UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`Page 1
`
`GOOGLE LLC,
`Petitioner,
`v.
`BLACKBERRY LTD.,
`Patent Owner.
`_______________
`Case No. IPR2017-01619
`Patent 8,489,868 B2
`
`Case No. IPR2017-01620
`Patent 8,489,868 B2
`_______________
`
` DEPOSITION OF DR. PATRICK DREW McDANIEL
`Washington, D.C.
`Wednesday, February 21, 2018
`
`Reported by: John L. Harmonson, RPR
`Job No. 137655
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`_______________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`Page 1
`
`GOOGLE LLC,
`Petitioner,
`v.
`BLACKBERRY LTD.,
`Patent Owner.
`_______________
`Case No. IPR2017-01619
`Patent 8,489,868 B2
`
`Case No. IPR2017-01620
`Patent 8,489,868 B2
`_______________
`
` DEPOSITION OF DR. PATRICK DREW McDANIEL
`Washington, D.C.
`Wednesday, February 21, 2018
`
`Reported by: John L. Harmonson, RPR
`Job No. 137655
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` February 21, 2018
` 9:37 a.m.
`
` Deposition of DR. PATRICK DREW McDANIEL,
`held at the offices of Paul Hastings LLP, 875
`Fifteenth Street, N.W. Washington, D.C., pursuant
`to Notice, before John L. Harmonson, a Registered
`Professional Reporter and Notary Public of the
`Commonwealth of Virginia, who officiated in
`administering the oath to the witness.
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`
`
` A P P E A R A N C E S
`
`Page 3
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`On Behalf of the Petitioner:
` PAUL HASTINGS
` 875 15th Street, N.W.
` Washington, D.C. 20005
` BY: PHILLIP CITROEN, ESQ.
` JOSEPH PALYS, ESQ.
`
`On Behalf of Patent Owner:
` SIDLEY AUSTIN
` 1501 K Street, N.W.
` Washington, D.C. 20005
` BY: SAMUEL DILLON, ESQ.
` SHARON LEE, ESQ.
` CHING-LEE FUKUDA, ESQ.
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` P. McDANIEL
`--------------------------------------------------
` P R O C E E D I N G S
` 9:37 a.m.
`--------------------------------------------------
` Whereupon,
` PATRICK DREW McDANIEL,
` after having been first duly sworn or affirmed,
` was examined and did testify under oath as
` follows:
` MR. CITROEN: Just quickly for the
` record. This morning, counsel for
` BlackBerry approached counsel for Google for
` the first time with a proposal that there be
` two different questioners splitting up the
` deposition of Dr. McDaniel this morning. So
` after conferring, the parties have agreed to
` the following:
` So there will be one depo, one
` transcript. The parties have agreed that
` counsel for BlackBerry can split up the
` questioners for the transcript that
` corresponds to IPR2017-01619 and
` IPR2017-01620.
` The condition to that is that the
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` P. McDANIEL
` deposition end at 7:00 p.m. and that the
` examiners do not cover the same subject
` matter with the deponent. So one
` questioner, Sam I believe, will ask
` questions related to the Garst declaration,
` which is IPR2017-01619, and Ms. Lee will ask
` questions related to IPR2017-01620.
` MR. DILLON: This is Sam for patent
` owner. Just the only clarification I would
` add to that is clearly there is certain
` overlapping subject matter between the two
` proceedings. But we understand and we'll
` attempt to abide by the agreement with not
` going over the same subject matter twice to
` the extent it's possible with the
` overlapping subject matter of the two
` proceedings.
` MR. CITROEN: That's fair.
` EXAMINATION
`BY MR. DILLON:
` Q. Good morning, Dr. McDaniel.
` A. Good morning.
` Q. Have you ever been deposed before?
` A. I have.
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` Q. How many times?
` A. Over ten.
` Q. Let me remind you of the ground rules
`just for fun. I am going to ask you questions
`and you will answer them. From time to time your
`attorney may object. You still must answer the
`question unless your attorney instructs you not
`to.
