again, I'm not sure I can call it a
`mistake. I just thought it was a way they
`classified that particular word. I mean, I'm
`sure the patentees had a reason for saying
`that, but I don't know of any other areas in
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`here that I could say were incorrect or
`whatever.
` Q. What would a person of ordinary
`skill in the art understand are the required
`functions of a tandem access controller?
` A. The tandem access controller is a
`web-enabled processing system that is coupled
`to or in communications with the switching
`facility. And as we've talked, the switching
`facility has been referred to as the tandem
`switch, as well as the fact that the graphics
`or the pictures -- the figures show that the
`controller is communicating with the tandem
`switch.
` Now, it does describe the
`web-enabled processor as being able to use the
`hardware/software or firmware, or it could use
`just a PC, but it does also describe that it
`has to be programmed to recognize the features
`and things of that nature if you read through
`the specification.
` So the requirements would be that,
`A, it's not an edge switch, because we're
`talking about it connecting to the switching
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`facility also known as tandem switches; B, it's
`a web-enabled processor that's in communication
`or coupled to.
` Q. Okay. The programming of the
`different features, that was -- the patent
`specifies that that's conventional; correct?
` A. That --
` Q. That the programming of the
`different features, telephone features, the
`patent specification identifies it as being
`conventional; correct?
` A. It said a conventional computer, but
`it also says it has to be programmed. If we
`look at -- I think it's column 6 -- I'm just
`looking. If you give me a minute, I will look
`through this and find something.
` Q. Sure.
` A. It says, "Devising the
`software/firmware to use the TAC is well within
`the capability of those skilled in the art,
`since the various control features that can be
`made -- I'm sorry, I'm at line -- column 6,
`line 52 -- within the capability of those
`skilled in the art, since the various control
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`features that can be made available are
`generally already known.
` Q. Okay.
` A. Yesterday I kept drawing us back to
`two figures within the patent, and that was
`Figure 4 and Figure 5. If you look at that,
`those are basically the algorithms that the
`programming is going to use to be able to do
`this processing.
` Q. So the question I asked was, what
`would a person of ordinary skill understand are
`the required functions of a TAC. So you
`identified -- is it your testimony that the TAC
`must communicate with a tandem switch?
` A. Yes. It's coupled to or in
`communications with the tandem switch.
` Q. Okay. You also identified
`web-enabled. What is the required function of
`a TAC in order to be web-enabled?
` A. It uses web servers and the web
`connection to an internet protocol.
` Q. So does a TAC have to include --
`physically include a web server?
` A. Does it have to physically --
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` Q. Include a web server?
` A. It describes that it uses a web
`server, and that is what the user or subscriber
`would use to be able to configure their
`features and functions along the way to upload
`to the TAC.
` Q. Yesterday we had looked at one part
`of the specification. Do you remember that?
`It was column 1, line 34 to 37.
` A. Correct.
` Q. So looking at column 1, line 34 to
`37, it's your testimony that entering call
`control features through -- call control
`information for telephone features through a
`web portal was known; is that right?
` A. It was disclosed as those things
`known in the industry.
` Q. Okay.
` A. The patent -- I mean, these are the
`disclosures that were being disclaimed, so it
`said yes, we can do that, but it doesn't allow
`us the full third-party control and so on if we
`continue to read it.
` And as edge devices, and each public
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`telephone company central office would provide
`local control, but those are a limited number
`of features and do not allow the third-party
`control, that being what the subscriber can do.
` The whole gist of the patent as
`we're talking here is that the disclaimed edge
`devices and edge switches that were being used
`were cumbersome, they didn't allow the
`features. We saw the degradation of the
`quality of the circuit on the analog local loop
`and whatever, and the intent was to move it out
`to the tandem switch where we could take
`advantage of the TAC being in direct
`communications with the tandem switch as well
`as to take advantage of the higher quality
`circuitry that we discussed yesterday.
` Q. Understand. A web portal would
`include a web server; correct?
` A. Typically, it would, yes.
` Q. Okay. And so it's your testimony
`that entering call control information for
`telephone features through a web portal was
`known; correct?
` MR. MURPHY: Objection, form.
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` A. Entering features and so on through
`a web portal was known, but not entering them
`into a TAC that was connected to or in coupled
`to a tandem switch.
` Q. Understand.
` A. The whole art that is being
`disclaimed in this background is the devices at
`the edge, the edge switch or the edge devices,
`the end devices, like a PBX or some other
`device.
` Q. Just going back to the required
`functions of a tandem access controller, does
`the tandem access controller have to have the
`capability to convert voiceover IP and circuit
`switch signaling protocols?
` MR. MURPHY: Objection, form.
