UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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`YMAX CORPORATION,
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`Petitioner,
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`vs.
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`FOCAL IP, LLC,
`
`) No. IPR2016-01256
`)
`IPR2016-01258
`)
`IPR2016-01260
`)
`Patent Owner. )
`)
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`__
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`EXPERT DEPOSITION OF TAL LAVIAN, Ph.D.
`San Jose, CA
`Wednesday, March 29, 2017
`
`REPORTED BY:
`SUSAN F. MAGEE, RPR, CCRR, CLR, CSR No. 11661
`
`Job No. 121052
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`TSG Reporting - Worldwide 877-702-9580
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`BHN, et al. v. FOCAL IP, LLC
`FOCAL IP, LLC EX2029 - 1
`Lavian Deposition Excerpts
`IPR2016-01262
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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`))
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`))
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`YMAX CORPORATION,
`
`Petitioner,
`
`vs.
`
`FOCAL IP, LLC,
`
`) No. IPR2016-01256
`)
`IPR2016-01258
`)
`IPR2016-01260
`)
`Patent Owner. )
`)
`
`__
`
`EXPERT DEPOSITION OF TAL LAVIAN, Ph.D.
`San Jose, CA
`Wednesday, March 29, 2017
`
`REPORTED BY:
`SUSAN F. MAGEE, RPR, CCRR, CLR, CSR No. 11661
`
`Job No. 121052
`
`TSG Reporting - Worldwide 877-702-9580
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`FOCAL IP, LLC EX2029 - 1
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`Page 2
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` March 29, 2017
` 9:10 a.m.
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` Expert deposition of TAL LAVIAN, Ph.D., held at
` the offices of REGUS, 2880 Zanker Road,
` Suite 203, San Jose, CA 95134, pursuant to
` Notice before SUSAN F. MAGEE, RPR, CCRR, CLR,
` CSR No. 11661.
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`Page 3
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`APPEARANCES:
` AKERMAN
` Attorneys for Petitioner
` 777 South Flagler Drive
` West Palm Beach, FL 33401
` BY: DAVID BRAFMAN, ESQ.
` BRICE DUMAIS, ESQ.
`
` NELSON BUMGARDNER
` Attorneys for Patent Owner
` 3131 West 7th Street
` Fort Worth, TX 76107
` BY: BRENT BUMGARDNER, ESQ.
` JOHN MURPHY, ESQ.
`
` //
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`APPEARANCES (continued):
` SIBER LAW
` Attorneys for Patent Owner
` 28 West 44th Street
` New York, NY 10036
` BY: HANNA MADBAK, ESQ.
` VICTOR SIBER, ESQ. (Appearing
` telephonically)
`
` --o0o--
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` San Jose, CA, Wednesday, March 29, 2017
` 9:10 a.m.
`
`Page 5
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` TAL LAVIAN, Ph.D.,
`called as a witness, having been duly sworn by a
`Certified Shorthand Reporter, was examined and testified
`as follows:
`
` MR. BUMGARDNER: Brent Bumgardner and
`John Murphy from Nelson Bumgardner for the patent owner.
`Also with me is Hanna Madbak of Siber Law, and then also
`listening via the conference line is Vic Siber of Siber
`Law.
`
` EXAMINATION BY MR. BUMGARDNER
`
` Q. Would you please introduce yourself for the
`record.
` A. Tal Lavian.
` Q. Do you go by Dr. Lavian?
` A. Yes.
` Q. Dr. Lavian, do you understand that the court
`reporter to your right is going to take down all of the
`testimony and my questions today?
` A. Yes.
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`switch?
` MR. BRAFMAN: Objection. Asked and answered.
` THE WITNESS: In a high level in many places,
`yes.
` BY MR. BUMGARDNER:
` Q. Is a tandem switch often referred to as a
`Class 4 switch?
` A. In high-level conceptual, yes.
` Q. All right. So going back to paragraph 41 --
`strike that.
` Let's take a look at paragraph 45 of the '777
`declaration. You state that, "When a telephone call is
`placed on the PSTN, the call typically travels from the
`caller's phone to the edge switch in the caller's local
`central office."
` Do you see that?
` A. Yes.
` Q. So is it fair to say in this example that the
`caller's local central office edge switch is the
`caller's point of access to the PSTN?
