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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - -
`RIOT GAMES, INC., and : Case IPR2018-00129
` Case IPR2018-00130
`VALVE CORP., : 5,822,523 & 5,822,523 C1
` Petitioners, :
` : Case IPR2018-00131
` vs. : 6,226,686 & 6,226,686 C1
` :
`PALTALK HOLDINGS, INC.,: Case IPR2018-00132
` Patent Owner. : 6,226,686 & 6,226,686 C1
`
` ORAL DEPOSITION OF STEVE R. WHITE, PH.D.
` New York, New York
` December 19, 2018
`
`Reported by:
`Maureen Broderick, RPR
`JOB NO. 153003
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`PATENT OWNER PALTALK HOLDINGS - EX. 2005, PAGE 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - -
`RIOT GAMES, INC., and : Case IPR2018-00129
` Case IPR2018-00130
`VALVE CORP., : 5,822,523 & 5,822,523 C1
` Petitioners, :
` : Case IPR2018-00131
` vs. : 6,226,686 & 6,226,686 C1
` :
`PALTALK HOLDINGS, INC.,: Case IPR2018-00132
` Patent Owner. : 6,226,686 & 6,226,686 C1
`
` ORAL DEPOSITION OF STEVE R. WHITE, PH.D.
` New York, New York
` December 19, 2018
`
`Reported by:
`Maureen Broderick, RPR
`JOB NO. 153003
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`PATENT OWNER PALTALK HOLDINGS - EX. 2005, PAGE 1
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` December 19, 2018
` 9:00 a.m.
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` Oral deposition of STEVE R. WHITE, PH.D.,
`taken at Sidley Austin, 787 Seventh Avenue, New
`York, New York, before Maureen E. Broderick,
`Registered Professional Reporter and Notary Public
`in and of the Commonwealth of Pennsylvania.
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`PATENT OWNER PALTALK HOLDINGS - EX. 2005, PAGE 2
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`APPEARANCES
`MUNCK WILSON MANDALA
`Attorneys for Patent Owner
` 600 Banner Place Tower
` 12770 Coit Road
` Dallas, Texas 75251
`BY: GREGORY HOWISON, ESQUIRE
`
`SIDLEY AUSTIN
`Attorneys for Riot Games, Inc.
` 1501 K Street, N.W.
` Washington, DC 20005
`BY: SCOTT BORDER, ESQUIRE
`
`SHOOK, HARDY & BACON
`Attorneys for Valve Corp.
` 600 Travis Street
` Houston, Texas 77002
`BY: SHARON ISRAEL, ESQUIRE
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`PATENT OWNER PALTALK HOLDINGS - EX. 2005, PAGE 3
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` EXAMINATION INDEX
`WITNESS PAGE
`Steve R. White, Ph.D.
` By Mr. Howison 5
`
` EXHIBIT INDEX
`
` (No new exhibits were marked at this time.)
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` Steve R. White, Ph.D.
` - - -
` STEVE R. WHITE, PH.D., having
` been first duly sworn to tell
` the truth, was examined and
` testified as follows:
` - - -
` MR. BORDER: I think the common practice
` is they don't read and sign in PTAB
` proceedings, but, Greg, what's your view?
` MR. HOWISON: Common practice is fine.
` Don't have, you know...
` COURT REPORTER: Waiving read and sign?
` MR. BORDER: Yeah, we'll waive it.
` - - -
` EXAMINATION
` - - -
`BY MR. HOWISON:
` Q Dr. White, I'm going to -- my name is Greg
`Howison, and we've met before.
` A Yes.
` Q So we won't go through all the formalities
`of that.
` We're here to basically go over your
`declaration. What I'm going to do is hand you a
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` Steve R. White, Ph.D.
`copy of your declaration, with Exhibit 1053.
` I'll hand a few other exhibits to you
`ahead of time. This is Exhibit 1001, which is a
`copy of U.S. Patent 5,822,523.
` We had an understanding before that
`the, this IPR is case No. 2018-00129, 130, 131 and
`132, and they involve two patents, the 5,822,523 and
`6,226,686.
` And we had an understanding before
`that the specifications of the '523 patent and the
`'686 patents were identical.
