Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 1 of 314 PageID #: 32066
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`1
`
`CIVIL ACTION NO.
`
`6:12-cv-855-RWS
`
`(Lead Consolidated Case)
`
`Tyler, Texas
`
`January 27, 2016
`
`8:43 a.m.
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`VIRNETX INC. AND SCIENCE
`
`APPLICATIONS INTERNATIONAL
`
`CORPORATION,
`
`Plaintiffs,
`
`VS.
`
`APPLE INC.,
`
`Defendant.
`
`---------------------------------------------------------
`
`REPORTER'S TRANSCRIPT OF JURY TRIAL, VOLUME 3
`
`BEFORE THE HONORABLE ROBERT W. SCHROEDER III
`
`UNITED STATES DISTRICT JUDGE
`
`---------------------------------------------------------
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`1
`
`CIVIL ACTION NO.
`
`6:12-cv-855-RWS
`
`(Lead Consolidated Case)
`
`Tyler, Texas
`
`January 27, 2016
`
`8:43 a.m.
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`*
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`VIRNETX INC. AND SCIENCE
`
`APPLICATIONS INTERNATIONAL
`
`CORPORATION,
`
`Plaintiffs,
`
`VS.
`
`APPLE INC.,
`
`Defendant.
`
`---------------------------------------------------------
`
`REPORTER'S TRANSCRIPT OF JURY TRIAL, VOLUME 3
`
`BEFORE THE HONORABLE ROBERT W. SCHROEDER III
`
`UNITED STATES DISTRICT JUDGE
`
`---------------------------------------------------------
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 2 of 314 PageID #: 32067
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`APPEARANCES:
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`COURT REPORTER:
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`2
`
`BRENDA HIGHTOWER SMITH, CSR-FCRR
`Official Court Reporter
`Eastern District of Texas
`Texarkana Division
`500 N. State Line Ave, Third Floor
`Texarkana, Texas
`75501
`903.794.1018
`brenda_smith@txed.uscourts.gov
`
`(Proceedings recorded by mechanical stenography,
`transcript produced on CAT system.)
`
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANT:
`
`BRADLEY W. CALDWELL
`JASON D. CASSADY
`JOHN AUSTIN CURRY
`CALDWELL CASSADY & CURRY
`2101 Cedar Springs Road, Suite 1000
`Dallas, Texas
`75201
`
`T. JOHN WARD, JR.
`WARD, SMITH & HILL, PLLC
`1127 Judson Road, Suite 220
`Longview, Texas
`75601
`
`ROBERT CHRISTOPHER BUNT
`PARKER BUNT & AINSWORTH
`100 East Ferguson, Suite 1114
`Tyler, Texas
`75702
`
`GREGORY S. AROVAS
`ROBERT A. APPLEBY
`JEANNE M. HEFFERNAN
`JOSEPH A. LOY
`LESLIE M. SCHMIDT
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York
`
`10022
`
`F. CHRISTOPHER MIZZO
`KIRKLAND & ELLIS LLP
`655 Fifteenth Street, N.W.
`Washington, D.C.
`20005
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 3 of 314 PageID #: 32068
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`3
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`AKSHAY S. DEORAS
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, California
`
`94104
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`MICHAEL E. JONES
`JOHN F. BUFE
`ALLEN F. GARDNER
`POTTER MINTON
`110 North College Avenue, Suite 500
`Tyler, Texas
`75702
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`******************************************
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 4 of 314 PageID #: 32069
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`(Open court, all parties present, jury not
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`4
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`present.)
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`COURT SECURITY OFFICER:
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`All rise.
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`THE COURT:
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`Please be seated.
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`Good morning, Counsel.
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`We have matters we
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`need to take up before we have the jury brought in?
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`MR. AROVAS:
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`Your Honor, the only issue to
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`address would be the one related to the submissions we
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`had made last night.
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`If we do have argument on that, my
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`only request would be that Mr. Jones would be excused
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`from the courtroom since it relates to the subject matter
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`of his testimony.
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`THE COURT:
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`Very well.
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`Would you like to be
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`heard, Mr. Arovas?
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`MR. AROVAS:
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`Yes, Your Honor.