` A. There are many different architecture, but
`conceptually in high level, yes.
` Q. I'm not asking about conceptually. I'm asking
`about the way you used it in this sentence where you
`said, "When a telephone call is placed on the" PN --
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`"PSTN, the call typically travels from the caller's
`phone to the edge switch in the caller's local central
`office."
` A. Yes. Typically this is the case.
` Q. So the edge switch in the caller's local
`central office would be the caller's phone point of
`access to the PSTN in this example?
` A. In this example, yes.
` Q. Does an edge switch in this example provide
`dial tone to the caller's phone?
` A. It depends. In many cases, yes.
` Q. Typically is it the edge switch that provides
`dial tone?
` A. Typically, yes.
` Q. Okay. You next say that, "Unless the recipient
`is in the same geographical area and directly connected
`to the same central office, the call is then typically
`routed to one or more tandem switches (in sequence)
`until it reaches the edge switch that is directly
`connected to the recipient's phone, and finally to the
`recipient's phone."
` Do you see that?
` A. Yes.
` Q. So in this example, the recipient, unless he is
`connected -- his phone is connected to the same central
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`office, his telephone would be connected to a different
`central office?
` A. Reasonably, yes. That's one example they give
`in this sentence.
` Q. Did you give another example in this sentence?
` A. No. That's the example I gave in this
`sentence.
` Q. All right. And the recipient's central office
`would be his point of access to the PSTN in this
`example?
` A. Yeah.
` MR. BRAFMAN: Objection to form.
` BY MR. BUMGARDNER:
` Q. All right. As the call travels from the
`caller's phone in this example to the -- strike that.
` As the call travels from the caller's phone to
`the first edge switch in the caller's central office, in
`this example it then goes through one or more tandem
`switches; is that correct?
` A. In many cases, yes. In other cases not.
` Q. In this example, yes?
` A. In this example, yes.
` Q. And the tandem switches route the telephone
`call to the recipient's central office in this example?
` A. In this sentence, yes.
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`that originate and terminate calls for connected
`subscribers.')"
` Do you see that?
` A. Yes.
` Q. Do you agree that it's well known that a
`conventional PSTN includes edge switches that originate
`and terminate calls for connected subscribers?
` A. Yes.
` Q. Do you agree that it is -- well, strike that.
` The next part of this citation goes on to say,
`"'and tandem switches which route these calls internally
`within the PSTN (i.e. tandem switches are not capable of
`originating or terminating PSTN calls, but rather
`directs calls to/from an edge switch or another tandem
`switch.')"
` Do you see that?
` A. Yes.
` Q. Do you agree that it is well known that tandem
`switches are not capable of originating or terminating
`PSTN calls?
` A. Conceptually if they're doing PSTN only, but
`this is conceptually they can in some cases.
` MR. BUMGARDNER: Objection. Nonresponsive.
` BY MR. BUMGARDNER:
` Q. Let me ask this: Is it well known that a
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`conventional PSTN includes tandem switches which route
`calls internally within the PSTN? Is that true?
` A. That's for conventional, yes.
` Q. Is it true that a conventional PSTN tandem
`switch is not capable of originating or terminating PSTN
`calls?
` A. Conventionally in high level, yes.
` Q. Is it true that a conventional PSTN tandem
`switch directs calls to or from an edge switch or
`another tandem switch?
` A. Conceptually, yes.
` Q. So you stand by the statements that you made
`here in paragraph 106?
` A. Conceptually that's the case in most cases.
` Q. So the answer to that question is yes?
` A. In a high level conceptually, yes.
` Q. Are devices that connect directly to an edge
`switch such as a telephone sometimes referred to as edge
`devices?
` A. Yes.
` Q. When is the last time that you read the '777
`patent or any of the other two patents at issue in these
`IPRs?
` A. Last night.
` Q. And you noticed, I assume, that the '777 patent
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`that you cited on page 53?
` A. Yes, it's reasonable.
` Q. I'm not asking if it's reasonable. I'm asking
`if it can do that in the embodiment that you claim you
`cited on page 53 of your '777 declaration.
` MR. BRAFMAN: Objection to form.
` THE WITNESS: Yes.
` BY MR. BUMGARDNER:
` Q. Let's take a look at O'Neal for a second, and
`we'll see if we can -- all right. If you'll turn to
`column 15 of O'Neal.
