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` UNITED STATES PATENT AND TRIAL APPEAL BOARD
`
`VEEAM SOFTWARE CORPORATION, )
` Petitioner, )
` vs. ) Case No.
`SYMANTEC CORPORATION, ) IPR 2013-00150
` Patent Owner. )
` _ _ _ _ _
` DEPOSITION OF PRASHANT SHENOY, Ph.D.
` WASHINGTON, D.C.
` MARCH 7, 2014
`The Deposition of PRASHANT SHENOY, Ph.D. was
`convened on Friday, March 7, 2014, commencing at
`9:36 a.m., at the offices of Sterne Kessler
`Goldstein & Fox, 1100 New York Avenue,
`Northwest, Washington, D.C., Suite 800, before
`Ryan K. Black, Registered Professional Reporter
`and Notary Public.
`
` _ _ _ _ _
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`212-267-6868
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`VERITEXT REPORTING COMPANY
`www.veritext.com
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`516-608-2400
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`Symantec 2020
`Veeam v. Symantec
`IPR2013-00150
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`1 Whereupon --
`2 PRASHANT SHENOY, Ph.D.,
`3 called to testify, having been first duly sworn
`4 or affirmed, was examined and testified as
`5 follows:
`6 EXAMINATION BY COUNSEL FOR PATENT OWNER
`7 BY MR. RICHETTI:
`8 Q. Good morning, Dr. Shenoy.
`9 A. Good morning.
`10 Q. Can you please state your name and
`11 address for the record?
`12 A. Prashant Shenoy. Address is 6 Bixby
`13 Court, Northampton, Massachusetts 01060.
`14 Q. And, again, Dr. Shenoy, I know you've
`15 been deposed before, so we won't go through a
`16 lengthy list of ground rules, but I think it's
`17 always good just to establish some at the
`18 beginning of the depo.
`19 A. Sure.
`20 Q. First, it's your understanding
`21 that you're here to testify today about the
`22 declarations you submitted in the IPR petition
`23 for the 086 patent?
`24 A. Yes. That's correct.
`25 Q. And as we go throughout the day --
`
`1 APPEARANCES:
`
`23
`
`ON BEHALF OF THE PETITIONER:
`4 DANIEL BLOCK, ESQ.
`5 MARK FOX EVENS, ESQ.
`6 LORI A. GORDON, ESQ.
`7 Sterne Kessler Goldstein & Fox
`8 1100 New York Avenue, N.W.
`9 Washington, D.C. 20005
`10 202.371.2540
`11 dblock@skgf.com
`12 mevens@skgf.com
`13 lgordon@skgf.com
`14
`15 ON BEHALF OF THE PATENT OWNER
`16 JOSEPH RICHETTI, ESQ.
`17 HASSAN ALBAKARI, ESQ.
`18 Bryan Cave
`19 1290 Avenue of the Americas
`20 New York, New York 10104-3300
`21 212.541.2000
`22 joe.richetti@bryancave.com
`23 hassan.albakari@bryancave.com
`24
`25 ALSO PRESENT: PETER H. DYKSTRA, Ph.D
`
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`1 MR. BLOCK: Objection. Just the
`2 declaration.
`3 MR. RICHETTI: I thought there was
`4 two.
`5 MR. BLOCK: Oh, sorry. I apologize.
`6 MS. GORDON: Just being clear,
`7 it's the declarations he submitted in response
`8 to -- in reply to your response. That's the
`9 scope of the deposition today.
`10 MR. RICHETTI: Sure. And that's fine.
`11 MS. GORDON: Yeah.
`12 BY MR. RICHETTI:
`13 Q. So, Dr. Shenoy, as we go throughout
`14 the day, I'll be asking questions. You'll be
`15 answering my questions that I ask.
`16 If at any time the question's unclear,
`17 please let me know, and I'll do my best to
`18 rephrase it.
`19 Is that okay?
`20 A. That sounds good. Thank you.
