throbber
Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 1 of 109 PageID #: 17120
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`VS.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`PACKET INTELLIGENCE LLC
`)(
`CIVIL DOCKET NO.
`)(
`2:16-CV-230-JRG
`)(
`MARSHALL, TEXAS
`)(
`)(
`NETSCOUT SYSTEMS, INC.,
`OCTOBER 12, 2017
`)(
`TEKTRONIX COMMUNICATIONS,
`12:19 P.M.
`)(
`AND TEKTRONIX TEXAS LLC
`TRANSCRIPT OF JURY TRIAL
`BEFORE THE HONORABLE JUDGE RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`FOR THE PLAINTIFF:
`
`COURT REPORTER:
`
`Mr. Paul J. Skiermont
`Ms. Sadaf R. Abdullah
`Mr. Steven W. Hartsell
`Mr. Alexander E. Gasser
`Mr. Steve J. Udick
`SKIERMONT DERBY LLP
`2200 Ross Avenue
`Suite 4800W
`Dallas, Texas 75201
`Ms. Shelly Holmes, CSR-TCRR
`Official Reporter
`United States District Court
`Eastern District of Texas
`Marshall Division
`100 E. Houston Street
`Marshall, Texas 75670
`(903) 923-7464
`
`(Proceedings recorded by mechanical stenography, transcript
`produced on a CAT system.)
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`EX 1069 Page 1
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 2 of 109 PageID #: 17121
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`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANTS:
`
`
`
`Mr. William E. Davis, III
`THE DAVIS FIRM, PC
`213 N. Fredonia Street
`Suite 230
`Longview, Texas 75601
`Ms. Melissa R. Smith
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Mr. Eric Kraeutler
`MORGAN LEWIS & BOCKIUS
`1701 Market Street
`Philadelphia, Pennsylvania 19103
`Mr. Michael J. Lyons
`Mr. Ahren C. Hsu-Hoffman
`Mr. Michael F. Carr
`Ms. Karon N. Fowler
`Mr. Thomas Y. Nolan
`MORGAN LEWIS & BOCKIUS
`1400 Page Mill Road
`Palo Alto, California 94304
`Mr. Charles E. Phipps
`Mr. Paul D. Lein
`LOCKE LORD LLP
`2200 Ross Avenue
`Suite 2800
`Dallas, Texas 75201
`Mr. Adam A. Allgood
`MORGAN LEWIS & BOCKIUS
`1000 Louisiana Street
`Suite 4000
`Houston, Texas 77002
`Mr. Scott D. Wofsy
`LOCKE LORD LLP
`1 Canterbury Green
`201 Broad Street
`Stamford, Connecticut 06901
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 3 of 109 PageID #: 17122
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`P R O C E E D I N G S
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`(Jury out.)
`COURT SECURITY OFFICER: All rise.
`THE COURT: Be seated, please.
`All right. Counsel, the jury's at lunch, taking a
`short recess.
`I have before me what appears to be the slides that
`Mr. Skiermont used in his cross-examination of
`Mr. Waldbusser related to the Scott Nettles report. And I
`also have a rough copy of the portion of that -- the
`cross-examination from the transcript.
`Now, we'll continue with what was raised at the
`bench before Defendants put on their last deposition witness
`of some six to seven minutes.
`Where are we? I -- I understand both sides have
`been talking. Do we have an issue, and if we do, what is
`the issue?
`Let me hear from Defendants first.
`MR. LYONS: Your Honor, we -- we, indeed, do have
`an issue, and we think a grave one in this case.
`What happened during cross-examination is a first
`slide was put up with a quote from one expert -- one report
`of Mr. Nettles.
`Mr. Nettles has been retained on the issue of
`validity by NetScout in this case. He's also the expert for
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 4 of 109 PageID #: 17123
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`Sandvine on both infringement and validity in the Sandvine
`case.
