Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` - - -
`
` VEEAM SOFTWARE CORPORATION,
`
` Petitioner,
`
` v.
`
` SYMANTEC CORPORATION,
`
` Patent Owner
`
` - - -
`
` Case Nos. IPR2013-00141 and IPR 2013-00142
`
` U.S. Patent No. 6,931,558
`
` - - -
`
` DEPOSITION OF
`
` MATTHEW DANIEL GREEN, Ph.D.
`
` New York, New York
`
` February 14, 2014
`
`Reported By:
`
`Cheryll Kerr
`
`Ref: 11236
`
`TransPerfect Legal Solutions
`212-400-8845 - depo@transperfect.com
`
`

`

`Page 4
`
`
` INDEX
`
` WITNESS: Matthew Daniel Green, Ph.D.
` EXAMINATION PAGE
` By Ms. Gordon 6, 299
` By Mr. Richetti 295
`
` EXHIBITS
` GREEN
` FOR ID DESCRIPTION PAGE
`
` Exhibit 1 Declaration of Matthew D. Green in 19
` Support of Patent Owner's Response
` Pursuant to 37 C.F.R. Section
` 42.120
` Exhibit 2 Multipage printout from John Hopkins 57
` website regarding "Matthew D. Green"
`
` Exhibit 3 Multipage printout from 135
` barrgroup.com dated 2/13/14
` Exhibit 4 U.S. Patent No. 7,093,086 205
` Exhibit 5 U.S. Patent No. 6,795966 281
` Exhibit 6 Document entitled "Checkpoint 284
` for Network Transferable
` Computer, Certified Translation
` by Kotoba, Inc."
`
` Exhibit 7 Declaration of Matthew D. Green 286
` in Support of Patent Owner's
` Motions to Amend Pursuant to
` 37 C.F.R. Section 41.121
`
` Exhibit 8 Patent Owner's Motion to Amend 286
` Pursuant to 37 C.F.R. Section
` 42.121
`
`Page 5
`
`
`
` EXHIBITS (Cont.)
`
` GREEN
` FOR ID DESCRIPTION PAGE
` Exhibit 9 United States Patent 7,533,229 290
`
`Page 2
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` February 14, 2014
` 9:27 a.m.
`
`
`
`
`11
` Deposition of Matthew Daniel Green, Ph.D., taken
`12
` by counsel for Petitioner, held at the offices of
` Bryan Cave, 1290 Avenue of the Americas, New York,
` New York, commencing on February 14, 2014 at 9:27
` a.m., reported by Cheryll Kerr, LSR, a Licensed
` Shorthand Reporter and Notary Public in and for
` the State of New York.
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`Page 3
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`
` A P P E A R A N C E S:
` FOR PETITIONER:
` STERNE, KESSLER, GOLDSTEIN & FOX, LLC
` BY: LORI GORDON, ESQ. / lgordon@skgf.com
` BY: DANIEL BLOCK, ESQ. / dblock@skgf.com
` BY: MARK FOX EVENS, ESQ. / mevens@skgf.com
` 1100 New York Avenue, NW
` Washington, DC 20005
` 202.371.2600
`
` FOR PATENT OWNER:
` BRYAN CAVE, LLP
` BY: JOSEPH J. RICHETTI, ESQ. / joe.richetti@bryancave.com
` BY: FRANK FABIANI, ESQ. / frank.fabiani@bryancave.com
` BY: HASSAN ALBAKRI, ESQ. / hassan.albakri@bryancave.com
` One Metropolitan Square
` 211 North Broadway, Suite 3600
` St. Louis, MO 63102-2750
` 314.259.2619
`
` *** *** ***
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` M.D. Green, Ph.D.
` M A T T H E W G R E E N, P h. D.,
` called as a witness, having been duly
` sworn, was examined and testified
` as follows:
` THE SHORTHAND REPORTER: Please state
` your full name and your address for the
` record, sir.
` THE WITNESS: Matthew Daniel Green,
` 4506 Roland Avenue, Baltimore, Maryland,
` 21210.
` THE SHORTHAND REPORTER: Thank you.
