·1· · ·IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`·2· · · · ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·3· ·- - - - - - - - - - - - - -x
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`·4· ·BLUE COAT SYSTEMS LLC· · · ·:
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`·5· ·and FIREEYE, INC.· · · · · ·:
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`·6· · · · · ·Petitioner,· · · · ·:· ·Patent No. 8,079,086
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`·7· · · v.· · · · · · · · · · · ·:· ·IPR2016-01444
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`·8· ·FINJAN INC.,· · · · · · · · :
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`·9· · · · · ·Patent Owner.
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`14· · · · · · · ·Videotaped deposition of
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`15· · · · · · · ·Azer Bestavros, Ph.D.
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`16· · · · · · · ·Boston, Massachusetts
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`17· · · · · · · ·November 10, 2017
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`18· · · · · · · ·9:00 a.m.
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`20· ·Job No.: 218512
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`21· ·Pages: 1 - 112
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`22· ·Reported By: Alan H. Brock, RDR, CRR
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`Patent Owner Finjan, Inc. - Ex. 2014, p. 1
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`·1· · · · · ·Videotaped deposition of Azer Bestavros,
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`·1· · · ·TASHA M. THOMAS, ESQ.
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`·2· ·Ph.D., held at the offices of:
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`·2· · · ·WILSON SONSINI GOODRICH & ROSATI, P.C.
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`·3· · · ·1700 K Street, N.W.
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`·4· · · · · ·Fish & Richardson P.C
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`·4· · · ·Washington, D.C. 20006
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`·5· · · · · ·1 Marina Park Drive
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`·6· · · · · ·Boston, Massachusetts 02109
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`·8· · · · · ·before Alan H. Brock, RDR, CRR, Notary
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`·8· ·ON BEHALF OF PATENT OWNER:
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`·9· ·Public in and for the Commonwealth of Massachusetts.
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`·9· · · ·JEFFREY H. PRICE, ESQ.
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`10· · · ·KRAMER LEVIN NAFTALIS & FRANKEL LLP
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`11· · · ·1177 Avenue of the Americas
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`12· · · ·New York, New York 10036
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`16· ·ALSO PRESENT:
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`17· · · ·Alex Daunanis, Videographer
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`·1· · · · · · · · · A P P E A R A N C E S
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`·1· · · · · · · · · · · · I N D E X
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`·3· · · · · · · · · · · EXAMINATIONS
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`·4· ·ON BEHALF OF PETITIONER FIREEYE, INC.
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`·4· · AZER BESTAVROS, Ph.D.
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`·5· · · ·JOSEPH C. GRATZ, ESQ.
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`·6· · · ·ANDREW L. PERITO, ESQ.
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`·7· · · ·DURIE TANGRI LLP
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`·8· · · ·217 Leidesdorff Street
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`·9· · · ·San Francisco, California 94111
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`14· ·ON BEHALF OF PETITIONER BLUE COAT SYSTEMS LLP
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`15· · · ·ANDREW S. BROWN, ESQ.
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`16· · · ·WILSON SONSINI GOODRICH & ROSATI, P.C.
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`17· · · ·701 Fifth Avenue, Suite 5100
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`18· · · ·Seattle, Washington 98104
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`Patent Owner Finjan, Inc. - Ex. 2014, p. 2
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`Page 6
`·1· · · · · · · ·November 10, 2017· · · · ·9:00 a.m.
`·2· · · · · · · · · P R O C E E D I N G S
`·3· · · · · · · ·THE VIDEOGRAPHER:· We are on the record.
`·4· ·This is the videographer, Alex Daunanis, speaking.
`·5· ·Today's date is November 10th, 2017, and the time is
`·6· ·9:00 a.m.
`·7· · · · · · · ·We are here in Boston, Massachusetts, to
`·8· ·take the video deposition of Azer Bestavros, in the
`·9· ·matter of Blue Coat Systems and FireEye, Inc.,
`10· ·versus Finjan, Inc., Case No. IPR2016-01444.
`11· · · · · · · ·Will the counsel please identify
`12· ·themselves for the record.
`13· · · · · · · ·MR. PRICE:· Jeffrey Price, from Kramer
`14· ·Levin Naftalis & Frankel, representing patent owner
`15· ·Finjan.
`16· · · · · · · ·MR. GRATZ:· Joe Gratz, from Durie
`17· ·Tangri, representing petitioner FireEye.
`18· · · · · · · ·MR. PERITO:· Andrew Perito, from Durie
`19· ·Tangri, representing petitioner FireEye.