`
`So the first slide referred to his retention as an
`invalidity expert. But then counsel switched to another
`exhibit -- or another slide, this is Slide 2, and if you
`notice, it's a different report. We didn't even notice
`that, as counsel was moving quickly. And this other report
`is his infringement report.
`This is subject to protective order in the Sandvine
`case. And it's under the protective order because it
`includes Sandvine confidential information about Sandvine
`accused products that NetScout was not allowed to look at.
`And so we've never seen this -- this report before
`today. We were never allowed to have access to it.
`And then the next slide that they showed, they
`pulled up testimony from Dr. Nettles, and confronted them,
`as you know, with our expert saying that it was
`inconsistent. Now, this was -- we don't have any context
`for this. We've only -- you know, we only saw this today.
`We had no opportunity to prepare for this.
`THE COURT: Let me -- let me ask you this, Mr.
`Lyons: You keep saying "we," and it's clear from the record
`in this case that your form -- your firm, Morgan Lewis, is
`counsel for NetScout.
`It's also clear from the record in this case that
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 5 of 109 PageID #: 17124
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`Locke Lord is counsel for NetScout. Is this a case where
`Net -- where Locke Lord knew something that Morgan Lewis
`didn't know and Locke Lord is not in the trial? Or is this
`a -- is this not the case?
`MR. LYONS: That is not the case, Your Honor.
`THE COURT: Okay.
`MR. LYONS: Locke Lord -- we're still working with
`Locke Lord. They're actually in the courtroom, Your Honor,
`and we've been talking about this issue today and --
`THE COURT: Well, sometimes when there are multiple
`law firms involved in litigation, the left hand sometimes
`doesn't know what the right hand has. And I just want to
`make sure that's not where this is going.
`MR. LYONS: That's why it took us a few minutes to
`raise the issue, Your Honor, because we were trying to do
`our diligence. But we did confirm that the Locke Lord
`attorneys did not have this invalidity report and had not
`seen this passage that was shown to the jury. And --
`THE COURT: All right. So basically what you're
`telling me is this has been a surprise that you did not have
`knowledge of or an opportunity to prepare for during
`cross-examination?
`MR. LYONS: It was not only a surprise, but it was
`a surprise that could only occur by -- based on a violation
`of your protective order in the Sandvine case that precludes
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 6 of 109 PageID #: 17125
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`this document from being shown to NetScout and -- and to
`anyone in this -- who was not involved in that matter under
`the protective order.
`And I -- I would also just add, this is not, you
`know, an issue of some passing relevance. This is a
`fundamental issue in the case about who invented these
`patents.
`And the whole idea of what TrackSessions is, as
`you've been hearing the testimony from three days and have
`the jury be told that NetScout has another expert who has an
`opposite opinion than the expert they put on the stand is
`incredibly prejudicial to the parties.
`And we would seek, at a minimum, a -- a very strong
`direction to the jury on this, Your Honor, that it should be
`disregarded and, also, that there has been a violation of
`Court order in it being presented to the jury at all.
`THE COURT: All right. What's the response from
`the Plaintiff?
`MR. SKIERMONT: Your Honor, first, to address the
`protective order issue, the -- the two slides that are from
`the Sandvine report, which was -- which was marked
`accordingly, is about -- is a quote -- a long -- a lengthy
`quote from our patent, Slide 4. And Slide 5 is a paragraph
`that is discussing the prior art.
`There are -- two paragraphs that were shown from
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 7 of 109 PageID #: 17126
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`the -- from the Sandvine infringement report are Dr. Nettles
`discussing validity. And -- and there is nothing
`confidential in either Paragraph 112 or 111. That's the
`first issue.
`The second issue is this was proper impeachment.
`It is perfectly proper to impeach an adverse expert witness
`by contrary testimony of another expert. Nettles is a --
`Dr. Nettles is an expert for --
`THE COURT: How is it impeachment, Mr. Skiermont?
`It may be cross-examination, but it's not an inconsistent
`statement of this witness. How is -- how is it an
`inconsistency emanating from the witness --
`MR. SKIERMONT: It's not --
`THE COURT: -- he would be impeaching?