` Be sure to answer verbally and not say
`"uh-huh" or "huh-uh" because a court reporter is
`writing down what we say. If you don't
`understand a question, you can ask me to repeat
`it or clarify the question. I will be happy to
`do so.
` If for any reason you need a break,
`please ask and I will do my best to accommodate
`you, al though I ask that you answer the question
`before we take a break.
` Do you understand those rules?
` A. I do.
` Q. Is there any reason you cannot provide
`truthful testimony today?
` A. No.
` Q. And before we begin, do you have any
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` P. McDANIEL
`questions for me?
` A. No.
` Q. You understand that today we will be
`discussing two proceedings, IPR2017-01619 and
`IPR2017-01620?
` A. Yes.
` Q. And you submitted a declaration in
`both of those proceedings, right?
` A. I have submitted two declarations,
`yes.
` Q. Both of these proceeding involve U.S.
`Patent Number 8,489,868. Is that right?
` A. I believe that's the number.
` Q. Is it okay if we call that the '868
`patent?
` A. Yes, of course.
` Q. I see you have a binder with some
`exhibits in it in front of you, or two binders in
`fact. Does it include the two declarations you
`submitted for these proceedings?
` A. They do.
` Q. What else does it contain?
` A. The second binder contains the prior
`art that's referenced in the declarations.
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` Q. Are there any markings or notes that
`you have made in those declarations or exhibits
`or evidence?
` A. No.
` Q. One of your declarations principally
`concerns the Garst and Gong references. Is that
`right?
` A. That's correct.
` Q. And the other declaration principally
`concerns the Lin reference. Is that right?
` A. That's correct.
` Q. So I will refer to the two
`declarations as the Garst declaration and the Lin
`declaration. Is that okay?
` A. That's fair.
` Q. You signed each of these two
`declarations. Is that right?
` A. I did.
` Q. Did anyone help you prepare these
`declarations?
` A. I worked with counsel.
` Q. Specifically which counsel?
` A. Phillip.
` Q. Anyone else?
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` A. There were some other folks from Paul
`Hastings that were on some of the calls. I can't
`remember.
` Q. But no one that you're aware of that
`was not an attorney with Paul Hastings?
` A. I don't remember anyone else.
` Q. How long did you personally spend
`preparing these two declarations?
` A. I started in January. I believe it
`was in January of that year, and between January
`and June. I don't remember the exact numbers,
`but it's on the order of probably over a hundred
`hours.
` Q. So between 100 and 150 hours, you
`would guess?
` A. I can't tell you.
` Q. Did you rely on any documents when
`preparing these declarations?
` A. Yeah.
` Q. Were these documents provided to you?
` A. Many were provided to me.
` Q. So some documents you provided?
` A. Some of the documents I found, yes. I
`believe so.
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` Q. Do you recall which documents were
`provided to you and which documents you found?
` A. No.
` Q. Did you rely on any documents or
`information not cited in these declarations?
` A. I did not.
` Q. How did you prepare for today's
`deposition?
` A. To prepare for today, I started with
`reading the patent and the prior art and the
`declarations over the course of several weeks as
`well as all of the -- I at least glanced at all
`the references that are actually cited in both
`declarations. And then met with counsel.
` Q. About how long do you think you
`prepared before you met with counsel?
` A. Dozens of hours.
` Q. And how long did you prepare when you
`were meeting with counsel?
` A. Over ten.
` Q. In preparing for this deposition, did
`you review any documents not of record in these
`proceedings?
` A. I did not.
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` Q. Have you read the petition in either
`of these proceedings?
` A. I have not.
` Q. Have you read the preliminary response
`in either of these proceedings?
` A. I have not.
` Q. Have you read the institution decision
`in either of these proceedings?
` A. I have not.
` Q. Do you recall when you were first
`retained in these proceedings?