`21 Q. And, you know, we'll try to take
`22 breaks every so often, hopefully around an hour.
`23 But if at any point in time you need a break
`24 sooner, if you can, just let me know.
`25 A. Thank you. I will.
`
`1 I N D E X
`2 TESTIMONY OF: PRASHANT SHENOY, Ph.D.
`3 BY MR. RICHETTI................................4
`4 BY MR. BLOCK.................................123
`
`5 6
`
` - - -
`7 E X H I B I T S
`8 - - -
`9 NUMBER DESCRIPTION MARKED
`10 No. 1 the Patent Owner's Motion to
`11 Amend ..............................64
`12 No. 2 the ESX User Manual................104
`13 No. 3 the Board's decision to institute
`14 trial..............................122
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`1 Q. So, Dr. Shenoy, did you do anything to
`2 prepare for today's deposition?
`3 A. I read through my declaration and
`4 the patent again and reviewed some of the other
`5 materials that I reviewed when I prepared my
`6 declaration.
`7 Q. And how many declarations have you
`8 submitted in the IPR for the 086 patent?
`9 A. So in the second round I submitted two
`10 declarations.
`11 Q. Okay. And prior to that you submitted
`12 a single declaration?
`13 A. Prior to that I submitted one
`14 declaration, yes.
`15 Q. Just so that we have some type of
`16 terminology to use, so we know which declaration
`17 that we're both talking about, maybe we can use
`18 -- for the old one we can call it the initial
`19 declaration. Is that okay?
`20 A. Yes. That should be fine.
`21 Q. And for the declaration you submitted
`22 in support of Veeam's reply, we'll just call
`23 that the reply declaration.
`24 A. Okay.
`25 Q. And then for the declaration you
`
`1 Q. And, sir, did you mention that you
`2 were here in Washington, D.C., on Tuesday?
`3 A. That's correct. Yes.
`4 Q. And so you met in person with your
`5 attorneys?
`6 A. Yes.
`7 Q. And, Dr. Shenoy, did you provide an
`8 updated CV attached to your declaration?
`9 A. I did, yes.
`10 Q. And by declaration I meant, first, for
`11 the reply declaration, was there an updated CV?
`12 A. I did provide an updated CV, yes.
`13 Q. And did you also provide an updated CV
`14 for the motion to amend declaration?
`15 A. I provided one CV that was updated.
`16 I'm assuming the same CV was filed with both of
`17 those declarations.
`18 Q. And why did you update your CV?
`19 A. I update my CV from time to time as I
`20 write more research papers, so that section of
`21 publication keeps growing. And my attorneys
`22 asked me if I had an updated copy, and I
`23 provided them with one.
`24 Q. Did you make any other changes, other
`25 than adding publications?
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`Page 9
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`1 submitted in support of Veeam's opposition to
`2 Symantec's motion to amend, you know, is it easy
`3 enough to just call that the motion to amend
`4 declaration?
`5 A. Okay.
`6 Q. Is that fair?
`7 A. That's fair.
`8 Q. I'm sure as we go on I'll forget these
`9 three and confuse things, but I'll try my best.
`10 A. Okay. That should be fine.
`11 Q. And did you meet with anyone to
`12 prepare for your deposition today?
`13 A. I met with my attorneys. We talked
`14 about my declaration. And I reviewed the
`15 materials.
`16 Q. And who are your attorneys?
`17 A. Dan Block, Dr. Peter Dykstra, Lori
`18 Gordon.
`19 Q. And, roughly, how much time did you
`20 spend preparing for your deposition today?
`21 A. I spent the weekend reviewing some
`22 materials, and then I was here on Tuesday to
`23 discuss aspects of my declaration. And then I
`24 reviewed some more materials yesterday evening
`25 after the previous deposition.
`
`1 A. I updated the section listing awards
`2 and honors, and I updated the publications
`3 sections.
`4 Those are the ones that come to mind.
`5 Q. And did you recently receive an award
`6 or honor?