`MR. SKIERMONT: Sorry, Your Honor. It is not
`impeachment -- it's not impeachment of the witness. It is
`an -- it is a party that has taken inconsistent positions
`through its two experts, and we used one party expert to
`impeach the other party expert.
`There's one party expert, Dr. Nettles, who is an
`expert for -- for NetScout.
`There's an expert for NetScout, Mr. Waldbusser.
`Mr. Waldbusser opined that TrackSessions invalidates the
`patent, and NetScout's other expert submitted a -- an expert
`report saying that the session tracking that is discussed in
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 8 of 109 PageID #: 17127
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`the patent is discussing the prior art because he underlined
`the session that says "session tracking also is known,"
`which is a position we've taken in this trial and which is a
`position Mr. Waldbusser has -- has contra -- has disagreed
`with and has built his presentation around this portion of
`the patent and tying it to the RMON protocol -- the RMON
`standard and putting up TrackSessions from those documents
`and session tracking from our patent.
`This party expert, NetScout's party expert, took
`the exact opposite position as the expert presented to the
`jury on direct.
`THE COURT: What I want to know is considering the
`Court's protective orders in this case and in the Sandvine
`litigation, did you, the Plaintiff, have any knowledge or
`should you have had any knowledge about whether the
`Defendant was unaware, unprepared, not given an adequate
`opportunity to have this coming into the trial?
`We -- we do not try lawsuits in this day and age
`based on ambush. When I got out of law school 30 years ago,
`that was the name of the game. It's long since -- it's long
`since being the way we try lawsuits.
`What I hear Defendants telling me is that they
`could not have reasonably known or had proper access to this
`for use in this trial, and, therefore, they were surprised,
`to say the least.
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 9 of 109 PageID #: 17128
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`How do you respond to that?
`MR. SKIERMONT: Your Honor, I mean, I -- I don't
`deny -- I don't -- I don't know one way or the other what
`they had before we showed it today during the
`cross-examination.
`They've shared an expert, Dr. Nettles. It stands
`to reason that if you've put an expert up in -- in a
`consolidated case and that expert is commenting on validity
`in a different report, that there are -- that they would
`have had the information or had access to what he said about
`his in -- about -- that related to what he had said in his
`invalidity report, that those opinions, either from
`Nettles -- from Dr. Nettles or through a redacted sharing of
`here's what he said that isn't highly confidential. They
`were sharing an expert, and what we have -- have extracted
`to show to the jury is two paragraphs that are not
`confidential and that directly contradict a party expert by
`another party expert.
`THE COURT: How are they not confidential?
`MR. SKIERMONT: They are not -- the two paragraphs?
`Well, the -- the one is primarily from our patent,
`Slide 4. Slide -- so it says restricted confidential source
`code. The two paragraphs that we've taken out have
`nothing -- have -- is prior art. It is -- it is -- he even
`refers back to his invalidity report in Paragraph 110, and
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 10 of 109 PageID #: 17129
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`the following paragraphs, Paragraph 11 (sic). This is two
`paragraphs about invalidity.
`THE COURT: What else?
`MR. SKIERMONT: That's all I have, Your Honor.
`THE COURT: Mr. Lyons, do you have a response or
`any follow-up?
`MR. LYONS: Well, Your Honor, this entire report is
`marked confidential, not just portions of it. And
`throughout this entire case -- I mean, NetScout obviously
`has very confidential information. Sandvine has
`confidential information. These cases have been
`consolidated in -- in your courtroom, but the parties --
`there's been no sharing of confidential Sandvine documents
`with NetScout's counsel, as you would expect.
`And so this is -- this is their -- Mr. Nettles'
`infringement report. So he's talking about infringement,
`and one of the -- the problems we have is we don't really
`know what his analysis is in this report or why he was even
`discussing this in an infringement report.