` A. Again, my best recollection, I believe
`it was in the early part of 2017.
` Q. I believe earlier you said January
`2017. Does that sound right?
` A. That notion is a little fuzzy in my
`head.
` Q. Who first contacted you?
` A. I don't remember.
` Q. Was it a member of Paul Hastings?
` A. Again, I don't remember. I would
`think so.
` Q. You said you were deposed before. I
`think you said, and correct me if I'm wrong,
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` P. McDANIEL
`around ten times. Is that right?
` A. Ten or more, yeah.
` Q. In what context were those
`depositions?
` A. Some intellectual property cases,
`patent cases, patent litigation.
` There was another one that related to
`privacy.
` Q. So you said patent cases and one
`related to privacy. Is that right?
` A. That's correct.
` Q. Okay. So I believe you have a copy of
`your CV filed as Exhibit 1003 in these
`proceedings.
` A. Yes.
` (Google Exhibit 1003, previously
` marked for identification, is incorporated
` by reference hereto.)
`BY MR. DILLON:
` Q. We can go ahead and look at that. And
`I believe this version of your CV was filed in
`June of 2017. Is that right?
` A. That's correct.
` Q. And so it was accurate as of June of
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` P. McDANIEL
`2017, to your knowledge?
` A. To the best of my ability, yeah.
` Q. I assume there's been changes to your
`CV since then.
` A. Yes.
` Q. So let's look at page 11 through
`page 12. There is a section bridging those two
`pages called "Cases" and then in parentheses
`"Expert Witness." Is that right?
` A. Yes.
` Q. As of June 2017, to the best of your
`knowledge, this lists the cases on which you've
`served as an expert witness?
` A. Yes.
` Q. I wanted to ask you about Good
`Technology Corporation v. AirWatch. Do you
`recall working on that case?
` A. I do.
` Q. Do you recall when you were retained
`for that case?
` A. No.
` Q. Do you recall when you performed work
`on that case?
` A. It was several years ago.
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` Q. Do you recall about when, which years?
` A. No.
` Q. Do you recall when you stopped working
`on that case?
` A. No.
` Q. Do you recall who you represented in
`that case, or who you were retained by, which
`party?
` A. AirWatch, I believe.
` Q. Let's go down to a couple of cases
`below that. "Certain Portable Electronic
`Communication Devices Including Mobile Phones and
`Components Thereof." Do you see that?
` A. Yes.
` Q. Do you recall which party you were
`working for in that case?
` A. Yes.
` Q. And what party was that?
` A. The International Trade Commission.
` Q. So your client in that case for your
`expert witness work was the International Trade
`Commission?
` A. You know, I don't remember the
`specifics of this case, so I'm not sure that's
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` P. McDANIEL
`accurate.
` Q. It says that you were expert for the
`plaintiff. Is that right?
` A. Yeah. I don't remember the specifics
`of this case.
` Q. If I informed you that it's my
`understanding that Nokia was the plaintiff in
`that case, were you an expert for Nokia in that
`case?
` A. Yeah, I don't remember.
` Q. Were you an expert for Google in that
`case?
` A. I may have been, yeah. Again, I don't
`remember the specifics of that case.
` Q. So you don't recall the work that you
`did in that case?
` A. Not as I sit here today.
` Q. Do you recall about when that case
`took place?
` A. I have a very foggy notion of that
`case.
` Q. So perhaps you performed work on that
`case, but it was not memorable work or an
`insubstantial amount of work that you're not
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` P. McDANIEL
`remembering it today?
` MR. CITROEN: Objection to form.
` THE WITNESS: I don't remember the
` details of that case.
`BY MR. DILLON:
` Q. So you're currently a professor at
`Pennsylvania State University. Is that right?
` A. I am.
` Q. What courses are you teaching this
`semester?
` A. I'm not teaching this semester.
` Q. What are you keeping busy with this
`semester other than teaching?