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`THE COURT:
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`Mr. Jones has removed himself from
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`the courtroom -- Dr. Jones.
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`MR. AROVAS:
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`Thank you, Your Honor.
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`So, as Your Honor may recall, I approached the
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`bench yesterday before going into the subject matter of
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`the claim construction positions that the parties had
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`taken at various points in this proceeding.
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`The reason I
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`did that, Your Honor, was because I really very much
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`wanted to have a clear path to end this; but we felt that
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`after the guidance Your Honor had given counsel for
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 5 of 314 PageID #: 32070
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`5
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`VirnetX, that they really went way too far and made some
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`statements that were, you know, both inaccurate and
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`misleading to the jury.
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`And so I wanted to talk about it
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`now because I would like to sort of get at least the
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`Court's view because we would like to sort of bring it
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`into questioning on that subject matter.
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`So I have a proposal about a way of addressing
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`the subject matter of the testimony and, obviously, would
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`be interested in Your Honor's thoughts about that.
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`So the two concerns that we have is -- one, is
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`the suggestion that it was not Apple's position really
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`throughout this lawsuit that anonymity was important to
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`these claims and should be part of it, a position that
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`Apple took from the very first claim construction
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`briefing all the way through the Federal Circuit.
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`And
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`obviously, we're now back with the Federal Circuit's
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`construction.
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`The -- Dr. Jones testified that the claim
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`construction that was given was actually Apple's
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`construction and a construction that Apple advocated for.
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`Which is just plainly not true.
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`What we know is, number one, in the Markman
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`process, Apple said the claims should be construed to
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`include anonymity.
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`Apple lost that.
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`The only thing that
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`happened in the interim is VirnetX took inconsistent
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 6 of 314 PageID #: 32071
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`6
`positions in the district court and the Patent Office and
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`these re-exams that we talked about that were the subject
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`of some of the other MILs.
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`So Apple's motion for reconsideration was
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`merely to harmonize several additional words,
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`understanding they had already lost the issue of
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`anonymity.
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`They did not ask for reconsideration of the
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`whole claim construction, only that additional
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`limitations that VirnetX was putting in through the
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`Patent Office should be used in the district court
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`because they should not be permitted to take contrary
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`positions in those two forms.
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`THE COURT:
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`Is this before or after the
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`Federal Circuit issued its opinion?
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`MR. AROVAS:
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`This is before.
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`THE COURT:
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`Okay.
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`MR. AROVAS:
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`Judge Davis then said, okay, with
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`no opposition from VirnetX, I'll take the additional
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`limitation.
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`This has nothing to do with anonymity.
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`Additional limitations that they were putting in a Patent
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`Office, tacks on a couple of words to the claim
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`construction that did not have anonymity; and that's what
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`went through.
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`So the only position Apple ever took was,
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`okay, we lost our claim construction; but you can't say
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 7 of 314 PageID #: 32072
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`7
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`something different in the Patent Office on additional
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`narrowing.
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`And so those additional arguments should be
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`brought in.
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`Never gave up the point on anonymity.
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`Then you go to the Federal Circuit, Apple
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`presents to the Federal Circuit.
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`And it's clear as a
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`bell from the opinion, Apple argued for anonymity.
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`VirnetX argued against anonymity.
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`VirnetX made an
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`argument based on that stipulation -- not the
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`stipulation, the motion for reconsideration, which is not
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`a stipulation, that there was waiver.
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`Federal Circuit
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`reached the issue anyway.
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`Which means, you know, the
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`waiver issue is also resolved by the Federal Circuit.
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`And so we're left with an incredibly
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`misleading impression to the jury, which was completely
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`unnecessary.
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`All they had to do was make the point that
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`Your Honor had said is, the construction we used came
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`from the Court, right; and this would be done.
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`So here's the proposal:
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`If we were to try to
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`correct everything Mr. -- Dr. Jones said, it would
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`require us to go into the original claim construction by
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`Apple, it would require us to go into the motion for
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`reconsideration to explain how, in fact, that never
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`changed, and then the Federal Circuit.
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`I think we can live without completely
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`correcting the record as long as it isn't going to come
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 8 of 314 PageID #: 32073
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`8
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`up and we don't have it, you know, used against us later
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`and instead just deal with the two bookends, which I
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`think are probably the least prejudicial.