` Are you with me on column 15?
` A. Yes.
` Q. Do you see the paragraph at the top of the page
`that begins with Figure 5?
` A. Yes.
` Q. All right. It says, "Figure 5 is a flow
`diagram depicting, in one embodiment, the relevant steps
`of a computer-implemented process for handling access to
`the unified messaging system through the
`telephony-centric network by a subscribing or a
`nonsubscribing caller."
` Do you see that?
` A. Yes.
` Q. So let's take the example of a nonsubscribing
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`caller.
` Is this talking about that nonsubscribing
`caller accessing the UMS over the PSTN, for example?
` MR. BRAFMAN: Objection to form.
` THE WITNESS: I'm not sure what exactly you are
`asking regarding these lines that you have read between
`5 to 10.
` BY MR. BUMGARDNER:
` Q. Okay. Let's go further down. If you skip a
`sentence, do you see the sentence that begins with, "A
`nonsubscribing caller may access the unified messaging
`system to, for example, send a facsimile, a page, or to
`call the subscriber."
` Do you see that?
` A. Yes.
` Q. So --
` A. Let me read that paragraph for a second.
` Q. Sure. Why don't you read --
` A. Just let me read the five lines.
` Q. Sure. Why don't you read all the way down to
`line 36, if you would.
` A. Okay.
` Yes. Again, what line you said?
` Q. Yes. I want to ask you some questions about --
` A. Which line again?
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` Q. Yes. Column 15, line 6 through 36 of O'Neal.
` A. Yes.
` Q. You agree this disclosure relates to Figure 5?
` A. Yes.
` Q. One example in this disclosure is a
`nonsubscribing caller calling a phone number associated
`with the subscriber?
` A. Yes.
` Q. And that subscriber has been given two phone
`numbers, one of them to be a local telephone number and
`one of them to be a toll-free telephone number; correct?
` A. In this example, yes.
` Q. So the nonsubscribing caller would be calling
`one of these two numbers using the telephony-centric
`network, and that call would reach the unified messaging
`system in this example; correct?
` A. In this example, yes. In high level, yes.
` Q. Well, in this particular example that's what
`happens; right?
` A. Yes. In a high level that's an accurate
`description.
` Q. So it says here that, "The dialed digits" --
` A. Which? Which line?
` Q. I'm sorry. Line 23, the paragraph that begins
`with "The dialed digits"?
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` A. Okay.
` Q. It says, "The dialed digits reaches telephony
`server 126 via telephone link 128. Telephony server 126
`then obtains DNIS by digitizing the digits (step 504)
`and employs the dialed digits to obtain the
`communication option settings associated with the
`account represented by the dialed telephone number (step
`506)."
` A. Yes.
` Q. Do you see that?
` A. Yes.
` MR. BRAFMAN: Objection to form.
` BY MR. BUMGARDNER:
` Q. Do you see that part of the disclosure?
` A. Yes.
` Q. So in this part of the disclosure, is O'Neal
`describing that the unified message system is going to
`use the telephone number that was dialed to access the
`communication options settings associated with the
`account of the subscriber?
` A. In a high level, yes.
` Q. Continuing on it says, "As mentioned earlier,
`these communication option settings reside in the
`subscriber communication profile database, which may be
`managed by database server 120, in one embodiment.
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`During this time, telephone server 126, through an
`appropriate interface board such as the aforementioned
`Dialogic board, monitors the incoming line for a
`facsimile tone or telephone key digit tone."
` A. Yes.
` Q. Do you see that part?
` A. Yes.
` Q. So in this description if you go further up, it
`says the nonsubscriber may be --
` A. Where exactly? Which line?
` Q. Around line 14. It says the nonsubscriber --
`strike that.
` At line 14 it says, "A nonsubscribing caller
`may access unified messaging system to, for example,
`send a facsimile, a page, or to call the subscriber."
` A. Yes.
` Q. So this is an example where the nonsubscribing
`caller dials a number for the subscriber, that call was
`placed over the telephony-centric network, and it hits
`UMS; correct?
` A. Yes.
` Q. And then the dialogic board of the UMS answers
`the call and listens to see if there's a fax that's
`trying to be sent by the nonsubscriber; correct?