`20· · · · · · · ·MR. BROWN:· Andy Brown, of Wilson
`21· ·Sonsini, representing petitioner Blue Coat, and with
`22· ·me is my colleague, Tasha Thomas.
`23· · · · · · · ·THE VIDEOGRAPHER:· And will the court
`24· ·reporter please swear in the witness.
`25· · · · · · · · · · · ·* * * * *
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`Page 8
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`·1· · · ·Q.· And what is your opinion?
`·2· · · ·A.· My opinion is that the challenged claims
`·3· ·are obvious under -- by considering the prior art.
`·4· · · ·Q.· Does it remain your opinion that all of the
`·5· ·challenged claims that were challenged originally in
`·6· ·the petition are obvious over the cited prior art?
`·7· · · ·A.· Yes.
`·8· · · ·Q.· I'm going to hand you a document.· And
`·9· ·we'll do what we did yesterday:· We'll just use the
`10· ·exhibit numbers that are on these exhibits --
`11· · · · · · · ·MR. PRICE:· -- if that's okay with you.
`12· · · · · · · ·MR. GRATZ:· That's fine.
`13· · · ·Q.· Dr. Bestavros, this is Exhibit 1002, marked
`14· ·in this case.· Do you recognize this exhibit?
`15· · · ·A.· I do recognize this exhibit.
`16· · · ·Q.· What exhibit is this?
`17· · · ·A.· This is the declaration I provided
`18· ·regarding the challenged claims.
`19· · · ·Q.· And did you sign this document?
`20· · · ·A.· I did.
`21· · · ·Q.· Is that your signature on Page 97?
`22· · · ·A.· Yes, that's my name, signature.
`23· · · ·Q.· Was it your understanding on July 15th,
`24· ·2016, when you signed this declaration, that you
`25· ·were supposed to put in all of your opinions that
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`·1· · · · · · · · · AZER BESTAVROS, PH.D.,
`·2· ·being first duly sworn or affirmed to testify to the
`·3· ·truth, the whole truth, and nothing but the truth,
`·4· ·was examined and testified as follows:
`·5· · · · · · · · · · · ·EXAMINATION
`·6· ·BY MR. PRICE:
`·7· · · ·Q.· Good morning, Dr. Bestavros.· Just to let
`·8· ·you know, some of the questions I'm going to ask you
`·9· ·in the beginning today might be similar to questions
`10· ·that you have recently answered, so just bear with
`11· ·me and we'll get through that.
`12· · · · · · · ·Can you please state your full name and
`13· ·address for the record.
`14· · · ·A.· My name is Azer Bestavros.· My home address
`15· ·is 46 Rice Road, Wayland, Massachusetts 01778.
`16· · · ·Q.· And do you understand why you're here
`17· ·today?
`18· · · ·A.· I do.
`19· · · ·Q.· And why is that?
`20· · · ·A.· I'm giving a deposition regarding the
`21· ·declaration I made regarding claims of the '086
`22· ·patent.
`23· · · ·Q.· And in your declaration did you provide an
`24· ·opinion for this case?
`25· · · ·A.· I did.
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`·1· ·you had in this case?
`·2· · · ·A.· Yes, I had.· This declaration represents my
`·3· ·opinions as of that date.
`·4· · · ·Q.· Do you have any other opinions about this
`·5· ·case that are not in your declaration?
`·6· · · ·A.· As it relates to the asserted claims and
`·7· ·what I needed to show in terms of prior art and why
`·8· ·my opinion is that they're obvious, my declaration
`·9· ·was plenty.
`10· · · ·Q.· So you don't have anything to add at this
`11· ·time?
`12· · · ·A.· Other than to mention that there are the
`13· ·usual typos and moderate changes in the report, no.
`14· · · ·Q.· Do you have any typos that you'd like to
`15· ·point out?
`16· · · ·A.· There are a number of them.· Gee,
`17· ·embarrassingly, in the table of contents and in the
`18· ·title of one of the section, the word "brief" is
`19· ·spelled wrong.· Also, I believe Section 2 talks
`20· ·about qualifications and material considered.· It's
`21· ·actually just qualifications.· Also, I believe there
`22· ·is a bunch of others in the text, but let me just
`23· ·point to one.
`24· · · · · · · ·Okay, so the claim I was looking for is
`25· ·the one that doesn't require appending.· Which claim
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`Patent Owner Finjan, Inc. - Ex. 2014, p. 3
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`·1· ·was that?
`·2· · · · · · · ·Okay, maybe I should wait -- I'll bump
`·3· ·into it, I'm sure.