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`Because I know, Your Honor, that if we were to
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`get into the motion for reconsideration, since it's based
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`on the re-exams, then we have an additional issue, that
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`now we're talking about the re-exams that have
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`invalidated the patents, which is a subject of another
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`motion in limine.
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`And so in the effort of not letting this
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`unravel on us, I would propose, even though it doesn't
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`completely rebut what Dr. Jones says, that we be allowed
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`to point out that, in fact, there was a claim
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`construction process here, the proposal from Apple
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`included anonymity, we would skip the motion for
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`reconsideration that was based on inconsistent positions
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`by VirnetX in the Patent Office, and just say, and in
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`fact, and then deal with the end of the process and show
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`Dr. Jones, in fact, here it is, Federal Circuit opinion,
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`Apple proposed anonymity, VirnetX opposed, and the
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`Federal Circuit reached a decision and now we have a
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`claim construction that we're using that everybody will
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`apply.
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`THE COURT:
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`All right.
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`Mr. Caldwell.
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`MR. CALDWELL:
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`Good morning, Your Honor.
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 9 of 314 PageID #: 32074
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`9
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`THE COURT:
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`Good morning.
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`MR. CALDWELL:
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`I think a little bit of
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`perspective that's getting lost on this issue is that
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`Apple brought this into this trial.
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`And Apple is saying,
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`hey, I approached to do the right thing yesterday; but
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`Apple sure didn't approach before doing the wrong thing
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`on Monday.
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`And that's what got us to where we are.
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`So
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`it's pretty odd that we're hearing Apple point the finger
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`at VirnetX and saying that we did something wrong after
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`Apple chose to argue to the jury this suggestion that
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`VirnetX got something wrong and was rebuked by the
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`Federal Circuit.
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`When quite obviously, after having
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`spent a lot of money trying a case under the Court's
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`claim construction, obviously we defended the Court's
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`claim construction at the Federal Circuit.
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`Us proving from an evidentiary perspective
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`that there's anonymity in FaceTime, which is the issue,
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`has never been a problem.
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`The problem comes from after
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`we have the trial, the challenge to the claim
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`construction is going to send us back here to do this
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`again instead of having it be affirmed.
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`So it's absolutely right we defended the
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`Court's claim construction on appeal.
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`But that
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`procedural history and getting into motivations for why
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 10 of 314 PageID #: 32075
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`10
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`it's the Court's claim construction and why VirnetX is
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`defending it is just the reason why Apple should not have
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`violated your rejected -- rejected claim construction
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`motion in limine in opening.
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`It should have stayed out.
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`And that's how we got to where we are today.
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`Now what wants -- what Apple wants to happen
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`is because they went into it first, they want to end,
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`they want to start and end on a similarly misleading
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`position.
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`Just to clarify the record, Apple is saying
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`all along we've said with anonymity.
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`What Mr. Arovas isn't telling you in this
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`presentation is that Apple's original construction wasn't
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`what we have now.
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`Apple's original construction was that
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`a secure communication link had to be a link in a VPN, a
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`VPN communications link.
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`And that was rejected, as was
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`VirnetX's proposal.
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`Judge Davis came out with a different
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`proposal.
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`And I'm not disputing that because of the way
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`Apple was saying it was a VPN link, that there's a nested
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`anonymity buried down in that because of the construction
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`of anonymity -- or excuse me -- the construction of VPN.
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`I'm not disputing that point.
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`But the suggestion that Apple has been
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`magically vindicated and the construction it wanted all
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 11 of 314 PageID #: 32076
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`11
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`along is right is going to cause an entirely new set of
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`problems for this jury.
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`Because that's not true either.
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`Apple was squarely rejected trying to read VPN into the
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`'504 and '211 claims.
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`What Dr. Jones said on the stand yesterday is
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`absolutely correct.
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`I understand Apple is saying now,
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`no, no, no, we always wanted anonymity.
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`But when they
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`moved to reconsider, it says nothing about being subject
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`to their first construction, it says nothing about that
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`first proposal.
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`It just says, Your Honor, in light of
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`what's happened, we move for you to reconsider your
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`construction as follows with -- adding "with encryption,"
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`and that's what we didn't oppose.