`And when this was shown to the jury, first they
`showed one report, and they showed NetScout's name. And
`then they switched to another one suggesting it was the same
`report. I mean, if you look at Slide 3, it's -- you see
`NetScout. Well, that's the invalidity report. Without
`making it clear to anyone in the courtroom, they actually
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 11 of 109 PageID #: 17130
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`switched reports, the ones that we -- report we'd never seen
`before. And that's the surprise, Your Honor.
`And this goes right to the heart of the case. I
`think counsel for Packet Intelligence made that point
`himself, that -- that this goes right to the heart of the
`case, that that's how important this is and how prejudicial
`it is, Your Honor.
`THE COURT: Well, there's been an awfully lot --
`there's been an awful lot of evidence on, as you put it,
`the heart of the case from both sides. This certainly
`doesn't stand in a spotlight by itself.
`But it does address a critical and highly contested
`issue in the case. I -- I certainly don't dispute that.
`All right. Here's what I'm going to do, counsel:
`I'm going to take this under advisement until we return from
`lunch. I had told the jury 12:30. It's 12:30 now. I'm
`going to take another 15 minutes. I'll be back about 12:45.
`And I'll give you my ruling then.
`MR. LYONS: Thank you, Your Honor.
`THE COURT: This matter is under advisement, and
`the Court's in recess.
`COURT SECURITY OFFICER: All rise.
`(Recess.)
`COURT SECURITY OFFICER: All rise.
`THE COURT: Be seated, please.
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 12 of 109 PageID #: 17131
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`Counsel, I've considered the issue and the
`arguments with regard to the cross-examination of
`Mr. Waldbusser relating to Dr. Stephen (sic) Nettles and his
`report.
`I am going to give the jury a curative instruction.
`I'm going to instruct them to disregard any of the
`cross-examination of Mr. Waldbusser with relation to
`Dr. Nettles or any report generated by Dr. Nettles.
`I'm going to deduct five minutes from the 30
`minutes of closing time for the Plaintiff.
`I am not going to tell this jury that there's been
`a violation of a protective order in another case, and I
`will carry the issue of whether there has been a violation
`of the protective order in the Packet Intelligence versus
`Sandvine case to be raised, if at all, at a later time by
`counsel in that case.
`With that, I will bring in the jury and give them
`the instruction, and then we will proceed to have Plaintiff
`call their first rebuttal witness.
`Mr. Lyons?
`MR. LYONS: Your Honor, may I?
`Your Honor, we appreciate that instruction, but we
`feel compelled to protect the record because we feel this is
`such a prejudicial event in the case that we would move for
`a mistrial.
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 13 of 109 PageID #: 17132
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`THE COURT: Well, Mr. Lyons, you should have moved
`for a mistrial when you raised this, when you argued it,
`when I considered it, when I recessed. I'm sorry. You --
`you told me what you wanted when this was presented to me.
`You did not tell me you wanted a mistrial. That was the
`appropriate time to have raised that. I am not going to
`grant a mistrial. I don't think this, considering the
`totality of the circumstances, the context in which it's
`been done, I don't think it warrants a mistrial. And quite
`honestly, I believe you've waived any right to ask for that
`by not raising it until I'm at the verge of bringing in the
`jury and having announced that I'm basically giving you
`everything you did ask me for.
`So to the extent you are properly able to ask for a
`mistrial, which I have severe misgivings about, that's
`denied. All right?
`MR. LYONS: Yes, Your Honor.
`THE COURT: Quite honestly, it leaves a bad taste
`in the Court's mouth, when you ask for five, I give you
`five, and then you tell me, you should have given me 10.
`All right. Let's bring the jury in.
`COURT SECURITY OFFICER: All rise for the jury.
`THE COURT: Welcome back, ladies and gentlemen of
`the jury. Please have a seat.
`Ladies and gentlemen of the jury, during the
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`Plaintiff's cross-examination of Mr. Steven Waldbusser, the
`witness was asked about and was confronted with material
`generated by Dr. Scott Nettles with the implication that Dr.