` A. I run the cyber security CRA, which is
`part of the U.S. Army. It's a project under the
`U.S. Army, and I'm running that as well as
`leading the Institute for Networking and Security
`Research at Penn State.
` Q. Are you currently supervising any
`graduate students?
` A. I am.
` Q. About how many?
` A. I think three Ph.D. students and two,
`three -- four master students. I think that's
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`right.
` Q. About how many graduate students have
`you supervised as a professor if you had to make
`a guess?
` A. Dozens.
` Q. Have any of your graduate students
`gone to work for Google after they have
`graduated?
` A. Several, yes.
` Q. Have you ever worked for BlackBerry?
` A. No.
` Q. Have you ever been paid by BlackBerry?
` A. Not to my knowledge.
` Q. Have you ever received any awards by
`BlackBerry?
` A. I don't think so.
` Q. Have you ever heard of a company
`called BLU Products?
` A. I don't remember a company called BLU
`Products.
` Q. Are you aware that the '868 patent was
`asserted against BLU Products?
` A. No.
` Q. Do you know the status of that
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` P. McDANIEL
`litigation?
` A. No.
` Q. Have you ever seen any litigation
`documents involving the '868 patent?
` A. I do not believe so.
` Q. So you've not seen any infringement
`contentions for the '868 patent?
` A. No, I don't think so.
` Q. And you have not seen any draft
`complaints involving the '868 patent?
` A. No.
` Q. Have you ever heard of Alphabet Inc.?
` A. Yes.
` Q. What is your understanding of Alphabet
`Inc.?
` A. It's the parent company for Google.
` Q. And you understand that Google existed
`before Alphabet and is now a subsidiary of
`Alphabet?
` A. That's correct.
` Q. Are you aware of any other
`subsidiaries of Alphabet Inc.?
` A. I can't think of any.
` Q. Would it be okay if I refer to
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`Alphabet Inc. and Google both before and after it
`became a subsidiary as Google --
` A. Sure.
` Q. -- for purposes of a couple of
`follow-on questions?
` A. Sure.
` Q. And if you need to clarify
`specifically which one you're talking about,
`please do so.
` Have you worked for Google in a patent
`matter other than these two IPR proceedings?
` A. I believe I have, yes.
` Q. And which matter was that?
` A. I can't remember right now.
` Q. Would it have been the International
`Trade Commission matter possibly?
` A. I don't remember.
` Q. Have you worked for Google in a
`context other than a patent matter?
` A. No.
` Q. Have you ever been a Google employee?
` A. No.
` Q. Sitting here today, how many times
`have you worked for Google as an expert in a
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`patent matter?
` A. I couldn't tell you off the top of my
`head.
` Q. Has Google compensated you in a
`context other than a patent matter?
` A. I've received a Google grant. Or it's
`not really a grant. It's a faculty award, I
`believe it's called.
` Q. Let's look at page 6. And then I
`think second from the top it refers to Google
`Faculty Research Award. Is that right?
` A. That's correct.
` Q. Is that what you were referring to
`just a moment ago when you said a Google faculty
`award?
` A. Yes.
` Q. And could you tell me about what that
`faculty award was or what you did that you
`understand to have prompted them to give it to
`you?
` MR. CITROEN: Objection to form.
` THE WITNESS: The Google Faculty
` Research Award was to support some of the
` security work we were doing on mobile
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` devices.
`BY MR. DILLON:
` Q. And what security work were you doing
`on mobile devices that this was intended to
`support?
` A. I'm not sure I understand your
`question.
` Q. You said that "The Google Faculty
`Research Award was to support some of the
`security work we were doing on mobile devices."
`And I am asking what security work you were doing
`on mobile devices it was given to support.
` A. Work on evaluating the security of
`applications on mobile handsets.
` Q. And this was work you were performing
`in your academic role as a professor?
` A. That's correct.
` Q. Were graduate students working on this
`work with you?
` A. Yes.
` Q. Were any nonacademic individuals
`working on this work with you?
` A. I do not believe so.