` Do you recall that?
` A I do not, but I believe it's true.
` Q So we're going to basically focus the
`discussions on the '523 patent and the
`specification, to the extent that we need to review
`that. We may not have to.
` So turning to your declaration, I
`wanted to go to the page 2, paragraph four. In
`paragraph four, on page 2 at the bottom, there is an
`excerpt from Dr. Almeroth; Almeroth,
`A-L-M-E-R-O-T-H.
` Then it states that: A POSITA,
`P-O-S-I-T-A, would have had to turn to the specific
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` Steve R. White, Ph.D.
`disclosure of the '523 and '686 patent to determine
`the exact meaning and composition of an aggregated
`payload and an aggregated message.
` Do you see that?
` A I do.
` Q Now, during the preparation of this
`declaration, did you review Exhibit 2002, the
`declaration of Dr. Almeroth?
` A For this deposition, I reviewed those
`sections of Dr. Almeroth's declaration that were
`relevant to my reply.
` Q And although I haven't asked it, this
`declaration was authored by you?
` A Yes. And by "this declaration," you mean
`Exhibit --
` Q Exhibit 1053.
` A Yes.
` Q On page 3, paragraph five, you disagree
`with this assessment of Dr. Almeroth; is that
`correct?
` A That's correct.
` Q So Dr. Almeroth specifically states that:
`A POSITA would have to turn to the specific
`disclosure of the '523 and '686 patent in order to
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` Steve R. White, Ph.D.
`determine the exact meaning.
` Correct?
` A He states that: A POSITA would have to
`turn to the specification disclosure of the '523 and
`'686 patents to determine the exact meaning and
`composition of a, quote, aggregate payload, quote,
`aggregate message, as defined by the inventors of
`the '523 and '686 patent.
` Q Your position is that it is not necessary
`to review the specification in order to come to an
`understanding of the term "aggregated payload" or
`"aggregated message"?
` A My opinion is that the plain and ordinary
`meaning of the words "aggregated" and "payload" and
`"message," in the context of the claims, provides
`sufficient context to a person of ordinary skill in
`the art to understand the terms "aggregated payload"
`and "aggregated message."
` Q Is your opinion that you only have to look
`at the claims and the word in the context of the
`claims in order to understand the meaning of those
`terms?
` A In my analysis, I use the plain and
`ordinary meaning of "aggregated," "payload," and
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` Steve R. White, Ph.D.
`"message," and hence of "aggregated payload" and
`"aggregated message."
` I found the plain and ordinary
`meaning of those terms to be sufficient to
`understand the claims and that the meaning that,
`that that meaning is consistent with the meaning of
`the words as used in the specifications.
` Q So, the question is: Do you determine the
`meaning in the context of the claims, or do you
`determine it by reading the specification?
` MR. BORDER: Objection. Form.
` THE WITNESS: I read both the claims and
` the specification of the patents, of course.
` And I found that the use of the plain and
` ordinary meaning of those words was sufficient
` to understand the claims and was consistent
` with their meaning in the specification.
` Did that answer your question? I'm not
` trying to be dodgy.
`BY MR. HOWISON:
` Q You're very forthcoming. I appreciate
`that.
` Dr. White, I'm going to hand you
`Exhibit 2004, which is a transcript of your
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` Steve R. White, Ph.D.
`deposition.
` If you would, I'll ask you to turn to
`page 23.
` A I have it.
` Q In that deposition, at the top, the
`question was: So as you said it was, that the
`understanding of that term, "aggregated payload,"
`was based on your personal knowledge.
` Do you see that section?
` A Yes.
` Q And you answered: Yes.
` A Yes.
` Q And in the next two down, it says it was
`based on your professional knowledge.
` Is that a correct statement?
` A Yes.
` Q So the question, I'm not sure that was
`asked before, is: Have you ever seen the combined
`word "aggregated payload" or the combined word
`"aggregated message" used in the industry?
` MR. BORDER: Objection. Form.
` THE WITNESS: I don't recall having seen
` professional -- "aggregated message" or
` "aggregated payload" used as a technical term
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` Steve R. White, Ph.D.