`·4· · · ·Q.· Fair enough.· Is there any reason that you
`·5· ·can't give full and truthful testimony today?
`·6· · · ·A.· No.
`·7· · · ·Q.· Did you write this declaration?
`·8· · · ·A.· I did.
`·9· · · ·Q.· Can you describe your process of writing
`10· ·the declaration for me.
`11· · · ·A.· So this was more an intensive process where
`12· ·we had discussions with counsel in various phone
`13· ·calls, to sort of decide on overall structure of the
`14· ·document and the main, the key points to be made.
`15· ·And, you know, I wrote some of it as bullets or as
`16· ·paragraphs, and then where things landed and all
`17· ·that happened over time with different -- for
`18· ·different versions of this.
`19· · · · · · · ·Obviously there's parts of this that I
`20· ·was informed about, related to legal standards and
`21· ·so on, and these are included.· Of course, I also
`22· ·got help from counsel with cut-and-paste and putting
`23· ·all the references and just making sure that it's
`24· ·tight.· And I take responsibilities for the typos
`25· ·and all that.· I should have discovered that.
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`·1· · · ·A.· Yeah.
`·2· · · ·Q.· And I'm asking if there was information in
`·3· ·those documents that contradicted any of your
`·4· ·opinions that you put into your declaration.
`·5· · · ·A.· No, no.
`·6· · · ·Q.· Are you currently employed?
`·7· · · ·A.· I am.
`·8· · · ·Q.· And how are you employed?
`·9· · · ·A.· I'm a professor of computer science at
`10· ·Boston University.
`11· · · ·Q.· And how long have you been at BU?
`12· · · ·A.· I've been at BU for just about a little bit
`13· ·over 26 years.
`14· · · ·Q.· And what are your responsibilities at BU?
`15· · · ·A.· I'm a professor of computer science. I
`16· ·teach.· I conduct research.· I do some service work.
`17· ·I'm also the director of the Hariri Institute For
`18· ·Computing and Computational Science and Engineering.
`19· ·And so that adds a bunch of other type of work I do.
`20· · · ·Q.· And have you been teaching for that entire
`21· ·length of time, 26 years?
`22· · · ·A.· Except for semesters where I'm on
`23· ·sabbatical, yes, I've been teaching every semester.
`24· · · ·Q.· And how often have you been on sabbatical
`25· ·over the last 26 years?
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`·1· · · ·Q.· Fair enough.· About how many hours would
`·2· ·you say you spent preparing your declaration?
`·3· · · ·A.· I can't remember right now.· I can go back
`·4· ·to my records.· But it's certainly, I would say,
`·5· ·dozens of hours; I don't know, maybe 40 hours. I
`·6· ·will have to go back.· And obviously I was also
`·7· ·involved in multiple declarations, so....
`·8· · · ·Q.· Can you please turn to Page 98.· Is this
`·9· ·the information considered in arriving at your
`10· ·opinions that you reference on Paragraph 20?
`11· · · · · · · ·MR. GRATZ:· I'm not sure the witness is
`12· ·on that page yet.
`13· · · ·A.· Yeah, these exhibits are the references
`14· ·that my declaration relied on and quoted from, et
`15· ·cetera.· I had a few others, but I didn't feel like
`16· ·citing them since they -- I didn't use them or I
`17· ·didn't rely on them in forming my opinion.
`18· · · ·Q.· Was there any of those documents that you
`19· ·didn't use to rely on for your opinion that
`20· ·contradicted what you -- that contradicted your
`21· ·final opinion?
`22· · · ·A.· I don't understand the question.· Can you
`23· ·repeat the question?
`24· · · ·Q.· So you just told me that there were other
`25· ·documents that you did review; is that correct?
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`·1· · · ·A.· A couple of times.· I have a bunch of
`·2· ·deferred sabbaticals because of my current director
`·3· ·position.· They wouldn't let me go, but they give me
`·4· ·credit for future sabbaticals.
`·5· · · ·Q.· Are you currently teaching classes?
`·6· · · ·A.· Currently I'm teaching two classes, as a
`·7· ·matter of fact.· I'm co-teaching them.· The first
`·8· ·class is CS350, Fundamentals of Computing Systems.
`·9· ·That's a class I developed a while back, of which
`10· ·I'm very proud.· And a second class is a more -- is
`11· ·a newer class that was just introduced a year ago.
`12· ·It's on the topics related to security and privacy.
`13· ·The title of it is Multiparty Computation at Scale.
`14· · · ·Q.· What do you mean by "co-teach"?