`7 A. I did give some keynote talks at
`8 conferences, which are considered to be a form
`9 of an honor, being invited to do a keynote at a
`10 conference. So those are the kinds of awards I
`11 listed on my CV.
`12 Q. And do you have other biographies
`13 or bios, Dr. Shenoy, other than the CV you've
`14 attached?
`15 A. There are biographies that you are
`16 to provide when, for instance, you write a
`17 journal paper. At the end of the journal
`18 paper, you provide a short biography, sometimes
`19 you provide a photograph. So those are forms
`20 of -- considered to be forms of biographies.
`21 I do maintain a web page for my
`22 research, which lists some of my credentials.
`23 Those are the ones that come to mind that I
`24 would have biographies of my background.
`25 Q. What about your LinkedIn page? Would
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`1 that also have some information about your
`2 professional background?
`3 A. I do have a LinkedIn page, yes.
`4 Q. And would it shock you if there was
`5 some differences between the various biographies
`6 that are on the website verse your CV?
`7 A. I don't know what you mean by
`8 differences. The caption in my background have
`9 different levels of detail. I don't update my
`10 LinkedIn page frequently, so I'm assuming it is
`11 often out of date. My CV is up to date. My web
`12 page I update from time to time. So there may
`13 be some publications that may not be captured on
`14 my web page, for instance, that may be in my CV.
`15 So I'm assuming there will be differences
`16 because I don't update them all at once.
`17 Q. So it wouldn't be uncommon that
`18 the different biographies of your professional
`19 activities may be reflecting different aspects
`20 of your career at different points in times. Is
`21 that fair?
`22 A. I think that would be a reasonable way
`23 to phrase that.
`24 Q. And so you might be capturing the
`25 state of your career, pun intended, at different
`
`1 A. I looked at the patent owner's
`2 response. I looked at the deposition provided
`3 by Symantec's expert. I also read through the
`4 transcript of my deposition. I read the 086
`5 patent, the Lim patent, the references related
`6 to the ESX Suzaki paper.
`7 MR. BLOCK: It might help if you put
`8 the declaration in front of Dr. Shenoy. I think
`9 it has the documents in there.
`10 MR. RICHETTI: Okay. I was just
`11 asking.
`12 THE WITNESS: No other that come to
`13 mind.
`14 BY MR. RICHETTI:
`15 Q. And I believe when I deposed you the
`16 first time, Dr. Shenoy, and please feel free to
`17 correct me if I'm wrong, in doing your analysis
`18 associated with this IPR proceeding, I believe
`19 you mentioned that there was some prior art
`20 references that were provided to you from
`21 Veeam's counsel, and you also did your own
`22 searching; is that correct?
`23 A. I do remember doing searching at that
`24 point, yes.
`25 Q. Did you do any additional searching in
`
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`1 times?
`2 A. Yes.
`3 Q. I couldn't resist. I apologize.
`4 So, Dr. Shenoy, in preparing your
`5 reply declaration, how did you go about doing
`6 that?
`7 A. I reviewed the materials. There
`8 were drafts of the declaration that went
`9 through various revisions. I made many of those
`10 revisions. I discussed my thoughts, opinions
`11 with my attorneys. They helped capture some of
`12 my opinions, as well.
`13 So it went through many different
`14 iterations. In the end, I read everything. I
`15 made sure that they reflected my opinion, as I
`16 had wanted to provide in my declaration, and I
`17 signed it.
`18 Q. Did you write the first draft of the
`19 reply declaration?
`20 MR. BLOCK: Objection. Relevance.
`21 THE WITNESS: Not all of it, no.
`22 BY MR. RICHETTI:
`23 Q. And, Dr. Shenoy, while we're pulling
`24 the declaration, do you know what materials you
`25 reviewed in preparing the reply declaration?
`
`1 preparation of your reply declaration?
`2 A. I did, yes.
`3 Q. And what did you find?