` apart from what would be its ordinary meaning.
` I haven't seen anyone define it specifically in
` the industry as a term of the art.
`BY MR. HOWISON:
` Q And is that answer with respect to before
`the filing date of the '523 patent and after the
`filing date of the '523 patent?
` A To the best --
` MR. BORDER: Objection to form.
` THE WITNESS: So I think you asked two
` questions. Let me try to answer them both.
` Before the filing date, I believe that's
` correct. I don't recall having seen that as a
` technical term in the industry.
` And after the filing date, I don't recall
` having seen that as a technical term in the
` industry.
` I've certainly seen the term "aggregation"
` used as a, in a technical context; "payload,"
` "message," all those things are commonly used.
`BY MR. HOWISON:
` Q And of course, you have seen it in the
`'523 patent?
` A I have now, yes.
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` Q So other than that, your testimony is you
`have not seen that exact combination, "aggregated
`payload" or "aggregated message"?
` A I don't recall having seen "aggregated
`message" or "aggregated payload" as a technical term
`in this field.
` Q Turning back to Exhibit 1053, page 2,
`Dr. Almeroth stated he was not personally aware of
`specific and understood meanings of the terms in the
`industry in 1996.
` Do you see that?
` A I do.
` Q Then he says: While a POSITA could make
`an educated guess as to what could make up an
`"aggregated payload" or an "aggregated message," a
`POSITA would have to turn to the specific disclosure
`of a '523 and '686 patents to determine the exact
`meaning and composition of an "aggregated payload"
`and an "aggregated message" as defined by the
`inventors of the '523 and '686 patent.
` Do you see that?
` A I do.
` Q So you understand that Dr. Almeroth's
`opinion was based on the fact that he had never seen
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` Steve R. White, Ph.D.
`those two combined words -- I guess I should
`clarify -- the combined word "aggregated payload" or
`the combined word "aggregated message" in the
`industry?
` MR. BORDER: Objection. Form.
` THE WITNESS: I see that he says: I'm not
` aware of a commonly understood meaning for the
` term "aggregated payload" at the time of the
` filing of the '523 and '686 patents, and I was
` not personally aware of specific and understood
` meanings of the terms in the industry in 1996.
`BY MR. HOWISON:
` Q But you understand that his -- or do you
`have any understanding that his opinion is related
`to the basis of his opinion being the fact that,
`since he wasn't aware of the meanings, that a POSITA
`could only make an educated guess, and that POSITA
`would really have to turn to the specific
`disclosures of the '523 and '686 patents in order to
`determine the exact meaning of those two combined
`terms?
` MR. BORDER: Objection. Form.
` THE WITNESS: I see that he's written:
` While a POSITA would make an, could make an
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` Steve R. White, Ph.D.
` educated guess as to what could make up an
` "aggregated payload" or an "aggregated
` message," a POSITA would have to turn to the
` specific disclosure of the '523 and '686
` patents to determine the actual meaning and
` composition of an "aggregated payload" and
` "aggregated message," as defined by the
` inventors of the '523 and '686 patents.
`BY MR. HOWISON:
` Q Turning to paragraph five on page 3, about
`halfway down the paragraph, you say that: In the
`context of the claims and the plain and ordinary
`meaning of the three words, "aggregated," "payload,"
`or "message."
` Do you see that?
` A I do. Just to be careful, you're talking
`about the sentence saying: In my opinion, the plain
`and ordinary meaning of the words "aggregated,"
`"payload," and "message" in the context of the
`claims"? That's the sentence.
` Q It's the sentence before that.
` A I beg your pardon.
` Q So the question for me is that your
`opinion is based on -- and correct me if I'm
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`wrong -- is it that -- is it your opinion that by
`parsing the individual terms and determining the
`meaning of those individual terms, that one skilled
`in the art can determine the meaning of the combined
`words "aggregated payload" or "aggregated message"?
` MR. BORDER: Objection. Foundation.
` THE WITNESS: The next sentence says: In
` my opinion, the plain and ordinary meaning of
` the words "aggregated," "payload," and
` "message" in the context of the claims provides
` sufficient context to a person of ordinary
` skill in the art to understand the terms
` "aggregated payload" and "aggregated message."