` A. In high level, yes.
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` Q. It can also listen for telephony key digit
`tone; correct?
` A. Yes.
` Q. Would that be done for a page, for example?
` A. What do you mean by a page?
` Q. If the nonsubscriber was trying to page the
`subscriber or --
` A. That's an example. Not on this line, but it's
`reasonable.
` Q. Okay. So the telephony server 126 through the
`dialogic board answer the call and listens, for example,
`for a fax coming in; correct?
` A. In a high level it's an accurate statement.
` Q. And in this embodiment, while the dialogic
`board is listening for a fax, the unified messaging
`system is accessing the subscribers' records for their
`communication options; correct?
` MR. BRAFMAN: Objection to form.
` THE WITNESS: In a high level you can interpret
`this way. You have reasonably accurate understanding of
`this sentence -- of these few sentences.
` BY MR. BUMGARDNER:
` Q. Okay. So in this embodiment, the
`nonsubscriber's call is being terminated at the UMS;
`correct?
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` A. What do you mean "terminated"?
` Q. Answered.
` A. Yes. If that's the -- if that's the answer to
`your question, the answer is yes.
` Q. So obviously in order to listen for the fax
`tones coming over the line, you would have to answer the
`call; correct?
` A. Yes.
` Q. All right. So in this particular embodiment,
`would you agree that there is a voice path established
`between the nonsubscriber and the UMS?
` A. Yes. Reasonable statement.
` Q. And so the call from the nonsubscriber is
`actually being terminated by the UMS so that it can
`listen for fax tones or key digit tones; correct?
` MR. BRAFMAN: Objection to form.
` THE WITNESS: You mentioned before terminated
`is answered, so if the question terminate you mean by
`answered, is yes.
` BY MR. BUMGARDNER:
` Q. Okay. If you skip over to column 17, you'll
`see the third paragraph that begins with "Figure 7."
` A. Yes.
` Q. Do you see that?
` So it says, Figure 7 is a flow diagram
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`Page 66
`depicting the relevant steps of a computer implementer
`process for handling the routing of the call, if the
`call-forwarding option of the unified messaging system
`is enabled. Figure 7 is one technique for performing
`step 10 [sic] of Figure 5. As mentioned in step 10,
`when the call is assumed to be a normal call to the
`subscriber, the call will be handled in accordance with
`the communication option settings.
` Do you see that?
` A. I see that you misread "510" twice.
` Q. My apologies.
` Do you see the part of the specification I'm
`referencing at column 17, lines 11 through approximately
`19?
` A. Yes.
` Q. Okay. So this part of the disclosure is
`describing, I believe, what happens when it's not a fax
`but instead a normal call to the subscriber that perhaps
`needs to be forwarded; is that correct?
` A. Let me look at the diagram and read the entire
`paragraph. Just one second.
` Yes.
` Q. And have you familiarized yourself with
`column 17 going all the way down to approximately
`line 37?
`
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`BHN, et al. v. FOCAL IP, LLC
`FOCAL IP, LLC EX2029 - 18
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` A. Oh, I read until 25. You want me to read the
`rest of it?
` Q. Just through line 37, please.
` A. Okay.
` Yes.
` Q. Okay. So would you agree that in this
`embodiment, they're talking about one example where
`call-forwarding option is enabled?
` A. Yes.
` Q. And in this disclosure it says while the UMS is
`querying the database server --
` A. Which line are you?
` Q. I'm sorry. Around line 20.
` A. Okay.
` Q. It says that, while "the telephony server
`queries the database server for the communication option
`settings," a couple of lines down it says, During this
`time the UMS continues to monitor for facsimile and
`keyed digit tones.
` Do you see that?
` A. Yes.
` Q. And I'm assuming -- in this example, let's
`assume that it doesn't hear any facsimile tones or key
`digit tones, so it proceeds to call forwarding.
` Is that the way you read this description here?
`
`TSG Reporting - Worldwide 877-702-9580
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`FOCAL IP, LLC EX2029 - 19
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` A. Reasonable interpretation of this paragraph,
`yes.
` Q. So it says if the call-forwarding option is
`enabled, the number --
` A. Which line are you?
` Q. Well, I'm generalizing here.
` A. Yes.