`4 A. Nothing of substance. For instance,
`5 I -- there is a vmkfs tool document that I
`6 analyzed. I looked at whether there were
`7 similar documents pertaining to earlier versions
`8 of ESX, for instance. I didn't find anything
`9 substantial there. I mean, I didn't actually
`10 find anything at all.
`11 Q. And did you do any other searching?
`12 MR. BLOCK: Objection. Relevance.
`13 THE WITNESS: I looked for documents
`14 related to ESX Version 1.0.
`15 BY MR. RICHETTI:
`16 Q. And did you find any?
`17 A. And I found web pages that referred to
`18 it in some shape or form, but nothing that I
`19 eventually considered for my declaration.
`20 Q. And did you do any other searches --
`21 MR. BLOCK: Objection.
`22 BY MR. RICHETTI:
`23 Q. -- in preparation of your reply
`24 declaration?
`25 MR. BLOCK: Objection. Relevance.
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`1 THE WITNESS: I can't think of
`2 anything else at the moment. I looked around
`3 on the internet, as I was mentioning, for a few
`4 different things, and I believe I listed the
`5 ones that come to mind.
`6 BY MR. RICHETTI:
`7 Q. And what did you do to prepare your
`8 motion to amend declaration? Was it a similar
`9 process, or, if it's different, you can go
`10 through it.
`11 A. It was a very similar process, yes.
`12 I did review some additional documents there,
`13 which was the patent owner's motion to amend, as
`14 well. I did some similar searches. In fact,
`15 I did -- I did not distinguish. I was just
`16 searching for anything that was relevant as part
`17 of my searches.
`18 Q. Dr. Shenoy, I would like to hand you
`19 what's been marked as Veeam Exhibit 1030 and
`20 just ask if you recognize that.
`21 A. Yes. This is the copy of my reply
`22 declaration.
`23 Q. And I believe you testified before
`24 that you believe you drafted portions of the
`25 first draft of the reply declaration?
`
`Page 16
`1 Q. I guess, just as a housekeeping, I'm
`2 going to follow Dan's advice and hand you the
`3 other declaration, as well.
`4 So, Dr. Shenoy, I'd like to hand
`5 to you Veeam Exhibit 1031, which is the
`6 declaration of Dr. Shenoy in support of
`7 petitioner's opposition to the motion. And all
`8 I'll ask is if you recognize the document.
`9 A. Yes. So this is my motion to amend
`10 declaration.
`11 Q. And in looking through that exhibit,
`12 does anything jump out at you as something you
`13 would have drafted in the first draft, or is it
`14 similar to your response before that, you know,
`15 the work -- the draft had gone through so many
`16 iterations that it may not be possible to do
`17 that?
`18 MR. BLOCK: Objection to form -- I
`19 mean relevance.
`20 THE WITNESS: I would say the same
`21 thing, going through many different iterations.
`22 And I have -- lots of my words that are in
`23 there, but I can't identify even at what points
`24 some of the words were written and in what
`25 declaration they were written.
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`1 A. Yes.
`2 Q. Can you identify them by looking at
`3 the reply declaration?
`4 MR. BLOCK: Objection. Relevance.
`5 THE WITNESS: The document has gone
`6 through several different iterations. There are
`7 many words here that I have written, some that
`8 are directly from the references, for instance.
`9 But I'm not able to give an exhaustive list of
`10 every single word that I wrote in here.
`11 BY MR. RICHETTI:
`12 Q. Right. I thought you mentioned
`13 sections. Is there a way to break it down by
`14 sections, if you can?
`15 A. I said portions. I mean, I didn't
`16 write this section and ask someone else to draft
`17 this section for me. It was more of a
`18 collaborative process.
`19 Q. Understood.
`20 And would have you followed that same
`21 type of collaborative process in creating your
`22 declaration for the motion to amend?
`23 MR. BLOCK: Objection. Relevance.
`24 THE WITNESS: Yes.
`25 BY MR. RICHETTI:
`
`1 MR. BLOCK: Also attorney-client
`2 privilege -- attorney work product. Sorry.
