3/28/2014
`
`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`Page 1
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`---------------------------------X
`VEEAM SOFTWARE CORPORATION,
` Petitioner,
` v.
`SYMANTEC CORPORATION,
` Patent Owner.
`
`---------------------------------X
`Case No. IPR2013-00150 (Patent 7,093,086)
`
`DEPOSITION OF
`Matthew D. Green, Ph.D.
`March 28, 2014
`New York, New York
`Lead: Ms. Gordon
`Firm: Sterne Kessler
`---------------------------------------------------
` DIGITAL EVIDENCE GROUP
` 1726 M Street NW, Suite 1010
` Washington, DC 20036
` (202) 232-0646
`
`www.DigitalEvidenceGroup.com
`
`Digital Evidence Group C'rt 2014
`
`202-232-0646
`
`Symantec 2027
`Veeam v. Symantec
`IPR2013-00150
`
`

`

`3/28/2014
`
`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`1 TABLE OF CONTENTS
`
`234
`
`WITNESS EXAMINED BY PAGE
`5 MATTHEW D. GREEN
`6 Ms. Gordon 6
`
`789
`
`1 APPEARANCES
`
`23
`
`45
`
`On behalf of Petitioner:
`
` LORI A. GORDON, ESQ.
`6 DANIEL BLOCK, ESQ.
`7 BYRON L. PICKARD, ESQ.
`8 Sterne, Kessler, Goldstein & Fox
`9 1100 New York Avenue
`10 Washington, DC 20005
`11 202-371-2600
`12 lgordon@skgf.com
`13 dblock@skgf.com
`14 bpickard@skgf.com
`15
`16
`17
`18
`19
`20
`21
`22
`
`Page 2
`
`1 On Behalf of Patent Owner:
`
`23
`
` JOSEPH J. RICHETTI, ESQ.
`4 HASSAN ALBAKRI, ESQ.
`5 Bryan Cave LLP
`6 1290 Avenue of the Americas
`7 New York, New York 10104-3300
`8 212-541-2000
`9 joe.richetti@bryancave.com
`10 hassan.albakri@bryancave.com
`11
`12
`13
`14
`15
`16
`17
`18 DIGITAL EVIDENCE GROUP
`19 Mark Iuzzolino, Court Reporter
`20
`21
`22
`
`Page 3
`
` E X H I B I T S
`
`10
`11 NUMBER DESCRIPTION PAGE
`12
`13 Green-1 Declaration of Matthew D. 8
`14 Green
`15 Green-2 Reply to Petitioner's 17
`16 Opposition to Patent
`17 Owner's Motion to Amend
`18 Green-3 Document entitled Patent 33
`19 Owner's Motion to Amend
`20
`21
`22
`
`Page 4
`1 NUMBER DESCRIPTION PAGE
`
`23
`
`Green-4 Declaration in Support of 35
`4 Patent Owner's Motion to
`5 Amend
`6 Green-5 US Patent 7,093,086 37
`7 Green-6 US Patent 6,795,966 68
`8 Green-7 Deposition of Dr. Shenoy 71
`9 Green-8 VMware ESX Server Guide 74
`10 Version 1.2
`11 Green-9 US Patent No. 7,213,246 96
`12 Green-10 Patent assignment record from 96
`13 the USPTO
`14 Green-11 Document entitled Response to 99
`15 Office Action
`16 Green-12 Petitioner's Opposition to 140
`17 Patent Owner's First Motion
`18 to Amend
`19 Green-13 US Patent 6,931,558 155
`20
`21
`22
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`3/28/2014
`
`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`1 MATTHEW D. GREEN
`2 having been first duly sworn, was examined and
`3 testified as follows:
`
`45
`
` EXAMINATION
`6 BY MS. GORDON:
`7 Q. Good morning, Dr. Green.
`8 Would you state your full name for the
`9 record, please?
`10 A. Matthew Daniel Green.
`11 Q. And like before, I just want to go through
`12 a few ground rules before we start this deposition,
`13 along the lines of what we talked about last time we
`14 were here in New York.
`15 Do you understand that you're going to
`16 be testifying under oath today?
`17 A. I do.