` Q. Would you agree this embodiment talks about if
`call-forwarding option is enabled, a number is going to
`be provided to the dialogic board to call the forwarding
`number?
` Do you see that?
` A. In a high level, yes.
` Q. So the dialogic board is a board that is
`capable of answering calls and also initiating calls;
`correct?
` A. Yes.
` Q. And that dialogic board when it performs the
`functions of initiating a call or answering a call would
`be communicating with the telephony switch with Class 5
`functionality; correct?
` MR. BRAFMAN: Objection to form.
` THE WITNESS: That's one option, yes.
` BY MR. BUMGARDNER:
` Q. Would you agree that the Class 5 functionality
`
`TSG Reporting - Worldwide 877-702-9580
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`FOCAL IP, LLC EX2029 - 20
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`
`anything about a hybrid switch, does it?
` MR. BRAFMAN: Objection to form.
` THE WITNESS: I don't believe that O'Neal uses
`the same words. I'm not sure. I need to check.
` BY MR. BUMGARDNER:
` Q. Well, let's go with your hypothetical that if
`the dialogic board in O'Neal was interfacing with a
`hybrid switch, you would agree that the dialogic board
`would be interfacing with the Class 5 functionality of
`that hybrid switch to receive dial tone and place of
`call; correct?
` A. It's the same device. In the case of, for
`example, DMS handle, and that was very popular device,
`the same box, the same interface, the same cable, the
`same everything.
` MR. BUMGARDNER: Objection. Nonresponsive.
` BY MR. BUMGARDNER:
` Q. Does a hybrid switch have Class 5
`functionality?
` A. Hybrid switch is a general high-level word that
`people are using. In general it's related to Class 4
`and Class 5. It's a high-level picture.
` Q. So the answer -- excuse me. So the answer to
`my question would be yes, that it does, in fact, have
`Class 5 functionality?
`
`TSG Reporting - Worldwide 877-702-9580
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`FOCAL IP, LLC EX2029 - 21
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` A. You can take a look at this in this way, yes.
` Q. And the Class 5 functionality would include
`providing a dial tone to an edge device; correct?
` A. Yes.
` Q. So if the dialogic board is going to place a
`call, it's going to get a dial tone from the Class 5
`functionality portion of the hybrid switch; correct?
` A. In high level, yes.
` MR. MADBAK: Is this a good time to take a
`break?
` MR. BUMGARDNER: Yes.
` (Recess taken from 11:01 a.m. to 11:14 a.m.)
` BY MR. BUMGARDNER:
` Q. Dr. Lavian, let me hand you a copy of the
`Shtivelman reference, which for the record is
`Exhibit 1005 in the IPR proceeding concerning the '113
`patent, which is the 1260 proceeding.
` When is the last time you reviewed the
`Shtivelman reference?
` A. Last night, I believe.
` Q. All right. Let's take a look at the Shtivelman
`reference. I guess let's start on page 3. I'm sorry.
`Page 2.
` MR. BRAFMAN: When you're referring to the page
`numbers, you're referring to page numbers on the bottom
`
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`Page 77
` Q. So let's turn to the diagram in Shtivelman.
` Do you see the box on the left-hand side that
`is labeled 110?
` A. Yes.
` Q. So that is what the patentee and Shtivelman
`calls the client premises?
` A. Yes.
` Q. And inside that box is a telephone 111 and a
`personal computer 112; correct?
` A. Yes.
` Q. And 150 is what Shtivelman calls a line to
`telephony switch 151; correct?
` A. Yes.
` Q. And Shtivelman describes that line as a single
`telephone line; correct?
` A. It's a single telephone line. I don't see
`where exactly it said, but that's what it said. That's
`the meaning of it, yes.
` Q. So in this diagram the PSTN is labeled 100;
`correct?
` A. Yes.
` Q. Okay. And that is depicted as a cloud in this
`example?
` A. Yes.
` Q. And telephony switch 151 is inside the PSTN;
`
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`correct?
` A. Yes.
` Q. All right. If you take a look further down on
`page 9 it says in the last full paragraph --
` A. What line?
` Q. Around line 20.
` A. Okay.
` Q. "In one embodiment of the present invention,
`when a client places a call to log onto the internet via
`his Internet Service Provider, a predefined forwarding
`number is programmed into telephony switch 151 using the
`Centrex functions of the switch, and the client's
`call-waiting services (if any) are temporarily
`discontinued."