` Q. Is this the only Google Faculty
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`Research Award that has been given to you?
` A. Let me take a moment.
` I believe so.
` Q. Are you aware of whether any of your
`work has been incorporated into a commercial
`Google product?
` A. I'm not really clear on what you mean,
`"integrated."
` Q. You're aware of the Android operating
`system. Is that right?
` A. That's correct.
` Q. And it's an open source operating
`system?
` A. It is.
` Q. And certain aspects of it are either
`closed source or protected by Google?
` A. Certain parts, yes.
` Q. Have you contributed any of your work
`or know of your work being incorporated into
`either the open source part of the Android
`operating system or the closed source part of the
`Android operating system?
` A. I have not supplied any code that I
`believe is in Android today.
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` P. McDANIEL
` Q. And you are not aware of any of your
`work being incorporated as code into the Android
`operating system?
` A. What do you mean by "any of your work"
`integrated? I'm still confused by that.
` Q. You said you have not supplied any
`code that you believe is in Android today. Is
`that right?
` A. That's correct.
` Q. Are you aware of whether anyone has
`supplied any code that is in Android that is
`based on work that you have done?
` A. I've done a lot of work on security of
`Android, sort of general science of security and
`analysis. And it wouldn't surprise me if someone
`had used some of the ideas of science we
`developed within my lab and some of that has been
`integrated into Android. But I don't know any of
`it.
` Q. So sitting here today, you're not
`aware of any of your work specifically having
`been incorporated in but you can't rule it out?
` A. I'm still a little vague on what you
`mean by "incorporated." I developed ideas,
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` P. McDANIEL
`concepts for security. So I'm a little unclear
`what you mean by "integrated."
` Q. Have you ever talked to any
`representative of Google about contributing your
`ideas or concepts for security to Google or to
`Android?
` A. Of course.
` Q. And about how many times do you think
`you've done that?
` A. Within the research community, Google
`is an active player, so they're in most of the
`technical meetings we have within academic
`research. So it would be part of those
`conversations.
` Q. Would it be safe to say dozens of
`times?
` A. They're active collaborators in
`academic research, just like every other company.
` Q. So yes or no?
` A. Certainly Google has been part of
`conversations dozens of times relating to
`security.
` Q. On page 3 of your CV, second from the
`bottom, it says: "Google Security and Product
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` P. McDANIEL
`Safety Acknowledgment in recognition of efforts
`in improving the security of Google Android
`cellular phone operating system," with a date of
`2008.
` A. That's correct.
` Q. Do you recall what that acknowledgment
`was for?
` A. That award was in recognition of our
`initial work in my laboratory on security of
`mobile handsets. We were the first security
`group to have a formal method for evaluating the
`security of applications in mobile handsets and
`that's what that recognition is for.
` Q. And how did that recognition come
`about from your experience? Did Google approach
`you? Did you approach Google?
` MR. CITROEN: Objection to form.
` THE WITNESS: That was an award that I
` didn't even know about until someone told me
` that Google had just awarded it to us.
`BY MR. DILLON:
` Q. Did that award come with any monetary
`compensation?
` A. It did not.
`
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` P. McDANIEL
` Q. Other than the faculty award which I
`believe lists certain monetary compensation, have
`you ever received any additional monetary
`compensation from Google outside of a patent
`matter?
` A. I don't remember any, no.
` Q. Not that you recall?
` A. No.
` Q. So I think you said that you have
`never contributed any source code to Android. Is
`that right?
` A. To my knowledge, no.
` Q. Have any of your graduate students
`while they've been working with you contributed
`source code to Android?
` A. You would probably have to talk to
`them. I have no idea.
` Q. So sitting here today, you're unaware
`of any of your graduate students, while working
`for you, having contributed source code to
`Android?
` A. I can't remember.
` Q. Do you have any plans of contributing
`source code to Android?
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` A. No. That's not what I do.