`Nettles disagreed with Mr. Waldbusser and raising an
`implication that something was being hidden from you because
`Dr. Nettles was not and will not be called as a witness to
`testify in this case.
`The materials from Dr. Nettles should not have been
`presented to you, and any implication that something was
`being hidden from you by Mr. Waldbusser or by NetScout was
`improper.
`I am directing you to disregard any and all
`testimony and demonstrative exhibits relating to Dr. Scott
`Nettles and any opinions or reports that he may have made.
`You should not consider such as a part of deciding any of
`the issues in this case.
`This instruction relates only to Dr. Nettles and
`the cross-examination of Mr. Waldbusser regarding Dr.
`Nettles. All other evidence presented during the direct
`examination and the cross-examination of Mr. Waldbusser is
`properly considerable by you in making your decisions in
`this case.
`Now, with that instruction, Plaintiff, call your
`first rebuttal witness.
`MR. DAVIS: Your Honor, at this time, Plaintiffs
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`call Dr. Kevin Almeroth to the stand again.
`THE COURT: All right. If you'll come forward, Dr.
`Almeroth, I'll remind you, you remain under oath.
`THE WITNESS: Yes, Your Honor.
`MS. ABDULLAH: Your Honor, may I approach to
`distribute binders?
`THE COURT: You have leave to distribute binders.
`All right. Ms. Abdullah, you may proceed with your
`direct examination.
`KEVIN ALMEROTH, PH.D., PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
`DIRECT EXAMINATION
`
`BY MS. ABDULLAH:
`Q. Welcome back, Dr. Almeroth.
`A. Thank you.
`Q. Did you hear Mr. Waldbusser testify yesterday and today?
`A. I did.
`Q. And did you form any opinions in rebuttal to his
`testimony?
`A. I did.
`Q. Can you summarize those opinions for us, please?
`A. Sure. I've prepared a demonstrative for this. It's No.
`2. The opinions -- the summary opinions I have is that
`there is still no non-infringing alternatives, that the six
`claims of the three asserted patents are valid, and that's
`after considering Mr. Waldbusser's opinions with respect to
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`102(f) on inventorship and his opinions with respect to
`102(a) on anticipation.
`And then the third conclusion I have is after
`considering his opinions on non-infringement, my opinions
`with respect to how the accused products operate is still
`the same and that my opinion is that those two products, the
`G10 and the GeoBlade, still infringe all six claims of the
`three asserted patents.
`Q. With respect to the first item, did you hear
`Mr. Waldbusser offer any opinion at all on whether there are
`any non-infringing alternatives?
`A. I did not hear him offer such an opinion.
`Q. And did Mr. Waldbusser dispute your description on your
`testimony earlier about the benefits of the claimed
`invention?
`A. I don't believe he did.
`Q. Did you also hear Mr. Waldbusser testify today regarding
`the accused products?
`A. Yes, I did.
`Q. And did that change any of your opinions on infringement
`from your testimony earlier this week?
`A. No, it did not.
`Q. Now, with respect to the second item on your slide here,
`the validity part of it, did you form any opinions on the
`two items he's listed?
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`A. Yes, I did.
`Q. And what methodology did you employ when you were
`considering NetScout's validity arguments?
`A. Yes. If you go to Demonstrative No. 3, this
`demonstrative describes my methodology. The first thing I
`did was review the -- the patents and the file histories. I
`did that in conjunction with infringement, as well. But I
`needed to make sure that I understood everything about the
`patents as they related to the validity, as well.
`I reviewed the methodology and the analysis and the
`opinions that Mr. Waldbusser had offered. He'd written a
`report. He'd been deposed. And I have considered those
`opinions in forming my opinions, as well.
`I also reviewed the materials on which he relied.
`So the NetScout 6010, the documents that he identified, the
`depositions that he relied on, the source code or the
`different versions of the source code.
`And then I also used the same constructions and the
`definition of a person of skill in the art that I had used
`for infringement. I understand it's a requirement that you
`use the same claim scope. We've used the analogy of kind of
`the boundaries of the property. You have to use the same
`boundaries when you look at both infringement and validity.