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`Now, Apple, what they're telling you is, in
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`their minds that means it was always subject to their
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`first proposal.
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`In our minds it wasn't.
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`But this is why we had a motion in limine on
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`this issue originally.
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`We don't need to be trying that
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`aspect, the claim construction in front of this jury.
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`And what Dr. Jones said is true.
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`The
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`construction that was used in the last trial was first
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`articulated by Apple; but regardless, it was the Court's
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`construction.
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`And as to the Federal Circuit, they didn't
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`address the waiver.
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`They said, we're reaching this
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`because we have a de novo review of claim construction.
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 12 of 314 PageID #: 32077
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`12
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`It doesn't mean it wasn't Apple's position.
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`They didn't rule that there was non-waiver.
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`They said,
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`we're not reaching this -- or they said, we are
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`construing this term de novo under the de novo claim
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`construction standard.
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`So I think, actually, really nothing needs to
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`be done at this point.
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`But to the extent anything needs
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`done, VirnetX re-urges the Court giving a clarifying
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`instruction like we did yesterday because we think that
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`could have put an end to it and could now.
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`And I think,
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`perhaps, maybe the Court can say, look, the parties have
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`disputed the scope of this term.
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`That's not really relevant.
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`The Court
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`construed it before, the Federal Circuit reversed, and
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`everybody needs to apply the current Court's
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`construction.
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`But whatever it is, we have to put a hard stop
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`to this issue.
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`And it can't be on a misleading note just
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`because Apple kicked open its own door in opening.
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`And,
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`obviously, the door has caught us slinging one way or
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`another each time somebody addresses it.
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`So them
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`presenting an inaccurate position to respond makes no
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`sense when they opened their door.
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`THE COURT:
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`Thank you, Mr. Caldwell.
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`My ruling is going to be as follows:
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`I am
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 13 of 314 PageID #: 32078
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`13
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`going to allow Apple, Mr. Arovas, to ask the series of
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`questions that you proposed.
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`I -- I really do think,
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`however, that we ought to be at the end of this issue.
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`And claim construction positions that were rejected by
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`the Court ought not be a subject for -- for subsequent
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`witnesses.
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`I think -- I think we really ought to be at
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`the end of the line here.
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`But I will allow these
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`questions to be asked of the witness.
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`I do want the
`
`issue to be finished and not continue to come up during
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`the course of the trial.
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`With respect to the motion to reconsider, you
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`know, Mr. Caldwell, with all due respect, I think, you
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`know, Apple's -- I don't think Apple ever took a position
`
`contrary to their original position that anonymity was
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`required.
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`I -- I do understand your -- your argument and
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`I appreciate your position on that, but I think they have
`
`maintained that throughout the thing and I think
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`throughout the course of the litigation.
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`And I think
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`that -- so that's going to be my ruling.
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`MR. AROVAS:
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`Would Your Honor clarify for the
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`jury that the Court at the last trial was tried under a
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`set of -- I mean, the jury's even instructed as to the
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`definition.
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`So will Your Honor clarify to the jury then
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`after that that the last trial was tried under the
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`Court's claim construction?
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`Because I feel like what
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 14 of 314 PageID #: 32079
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`14
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`could happen is those questions might make it look like
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`Dr. Jones lied, and I think the -- if we're going to stop
`
`while the pendulum is swinging, if we're going to stop
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`while it's swung over that table, think it will be
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`beneficial if the Court clarified.
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`Something that
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`shouldn't be disputed by anybody.
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`THE COURT:
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`I do agree with that.
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`I'm going
`
`to ask the parties to work together to see if you can
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`come up with an agreed instruction along those lines and
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`I'll be glad to take a look at it and we'll certainly do
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`what's -- what's fair.
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`MR. CALDWELL:
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`Can you take a stab at doing
`
`that just in the next few minutes?
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`Just because it's
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`Dr. Jones' credibility, maybe we can do that in the next
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`two or three minutes.
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`THE COURT:
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`Any objection to that, Mr. Arovas?
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`MR. AROVAS:
`
`We're happy to -- I can also
`
`clarify my question so that there's no suggestion that
`
`I'm saying something different that, you know, because I
`
`was going to do the bookend approach.