` A. The tandem access controller
`would -- a POSA reading, what this describes
`would have the ability to convert between the
`two architectures. We can receive the call on
`the PSTN and make a call out on the VoIP
`network, the IP network. There is a statement
`in here that the invention can include VoIP.
` Q. Does -- understand. Does the
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`invention have to include the ability to
`convert between voiceover IP and circuit switch
`signaling protocols?
` MR. MURPHY: Objection, asked and
` answered.
` A. It has to have the ability to submit
`the information to some form of a conversion
`process. PSTN and IP are different.
` Q. Okay. Does the tandem access
`controller -- would a POSA understand that the
`tandem access controller must have the ability
`to convert TDM to voice packets?
` MR. MURPHY: Objection, form.
` A. You introduced the word "TDM" at
`this point. So we're talking about circuit
`switch voice.
` Q. Correct.
` A. Okay. In the public switch
`telephone network, the TDM is what we would be
`using, so if we're using TDM, we would have to
`do TDM to IP conversions, and a POSA would
`recognize that in order to put it across the
`internet, we would have to convert to or
`provide the access to an IP network with TDM to
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`IP conversions.
` Q. Okay. So it's your testimony that a
`tandem access controller has to have the
`required -- it's a required functionality of a
`tandem access controller to convert circuit
`switch voice to voice packets; is that right?
` A. It would have to have the ability to
`be able to provide that conversion.
` Q. Okay. Does the tandem access
`controller have to have the ability to address
`IP packets?
` A. If we're going to be sending out
`across the IP network, we would have to
`formulate the IP addressing, yes.
` Q. Okay. Earlier -- I mean, you just
`said that a tandem access controller has to
`have the ability to convert circuit switch
`signaling and VoIP signaling; right?
` MR. MURPHY: Objection, misstates
` his testimony.
` A. I believe we said from PSTN to voice
`packets. That's not all just signaling.
`That's the combination of the media as well as
`the -- but the ability to convert between the
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`two networks, yes.
` Q. So the tandem access controller
`would have to have the ability to convert both
`signaling and media between circuit switch and
`packet switch networks; is that right?
` A. Yes.
` Q. Okay. Does the tandem access
`controller have to have the ability to select
`circuit switch elements?
` MR. MURPHY: Objection, form.
` A. Can you define what element?
` Q. A component in a switch, does it
`have to have the ability to select circuit
`switches?
` A. The tandem access controller would
`communicate to the tandem switch, so it would
`be communicating with the tandem switch and the
`circuit switch network.
` Q. Okay.
` A. It would select that tandem switch.
` Q. Would select the tandem switch. Is
`it your testimony that the tandem switch would
`be the switch that selected the different
`circuit switch elements?
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` A. Well, I mean, I think we really have
`to figure out what we're talking about here are
`the elements, because, you know --
` Q. Okay. Sure. Let's look at Figure 1
`of the patent.
` A. I think I pulled it off. That's 3.
` Q. Is that it on the back of that?
` A. Oh, there it is.
` Q. Okay. And that's Figure 2?
` A. Thank you. That took a while.
`Sorry.
` Q. That's all right. So you have
`Figure 1 in front of you; correct?
` A. Excuse me.
` Q. You have Figure 1 in front of you?
` A. I have Figure 1.
` Q. Okay. The tandem access controller
`10, it's your testimony that is -- the tandem
`access controller 10 is in communication with
`or coupled to the PSTN tandem switch; correct?
` A. Correct.
` Q. And my question earlier and now
`looking at this figure, Figure 1, does the
`tandem access controller have to select a
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`particular edge switch 17 or an edge switch 18?
` A. The tandem access controller will
`send up the necessary SS7 signaling through the
`network to specify the end switch that we're
`trying to find, not necessarily the root to get
`to it, but this is where we're sending the call
`via telephone number. It is using a private
`telephone number as opposed to a public
`telephone number, which is something that is in
`the tandem access controller's database, the
`configuration for that particular subscriber.
` Q. Okay. And so the tandem switch that
`the tandem access controller is in
`communication with or coupled to would select
`the root; is that right?
` A. The tandem switch, if in fact it is
`a dialed telephone number or whatever, when the
`tandem access controller hands it to the tandem
`switch, for example, in SS7, if it is just a
`telephone number that we don't know where that
`end switch is, and that can happen, we'll use
`what is called the global title translation.
`The tandem switch would receive that, use the
`SS7 network and the STPs to resolve how to get
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`to that particular office.
` Q. Okay.
` A. So the root is selected on many
`different ways, whether it's I know exactly
`where it is going or whether I have to do any
`kind of translation along the way.
` Q. This root selection and what you
`referred to as global title translation --
` A. Right.
` Q. -- is that disclosed in the patent
`specification?
` A. SS7 is disclosed in those device --
`or those are pieces of or components of an SS7
`network.