`18 Q. And as part of that oath, you understand
`19 that you're here to testify fully and accurately and
`20 to the best of your knowledge?
`21 A. Yes.
`22 Q. Okay. And at times during this deposition
`Page 6
`1 there may be questions that you don't understand. If
`2 that's the case, please, let me know, and I'll try
`3 and rephrase the questions to ask you in a different
`4 manner.
`5 This deposition is going to be recorded
`6 by the court reporter at the end of the table. Do
`7 you understand that you need to speak up and answer
`8 verbally to my questions so the court reporter can
`9 hear you?
`10 A. I will absolutely do my best. I speak
`11 softly.
`12 Q. We had an issue last time where the court
`13 reporter couldn't hear either one of us. So we had a
`14 habit, I think, last time of taking a break about
`15 every hour. If you need a break before that, just
`16 let me know. We'll finish the question that's
`17 pending, and we'll take a break.
`18 A. Okay.
`19 Q. Does that sound fair?
`20 Is there any reason that you cannot
`21 give full or accurate testimony today?
`22 A. No.
`
`Page 7
`
`1 Q. Great.
`2 MS. GORDON: So could you, please, mark
`3 this as Exhibit 1 for this deposition?
`4 ---
`5 (Green Exhibit 1 is marked.)
`6 ---
`7 BY MS. GORDON:
`8 Q. Dr. Green, you've been handed what's been
`9 marked as Exhibit 1 for this deposition. It's the
`10 Declaration of Matthew D. Green in support of patent
`11 owner's reply to petitioner's opposition.
`12 Do you see that?
`13 A. Well, I see that on the front. It seems
`14 like this may be a bad copy. At the very end it cuts
`15 off parts of the image on page 41 and ends with
`16 "error undefined, offending command." I think it
`17 might be just a bad printout.
`18 MS. GORDON: Do you mind if we go off the
`19 record?
`20 (There is an off-the-record discussion.)
`21 BY MS. GORDON:
`22 Q. Dr. Green, you've been handed what's been
`Page 8
`1 marked as Exhibit 1 for this deposition. It's a
`2 document that's titled, "Declaration of Matthew D.
`3 Green in Support of Patent Owner's Reply to
`4 Petitioner's Opposition."
`5 Do you see that?
`6 A. I do.
`7 Q. So for purposes of this deposition, can we
`8 refer to this as the "second motion to amend
`9 declaration," because I think we're going to get into
`10 some terminology issues late between your first and
`11 your second. So we'll refer to this as your second
`12 motion to amend declaration.
`13 A. That's fine.
`14 Q. Before -- you understand that you're here
`15 to testify today related to the testimony you
`16 provided in this reply document. Is that correct?
`17 A. Yes.
`18 Q. Okay. So how did you prepare for this
`19 deposition today?
`20 A. Well, of course, I reread this document. I
`21 reread previous declarations, motions, reviewed a lot
`22 of material that was listed in this document, really
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`3/28/2014
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`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`1 read a lot of material.
`2 Q. Did you talk to anyone other than the
`3 attorneys from Bryan Cave in preparation for this
`4 deposition?
`5 A. No.
`6 Q. Okay. Returning to your second motion to
`7 amend declaration, how many hours did you spend
`8 preparing this declaration?
`9 A. A lot. I don't know, maybe 50 to 100. I
`10 worked into part of the vacation on it.
`11 Q. When did you start preparing this
`12 declaration?
`13 A. I don't remember the date. It was several
`14 weeks ago.
`15 Q. And when you said 50 to 100 hours, what did
`16 that involve?
`17 A. That involved reviewing literature, reading
`18 previous motions and declarations that I had received
`19 from Veeam. Involved drafting, editing.
`20 Q. Did you draft the entire declaration
`21 yourself?
`22 A. So I drafted the declaration, and then some
`Page 10
`1 edits were suggested, proposed by the attorneys. I
`2 reviewed them, and then I essentially produced a
`3 final declaration myself.
`4 Q. When you said you drafted the declaration,
`5 did you draft Exhibit B to this declaration?
`6 A. No, I did not draft this chart.
`7 Q. Who drafted Exhibit B?