`15· · · ·A.· So the major in computer science has just
`16· ·gone through the roof.· Just in the last four or
`17· ·five years we tripled the number of students.· So in
`18· ·order to catch up with the enrollment, a lot of the
`19· ·courses have to be offered multiple times.· There
`20· ·are multiple sections of the same course.
`21· · · · · · · ·Oftentimes when somebody like myself is
`22· ·listed in a course, all the students want to take it
`23· ·with me.· I've been teaching the course for a long
`24· ·time.· I have a Facebook group.· I have a following.
`25· · · · · · · ·So if you put an instructor or new
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`Patent Owner Finjan, Inc. - Ex. 2014, p. 4
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`·1· ·faculty in a position of teaching a section of my
`·2· ·course, well, what happens is students don't
`·3· ·register for that as much.· So the solution we have
`·4· ·is to co-teach, in which both names will appear on
`·5· ·both sections, and that's what we are doing with 350
`·6· ·this semester.· The new faculty that is co-teaching
`·7· ·with me for the first time the other course, which
`·8· ·is privacy and security -- that's a fairly advanced
`·9· ·sort of graduate-student-level course; and because
`10· ·of the research we do there, it's another scholar
`11· ·who sort of teaches with me, because it brings in
`12· ·aspect of cryptography as well as computing systems.
`13· ·So you need both to teach it.
`14· · · ·Q.· So do you not consider yourself an expert
`15· ·in subjects like cryptography?· Is that why you
`16· ·would have a co-teacher?
`17· · · ·A.· No, it's because the nature of the class is
`18· ·to take cryptographic approaches, that actually I
`19· ·worked on myself and have papers, that use
`20· ·cryptography, but applying it in real systems.· So
`21· ·this is why the course is called Multiparty
`22· ·Computation at Scale.· In a sense it's not just the
`23· ·hypothetical algorithmic-complexity-type results.
`24· ·It's really about taking those and making them
`25· ·practical and usable.· It's a very unique class in
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`·1· · · ·A.· Formal specification and verification of
`·2· ·computing systems.
`·3· · · ·Q.· And what does that mean?
`·4· · · ·A.· So actually you can go back even to my
`·5· ·Ph.D. thesis from Harvard.· The work I've done there
`·6· ·was, you know -- I write a program for a robot, and
`·7· ·I want to deploy the robot.· How would I make sure
`·8· ·that the robot is not going to hit somebody and kill
`·9· ·them?
`10· · · · · · · ·Well, it's one thing to write code that
`11· ·is going to, I don't know, play games on the screen.
`12· ·That doesn't hurt anybody if there's a bug in it.
`13· ·But if there's a bug in code that is going to fly an
`14· ·AWACS or is going to do collision avoidance, you
`15· ·really have to prove that the code is not going to
`16· ·result in undesirable behavior.
`17· · · · · · · ·And so for that kind of code you need
`18· ·proofs.· You really need -- it's not enough to say I
`19· ·tried it 100 times.· So there are classes of
`20· ·applications in critical cyber physical systems,
`21· ·real-time systems, where programming is actually the
`22· ·easy part.· It's actually proving that the program
`23· ·satisfies some properties is the hard part.
`24· · · · · · · ·And I've done work for the last 20 years
`25· ·on that.· And what we prove changes; right?· So I
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`·1· ·that sense, and both sides sort of feed off each
`·2· ·other, another way to say it.
`·3· · · ·Q.· Are any of the classes that you teach
`·4· ·related to the technology you described in the
`·5· ·subject patent, which I'll refer to today as the
`·6· ·'086 patent?
`·7· · · ·A.· Sure.
`·8· · · ·Q.· You're not sure?
`·9· · · ·A.· No, I said "sure."
`10· · · ·Q.· In what ways?
`11· · · ·A.· Well, the technology is related to
`12· ·security.· I have done security research for years.
`13· ·I have grants from the National Science Foundation
`14· ·on security topics.· I have been researching
`15· ·building proxies.· I started a company back in the
`16· ·1990s that was actually doing proxying and caching,
`17· ·for example.· So a lot of the technologies revealed
`18· ·here in terms of analyzing code, et cetera, is very
`19· ·related to research I've done.
`20· · · · · · · ·I've also done work in formal
`21· ·specification verification.· I have grants on that
`22· ·and collaborations on that, and that has to do with
`23· ·security as well as safety, which is slightly
`24· ·different but quite related, as well as privacy.
`25· · · ·Q.· What was that?· Formal --
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`·1· ·was to do robotics as a Ph.D. student, and now I'm
`·2· ·doing security and privacy, et cetera.