`
`I will just say
`
`and, of course, there was a trial and that was done under
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`the Court's claim construction.
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`And that might help as
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`well.
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`THE COURT:
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`Would that be acceptable,
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`Mr. Caldwell?
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 15 of 314 PageID #: 32080
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`MR. CALDWELL:
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`15
`I -- I guess it's hard to know
`
`until we see the sequence.
`
`What my preference would be
`
`then if the Court -- if the Court just says -- the Court
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`defines the terms and that comes at the end of this so
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`that it's not -- I don't want it portrayed through the
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`questions this is something Apple -- the truth is, we had
`
`no choice but to try it with the Court's construction.
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`And I do believe that should really come from Your Honor.
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`That is --
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`THE COURT:
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`I'm open to doing that.
`
`Let me
`
`give you-all, say, five minutes to discuss this and see
`
`if you can reach some sort of an agreement along those
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`lines.
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`I think that would be preferable.
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`And beyond that, is there any other -- any
`
`other matter we need, Mr. Ward?
`
`MR. CALDWELL:
`
`Your Honor, Mr. Arovas --
`
`Mr. Arovas made a new suggestion that --
`
`THE COURT:
`
`Thank you, Mr. Caldwell.
`
`MR. CALDWELL:
`
`My fault, Your Honor.
`
`Mr. Arovas made a suggestion that now there's
`
`a two-or-three-step-removed approach as to why he should
`
`talk about reexaminations.
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`As I understood, first of
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`all, that had no basis.
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`But second of all, it was
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`predicated on some hypothetical discussion of the
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`unopposed motion to reconsider.
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`I assume that nothing in
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 16 of 314 PageID #: 32081
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`16
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`this -- by your remarks, that he can ask his questions
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`doesn't mean that he can start talking about limined out
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`reexaminations.
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`THE COURT:
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`Well, the motions in limine are --
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`I mean, we've ruled on the motions in limine; and we
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`haven't, you know, gone back on any of those.
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`So all of
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`those still apply.
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`MR. CALDWELL:
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`I totally -- I totally agree.
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`It just sounded to me like Mr. Arovas was also implicitly
`
`arguing that that motion in limine had some door open,
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`and I just wanted to clarify that that is not the case.
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`THE COURT:
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`Let -- let me suggest you-all
`
`visit about that, too.
`
`MR. CALDWELL:
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`Thank you, Your Honor.
`
`THE COURT:
`
`Okay.
`
`We'll be in recess for just
`
`a few minutes.
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`MR. WARD:
`
`Your Honor, we have one exhibit --
`
`or it's not just one exhibit.
`
`There's a number of
`
`slides.
`
`I don't know if you want to do it in chambers or
`
`if you want to do it out here.
`
`It might be easier
`
`because we've got a lot of papers to slide back and
`
`forth.
`
`Or we can do it on the --
`
`THE COURT:
`
`Yeah, we probably ought to do it
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`on the record.
`
`Is it -- does it relate to Dr. Jones?
`
`MR. WARD:
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`Not at all.
`
`But it's almost half
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 17 of 314 PageID #: 32082
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`of the slides for Dr. Wecker.
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`17
`So we're going to have to
`
`redo slides depending upon your rulings or not redo
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`slides so...
`
`THE COURT:
`
`Okay.
`
`MR. WARD:
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`We needed to take it up.
`
`THE COURT:
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`And is he up next?
`
`MR. WARD:
`
`He'll be up probably right after
`
`lunch.
`
`THE COURT:
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`Okay.
`
`Let's -- Mr. Ward, let's
`
`deal with that a little bit later in the morning.
`
`Maybe
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`at the morning break we could address that.
`
`MR. WARD:
`
`Great, thank you.
`
`(Court in recess.)
`
`(Open court, all parties present, jury not
`
`present.)
`
`COURT SECURITY OFFICER:
`
`All rise.
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`THE COURT:
`
`Please be seated.
`
`Okay.
`
`I understand the parties have had an
`
`opportunity to meet regarding an instruction,
`
`Mr. Caldwell?
`
`Is that right, Mr. Arovas?
`
`MR. CALDWELL:
`
`Yes, Your Honor.