`3 MR. RICHETTI: Mr. Block, are you
`4 instructing him not to answer?
`5 MR. BLOCK: No. He can go ahead and
`6 answer.
`7 MR. RICHETTI: Okay. I just want to
`8 make sure.
`9 BY MR. RICHETTI:
`10 Q. Dr. Shenoy, I'd like to hand you Veeam
`11 Exhibit 1001. I'm sure you've read this
`12 document a few times.
`13 A. Several times, yes. This is the 086
`14 patent.
`15 Q. And I believe in our first deposition,
`16 we went through this in some detail, so I will
`17 do my best not to go over old ground.
`18 With that in mind, Dr. Shenoy, is it
`19 your recollection that the 086 patent describes
`20 multiple embodiments, some embodiments that deal
`21 with issuing a suspend command to the VM kernel,
`22 and some embodiments that perform the backup
`23 process without suspending and allowing the
`24 virtual machine to continue to execute?
`25 MR. BLOCK: Objection. Form.
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`1 THE WITNESS: So there are several
`2 different embodiments being discussed in the 086
`3 patent. Some involve checkpointing. Some
`4 involve backup. So there are at least four that
`5 I can remember that do checkpointing or backup
`6 in various different ways.
`7 BY MR. RICHETTI:
`8 Q. And do you recall that there was
`9 certain embodiments that were directed to
`10 capturing the state while the virtual machine is
`11 executing? And if it helps, I can point you to
`12 Column 2, Line 56.
`13 A. So in Column 2, Line 56 does describe
`14 an embodiment where the system captures state in
`15 cooperation with the kernel while the virtual
`16 machine continues to execute.
`17 Q. And so, if we could, just focusing on
`18 that embodiment for a second, if I could direct
`19 your attention to Column 11, and, in particular,
`20 I mean, I think it starts at Line 14, and it
`21 discusses Figure 6.
`22 Do you see that, sir?
`23 A. Yes.
`24 Q. And is that consistent with your
`25 recollection that Figure 6 is a block diagram of
`
`1 question.
`2 A. Yes. So as Column 11, Line 35
`3 indicates, in this embodiment, the backup
`4 program does communicate with the VM kernel
`5 to -- and requests an image data request -- or
`6 sends an image data request.
`7 Q. And is it your understanding,
`8 Dr. Shenoy, that the VM kernel can respond by
`9 providing state information concerning the
`10 virtual machine, based on that request?
`11 A. So once the backup program
`12 communicates the image data request, the virtual
`13 machine kernel creates a image of the virtual
`14 machine, which captures state of that virtual
`15 machine in this embodiment.
`16 Q. And is it also your understanding
`17 that the VM kernel may just provide back to
`18 the backup program an address for where that
`19 information can be found? And, if it helps,
`20 it's Column 11, Line 66, onto Column 12, Line 3.
`21 MR. BLOCK: Objection. Outside the
`22 scope.
`23 THE WITNESS: So as Column 11,
`24 starting at Line 66 does indicate, the backup
`25 program receives from the VM kernel addresses
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`Page 19
`1 an embodiment of the computer system directed to
`2 this embodiment where you capture state while
`3 the virtual machine is executing?
`4 A. So Figure 6 does describe an
`5 embodiment where you can capture state while
`6 the virtual machine may be executing, yes.
`7 Q. And is that consistent with the
`8 language that's in that Column 11, and I'm
`9 always a little bit off on these numbers, but I
`10 think it starts at 31.
`11 A. So Column 11, Line 31 says, the
`12 embodiment does describe, in this case, a backup
`13 program that's configured to back up virtual
`14 machines without suspending the virtual machine,
`15 yes.
`16 Q. And is it your understanding, Dr.
`17 Shenoy, in Figure 6 that the backup program is
`18 indicated as Number 42?
`19 A. So in Figure 6, Block 42 does depict a
`20 backup program, yes.
`21 Q. And is it your understanding that, in
`22 this embodiment, the backup program communicates
`23 an image request to the VM Kernel 18?