` Please proceed.
`
` DIRECT EXAMINATION
` BY MS. GORDON:
`
` Q. Good morning, Dr. Green. My name is Lori
` Gordon, and I'm going to be taking your deposition
` today.
` I saw from your resume that you have been
` deposed before; is that correct?
` A. That's correct.
` Q. Okay, so just before we begin, I am just
` going to go through the standard ground rules for
`
`Page 7
`
` M.D. Green, Ph.D.
` this deposition.
` Does that sound fair for you?
` A. Sure.
` Q. Okay.
` So you understand that you're going to be
` testifying under oath today?
` A. Uh-huh, yes.
` Q. Okay.
` As part of your oath, you understand that
` you're here to testify fully, and accurately, and to
` the best of your knowledge?
` A. Yes.
` Q. Okay.
` So in this deposition, like the other
` deposition you had, I am going to be asking you
` questions.
` My questions and your answers are going to be
` recorded by the court reporter, so it's important
` for you to answer verbally.
` She won't be able to record a nod of the head
` or any nonverbal answers like "uh-huh" or "huh-uh,"
` okay? Do you understand?
` A. I understand.
` Q. Okay. Now, on -- on occasion, I may ask
`
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` M.D. Green, Ph.D.
` you a question that you may not understand or that I
` did not phrase in the best way.
` If there is ever a point where there's a
` question that you don't understand, please just ask
` me to rephrase it or state that you don't
` understand, and I'll try and ask you a different --
` a better question.
` A. Okay.
` Q. Okay?
` A. (Nodding).
` Q. So it's generally my habit to take a
` break every 60 to 90 minutes.
` If it happens that you need a break before that
` time, just let your attorney know, and we will
` finish up the pending question, and then we will
` take a break at the next available time.
` A. Okay.
` Q. Is that okay? Great.
` Is there any reason that you can think of that
` you cannot give accurate testimony today?
` A. No.
` Q. Okay.
` You understand that this deposition covers the
` direct testimony that you provided via declarations
`Page 9
`
` M.D. Green, Ph.D.
` in the inter partes review of U.S. Patent 7,093,086;
` is that correct?
` A. Yes, that's correct.
` Q. Okay.
` And for the ease of discussion, we will refer
` to that as "the '086 patent." Does that sound
` acceptable?
` A. (Nodding).
` Q. Okay?
` A. Okay.
` Q. So in your opinion, what is --
` What is the subject matter of the the '086
` patent?
` (Thereupon, an informal discussion was
` held off the record with the shorthand
` reporter.)
` THE WITNESS: The '086 patent
` describes an invention that is described
` to perform backup of virtual machines.
` BY MS. GORDON:
` Q. And is it designed to do anything other
` than backup of virtual machines?
` A. It describes backup, and then there's a
` separate embodiment that describes disaster
`
`3 (Pages 6 to 9)
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` M.D. Green, Ph.D.
` recovery.
` Q. Okay.
` (Pause)
` BY MS. GORDON:
` Q. And did you prepare for this deposition?
` A. I did.
` Q. And did you talk to anyone other than
` your attorneys in preparation for this deposition?
` A. As part of preparing, I spoke with the
` attorneys here.
` No. I read the reports, of course, but I
` didn't speak with anyone else.
` Q. Okay.
` And when you say "the reports," what are you
` referring to?
` A. I'm sorry. My declarations and the
` materials.
` Q. Okay.
` And you said "the materials." What materials
` would those be?
` A. So I reviewed a number of materials,
` including the '086 patent, and I believe I gave a
` list at the beginning of my report, so I reviewed
` those materials.
`
`Page 11
`
` M.D. Green, Ph.D.
` Q. Okay.
` And other than the materials listed in your two
` declarations and the declarations themselves, did
` you review anything else in preparation for this
` deposition?
` A. Well, throughout this case, I have done
` some web searches in technologies.
` I didn't list those in my report, because I
` don't have specific documents. I looked at a
` variety of things, but...
` Q. And as part of those web searches, did
` you do any searches on the state of virtual machines
` prior to 2002?