` Q. You can look if you like, but I'm
`asking for a rough estimate. About how many of
`your publications are directed to Android or
`TaintDroid I believe is one particular focus that
`I understand is related to Android. Let me ask
`that again.
` How many of your publications, on a
`rough level, are directed to Android?
` A. I would say my publications are
`directed towards the security of mobile handsets,
`and Android is an example of a mobile handset.
` Q. If I told you a text search of your CV
`for Android or Droid turned up 30 hits, would you
`be surprised?
` A. No.
` Q. About how many of your publications
`are directed to iOS, BlackBerry OS, Nokia's
`Symbian OS, HP's webOS or Palm OS or Windows
`Phone OS?
` MR. CITROEN: Objection to form.
` THE WITNESS: All of the ones that --
` all of the papers and research that I've
` done for mobile handsets applies broadly to
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` P. McDANIEL
` the entire field. So I wouldn't say it's
` about Android. That's not the point.
`BY MR. DILLON:
` Q. So in the papers that have in the
`title the word "Android," those are not
`specifically about Android?
` MR. CITROEN: Objection to form.
` THE WITNESS: The papers are about
` techniques for evaluating, for example,
` applications, and Android is the target for
` those papers. It gives us an experimental
` platform to work with. What we're
` developing in that science is general
` methods for any application security across
` any platform.
`BY MR. DILLON:
` Q. So these papers use Android as kind of
`a platform to perform research or apply the
`techniques of your research?
` MR. CITROEN: Objection to form.
` THE WITNESS: It's an experimental
` test bed for us, yes.
`BY MR. DILLON:
` Q. So if I told you that a text search of
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`your CV for iOS, BlackBerry, Symbian webOS,
`Palm or Windows, any of those terms turned up
`zero hits for any of them, would you be
`surprised?
` MR. CITROEN: Objection to form.
` THE WITNESS: I'm not sure what you're
` looking at.
`BY MR. DILLON:
` Q. I'm trying to understand. There seems
`to be a focus on Android in your publication
`history, and I'm trying to understand why there
`is a focus on Android in your publication
`history.
` MR. CITROEN: Objection to form.
` THE WITNESS: That doesn't sound like
` a question. Do you have a question?
`BY MR. DILLON:
` Q. I'm asking you: Why is there a
`particular focus on Android in your publication
`history?
` MR. CITROEN: Objection to form.
` THE WITNESS: The focus on Android is
` because it's a convenient experimental
` platform for evaluating applications.
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`BY MR. DILLON:
` Q. Do you own an Android phone?
` A. No.
` Q. Have you ever?
` A. Yes.
` Q. And when was that?
` A. I don't remember.
` Q. Do you own a BlackBerry phone?
` A. No.
` Q. Have you ever?
` A. No.
` Q. So let's put away your CV for now and
`look at your Garst declaration.
` (Google Exhibit 1002, previously
` marked for identification, is incorporated
` by reference hereto.)
`BY MR. DILLON:
` Q. Actually, one follow-up question. I
`think you said a moment ago that your focus on
`Android is because it's a convenient experimental
`platform for evaluating applications.
` Does that sound correct?
` A. If that's what I said.
` Q. Why do you believe Android is a
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`convenient experimental platform for evaluating
`applications?
` A. Because it's open source.
` Q. Have you performed research using any
`of the other major mobile operating systems as an
`experimental platform for evaluating
`applications?
` MR. CITROEN: Objection to form.
` THE WITNESS: We've investigated and
` documented them. I taught a class which
` described all of the other platforms.
`BY MR. DILLON:
` Q. Have you performed research using any
`of those platforms for evaluating applications of
`your security research?
` MR. CITROEN: Objection to form.
` THE WITNESS: We run them in the lab.
`BY MR. DILLON:
` Q. But your publications don't focus on
`those other platforms specifically as research
`platforms?
` MR. CITROEN: Objection to form.
` THE WITNESS: I'm sorry. What was the
` question?
`
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`BY MR
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