`
`THE COURT:
`
`Okay.
`
`MR. AROVAS:
`
`Yes, Your Honor.
`
`I believe we e-mailed it to the Court,
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 18 of 314 PageID #: 32083
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`18
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`although I'm happy to read it into the record as well.
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`THE COURT:
`
`Why don't you do that.
`
`MR. AROVAS:
`
`Okay.
`
`So here's the agreed
`
`instruction to the jury:
`
`Ladies and gentlemen of the jury, there's been
`
`some discussion in this case on the claim construction
`
`process.
`
`At the end of the prior trial, the Court
`
`provided instructions to that jury.
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`At the end of this
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`case, I will provide you -- I will instruct you on the
`
`claim constructions you will apply in your deliberations.
`
`And that's it.
`
`THE COURT:
`
`Okay.
`
`And that's agreed?
`
`MR. CALDWELL:
`
`Yes, sir.
`
`MR. AROVAS:
`
`That is agreed.
`
`THE COURT:
`
`Okay.
`
`Very well.
`
`All right.
`
`As to the questions that I'm going
`
`to allow Mr. Arovas to ask on cross-examination, I really
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`do expect us to be at the end of this.
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`So if the
`
`questions are indeed along the lines of what Mr. Arovas
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`has suggested he wants to ask and what the Court will
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`allow, there -- I expect there not to be any follow-up on
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`that on redirect.
`
`Is that understood?
`
`MR. CALDWELL:
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`Yes, Your Honor.
`
`MR. CURRY:
`
`Yes.
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 19 of 314 PageID #: 32084
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`19
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`THE COURT:
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`All right.
`
`Very well.
`
`And we've been provided, Mr. Ward, with the
`
`slides to which there are objections.
`
`We'll look through
`
`those this morning and address it before the witness
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`comes in.
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`MR. WARD:
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`And if you want to hear any of the
`
`background, we're happy to --
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`THE COURT:
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`Yeah.
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`We will need to, but I
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`think it will help us to have the slides.
`
`MR. WARD:
`
`Mr. Cassady pointed out to me that
`
`we might get to them before lunch; but if we do them at
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`the morning break, we should be fine.
`
`THE COURT:
`
`Okay.
`
`All right.
`
`Very well.
`
`Anything further?
`
`MR. CALDWELL:
`
`Judge, one point of
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`clarification.
`
`We definitely agree.
`
`We never wanted to
`
`be in the claim construction issue, period; but because
`
`he's an expert who did the analysis, we would probably --
`
`we'll ask him:
`
`Have you applied the Court's
`
`construction, which I think is -- he's actually required
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`to do.
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`We won't -- we're not going to talk about the
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`back and forth and whose positions are what.
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`THE COURT:
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`Hasn't he already been asked that?
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`MR. CALDWELL:
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`I hope so.
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`I believe so.
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`But,
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`I mean, based on the fact that there's apparently going
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 20 of 314 PageID #: 32085
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`to be more cross on it, we would just say:
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`Are you
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`applying the Court's claim construction in your analysis?
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`20
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`THE COURT:
`
`Any objection to that, Mr. Arovas?
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`MR. AROVAS:
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`It's been said, but it's fine.
`
`THE COURT:
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`Okay.
`
`All right.
`
`Very well.
`
`MR. CALDWELL:
`
`Thank you.
`
`THE COURT:
`
`Ms. Mayes, let's have the jury
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`brought in.
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`COURT SECURITY OFFICER:
`
`All rise for the
`
`jury.
`
`(Jury in.)
`
`THE COURT:
`
`Please be seated.
`
`Good morning, ladies and gentlemen of the
`
`jury, and welcome back.
`
`I appreciate everybody being
`
`here on time.
`
`Yet again, we were late starting; and that
`
`was my fault and the fault of the attorneys.
`
`For that,
`
`we do apologize.
`
`There were a couple of legal issues and
`
`evidentiary matters that we needed to bring up and
`
`discuss outside your presence.
`
`And I do think, having
`
`done that -- although we did make you wait a little bit
`
`this morning, I do think that things will go more
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`smoothly and be somewhat more streamlined this morning.
`
`So thank you for your patience and your
`
`understanding on that.