`You can't say the patents are really broad when it comes to
`infringement, but then really narrow when it comes to
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`EX 1069 Page 17
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 18 of 109 PageID #: 17137
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`comparing the patents against the prior art. It has to be
`exactly the same boundaries.
`And as a result of that methodology, I then
`developed my own opinions in response to his.
`Q. Can you remind us what the Court's claim constructions
`were?
`A. Sure. If you look at Slide 4, those are the -- the
`claims. They're identical to the slide that I've shown
`previously. And I've considered those in forming my
`opinions with respect to validity.
`Q. And can you also remind us what the appropriate level of
`skill in the art applied is?
`A. Yes. The next demonstrative -- this is, again, the same
`demonstrative I've shown before where a person of ordinary
`skill in the art has a Bachelor's degree in computer
`science, computer engineering, or the equivalent, and then
`several years of experience in the field of network
`monitoring and technology.
`And I used that that -- that same definition,
`again, for both infringement and validity.
`Q. And how did that inform your opinions with respect to
`validity?
`A. With respect to validity, you have to put yourself in
`the frame of mind of a person of skill in the art as of the
`time -- what's called the priority date. And I believe it's
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`EX 1069 Page 18
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 19 of 109 PageID #: 17138
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`June 30th, 1999. It's not -- it's not from the perspective
`of sitting here today as an expert, but you have to look
`through the eyes of that person with that training at that
`time frame to understand what they would have understood
`about what the patent means and what's disclosed in the
`prior art.
`Q. During Mr. Waldbusser's testimony, did you hear him
`describe the level of art that he -- level of skill in the
`art that he used when analyzing the prior art?
`A. He did not.
`Q. And why is that significant?
`A. It's significant because I understand that the law for
`anticipation requires considering who that person of skill
`in the art is when looking at the prior art systems. It
`affects the analysis that one performs. It's -- it's not
`about what Mr. Waldbusser thought about the prior art
`sitting here or doing his analysis in the last year or so.
`It's from the perspective of this person of skill in the
`art, this hypothetical person at that time.
`Q. Were you also here when Mr. Waldbusser offered an
`opinion that the named inventors are not the true inventors
`of the patents?
`A. Yes.
`Q. And do you have opinions in rebuttal to that statement?
`A. Yes, I do.
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`EX 1069 Page 19
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`

`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 20 of 109 PageID #: 17139
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`Q. What are those opinions?
`A. I have two opinions. If you go to the next
`demonstrative, they're summarized there.
`The first has to do with the methodology he
`followed. I understand that it's improper to only look at
`one part of one limitation of a claim to determine whether
`or not there's inventorship or that a patent is invalid for
`reasons of 102(f), that part of the statute that identifies
`it.
`
`And because he failed to look at the other parts of
`the limitation, the other parts of the claim, that that's an
`incorrect methodology.
`The second is even assuming that that was okay,
`even assuming that all he had to find was conversational
`flows in the RMON2 standard, then I disagree with that
`opinion. I don't believe that RMON2 TrackSessions is the
`same thing as conversational flows.
`And so this requirement of 102(f) where somebody
`else invented the concept of conversational flows is -- is
`not a correct conclusion.
`The RMON Working Group did not invent
`conversational flows. They developed something called
`TrackSessions. And those two things are very different.
`Q. Can you explain a little bit more what you mean when
`you say that Mr. Waldbusser only analyzed one part of one
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`EX 1069 Page 20
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`

`

`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 21 of 109 PageID #: 17140
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`21
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`limitation in each asserted claim?
`A. Sure. If you go to the next demonstrative, this is
`Claim 19 from the '789 patent. And -- and there's lots of
`words here. I spent a good amount of time going through and
`describing where there was infringement for each word, each
`limitation of all six claims.
`But when Mr. Waldbusser did an analysis of this
`claim with respect to conversational flows, the only thing
`that he looked at was the two words "conversational flows"
`and one limitation of Claim 19(d). Two words out of 29
`words for that limitation and nothing for any of the other
`limitations.