`8 A. So Exhibit B was drafted by the attorneys
`9 for the patent owner. I reviewed it. I made some
`10 suggestions, and then I included it in my report
`11 having reviewed it.
`12 Q. When were you first provided with
`13 Exhibit B?
`14 A. Some weeks ago, I don't know when.
`15 Q. But it wasn't before your first
`16 declaration -- your first -- were you provided B
`17 prior to your first motion to amend declaration?
`18 A. No, I was not. It was my opinion that
`19 there was -- really, there was support in my first
`20 declaration and it wasn't necessary in that
`21 declaration.
`22 Q. So you felt that your first declaration
`Page 11
`
`1 provided adequate support for your opinion?
`2 A. Yes.
`3 Q. Did you provide any edits to Appendix B?
`4 A. I think I might have made a suggestion or
`5 two. I don't think I provided written evidence.
`6 Q. Do you remember what those suggestions
`7 were?
`8 A. No.
`9 Q. Do you remember what claims those related
`10 to?
`11 A. No, not really.
`12 Q. And I think you testified those were --
`13 were those minor edits?
`14 A. Yes.
`15 Q. Now, Exhibit C that's attached here, did
`16 you draft Exhibit C?
`17 A. Appendix C?
`18 Q. I'm sorry, appendix C.
`19 A. So I, in discussions with the lawyers, gave
`20 a list of materials, and then they produced this list
`21 based on that.
`22 Q. Did the lawyers provide any additional
`Page 12
`1 materials on the list that you had not provided to
`2 them?
`3 A. I don't think so.
`4 Q. So everything on this list were documents
`5 that you had provided to the attorneys to include?
`6 A. Just to be clear, they were documents that
`7 I had reviewed, that some of the documents were given
`8 to me by the attorneys, so they knew about them.
`9 Q. But you instructed the attorneys what to
`10 include on Appendix C?
`11 A. No, I simply discussed with them what
`12 materials I had reviewed, and they knew that, and
`13 then they produced Appendix C, which was consistent
`14 with the materials I reviewed.
`15 Q. Did you review Appendix C after you
`16 received it from the lawyers?
`17 A. I believe so, yes, as part of my report.
`18 Q. And each and every document listed in
`19 Appendix C you have reviewed?
`20 A. I believe so. I've looked at these
`21 documents. It's possible one might have slipped
`22 through but I believe I reviewed them all.
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`3/28/2014
`
`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`1 Q. And did you review them all in preparation
`2 of your second motion to amend?
`3 A. There are a lot of documents in here. I
`4 reviewed documents throughout this whole process.
`5 Q. So you don't recall whether these were
`6 reviewed specifically in preparation of your second
`7 motion to amend?
`8 A. It's a mixture, I think.
`9 Q. Now, turning back to the declaration, did
`10 you draft each and every paragraph in this
`11 declaration?
`12 A. I drafted and I edited every single
`13 paragraph and I submitted it as my report.
`14 Q. So you typed -- physically typed in every
`15 paragraph in this declaration?
`16 A. Do you mean were there some suggestions in
`17 here that there proposed by other people?
`18 Q. No, I meant the actual putting the words
`19 into the document, did you actually type each and
`20 every one of these words into the document yourself?
`21 A. So I drafted them, and in some cases there
`22 were suggestions made and I incorporated those
`Page 14
`
`1 suggestions.
`2 Q. So every paragraph originated with you on
`3 your word processor?
`4 A. No.
`5 MR. RICHETTI: Objection.
`6 A. I'm a little confused about this question.
`7 As I said, I worked with the attorneys --
`8 Q. Right.
`9 A. -- and I drafted a response, and then they
`10 offered some suggestions, and that included some
`11 material that they felt was relevant and so --
`12 Q. And did the attorneys provide any
`13 paragraphs to insert into the document?
`14 A. They provided some text that they felt was
`15 relevant.
`16 Q. Okay. Do you recall which text was
`17 provided to you from the attorneys?
`18 A. No, not specifically. I mean, there were a
`19 lot of corrections and changes throughout.
`20 Q. Did you -- as part of the drafting process,
`21 did you prepare an initial draft?
`22 A. So I think that I wrote some material and
`Page 15
`
`1 then there was an exchange where we physically looked
`2 at it together.