` A. Could you explain what you mean by "the
` state of virtual machines"?
` Q. Did you do any research on papers,
` patents, or other documents that were issued prior
` to 2002 related to virtual machines?
` A. I did not do any research on papers
` specifically.
` Q. And you --
` A. I didn't look for patents.
` Q. You said you did look for patents?
` A. No, I did not search for patents.
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` M.D. Green, Ph.D.
` Q. Okay.
` So did you do any research on virtual machines
` prior to 2002 as part of -- for this project, or as
` part of preparation of your declarations?
` MR. RICHETTI: Objection to the form.
` You can answer.
` THE WITNESS: I looked around a
` little bit.
` I did some web searches on the state
` of technology in the 1990s.
` BY MS. GORDON:
` Q. Okay.
` What websites did you review on the state of
` the technology in the 1990s?
` A. I did a variety of searches to try to
` understand what virtualization systems had products
` were available in the 1990s -- early 1990s.
` Q. Okay, and can you elaborate on that?
` So what searches did you do to determine what
` products were available in the 1990s?
` A. I searched on -- I searched VMWare to
` identify the history of the company. I searched
` some other -- I think there was Connectix, to try to
` identify the history of that company. Those were
`Page 13
`
` M.D. Green, Ph.D.
` very short searches.
` Q. Did you review any documents related to
` the Connectix product?
` A. No, I didn't, besides the search I
` described.
` Q. When you said you searched "the website,"
` was that the current Connectix website?
` A. No.
` Q. What -- how did you search a prior
` Connectix website?
` A. No, I searched the Connectix history, and
` literally, I think the result which came up,
` which --
` It might have been Wikipedia, which had the
` date of the founding of the company. That's --
` that's what -- I was looking at that.
` Q. Okay, and you said you did very short
` searches.
` Can you estimate how short those searches were,
` how long of a time frame?
` A. For those searches, it was a matter of
` means.
` Q. Okay. Other than the VMWare or
` Connectix, did you identify any other products
`
`4 (Pages 10 to 13)
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` M.D. Green, Ph.D.
` existing in --
` (Thereupon, an informal discussion was
` held off the record.)
` BY MS. GORDON:
` Q. As part of --
` Other than VMWare and Connectix, did you
` identify any other products as a result of those
` searches?
` A. I didn't search for any other products.
` Q. And how did you decide to just search on
` VMWare and Connectix?
` A. I searched on VMWare, simply because it
` was mentioned in some of the materials provided in
` this case.
` I searched on Connectix, because it's a VMWare
` that I've used, and so I was curious about its
` history.
` Q. Okay.
` Are you aware of any other products -- VMWare
` products -- that existed prior to 2002?
` A. I am aware that VMWare had products prior
` to 2002.
` Q. And other than VMWare, are you aware of
` any other company that had VMWare products before
`Page 15
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` M.D. Green, Ph.D.
` 2002?
` A. I think that question may have just been
` part of the phrase, but "VMWare products made by a
` company other than VMWare"?
` BY MS. GORDON:
` Q. Okay. Virtual machine products. Sorry.
` Did you search on any virtual machine products
` made by a company other than VMWare?
` A. Yes.
` Q. Okay, and what products did you search
` on?
` A. I mentioned Connectix, for example.
` Q. Other than VMWare and Connectix, did you
` search for any other virtual machine products?
` A. I did not search for any other.
` Q. Other than VMWare and Connectix, are you
` aware of any other virtual machine products that
` existed prior to 2002?
` A. Well, virtual machine is a big area. For
` example Java has had a virtual machine that used to
` run Java programs, and that's been in existence
` since the mid-'90s, perhaps.
` I was aware of that, because I used Java
` programs during that period of time.
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` Q. Okay.
` And other than Java, Connectix, and VMWare, are
` you aware of any other virtual machine products to
` 2002?
` A. I can't think of anything specifically
` that's a product that I am aware of.
` Maybe -- no, that's all I can think of right
` now.
` Q. So other than product, did you search for
` any materials related to VM? Virtual machines?