`BY MR. HOWISON:
` Q What I want to do is determine what the
`basis of your opinion is. And the question is: Is
`your opinion based upon parsing the words out --
`"aggregated," "payload," and "message" --
`determining the meaning of those words individually,
`and then applying that to the combined word
`"aggregated payload" or "aggregated message"?
` MR. BORDER: Objection. Form.
` THE WITNESS: I'm not sure I understood
` that procedure, so let me try to answer how I
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` Steve R. White, Ph.D.
` understand this.
` To understand the term "aggregated
` payload," I understand what "aggregate" means,
` I understand what "payload" means; and applying
` that understanding of aggregation to a payload
` gives me sufficient understanding of what
` "aggregated payload" means to be able to
` understand the claims, and is consistent with
` the written description.
` And similarly with "aggregated message."
`BY MR. HOWISON:
` Q But, again, one skilled in the art --
`strike that.
` You've testified that you've never
`seen the combined word "aggregated payload" or the
`combined word "aggregated message" before.
` A I don't recall having seen those in the
`technical context, that's right.
` Q You provided no document -- the question
`is, have you provided any document that shows
`that -- either one of those combined terms,
`"aggregated payload" or "aggregated message," in
`that combination?
` A I don't believe I have provided the
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`document.
` Q So if one skilled in the art, as you are,
`arguably has never seen that combination,
`"aggregated payload" or "aggregated message," then
`they would have to -- is it true that they would
`have to look at the meaning of each of the
`individual words and then determine from the meaning
`of those individual words what the combined word,
`"aggregated payload" or "aggregated message," means?
` MR. BORDER: Objection. Form.
` THE WITNESS: I believe the question
` you're asking is can you, can you look at an
` adjective and noun and determine how they apply
` to each other? So if you know what a building
` is and you know what "tall" is, do you need to
` go to some technical literature to understand
` what a tall building is?
` And I think the answer is no. The way
` language works is, words can be applied to each
` other, and there's an understood meaning for
` doing that, in most cases, unless it's a
` technical term, which may have some specific
` meaning.
`BY MR. HOWISON:
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` Q So if "aggregated payload," in
`combination, is a technical term -- and do you agree
`it's a technical term?
` A I agree that it applies in a technical
`context. But the terms "aggregated" and "payload"
`and "message" are not unique words in a technical
`context.
` Q But is it possible, in a technical
`context, to have two words combined that could have
`a unique meaning?
` A Is it possible to have two words combined
`that have a different technical meaning than the
`individual words? Of course that's possible.
` Q Is it possible that a POSITA would see
`these two words combined and would then find it
`necessary to at least look at the specification for
`some, to give some meaning to those combined terms?
` A Is it necessary to look at the
`specification to give some meaning to those combined
`terms? I don't think so, no.
` I mean, if I gave a POSITA the claims
`of a patent that used the term "aggregated message"
`in the context of those claims, they could
`understand what that meant.
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` Steve R. White, Ph.D.
` Q But if two combined words in a technical
`sense could have a unique meaning, wouldn't a POSITA
`at least want to look at the specification to give
`some clarity to the meaning of a combined term?
` MR. BORDER: Objection. Form.
` THE WITNESS: It's a hypothetical question
` that I don't understand very well.
` I can say that I did look at the
` specification and that the, the way in which
` I've used these words, in my opinion, is
` consistent with the specification as well as
` the claims.
`BY MR. HOWISON:
` Q You say you cannot say that?
` A I can say that. I did do that.
` Q So you're saying that -- let me think. I
`guess I want to clarify.
` So are you saying that the
`specification supports your interpretation of the
`plain and ordinary meaning of the combined words, or
`the combined word term "aggregated payload" and the
`combined word term "aggregated message"?
` A I'm saying that the plain and ordinary
`meaning of those terms, "aggregated," "payload," and
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`"message," in the context of the claims, provides
`sufficient context for the person of ordinary skill
`in the art to understand the terms "aggregated
`payload" and "aggregated message," and that this
`message meaning -- sorry, this meaning is consistent
`with the meaning of those words as used in the
`specification.