` Q. Okay. And SS7 network, as we've
`talked about yesterday, is well-known, correct,
`at the time of the --
` A. A POSA would understand that SS7 and
`it was disclosed within the confines of the
`art.
` Q. Okay. I want to look at this Figure
`2, which we talked about yesterday as well. We
`walked through some scenarios yesterday. I
`want to walk first through a scenario where
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`both the calling party and the called party
`used voiceover IP telephones; okay?
` A. Okay.
` Q. So if calling party 12, he has his
`voiceover IP telephone next to him; correct?
` A. Correct.
` Q. So in this scenario, the calling
`party 20, the phone next to calling party 20
`would be a voiceover IP telephone, okay?
` A. It would be a --
` Q. A voiceover IP telephone.
` A. It would also be a voiceover IP
`phone.
` Q. Correct. Did you understand that --
` A. This is a hypothetical?
` Q. This is a hypothetical scenario.
` A. Okay.
` Q. Okay. So there would be another one
`of these VoIP arrows that is connecting -- that
`is between the phone by subscriber 20 and the
`web 22. Do you understand that for this
`scenario?
` A. I understand what you are trying to
`do.
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` Q. Okay. So I'm just going to ask
`questions with relation to this scenario, okay?
` A. Okay.
` Q. All right. So if the calling party
`12 uses his voiceover IP telephone, he would
`send VoIP signaling to the tandem access
`controller through the web; correct?
` A. In your hypothetical here, I mean,
`we probably have to go through a whole host of
`what other pieces and whatever that are here,
`but using the way you are describing it, it
`would go into the web and these are both VoIP
`phones. It could go straight over, okay?
` I don't believe, you know, and -- I
`don't believe I saw anywhere or talked about
`inventing VoIP to VoIP. The intent was that we
`are using two networks, all right, which is
`what we write in the claim language yesterday.
` If we're going to do VoIP to VoIP,
`that could work strictly over the IP network.
` Q. Okay. And it is your testimony
`yesterday that you understood the tandem access
`controller to be internal to the PSTN; correct?
` A. Correct.
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` Q. So if the voiceover IP call was sent
`from voiceover IP telephone and it was asking
`for signaling for a particular called party and
`it was transmitted to the TAC, then that --
`those IP signaling would go into the PSTN;
`isn't that right?
` A. If it was asking for -- if it's a
`VoIP phone, it would most likely just use the
`VoIP addressing or, you know, that phone would
`call that second phone, both VoIP phones across
`an open VoIP network and be able to process it
`through whatever VoIP network they were using,
`allow whatever proxy servers or location
`servers and things like that that would be part
`of a VoIP on the web.
` Q. Okay.
` A. If it had to go into the PSTN, then
`we would go through the TAC.
` Q. So if, for example, time of day
`routing was a type of routing that was well
`known; correct?
` A. Time of day routing could be a
`feature that would be used.
` Q. So if the voiceover IP -- the party
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`using the voiceover IP telephone 21 called a --
`was trying to call a subscriber's number;
`however, the database inside the TAC specified
`that during this time of day you would reach
`this called party at a voiceover IP telephone,
`then the VoIP signaling would arrive at the
`TAC, isn't that right, in the -- in the circuit
`switch network?
` A. If we're going to go to the circuit
`switch network.
` Q. Okay.
` A. If we're doing VoIP to VoIP, again,
`I could stay down here within the web and go
`VoIP to VoIP.
` Q. Okay. In the scenario I just
`provided that the voiceover IP signaling is
`received at the tandem access controller which
`is in the PSTN, the TAC would then look up --
`do a lookup in a database; correct?
` A. Correct.
` Q. And he would -- in this case he
`would look up and find an IP address for called
`party 20; correct?
` A. I would assume so. This is your
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`hypothetical, so I'm going to try to work with
`it.
` Q. Yep. I appreciate that. And then
`in that hypothetical and in this scenario, the
`tandem access controller would then send
`voiceover IP signaling to the called party at
`his IP telephone at the IP address that he
`looked up in the database; correct?
` A. Agreed.
` Q. Okay. Now, in that scenario that I
`just provided, would IP packets be transmitted
`through the tandem access controller, or would
`IP packets in that scenario be transmitted as
`you discussed before just from the voiceover IP
`telephone 21 to the telephone voiceover IP
`telephone called party 20?
` A. I still have to bring it back that
`that if it's a VoIP phone to a VoIP phone,
`there is no need to go through the PSTN. It
`would just use that addressing mechanism VoIP
`to VoIP, IP to IP.
` Q. Okay. So it is your testimony that
`the patent does not cover VoIP to VoIP calls;
`is that right?
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` MR. MURPHY: Objection, form.