` A. I didn't make any explicit web searches
` in that time period.
` Q. Okay.
` (Pause)
` BY MS. GORDON:
` Q. As part of the preparation of your
` declaration, did you search for any other products
` other than virtual machine products prior -- that
` existed prior to 2002?
` A. I didn't explicitly search for any other
` products.
` Q. Okay.
` When you say "explicitly," can you explain what
` you mean by that?
`
`Page 17
`
` M.D. Green, Ph.D.
` A. I can't recall making any searches with
` the intent of searching for those products.
` Q. So you didn't search for any backup
` products in existence before 2002?
` A. I didn't search for them.
` Q. And did you search for any disaster
` recovery products in existence before 2002?
` A. No.
` Q. Okay.
` And did you search for anything else as part of
` the preparation for this declaration?
` A. Throughout, I searched for some manuals,
` one of which I included in my report. Current
` documentation, things like that.
` Q. You referenced a manual. What manual
` were you referring to?
` A. I'm sorry.
` The document that I'm referring to in my report
` is part of the VMWare knowledge base, which is their
` tech support site.
` Q. You said that document is part of a
` manual; is that correct?
` A. It's part of technical documentation. I
` misspoke.
`
`5 (Pages 14 to 17)
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` Q. Okay.
` But you only provided a few sheets of that
` technical documentation; is that correct?
` A. That's correct.
` Q. But you had reviewed more than those few
` sheets of that technical documentation?
` A. I believe I provided the entire document
` in that case.
` Q. And how large were those documents?
` A. The document is very short.
` Q. Okay.
` You said that document was part of a larger
` knowledge base?
` A. I'm sorry. No.
` The document was drawn from a larger knowledge
` base. I didn't search the entire knowledge base.
` Q. Okay.
` In preparation for the deposition today, were
` there any documents that you wanted to review, but
` were unable to review before this deposition?
` A. Not that I can think of.
` Q. Okay.
` Was there anyone you wanted to talk to, in
` preparation for the deposition, but that you were
`Page 19
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` M.D. Green, Ph.D.
` unable to?
` A. No.
` MS. GORDON: Okay. Would you mark
` this as Exhibit 1?
` (Thereupon, the document was marked by
` the shorthand reporter as Green Exhibit 1
` for identification.)
` BY MS. GORDON:
` Q. So Dr. Green, you've been happened what's
` been marked as Green Exhibit 1.
` As with any of document that will be handed to
` you today, can you just take a look at it, and let
` me know when you're ready?
` (Pause)
` THE WITNESS: Yes. Okay.
` BY MS. GORDON:
` Q. Okay, and have you seen this document
` before?
` A. Yes, I have.
` Q. And what is this document?
` A. This is a declaration I wrote in support
` of the patent owner's response.
` Q. Okay, and could please you turn to
` Exhibit A?
`
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` M.D. Green, Ph.D.
` (Pause)
` BY MS. GORDON:
` Q. So the document included as Exhibit A --
` is this the most current version of your C.V.?
` A. I believe so.
` It's the most current one -- version -- I
` submitted in this declaration.
` Q. Okay, and when did you submit this
` declaration?
` A. I don't remember the date.
` (Pause)
` THE WITNESS: I believe it was at the
` end of November 2013.
` BY MS. GORDON:
` Q. Okay.
` And when you submitted this C.V. was it full,
` and complete, and accurate, to the best of your
` knowledge?
` A. Yes.
` Q. Okay.
` And how often do you review your C.V. to update
` it?
` A. When I have a new publication, for
` example, I try to update my C.V.
`
`Page 21
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` M.D. Green, Ph.D.
` Q. Okay.
` And when was the last time you updated this
` C.V. prior to November?
` A. I may have updated it a few weeks ago,
` because I discovered an issued patent that I believe
` is not on the C.V.
` Q. Okay.
` And prior to November of last year, when did
` you update your C.V. last?
` A. I believe it would have been fairly close
` to the time that I submitted this report.
` Q. Okay.
` As we sit here today, is there anything you
` would like to add or modify with your C.V.?
` A. Not that I know of.