`·3· · · ·Q.· There's a big need for that kind of work
`·4· ·now, isn't there?
`·5· · · ·A.· Absolutely.
`·6· · · ·Q.· Can you turn to Paragraph 16 of your
`·7· ·declaration.· Do you see the term "canonical
`·8· ·problems" is used in Paragraph 16?
`·9· · · ·A.· Yes.
`10· · · ·Q.· What do you mean by "canonical problems"?
`11· · · ·A.· So first of all, a word about this class.
`12· ·This class is unlike many systems classes in the
`13· ·sense that it doesn't focus on specific types of
`14· ·systems, so it's not necessarily a networking
`15· ·course, it's not necessarily an operating systems
`16· ·course, it's not necessarily a distributed systems
`17· ·course, it's not necessarily a performance
`18· ·evaluation course.
`19· · · · · · · ·Rather, it takes a different approach to
`20· ·pedagogical -- it just looks at the fundamental
`21· ·problems, the key problems, if you wish, that are
`22· ·almost independent of technology.· Technology can
`23· ·come and go.· We can have DOS operating systems and
`24· ·now we have very different operating systems.· The
`25· ·problem is the same.
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`Patent Owner Finjan, Inc. - Ex. 2014, p. 5
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`·1· · · · · · · ·So these problems are sort of key
`·2· ·computer science problems, and in systems things
`·3· ·like scheduling, things like resource management in
`·4· ·general, things like congestion management, things
`·5· ·like modeling systems and analyzing them -- these
`·6· ·things are fundamental to lots of disciplines --
`·7· ·issues of concurrency, consistency.
`·8· · · · · · · ·So every one of these things that I
`·9· ·mentioned, there are problems related to it.· For
`10· ·example, you know, how do I make sure that multiple
`11· ·people updating data are keeping it consistent,
`12· ·because of concurrency?· So then you've mutual
`13· ·exclusion.
`14· · · · · · · ·I'm just saying that canonical problems
`15· ·are problems that if you mention them people will
`16· ·know what the problem is independent of where it
`17· ·happens or how it happens.· And this course is about
`18· ·taking these problems, making sure students get
`19· ·them, know the typical solutions for them, and also
`20· ·recognize them when they see them now in 1500 layers
`21· ·in sort of nooks and crannies of the same operating
`22· ·system or a network.
`23· · · ·Q.· So how do some of these canonical problems
`24· ·manifest in terms of operating systems?
`25· · · ·A.· So an operating system, scheduling, I
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`·1· ·multiple transactions, possibly operating
`·2· ·concurrently, on the database.· How do I make sure
`·3· ·that these updates leave the database in a
`·4· ·consistent state.
`·5· · · · · · · ·Lots of solutions today.· It's actually
`·6· ·very relevant today with cloud computing and the
`·7· ·fact that you have hundreds, if not thousands, of
`·8· ·servers working on the same problem.· So that's sort
`·9· ·of the version of the canonical problem I talked
`10· ·about for operating systems, now in a database
`11· ·setting.
`12· · · ·Q.· What kind of transactions would you have
`13· ·with a database?
`14· · · ·A.· I mean, a database is another word to say,
`15· ·well, just, you know, organized records stored
`16· ·somewhere, and I add to them, I delete from them, I
`17· ·change them.· So accessing that shared --
`18· · · · · · · ·And by the way, I think the point to be
`19· ·made here is the problem I just described really
`20· ·assumes a concurrent -- sort of think about airline
`21· ·reservations.· There's thousands of people accessing
`22· ·it at the same time, and there is this conflict. A
`23· ·database doesn't have to have that problem.· So I
`24· ·just want to be clear that you asked for an example
`25· ·of a problem.
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`·1· ·mentioned one, when you have multiple processes and
`·2· ·threads, and it's trying to schedule one of them to
`·3· ·use a resource, whether it's the CPU, the network,
`·4· ·whatnot -- which one and why.· When you fire up new
`·5· ·applications, how much memory do I give it, you
`·6· ·know.
`·7· · · · · · · ·So basically it's problems like that:
`·8· ·scheduling, how do I provide users -- or
`·9· ·applications, if you wish -- some protections for
`10· ·accessing memory or not.
`11· · · · · · · ·So, I mean, the problems are many in
`12· ·operating systems.· The ones -- the problems I focus
`13· ·on in this class would be problems that transcend
`14· ·operating systems.· If it's just an operating system
`15· ·problem, then that's probably better to teach in a
`16· ·very detailed operating systems course.· But it
`17· ·turns out all the important, interesting problems
`18· ·have been to reoccur in multiple other settings.