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 21 of 314 PageID #: 32086
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`Mr. Arovas, good morning.
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`You may continue.
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`21
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`MR. AROVAS:
`
`Thank you, Your Honor.
`
`MARK JONES, Ph.D., PLAINTIFFS' WITNESS,
`
`PREVIOUSLY SWORN
`
`DIRECT EXAMINATION (CONTINUED)
`
`BY MR. AROVAS:
`
`Q.
`
`A.
`
`Q.
`
`Welcome back, Dr. Jones.
`
`Thank you, sir.
`
`Okay.
`
`So let me first off just address some
`
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`09:20AM
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`issues related to claim construction.
`
`Okay?
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`12
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`A.
`
`Q.
`
`Okay.
`
`Now, you testified yesterday on your direct about
`
`13
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`claim constructions applied in the prior trial.
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`09:21AM
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`09:21AM
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`Do you recall that?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Okay.
`
`MR. AROVAS:
`
`And could we have the ELMO?
`
`Q.
`
`(By Mr. Arovas) I'm going to ask you some very
`
`narrow questions about that.
`
`There was an issue about
`
`where the concept of anonymity in the disputed claim
`
`constructions came from.
`
`Do you recall that?
`
`Yes, sir.
`
`Okay.
`
`And you testified, well, the party that
`
`A.
`
`Q.
`
`09:21AM
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`originally proposed that construction was Apple, right?
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`
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 22 of 314 PageID #: 32087
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`22
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`A.
`
`Q.
`
`Yes, sir.
`
`Okay.
`
`And it's a fact, isn't it, actually, the
`
`original proposal by Apple for the "secure communication
`
`link" construction that we were talking about did, in
`
`fact, include the concept of anonymity as a limitation in
`
`that construction?
`
`Right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Okay.
`
`Good.
`
`And then this case proceeded; and we
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`09:22AM
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`eventually found ourself on appeal, right?
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`A.
`
`Q.
`
`Yes, sir.
`
`Okay.
`
`And in the appeal, the parties disputed the
`
`13
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`claim construction, right?
`
`14
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`15
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`A.
`
`Q.
`
`09:22AM
`
`Yes, sir.
`
`Okay.
`
`And the Apple position in the appeal was
`
`16
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`that the secure communication link should be -- or should
`
`17
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`require anonymity, right?
`
`18
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`A.
`
`Q.
`
`A.
`
`Q.
`
`09:22AM
`
`That's my understanding, yes.
`
`Yeah.
`
`And VirnetX opposed that, right?
`
`That's my understanding.
`
`Okay.
`
`And the Federal Circuit concluded:
`
`22
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`Moreover, we agree with Apple that when read in the light
`
`23
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`of the entire specification, that the term "secure
`
`24
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`communication link" requires anonymity; indeed, the
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`09:22AM
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`addition of anonymity is presented as one of the primary
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`
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 23 of 314 PageID #: 32088
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`23
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`inventive contributions of the patent.
`
`Right?
`
`That's my understanding, yes.
`
`Okay.
`
`And, so, now that we're here today, we have
`
`A.
`
`Q.
`
`a claim construction that comes from that appellate
`
`patent court, the Federal Circuit; and that's the
`
`construction we use here, right?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes, sir.
`
`As instructed by the Court, right?
`
`Yes, sir.
`
`Okay.
`
`Good.
`
`Thank you.
`
`THE COURT:
`
`Any redirect?
`
`Oh, I'm sorry.
`
`Were you not completed?
`
`MR. AROVAS:
`
`I wasn't done, Your Honor.
`
`THE COURT:
`
`All right.
`
`Sorry about that.
`
`MR. AROVAS:
`
`I didn't realize that that was
`
`THE COURT:
`
`No, no.
`
`Go right ahead.
`
`I
`
`it.
`
`apologize.
`
`MR. AROVAS:
`
`Fortunately, I do have one short
`
`topic left to cover --
`
`THE COURT:
`
`Certainly.
`
`MR. AROVAS:
`
`-- and then we will turn the
`
`witness over for redirect.
`
`THE COURT:
`
`Fair enough.
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`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 24 of 314 PageID #: 32089
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`Q.
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`(By Mr. Arovas) Okay.