`24 And, if it helps, Column 11, Line 35.
`25 I don't know if that helps you answer the
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`Page 21
`1 locating the memory within the computer system
`2 to the backup program.
`3 BY MR. RICHETTI:
`4 Q. And so at that point in time, the
`5 backup program would be able to go to those
`6 locations and extract out the information?
`7 MR. BLOCK: Objection. Scope.
`8 THE WITNESS: So I would say that
`9 the backup program causes those things to
`10 happen. What entity might actually perform, it
`11 depends on the embodiment. Because the 086
`12 patent specification has indicated that some
`13 aspects of the backup program are actually
`14 performed by the VM kernel, some could be one
`15 performed manually by users and so on. So I
`16 would say the backup program does cause those
`17 things to happen. That I would be comfortable
`18 with.
`19 BY MR. RICHETTI:
`20 Q. But in Column 11, Line 66, at least
`21 here it's saying, Backup Program 42 may copy the
`22 contents of the memory, right?
`23 A. So in this embodiment that we have
`24 been talking about, that happens. I was just
`25 talking, in more general terms, the patent has
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`1 other embodiments that may not do it this way.
`2 Q. So it's fair to say in this embodiment
`3 we're discussing, the backup program is copying
`4 the state of the virtual machine based on an
`5 address provided by the VM kernel. Is that
`6 fair?
`7 MR. BLOCK: Objection. Scope.
`8 THE WITNESS: So backup program may
`9 copy the image that the virtual machine kernel
`10 has provided. Again, the language says may
`11 copy, which I will point out. So it may or may
`12 not. But to the extent it may, it does copy the
`13 contents of the image that the kernel provided
`14 in response to the image data request.
`15 BY MR. RICHETTI:
`16 Q. Right. I want to make sure we're
`17 talking about the same thing. It looks like
`18 -- I thought we discussed what appears to be two
`19 different embodiments. One embodiment is the
`20 backup or program making a request to the VM
`21 kernel for an image, and, in response, the VM
`22 kernel provides the image request. Is that fair
`23 as one of the embodiments?
`24 MR. BLOCK: Look, Joe, this is outside
`25 the scope of Dr. Shenoy's declaration. He
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`Page 24
`1 help develop that, and we'll give you reasonable
`2 latitude to do so. But if you continue to ask
`3 questions outside the scope, we're going to call
`4 the Board. But for now, we're just going to
`5 note our objections on the record when it's
`6 outside the scope.
`7 MR. RICHETTI: And, Dan, while I
`8 appreciate that you've agreed to give me some
`9 latitude to lay the foundation to go through
`10 the 086 patent, which is the underlying patent
`11 for both these declarations, just so that the
`12 record's clear and complete, Dr. Shenoy has
`13 testified in his declarations about such things
`14 as capturing of state while the virtual machine
`15 is executing, he discusses backup programs, and
`16 in the context of this patent, this is -- what
`17 we're going through presently is an embodiment
`18 where the backup program is capturing state
`19 while the virtual machine is executing.
`20 So there's a direct one-to-one link,
`21 but, in addition to that, as we discussed off
`22 the record, this is the patent that Dr. Shenoy
`23 reviewed in preparing his opinions. And, you
`24 know, I'll -- at the end of the line of
`25 questions, I'll go through with it just to
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`Page 23
`1 doesn't provide any opinions related to the
`2 backup program at all, and if you could point to
`3 why this is relevant or in the scope of this
`4 declaration, I'd be interested in hearing that.
`5 MR. RICHETTI: Okay. We believe it is
`6 in the scope, but are you instructing him not to
`7 answer?
`8 MR. BLOCK: I mean, if we're going to
`9 continue going down this path, we're going to
`10 have to call the Board. I mean, this is
`11 completely outside the scope of his declaration.
`12 MR. RICHETTI: Maybe I can
`13 just explore with Dr. Shenoy a few questions
`14 first --
`15 MR. BLOCK: Yeah. I don't -- let's go
`16 off for a second.