`Q. Is conversational flow, those two words, a limitation by
`itself?
`A. No, it's not.
`Q. Can you explain that, please?
`A. Sure. That's the -- it's -- it's two words as part of
`a -- of other words in a single limitation. And it's
`important to read the rest of the words. The invention
`requires a memory for storing a database comprising none or
`more flow-entries for previously encountered conversational
`flows.
`
`I mean, there -- there has to be a memory involved
`in order to meet this limitation, not just the existence of
`the concept written up in a standards document where the
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`EX 1069 Page 21
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`

`

`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 22 of 109 PageID #: 17141
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`details of the implementation are left for later. And
`that -- that has an impact and is an important distinction
`over conversational flows and TrackSessions.
`MS. ABDULLAH: Now, if we can turn to
`Mr. Waldbusser's Slide 265 that he used on direct -- his
`demonstrative slide.
`Q. (By Ms. Abdullah) What does this show regarding what
`Mr. Waldbusser talked about with respect to the RMON Working
`Group invention?
`A. This was the portion of his direct examination where he
`was describing 102(f). And when asked, he pointed to
`conversational flows, and those two words, as being the same
`as TrackSessions. And because those two words were
`invented -- or between -- because TrackSessions was invented
`by the RMON Working Group, and because he thought they were
`the same, he believed that this entire claim was invalid for
`102(f).
`Q. And was that the only basis that he told the jury about
`on why he thought the RMON Working Group invented Claim 19?
`A. Yes, it was. He was asked that question on
`cross-examination, and he confirmed that that was the case.
`Q. And what was his basis for the remaining five claims
`that are asserted?
`A. The remaining five claims which follow in this
`demonstrative after No. 265, he shows each of the six
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`EX 1069 Page 22
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`

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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 23 of 109 PageID #: 17142
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`claims. And he highlights, again, conversational flow and
`only conversational flow. He highlighted nothing else,
`discussed nothing else. And I believe that that's improper
`with respect to his methodology.
`Q. And why is that improper as a meth -- methodology for
`analyzing inventorship?
`A. It's -- it's my understanding you have to consider the
`claim as a whole and not just a portion of a limitation in
`reaching a conclusion with respect to inventorship.
`Q. What was your second opinion with respect to
`inventorship?
`A. My second opinion is that the RMON2 Working Group's
`TrackSessions's feature was not the same thing and is not
`the same thing as conversational flows. The -- the two are
`very different.
`Q. Can you review for us what's required in the patent
`claims for flow-entries and conversational flow?
`A. Yes. If you put up my Demonstrative No. 7, there is the
`description in the claim limitation here where it talks
`about the memory for storing a database comprising none or
`more flow-entries for previously encountered conversational
`flows and then each flow-entry identified by identifying
`information stored in the flow-entry.
`And associated with the concept of the
`conversational flow is a relationship to other flow-entries,
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`EX 1069 Page 23
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`Case 2:16-cv-00230-JRG Document 250 Filed 10/17/17 Page 24 of 109 PageID #: 17143
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`and the term "flow-entries" is used quite a bit throughout
`this claim, as well as other claims.
`Q. And can you remind us how exactly the conversational
`flows work in a network?
`A. Yes. I have demonstratives that I've prepared. This is
`similar to the animations that I performed in my
`infringement analysis in comparing or describing what the
`patent describes about conversational flows.
`I -- I want to walk through this animation again.
`What I've shown here and added is a little bit more detail,
`is -- is a new tutorial, is the concept of what a packet
`monitor in the asserted patents is doing with respect to
`analyzing and -- and processing packets.
`So the first step of the animation here is to show
`a request that's being sent to Facebook. That request will
`flow over the network, and then a series of packets will
`come back. Those packets will be captured here by the
`packet monitor, and then the packet monitor will construct
`what's called a flow-entry, which contains information about
`that particular flow.
`So i

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