` Q Okay. Let's move on to, go to paragraph
`six.
` In paragraph six, you refer to two
`RFCs, RFC 791 and RFC 793; is that correct?
` A Yes. That's correct.
` Q I may give those to you later, but right
`now I don't think it's necessary.
` Are those required in order to give
`any meaning to the term "payload" or "message"?
` A Are they required to give meaning to the
`term "message" and "payload"? No.
` Q But you give examples, in Figure 6, in a
`TCP/IP context, correct?
` A I give examples of the uses of those words
`in a TCP/IP context, that's correct.
` Q Have you used that to explain how a person
`of ordinary skill in the art would understand the
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`term "messages" and "payload"?
` MR. BORDER: Objection to form.
` THE WITNESS: The point of paragraph six
` is, is to show how a person of ordinary skill
` in the art would understand that messages and
` payloads can exist on multiple layers of the
` system architecture.
` So the point of paragraph six is not to
` define those terms but to show their use of the
` terms in various layers of the layered
` communication architecture.
` (Reporter clarification.)
`BY MR. HOWISON:
` Q So why would a person of ordinary skill in
`the art not need those two RFCs, 791 and 793, in
`order to gain an understanding of the term
`"messages" or "payloads"?
` A Paragraph five of my reply talks about how
`to understand the meaning of the words "messages"
`and "payloads" and "aggregation."
` Paragraph six is not intended to
`amplify on the meaning of those words; it's intended
`to say a separate point: Having understood those
`words, it would be clear to a person of ordinary
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`skill that they can apply, that they can exist, the
`messages and payloads can exist on multiple layers
`of the system architecture. So it's not adding to
`the meaning of the term, it's showing how they can
`be used in the context of a layered communication
`architecture.
` Q Aren't they used separately?
` MR. BORDER: Objection. Form.
` THE WITNESS: I'm not sure I understand
` the question.
`BY MR. HOWISON:
` Q Well, are -- I guess the question is, are
`messages and payloads used in the same layer?
` MR. BORDER: Objection. Form.
` THE WITNESS: Are you referring to a
` specific document that I've referenced here?
` I'm still a little confused on the question.
` Can they be used in the same layer?
`BY MR. HOWISON:
` Q Yes.
` A Yes, they can certainly be used in the
`same layer.
` Q Then you make a statement, at the bottom
`of that paragraph six: The session payload can then
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`comprise application data. A person of ordinary
`skill in the art would understand that the terms
`"message" and "payload" apply to the layer on which
`they are transmitted.
` A I see that.
` Q Could you explain what that means?
` A The statement that you just read is a
`different way of saying the same thing that the
`first sentence in paragraph six says: A person of
`ordinary skill in the art would understand that
`messages and payloads can exist on multiple layers
`of the system architecture.
` In other words, you can have a
`message on one layer of a layered architecture and
`you can have a message on another layer of, of a
`communication architecture. They aren't the same
`message. They mean something -- they identify
`something on each layer of the architecture, in
`principle.
` Q So what I'm trying to understand is -- in
`addition to your arguments in paragraph five,
`paragraph six sets forth, again, reference to
`RFC 791 and RFC 793.
` And what I am trying to understand
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`is, are those necessary, for a person of ordinary
`skill in the art, to understand that messages and
`payloads can exist on multiple layers of a system
`architecture?
` MR. BORDER: Objection. Form.
` THE WITNESS: The specific references,
` RFC 791 and 793, are not necessary for a person
` of skill in the art to understand that messages
` can exist on different layers of a layered
` communication architecture. This is the
` example that I used in order to explain that
` point.
`BY MR. HOWISON:
` Q Does the understanding by a person of
`ordinary skill in the art that messages and payloads
`can exist on multiple layers help them in
`understanding the combined term "aggregated message"
`or "aggregated payload"?
` A I may not understand the question, but I
`don't see that there's a connection, no.
` Q Okay. I guess the point is, for example,
`a message can exist on multiple layers --
` A That's correct.
` Q -- that's a step.
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` What relevance does that have to the
`term "aggregated message"?