` Q. Okay.
` So I would like to take you through your C.V.,
` if I could.
` A. Sure.
` Q. So if we start with the summary, the
` first sentence identifies you as a Research
` Professor of Computer Science, but if we look at
` work experience, it identifies you as an Associate
` Research Professor.
`
`6 (Pages 18 to 21)
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` M.D. Green, Ph.D.
` A. I'm sorry. It's Assistant Research
` Professor.
` Q. Okay, so that was just a mistake?
` A. Research Professor --
` There are different degrees of Research
` Professor, and I am an Assistant -- an Assistant
` Research Professor.
` Q. A Research Professor is a higher degree
` than an Associate Research Professor?
` A. I don't think so.
` I think Research Professor is a class of
` professor at Johns Hopkins, and there are different
` degrees within that.
` Q. And what are the degrees within that?
` A. I believe there's assistants.
` There's associates, and I believe there may be
` a full Research Professor.
` Q. Okay.
` So assistant would be kind of the lowest, then
` associate, then full?
` A. Assistant is the lower of the degrees,
` yes.
` Q. Okay, and it says in the next sentence
` you are "recognized internationally as an expert in
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` M.D. Green, Ph.D.
` the field of cryptography and computer science"; is
` that correct?
` A. It says "computer security."
` Q. Computer security? Sorry. Is that
` correct?
` A. That's correct.
` Q. And what is the basis for this statement?
` A. Over the past several years, my research
` area has been computer security and cryptography,
` and so that's been my focus in terms of research. I
` believe that's the basis.
` Q. You indicate you are recognized
` internationally.
` How do you know that you're recognized
` internationally in those fields?
` A. I believe that -- well, it's a little bit
` of a difficult statement.
` I don't know exactly how you would demonstrate
` that, but I have been quoted in a number of
` newspapers all over the world.
` I have testified in cases in different
` countries, for example.
` Q. Do you have any international awards in
` those fields?
`
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` A. I can't think of any international
` awards.
` Q. Okay.
` Would you consider yourself as recognized
` nationally as an expert in the fields of
` cryptography and computer security?
` A. I suppose so.
` Q. Okay, and do you have any awards in those
` areas?
` A. I believe that I have an award in -- a
` privacy enhancing technologies award.
` Q. Okay.
` And are there any other industry recognitions
` that you've received in your career?
` A. In the course of my career? Not specific
` awards, no.
` Q. Okay.
` Are you recognized as an expert in the field of
` virtual machines?
` A. I have worked with virtual machines, and
` I have expertise in that area.
` Q. But are you recognized as an expert in
` that field of virtual machines?
` A. I'm not quite sure how to answer that
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` M.D. Green, Ph.D.
` question.
` Q. Okay.
` Would you consider yourself an expert in the
` field of virtual machine?
` A. I have expertise in virtual machines,
` yes.
` Q. So are the -- are there different
` levels -- I guess there are different degrees of
` having expertise.
` So is the expertise you have in virtual
` machines enough to -- for you to be considered
` amongst your peers as an expert in virtual machines?
` A. I believe that I could be considered an
` expert in virtual machines.
` Q. Okay, and what are you basing that
` statement on?
` A. I have worked with virtual machine
` technology for a number of years as part of my
` research, which involves diverse areas, including
` distributed systems research and computer security
` research.
` (Pause)
` BY MS. GORDON:
` Q. In your resume, you say you are a
`
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`212-400-8845 - depo@transperfect.com
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` recognized expert in computer security and
` cryptography, correct?
` A. Correct.
` Q. But you don't list that you are an expert
` in virtual machines; is that correct?
` A. I don't list that, no.
` Q. Okay. Are you an expert in the field of
` computer backup?
` A. I'm not sure what an expert in the field
` of computer backup would be;
` But I have worked in a number of areas,
` including content distribution, which includes the
` process of replicating, and copying, and
` distributing files across large-scale networks --
` Q. Uh-huh.
` A. -- and so I think those are the basic
` underlying technologies behind the computer backup.
` Q. Do you consider replication a part of
` backup?