`19· · · ·Q.· Can you describe how these canonical
`20· ·problems pop up in terms of databases?
`21· · · ·A.· Sure.· The same -- actually, it's a great
`22· ·question.· The same problems I just talked about
`23· ·with operating systems have to do with mutual
`24· ·exclusion or consistency of memory.· Well, in a
`25· ·database, you have similar problems.· You have
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`Page 21
`·1· · · · · · · ·But in general, the issues here have to
`·2· ·do with consistency of updating data, however stored
`·3· ·and however -- databases, for example, have to make
`·4· ·sure that data is not lost, things of this sort.
`·5· · · ·Q.· How might data become lost in a database?
`·6· · · · · · · ·MR. GRATZ:· Objection, scope.
`·7· · · ·Q.· You can answer.
`·8· · · ·A.· I mean, again, I mean, it depends on what
`·9· ·database you are talking about, because the word
`10· ·"database" is fairly generic.· So, for example, if
`11· ·the database is on a disk, the disk can crash, just
`12· ·the hardware can crash; right?· So I lost it.· If --
`13· · · · · · · ·So you have to give me more specifics as
`14· ·to what database you are talking about, because, you
`15· ·know, I can give examples that are for distributed
`16· ·databases, where actually nobody's keeping, you
`17· ·know, all the records, it's all over the place, for
`18· ·example.
`19· · · · · · · ·So the word "database" sort of is very
`20· ·broad, and for a distributed database, which is a
`21· ·form of database, you know, the failures will be
`22· ·very different than a flat-file database or a
`23· ·database that's only stored, you know, locally, et
`24· ·cetera.· So it's a general any failure of a computer
`25· ·that manages data is a problem.
`
`Patent Owner Finjan, Inc. - Ex. 2014, p. 6
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`Page 22
`·1· · · ·Q.· If you could turn to Paragraph 41 of your
`·2· ·declaration.· Are you there?
`·3· · · ·A.· Yes.
`·4· · · ·Q.· Do you see where it says, "First the
`·5· ·meaning and scope of the claims is determined by
`·6· ·construing the terms of the claims"?
`·7· · · ·A.· Yes.
`·8· · · ·Q.· Did you construe the terms of the claims?
`·9· · · ·A.· I believe I described that in the report.
`10· ·And where I found it important, I put the
`11· ·interpretation I have for some of these claims.· For
`12· ·example, in Paragraph 43, for any terms not listed,
`13· ·I've applied the plain and ordinary meaning of the
`14· ·term as a person of ordinary skill would have back
`15· ·in the 1997 or earlier time frame.· And then there
`16· ·is a couple of terms that I provide the construction
`17· ·for, given the context of the particular
`18· ·technology -- particular patent.
`19· · · ·Q.· How did you put yourself in the mind of a
`20· ·person of ordinary skill in 1997?
`21· · · ·A.· I mean, I was there.· I was part of the
`22· ·Internet-slash-systems -- I was in the thick of it,
`23· ·let me put it this way.· And I taught classes there,
`24· ·I graduated students who worked on technologies like
`25· ·that.· I actually remember a lot of it vividly. I
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`Page 24
`·1· ·from it -- obviously one can go deeper, but what I
`·2· ·needed from that art was what I felt was very
`·3· ·accessible to a person of ordinary skill at that
`·4· ·time.
`·5· · · ·Q.· Can you please turn to Paragraph 42 of the
`·6· ·declaration.
`·7· · · ·A.· Yeah.
`·8· · · ·Q.· Do you see where it says, "Counsel has
`·9· ·further informed me that a claim in an unexpired
`10· ·patent subject to inter partes review must be given
`11· ·its broadest reasonable interpretation that is
`12· ·consistent with the specification and prosecution
`13· ·history of the patent in which the term appears"?
`14· · · ·A.· Yes.
`15· · · ·Q.· Is it correct that you applied that
`16· ·analysis throughout your declaration?
`17· · · ·A.· Yes, and I say so in that paragraph.
`18· · · ·Q.· Do you understand the '086 patent to be
`19· ·expired or unexpired?
`20· · · ·A.· Unexpired, obviously.
`21· · · ·Q.· Can you turn to Paragraph 43.
`22· · · ·A.· Okay.
`23· · · ·Q.· Is it correct to say that you applied the
`24· ·plain and ordinary meaning of each term in the '086
`25· ·patent besides "downloadable" and "database"?
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`Page 23
`·1· ·started a company at that time.· I consider myself
`·2· ·lucky to have worked on problems that became very
`·3· ·important, like caching and proxying and so on.· So
`·4· ·it is easy actually for me to put myself in the
`·5· ·shoes of, say, a practitioner in that time frame.