` A So perhaps the point of paragraph six is
`not to further define the term "aggregated message"
`or "aggregated payload" but to make a separate point
`about, about how the term "message" is not
`restricted to a single layer of a system
`architecture.
` Q Then maybe I've misunderstood the
`declaration.
` Is it fair to say that paragraph six
`is not part of your opinion with respect to
`paragraph five?
` MR. BORDER: Objection. Foundation.
`BY MR. HOWISON:
` Q Maybe I'll restate that.
` Paragraph five gives your rationale
`for plain and ordinary meaning. Paragraph six is
`not necessary to augment that position.
` Does that make more sense?
` MR. BORDER: Objection. Form.
` THE WITNESS: Paragraph five gives my
` opinion that plain and ordinary meaning of
` those terms is sufficient to understand the
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` claims and is consistent with the written
` description.
` Paragraph six makes a different point,
` which is that the terms "message" and "payload"
` can be used to describe aspects of different
` layers of a layered communication architecture.
`BY MR. HOWISON:
` Q I understand. You said that. But my
`question is specific.
` Paragraph five provides your position
`on plain and ordinary meaning; is that correct?
` A That's correct.
` Q Is paragraph six required in order to come
`up with the plain and ordinary meaning of
`"aggregated message" or "aggregated payload"?
` MR. BORDER: Objection. Form.
` THE WITNESS: I believe that the meaning
` of the term "aggregated payload" and
` "aggregated message" can be understood apart
` from their specific use here in RFC 791 and
` 793, as described in paragraph six.
` Have I answered your question?
`BY MR. HOWISON:
` Q Yes, I think so, but my confusion is that
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`you have paragraph six and paragraph seven under the
`heading, on page 2, of Skilled Artisan's
`Understanding of "Aggregated Payload" and
`"Aggregated Message."
` Do you see that?
` A I do.
` Q So does that mean that paragraph six
`relates to the skilled artisan's understanding of
`those two terms?
` MR. BORDER: Objection. Form. Asked and
` answered.
` THE WITNESS: If you look at the flow of
` this section, paragraph five says: Here's how
` we understand "aggregated," "payload,"
` "message," and hence "aggregated payload" and
` "aggregated message."
` Paragraph six makes the point that
` messages and payloads can exist on multiple
` layers of the system architecture.
` Paragraph seven describes the
` interrelationship between messages and
` payloads, and says that, for instance -- and
` this is the last sentence of paragraph seven:
` In the context of the plain and ordinary
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` meaning of the claims, the payload portion of
` an IP packet could comprise a TCP header as its
` payload and an aggregated payload and
` aggregated message could comprise multiple TCP
` headers with each of their payloads.
` So in this context, paragraph six
` introduces paragraph seven.
`BY MR. HOWISON:
` Q But again, to follow that line of
`reasoning, would you have to have some understanding
`or review of RFC 791 and RFC 793, at least?
` MR. BORDER: Objection. Asked and
` answered.
` THE WITNESS: Those are the -- RFC 791 and
` RFC 793 are the specific examples that I've
` used here to -- they are examples of a layered
` communication architecture that I'm using to
` make clear the point, in paragraph six, that
` messages and payloads can exist on multiple
` layers of a system architecture and, in
` paragraph seven, to introduce, to discuss the
` idea that aggregated payloads and aggregated
` messages could comprise multiple TCP headers
` with each of their payloads. So it's an
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` example of the use of these terms.
`BY MR. HOWISON:
` Q I think we'll get back, maybe back to this
`when we look at RFC 1692, get back to RFC 1692.
` In paragraph ten on page 8 --
` A Yes.
` Q -- you state: Having reviewed the
`specification of the '523 patent, however, I believe
`that, even after having reviewed the specification,
`a person of ordinary skill would apply the same
`understanding of the term that is apparent from the
`claim.
` Do you see that?
` A I see what you've just read, yes.
` Q Okay. So again, in this particular
`sentence, are you saying that a person of ordinary
`skill in the art would have been motivated to read
`the specification to understand those terms
`"aggregated payload" and "aggregated message"?
` MR. BORDER: Objection. Foundation.
` Form.
` THE WITNESS: What this sentence states is
` that, having reviewed the specification, a
` person of ordina
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