` A. The patent allows for VoIP because
`we're dealing with two separate networks, VoIP
`to PSTN using a PSTN call, but -- or PSTN to
`VoIP using a PSTN to VoIP call, but you're
`asking about VoIP to VoIP, and that's what I
`said, I don't believe what we're dealing with
`here is anything that was discussed as VoIP to
`VoIP, even though the invention says it can
`include VoIP. I know that was in the
`specification.
` Q. Okay. But it is your testimony --
`just simplifying this, it is your testimony
`that a VoIP to VoIP is not something that is
`covered by the claims of the patent?
` MR. MURPHY: Objection, asked and
` answered.
` A. It doesn't need to go through the
`TAC to get on the PSTN. It would just be VoIP
`to VoIP through the internet.
` Q. All right. Thank you. I appreciate
`that. All right. Let's go -- this is a
`different scenario, so I'm crossing out my
`little VoIP line here, and I'm going back to
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`Figure 2 as it stands right now.
` So in this scenario, both the
`calling party and the called party are on the
`PSTN, okay?
` A. Calling and called party?
` Q. Calling and called party. So the
`calling party 12 is using his phone 14. Do you
`see that?
` A. I see that.
` Q. And the called party 20 uses the
`phone next to him. Do you see that?
` A. Okay.
` Q. So in this scenario, if the calling
`party 12 uses phone 14 as we discussed
`yesterday, then there would be circuit switch
`signaling, for example, SS7 --
` A. Correct.
` Q. -- that the tandem access controller
`would receive; correct?
` A. Correct.
` Q. And then the tandem access
`controller does a lookup in its database and
`pulls a phone number of called party 20 out of
`that database; correct?
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` A. Correct.
` Q. Okay. And then as we discussed
`yesterday, the tandem access controller would
`then provide circuit switch signaling, for
`example, SS7 to the tandem switch that it is in
`communication with or coupled to, and then the
`tandem switch would provide SS7 signaling to
`other switches; is that correct?
` A. Correct.
` Q. Okay. And in this scenario where
`the -- as we discussed this morning, it is the
`tandem switch that is actually selecting the
`route of the different switches; correct?
` A. The TAC is telling the tandem switch
`where the call is to go.
` Q. Okay.
` A. The tandem switch would then select
`the routes that it is going to be using. The
`TAC is still in control. It is telling the
`PSTN to set up a call to let's say phone number
`20.
` Q. Okay. And those where it is telling
`the tandem switch to set up a call as you've
`said, when it is providing those instructions
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`to the tandem switch, that's through signaling;
`correct?
` A. Correct.
` Q. Okay. So in this scenario where the
`calling party and the called party are both on
`the PSTN --
` A. All right.
` Q. -- and the tandem access controller
`is providing those instructions that we
`discussed to the tandem switch, would TDM
`packets be routed through the tandem access
`controller?
` A. Through the --
` Q. Tandem access controller.
` A. If, in fact, were connected with a
`TDM connection, yes.
` Q. So the tandem access controller
`is -- it is your testimony that the tandem
`access controller is providing instructions to
`the tandem switch saying, connect to this phone
`number; correct?
` A. Correct.
` Q. And the tandem switch is using those
`instructions to then decide what elements,
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`whether it be a signal -- whether it be a
`tandem switch in this area, an edge switch in
`this area, the different circuit switch
`elements, all of that is being decided by the
`tandem switch; right?
` A. It is being controlled by the TAC.
`It is sending it up. And then what happens is
`normal SS7 signaling protocols would take place
`on how do we set up the route.
` The TAC knows basically if it -- if
`it knows the end address.
` Q. Okay.
` A. If it is an address that it doesn't
`know, it will use the global title translation,
`as I mentioned earlier, which will go up to SS7
`and say, please find me how to get there.
` Q. Okay. So is it your testimony that
`then we talked about yesterday after the call
`is completed and we have the voice
`communication established, that there would be
`a trunk connection between the tandem switch
`and the tandem access controller, and then the
`tandem access controller back to the tandem
`switch, and then the tandem switch to every
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`circuit switch element along the path until it
`arrives at the called party's telephone?
` MR. MURPHY: Objection, form.
` A. The communications, all the
`signaling and so on is through the TAC, and it
`is through the TAC, so we would have that
`connection where we would be providing the
`connecting out to here.
` Q. But so the communications of all the
`signaling is different than a voice circuit
`connection; correct?
` A. Correct.
` Q. So is it your testimony that the
`voice circuit after the call is completed and
`the communication circuit has been established,
`that there is a circuit switch voice connection
`that has to go from the tandem switch to the
`TAC and back to the tandem switch?
` A. Correct.
` Q. That's your testimony, okay. Now,
`in your different -- in your various
`declarations you have provided an opinion with
`respect to validity of three different -- of
`the three patents at issue; correct?
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` A. Correct.
` Q. And you understand that that
`validi