`17 MR. EVENS: Let's go off the record
`18 and then we can talk.
`19 (Witness left deposition room.)
`20 (Recess taken.)
`21 MR. BLOCK: Joe, you know, the rules
`22 of the Board say that your cross-examination has
`23 to be related directly to Dr. Shenoy's direct
`24 testimony of his declaration. We all understand
`25 that you have to ask some context questions to
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`Page 25
`1 ensure that, you know, in fact, this is one of
`2 the embodiments of the patent that he was
`3 reviewing that helped him form these opinions.
`4 MR. BLOCK: Right. We obviously
`5 disagree with, you know, the relationship of the
`6 context of some of the questions that you were
`7 asking, but to keep the record clean, we're not
`8 going to engage in why I think that those
`9 questions may not have been related to the
`10 declaration, so --
`11 (Witness returned to deposition room.)
`12 BY MR. RICHETTI:
`13 Q. Dr. Shenoy, in preparing your
`14 declarations, and by declarations I mean your
`15 reply declaration and your motion to amend
`16 declaration, did you review the 086 patent?
`17 A. I did.
`18 Q. And in forming your opinions, did you
`19 rely on your analysis of the 086 patent?
`20 A. Yes, I did.
`21 Q. Would have that included all the
`22 figures in the patent?
`23 A. I read the patent. I only opined on
`24 certain aspects that I was asked to opine on.
`25 Q. Do you remember opining on a heading
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`1 in your declaration, the capture of state while
`2 the virtual machine is executing?
`3 A. Yes. I did provide some opinions on
`4 capturing of state while the virtual machine is
`5 executing.
`6 Q. And in forming those opinions,
`7 would have you been relying, in part, on the
`8 embodiments in the 086 patent that would be
`9 describing capturing state while the virtual
`10 machine is executing?
`11 A. I looked at the embodiments. I
`12 looked at the claims, which also was an
`13 important aspect of forming my opinions. And I
`14 used those pieces -- that information, as well
`15 as the other documents, to form the opinions.
`16 Q. Okay. So trying to just get back to
`17 where we were in Column 11, based -- it -- it
`18 appears -- strike that.
`19 In Column 11, we were discussing two
`20 embodiments. One embodiment where the backup
`21 program for 182 makes an image data request and
`22 the VM kernel provides it with the image of the
`23 virtual machine.
`24 Do you recall that?
`25 A. I do recall that discussion, yes.
`
`1 with the VM kernel to make an image data
`2 request, and the VM kernel provides that image
`3 data request.
`4 Q. And is it fair to say, Dr. Shenoy,
`5 that the VM kernel can also provide the backup
`6 program with addresses locating the state of the
`7 virtual machine?
`8 MR. BLOCK: Objection. Scope.
`9 BY MR. RICHETTI:
`10 Q. And, again, I'm referring to the
`11 embodiment discussed in Column 11, Line 66, that
`12 spills over into Column 12, Line 3.
`13 A. So in this particular example of the
`14 embodiment that we are discussing here, which is
`15 at the end of Column 11, I would say that the VM
`16 kernel does provide the addresses to locate the
`17 state, yes.
`18 Q. And I think we can move on for right
`19 now. We might revisit it later as we go through
`20 different sections of your declaration.
`21 Dr. Shenoy, I'm about to hand you
`22 another patent that I'm sure you've read more
`23 than once --
`24 A. Okay.
`25 Q. -- in preparing your reports.
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`1 Q. And is that your understanding that's
`2 one way in which the Backup Program 42 can
`3 communicate with the VM kernel to capture the
`4 state of the virtual machine while it's
`5 executing?
`6 MR. BLOCK: Objection to the scope.
`7 BY MR. RICHETTI:
`8 Q. According to the 086 patent?