` Do you see that?
` A. Yes.
` Q. And then in two sentences later it says,
`"Centrex functions are software functions that are part
`of a normal telephone service such as call waiting, call
`forwarding, conference calling and the like."
` Do you see that?
` A. Yes.
` Q. Would you agree that Centrex functions are
`features that are typically programmed into a class 5
`switch?
`
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`FOCAL IP, LLC EX2029 - 24
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` MR. BRAFMAN: Objection to form.
` THE WITNESS: I don't have in front of me the
`Centrex documents. I believe that at high level it's
`correct and accurate.
` BY MR. BUMGARDNER:
` Q. Okay. So the fact that the client premises is
`connecting to the telephony switch 151 via a single line
`and the fact that telephony switch 151 is described as
`using Centrex functions, wouldn't that tell a person of
`ordinary skill in the art that telephony switch 151 is
`an edge switch?
` MR. BRAFMAN: Objection to form.
` THE WITNESS: In a high level it's an example
`of edge switch, yes. It's exemplary -- yes, it's an
`example.
` BY MR. BUMGARDNER:
` Q. Okay. All right. So just -- are you familiar
`with the entirety of the Shtivelman reference?
` A. Sure. Absolutely.
` Q. All right. So generally speaking, and I'm not
`looking at any particular passage at this point, but
`looking at Figure 1, generally speaking Shtivelman talks
`about telephone 116 and telephone 115, which is at the
`top of the diagram?
` A. Yes.
`
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`Page 116
` A. That's exactly what I tried to explain before,
`that a person of ordinary skill in the art would
`understand it in a very simple way. This embodiment has
`the advantage of providing all the necessary services at
`the local PSTN switch hosted by the phone company and
`the ISP not need to be involved.
` In this case -- in this specific embodiment,
`this specific sentence basically say that you don't need
`141 and 142. Everything will be done directly to 151.
`That's exactly what I have tried to understand that a
`person of ordinary skill in the art would understand.
`Simple as is. That's one embodiment. That's another
`embodiment. The diagram is very clear.
` MR. BRAFMAN: No further questions.
` MR. BUMGARDNER: We're done.
`
` (Time noted: 1:49 p.m.)
` --o0o--
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` C E R T I F I C A T E
` I, the undersigned, a Certified Shorthand
`Reporter of the State of California, do hereby certify:
` That the foregoing proceedings were taken
`before me at the time and place herein set forth; that
`any witnesses in the foregoing proceedings, prior to
`testifying, were administered an oath; that a record of
`the proceedings was made by me using machine shorthand
`which was thereafter transcribed under my direction;
`that the foregoing transcript is a true record of the
`testimony given.
` I further certify I am neither financially
`interested in the action nor a relative or employee of
`any attorney or any party to this action.
` IN WITNESS WHEREOF, I have this date subscribed
`my name.
`Dated: March 29, 2017
`
` _________________________________
` Susan F. Magee, RPR, CCRR, CLR
` CSR No. 11661
`
`TSG Reporting - Worldwide 877-702-9580
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` ERRATA SHEET FOR THE TRANSCRIPT OF:
` Case Name: YMax Corporation v. Focal IP, LLC
` Deposition Date: March 29, 2017
` Deponent: TAL LAVIAN, Ph.D.
` Pg. No. Now Reads Should Read Reason
` ___ ___ __________ __________ ____________________
` ___ ___ __________ __________ ____________________
` ___ ___ __________ __________ ____________________
` ___ ___ __________ __________ ____________________
` ___ ___ __________ __________ ____________________
` ___ ___ __________ __________ ____________________
` ___ ___ __________ __________ ____________________
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` ___ ___ __________ __________ ____________________
` ___ ___ __________ __________ ____________________
`
` _____________________
`
` Signature of Deponent
`
` SUBSCRIBED AND SWORN BEFORE ME
` THIS ____ DAY OF __________, 2017.
` ____________________
` (Notary Public) MY COMMISSION EXPIRES:__________
`
`TSG Reporting - Worldwide 877-702-9580
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`BHN, et al. v. FOCAL IP, LLC
`FOCAL IP, LLC EX2029 - 28
`Lavian Deposition Excerpts
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`
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