`
`Dr. Jones, the last thing
`
`I'd like to cover is just a few questions about your
`
`background.
`
`Okay?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Okay.
`
`So you testified about your experience on
`
`direct, right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Okay.
`
`Is it fair to say, despite all the
`
`experience that you shared with the jury, before you were
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`retained by VirnetX, you've never heard of the VirnetX
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`patents?
`
`Right?
`
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`A.
`
`Q.
`
`That's correct, sir.
`
`Okay.
`
`And you testified on direct that you're a
`
`14
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`professor, right?
`
`09:23AM
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`
`16
`
`A.
`
`Q.
`
`Yes, sir.
`
`And you've been a professor for a large portion of
`
`17
`
`your professional career; it's fair to say?
`
`18
`
`19
`
`A.
`
`Q.
`
`09:24AM
`
`20
`
`you?
`
`A.
`
`Q.
`
`21
`
`22
`
`23
`
`Yes.
`
`Okay.
`
`But you're not a full-time professor, are
`
`Yes, I am.
`
`You're full-time.
`
`Okay.
`
`At the time of your deposition, you were not a
`
`24
`
`full-time professor, right?
`
`09:24AM
`
`25
`
`A.
`
`That's correct.
`
`
`
`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 25 of 314 PageID #: 32090
`
`25
`You had dropped to about 40 percent, right?
`
`Okay.
`
`Yes, sir.
`
`And when was that deposition?
`
`How long ago?
`
`December -- or maybe January of 2015.
`
`That sounds
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`right.
`
`Q.
`
`Okay.
`
`And the reason you had dropped to 40
`
`percent was because you were doing a lot of expert
`
`consulting work and testifying, right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Okay.
`
`And you've been doing that for the better
`
`1 2 3 4 5 6 7 8 9
`
`09:24AM
`
`09:24AM
`
`10
`
`11
`
`part of 10, 15 years; is that right?
`
`12
`
`13
`
`A.
`
`Q.
`
`About -- about ten years, I think, yes, sir.
`
`Okay.
`
`And so certainly because of your work as a
`
`14
`
`professor and a testifying expert, it's a fact that you
`
`09:24AM
`
`15
`
`haven't been in the business of developing commercial
`
`16
`
`VPNs, right?
`
`17
`
`18
`
`A.
`
`Q.
`
`That's correct.
`
`Okay.
`
`And you've never developed a commercial VPN
`
`19
`
`product, right?
`
`09:24AM
`
`20
`
`21
`
`A.
`
`Q.
`
`That's correct.
`
`Okay.
`
`And no company is operating a secure
`
`22
`
`network deployment that was designed by you, correct?
`
`23
`
`24
`
`A.
`
`Q.
`
`Not that I know of.
`
`Okay.
`
`And you've never been involved in the
`
`09:25AM
`
`25
`
`installation or deployment of any VPN solution for any
`
`
`
`Case 6:12-cv-00855-RWS Document 436 Filed 02/04/16 Page 26 of 314 PageID #: 32091
`
`26
`
`enterprise network, right?
`
`A.
`
`Q.
`
`That's correct.
`
`Okay.
`
`And you've never run a company involved in
`
`network security or VPNs?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`That's correct.
`
`You've never designed a VPN protocol, right?
`
`That's correct.
`
`You've not designed any VPN equipment, right?
`
`That's correct.
`
`You've never been asked to head a major university
`
`1 2 3 4 5 6 7 8 9
`
`09:25AM
`
`09:25AM
`
`10
`
`11
`
`program specifically focused on network security, right?
`
`12
`
`13
`
`A.
`
`Q.
`
`That's correct.
`
`Okay.
`
`You've not published any papers primarily
`
`14
`
`focused on VPNs, right?
`
`09:25AM
`
`15
`
`16
`
`A.
`
`Q.
`
`That's correct.
`
`And moving on to some of your consulting work, I
`
`17
`
`think it's fair to say you've been paid a lot of money
`
`18
`
`for your consulting work over the past several years?
`
`19
`
`20
`
`A.
`
`Q.
`
`09:25AM
`
`Yes, sir.
`
`And over the past 5 years, would you say more than
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`21
`
`50 percent of your income has come from expert co
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