`9 A. So, as I already said before, the
`10 backup program causes some of those steps to
`11 happen. The VM kernel may perform some of those
`12 actions. Some other entity may perform some of
`13 those actions. There is the notion of executing
`14 that you just mentioned. I opined on that at
`15 length in my declaration, and we can go through
`16 some of those opinions. And I want the record
`17 to be clear that when I say executing, I mean it
`18 the way I have explained it in my declaration,
`19 that it's not continuously executing, that it's
`20 executing the way I've construed someone in
`21 the -- someone who's skilled in the art would
`22 recognize it to be.
`23 So with those qualifications, I would
`24 say that there's a backup program in the figure
`25 that we just discussed that does communicate
`
`1 I'm handing the witness an exhibit,
`2 Veeam 1004, and I'd just ask if you recognize
`3 it.
`4 A. Yes. This is the Lim patent that I
`5 have read several times before, as well.
`6 Q. And in your declaration with
`7 the motion to amend, as well as your reply
`8 declaration, do you recall discussing the Lim
`9 patent?
`10 A. I have provided opinions on the Lim
`11 patent in those declarations, yes.
`12 Q. And would have you reviewed the Lim
`13 patent in preparing those declarations?
`14 A. I did review the patent, yes.
`15 Q. Is there any part of the Lim patent
`16 you said, I don't want to look at that part.
`17 I'm only going to look at one part, but not the
`18 only. I'm not suggesting you did that. I'm
`19 just being safe.
`20 MR. BLOCK: Objection to form.
`21 THE WITNESS: I read the patent.
`22 I used certain portions to opine. I don't
`23 remember which ones I did not use to not opine.
`24 BY MR. RICHETTI:
`25 Q. Fair enough.
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`1 So, Dr. Shenoy, is it your
`2 understanding that Lim uses a checkpointing
`3 mechanism -- strike that.
`4 Looking at Paragraph 15 of your reply
`5 declaration, if I can just direct your attention
`6 there, first --
`7 A. Okay.
`8 Q. -- you state that Lim describes
`9 capturing the total machine state of a virtual
`10 machine as part of a checkpointing process.
`11 Do you see that, sir?
`12 A. Yes.
`13 Q. And that's your understanding of the
`14 Lim reference, correct?
`15 A. So Lim does describe capturing the
`16 total machine state of a virtual machine, and
`17 there is a checkpointing functionality described
`18 there.
`19 I will note that the checkpoint
`20 as is described in Lim, there is a notion of a
`21 checkpoint in the 086 patent. There's a notion
`22 of the checkpoint in the Lim patent. The words
`23 are similar, but they are worded slightly
`24 differently. I just want that to be noted, as
`25 well.
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`1 that the virtual machine monitor is then used as
`2 a checkpointing mechanism A for interrupting the
`3 virtual processor. Do you see that?
`4 A. Yes, I do see that.
`5 Q. Is that your understanding that
`6 -- that the virtual machine monitor is using the
`7 -- is creating a checkpoint, and it does it by
`8 interrupting the virtual processor?
`9 A. Yes. So I think in order for the
`10 checkpoint to be consistent, you have to
`11 interrupt the virtual machine processor so that
`12 the virtual machine is not executing at that
`13 point in time. It doesn't mean the virtual
`14 machine cannot execute at a subsequent point in
`15 time.
`16 In order for the checkpoint to
`17 be consistent, you do need to interrupt,
`18 perhaps, momentarily. Depends on the state of
`19 the checkpoint, the virtual machine processor
`20 -- the virtual processor. Excuse me.
`21 Q. And so, Dr. Shenoy, is it fair to say
`22 that, as part of creating the checkpoint, the
`23 virtual machine is going to interrupt the
`24 virtual processor?
`25 A. The virtual machine monitor interrupts
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`1 Q. I appreciate that, Dr. Shenoy. Thank
`2 you.
`3 So getting back to Paragraph 15,
`4 is it your understanding that the checkpointing
`5 process in Lim creates a state vector that
`6 includes the state of the virtual machine?
`7 A. The checkpointing process does create
`8 a state vector