`·6· · · ·Q.· In 1997 would you have considered yourself
`·7· ·a person of ordinary skill or by then would you have
`·8· ·considered yourself a person of more than ordinary
`·9· ·skill?
`10· · · ·A.· I describe what a person of ordinary skill
`11· ·is, and obviously I did mention something about my
`12· ·students, et cetera.· So whereas maybe I have a
`13· ·Ph.D. and I teach and I do research, the opinions I
`14· ·have are what I believe one of my students would
`15· ·have -- that I taught and who went out and worked
`16· ·for a couple of years would conceive of the
`17· ·technology.
`18· · · ·Q.· Is there any opinion that you would have
`19· ·come to as a person of more than ordinary skill that
`20· ·you did not include because it would not have been
`21· ·within the capability of a person of ordinary skill?
`22· · · ·A.· I didn't find that necessary, and I don't
`23· ·believe I needed it.
`24· · · · · · · ·The prior art I present is fairly
`25· ·straightforward, if I may say -- and what I needed
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`Page 25
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`·1· · · · · · · ·MR. GRATZ:· Objection, form.
`·2· · · ·A.· You know, I believe so.· If you can point
`·3· ·me to specific terms where there is a question, I'll
`·4· ·be happy to elaborate.· But yes.
`·5· · · ·Q.· Is it your understanding that the plain and
`·6· ·ordinary meaning of a term as a person of ordinary
`·7· ·skill would have understood the term is the same
`·8· ·standard as the broadest reasonable interpretation?
`·9· · · · · · · ·MR. GRATZ:· Objection, form.
`10· · · ·A.· Not necessarily.· But one is sort of a
`11· ·subset of the other.
`12· · · ·Q.· How so?
`13· · · ·A.· You know, a person of ordinary skill may be
`14· ·a little bit more educated to decide that something
`15· ·that, you know, is very broad that may be not quite
`16· ·the same.
`17· · · · · · · ·That was not an issue in this patent,
`18· ·but my -- and I'm not a lawyer, so I want to make
`19· ·sure that I qualify what I'm saying here.
`20· · · · · · · ·The broadest reasonable interpretation
`21· ·means just anything that's unreasonable is sort of
`22· ·excluded, whereas something could potentially be
`23· ·reasonable, a person of ordinary skill would just,
`24· ·perhaps, exclude it.
`25· · · · · · · ·This is very hypothetical.· So, I mean,
`
`Patent Owner Finjan, Inc. - Ex. 2014, p. 7
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`Page 26
`·1· ·I'm trying -- and I'm not a lawyer, so I don't want
`·2· ·to provide a statement that -- but that's my, as a
`·3· ·computer scientist, my interpretation of these
`·4· ·terms.
`·5· · · ·Q.· Do you understand the '086 patent to use
`·6· ·the term "database"?
`·7· · · ·A.· It does.
`·8· · · ·Q.· What is a database?
`·9· · · ·A.· Well, I provide a construction for that
`10· ·term as a collection of interrelated data organized
`11· ·according to a database schema to serve one or more
`12· ·applications.
`13· · · ·Q.· Is this your own definition or was this
`14· ·definition provided to you by counsel?
`15· · · ·A.· No, if you go to Paragraph 46 I provide
`16· ·exactly what counsel has informed me, and I agree
`17· ·with that definition.· So counsel has informed me
`18· ·that the Board has adopted the construction of the
`19· ·term "database" as a collection of interrelated data
`20· ·organized according to a database schema to serve
`21· ·one or more applications in a review of other --
`22· ·involving a related patent.
`23· · · · · · · ·And in my own opinion that's sort of to
`24· ·be at least as broad as -- so, in other words, the
`25· ·term "database" should be construed to be at least
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`Page 28
`
`·1· ·schema" appears; is that correct?
`·2· · · ·A.· Yes.
`·3· · · ·Q.· Do you have an understanding of what a
`·4· ·database schema is?
`·5· · · ·A.· Yes.
`·6· · · ·Q.· And what is your understanding of a
`·7· ·database schema?
`·8· · · · · · · ·MR. GRATZ:· Objection, scope.
`·9· · · · · · · ·MR. PRICE:· Counsel, objection to scope
`10· ·is not an appropriate objection in an inter partes
`11· ·review deposition.
`12· · · ·Q.· You can answer the question.
`13· · · · · · · ·MR. BROWN:· For the record, it is a
`14· ·proper objection.· Your cross needs to be within the
`15· ·scope of the direct.