` A. Replication is a part of backup.
` Q. Okay.
` Would you consider yourself or are you
` recognized as an expert in the field of disaster
` recovery?
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` M.D. Green, Ph.D.
` A. Again, I'm not sure what expert in
` disaster recovery would be.
` But in terms of the technologies that I am
` comfortable with and I have worked with, I have
` expertise in transferring data to geographically
` distant sites.
` Q. Okay. I'm interested --
` I think you testified earlier that the subject
` matter of the '086 patent was designed to -- was
` related to performing backup of virtual machines; is
` that correct?
` A. It's related --
` Q. Okay.
` A. -- to performing backup.
` Q. Yet in your C.V., when you state what
` you're an expert in, you didn't state that you were
` an expert in either virtual machines or backup; is
` that correct?
` A. I didn't state I was an expert in those
` areas, but obviously, I have a great deal of
` experience with those areas.
` Q. Okay, and we will get into that as we
` work through your C.V. to understand how much
` expertise you have in those fields.
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` M.D. Green, Ph.D.
` Going to the next statement in your summary,
` you say that you're experienced as a testifying
` expert witness and litigation consultant in court
` cases involving issues ranging from patent
` infringement and validity to mobile devices and
` operating system software to theft of copyrighted
` source code to computer security and interception of
` encrypted signals; is that correct?
` A. That's correct.
` Q. Okay.
` And in that statement, you don't refer to
` virtual machines; is that correct?
` A. This statement does not refer to virtual
` machines.
` Q. And this statement also does not refer to
` backup technology?
` A. Well, it talks about operating system
` software, which can -- which can include backup
` technology, but it doesn't specifically refer to
` backup technology.
` Q. Okay.
` When you say operating system software "can
` include backup technology," can you explain that in
` a little more detail?
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` M.D. Green, Ph.D.
` A. Well, there --
` There, you can certainly include backup
` components of backup technology into an operating
` system.
` Q. Okay.
` Could you include components of backup
` technology into something like a VMWare kernel?
` A. It's probably that you could put a
` backup -- put a piece of backup software into a
` kernel.
` Q. So the VM kernel could form certain
` components of backup?
` MR. RICHETTI: Objection to the form.
` THE WITNESS: I suppose it depends on
` the VM kernel.
` MS. GORDON: Okay.
` BY MS. GORDON:
` Q. Okay.
` So in that statement, again, going back to your
` experience as an expert witness and consultant, you
` list a number of fields we just went through.
` Do you have experience in any other field other
` than those listed in that statement?
` A. Yes, I do.
`
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` M.D. Green, Ph.D.
` Q. And what were those fields?
` A. So I've worked for a number of years on
` distributed storage, and this is the problem of
` moving files all over the world, distributing
` content to locations.
` (Thereupon, an informal discussion
` held off the record with the shorthand
` reporter.)
` BY MS. GORDON:
` Q. And what case did you work on distributed
` storage?
` A. So it was not a legal case.
` Q. Uh-huh.
` A. When I worked at AT&T Laboratories, one
` of my primary responsibilities was building a
` large-scale content distribution system, and this
` was at a time when AT&T was the world's largest
` cable provider.
` They had an interest in distributing large
` quantities of audiovisual data around the world, and
` so we built a system that would massively replicate
` and duplicate files across a network to computers
` potentially all over the world, and then identify
` the location of those files and bring them back to
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` M.D. Green, Ph.D.
` person who needed them.
` Q. And you would consider that work effort
` to be for backup purposes?
` A. Part -- part of the reason was if a
` server containing information was also or destroyed,
` we would have backup copies throughout the network,
` and that's what replication is.
` It's making duplicates in part, so you have
` duplicates in the event of a disaster.
` Q. Okay.
` So replication, again, is a key component of
` backup, correct?
` A. Replication is a portion of backup.
` Q. Okay.
` Your work at AT&T Labs -- did that involve
` virtual machines?
` A. I worked with virtual machines at AT&T
` Labs .
` Q. Okay.
` And when you say you "worked with virtual
` machines at AT&T labs," what virtual ma