`16· · · ·Q.· You can answer the question.
`17· · · · · · · ·MR. GRATZ:· And I'd also add a relevance
`18· ·objection.
`19· · · ·Q.· You can answer the question.
`20· · · ·A.· So what is the question?· I'm sorry.
`21· · · · · · · ·MR. PRICE:· Can you repeat the last
`22· ·question, please.
`23· · · · · · · ·(Question read.)
`24· · · · · · · ·MR. GRATZ:· The objections are scope and
`25· ·relevance.
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`Page 27
`·1· ·as broad as the construction adopted in this
`·2· ·opinion.· So I agree with it.
`·3· · · · · · · ·So that's the last sentence I say in
`·4· ·that paragraph:· "I agree that the broadest
`·5· ·reasonable interpretation of the term is at least
`·6· ·that broad."
`·7· · · ·Q.· Are there reasonable interpretations of the
`·8· ·term "database" that are not that broad?
`·9· · · · · · · ·MR. GRATZ:· Objection, form.
`10· · · ·A.· Can you repeat the question?· What do you
`11· ·mean by "not that broad"?
`12· · · ·Q.· Well, you said that the broadest reasonable
`13· ·interpretation of the term is at least that broad.
`14· ·I'm asking if there are reasonable interpretations
`15· ·of the term "database" that are not that broad.
`16· · · ·A.· I'm sorry, do you mean broader or less
`17· ·broad?
`18· · · ·Q.· I mean less broad.
`19· · · · · · · ·MR. GRATZ:· Objection, form.
`20· · · ·A.· Sure.· There is -- you know, I can think of
`21· ·object-oriented databases.· There's all sorts of
`22· ·databases that are out there that I can think would
`23· ·not be as broad as this.· And the definition could
`24· ·be broader than that, too.
`25· · · ·Q.· In this definition the term "database
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`Page 29
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`·1· · · ·A.· So a database has data in some
`·2· ·organization.· Describing that organization so that
`·3· ·when I retrieve records from the database I know
`·4· ·what the data is about constitutes a schema.
`·5· · · ·Q.· Is any format that data is stored in a
`·6· ·database schema?
`·7· · · · · · · ·MR. GRATZ:· Objection, scope, relevance,
`·8· ·form.
`·9· · · · · · · ·What claim that's in the IPR does this
`10· ·relate to, counsel?
`11· · · · · · · ·MR. PRICE:· This relates to his
`12· ·declaration, where he --
`13· · · ·Q.· You can answer the question.
`14· · · ·A.· I'm sorry, can you repeat the question?
`15· · · · · · · ·(Question read.)
`16· · · · · · · ·MR. GRATZ:· Same objections.
`17· · · ·A.· I mean, not really; right?· So, for
`18· ·example, I don't know --
`19· · · · · · · ·I cannot answer the question in the
`20· ·absence of like -- if you give me something, I tell
`21· ·you what is the schema for it or not.· I don't know
`22· ·what you mean, honestly.
`23· · · ·Q.· I'm going to hand you another exhibit.
`24· ·This exhibit was marked 1008 in this case.· Do you
`25· ·recognize this exhibit?
`
`Patent Owner Finjan, Inc. - Ex. 2014, p. 8
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`Page 30
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`·1· · · ·A.· Yes.
`·2· · · ·Q.· Which exhibit is this?
`·3· · · ·A.· This is cql - A Flat File Database Query
`·4· ·Language, by Glenn Fuller.
`·5· · · ·Q.· Can you turn to Page 2, please.
`·6· · · ·A.· Can you give me a second just to take a
`·7· ·look at this?
`·8· · · ·Q.· Yeah, of course.
`·9· · · ·A.· Okay.
`10· · · ·Q.· Turn to Page 2, please.
`11· · · ·A.· I'm there.
`12· · · ·Q.· In the third paragraph do you see where it
`13· ·says, "Query expressions are modeled on C, including
`14· ·a struct construct for defining database record
`15· ·schemas"?
`16· · · ·A.· No, not quite.· Where is that?· The third
`17· ·paragraph?· Yeah, okay, I see it now.
`18· · · ·Q.· What does it mean to define a database
`19· ·record schema?
`20· · · · · · · ·MR. GRATZ:· Objection, relevance.
`21· · · ·A.· So, I don't know what this line refers to
`22· ·in terms of schemas.· But basically what I
`23· ·understand it to mean is that there are many flavors
`24· ·of programming languages out there.· C is one, very
`25· ·imperative, as opposed to others.· And it a