`3 Q. Do you recall how long your initial draft
`4 was?
`5 A. I don't recall.
`6 Q. Okay. And --
`7 A. To be clear, there were periods where I had
`8 a page, then there were periods where I had two
`9 pages, and so on. It wasn't as though there was a
`10 draft and then suddenly there was a final draft.
`11 Q. But during the process you maintained the
`12 control of the document locally on your system?
`13 A. I did. I did.
`14 Q. And do you recall roughly how many drafts
`15 that you exchanged of this declaration?
`16 A. I don't even know that that is meaningful.
`17 There were periods where we were
`18 verbally exchanging comments. So, I mean, I'm not
`19 sure that there is this concept of these isolated
`20 point-in-time drafts.
`21 Q. And outside of the attorneys for Bryan
`22 Cave, did you share your drafts in any form with
`Page 16
`
`1 anyone else?
`2 A. No, I don't think so.
`3 Q. Okay. And as the process -- during the
`4 process of preparing the second motion to amend
`5 declaration, did you speak to anyone outside of the
`6 attorneys from Bryan Cave?
`7 A. No.
`8 Q. Okay.
`9 ---
`10 (Green Exhibit 2 is marked.)
`11 ---
`12 BY MS. GORDON:
`13 Q. You're being handed what's been marked as
`14 Green Deposition Exhibit No. 2. It's titled the
`15 "Reply to Petitioner's Opposition to Patent Owner's
`16 Motion to Amend."
`17 Do you see that?
`18 A. I do.
`19 Q. Have you seen this document before?
`20 A. I just want to make sure I understand this
`21 is the right document.
`22 Q. Take your time.
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`3/28/2014
`
`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`1 A. Yes, this is the more recent -- yes, yes,
`2 yes, I have.
`3 Q. So if we turn to page 1 -- I don't think
`4 there's a page number there. The first page with
`5 Roman Numeral I on it.
`6 A. Sorry.
`7 Q. So it's this page here.
`8 A. Okay, that one, okay.
`9 Q. And the second paragraph starts, "To
`10 eliminate any possible doubt, however, Dr. Green has
`11 reviewed all the prior art known to patent owner."
`12 Do you see that sentence?
`13 A. I do.
`14 Q. In your opinion, is that statement
`15 accurate?
`16 A. So just to be clear, this is the more
`17 recent -- the reply. I just want to make sure I
`18 understand which document this is.
`19 Q. Absolutely. So this is the reply to the --
`20 so let's start -- there's a process.
`21 Patent owner filed a motion to amend,
`22 which you included your first declaration to support.
`Page 18
`1 Petitioner then filed an opposition to
`2 that motion to amend with the declaration of
`3 Dr. Shenoy. And then this is the reply to the
`4 opposition that petitioners had filed that your
`5 second motion to amend declaration was in support of.
`6 A. That was my understanding.
`7 So the answer is, yes, I agree with
`8 that statement.
`9 Q. If you agree with that statement, how do
`10 you know that you reviewed all of the prior art known
`11 to the patent owner?
`12 A. So this is based on my understanding of
`13 what prior art I was provided. I was told that I was
`14 given the prior art that was known to the patent
`15 owner by the attorneys.
`16 Q. Okay. So this understanding was based on
`17 the representations you were provided?
`18 A. It was.
`19 Q. Did you take any steps to independently
`20 verify that you had all the prior art known to the
`21 patent owner?
`22 A. I don't even know how I would do that.
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`1 Q. Did you search patents assigned to Symantec
`2 to see what prior art was cited in those patents?
`3 A. So in this case I was told by the attorneys
`4 that I had been provided with the prior art. I took
`5 that representation at face value.
`6 Q. The purposes of this deposition, mostly,
`7 we're going to be jumping between multiple documents.
`8 So if you could just leave the reply out in front of
`9 you, we're going to turn back to your second motion
`10 to amend declaration.
`11 A. Okay.
`12 Q. So turning to page 7, paragraph 12, there's
`13 a list of materials relied upon.
`14 Do you see that?
`15 A. I do.
`16 Q. Did you review each and every item listed
`17 in paragraph 12?
`18 A. I did.
`19 Q. Did you review each and every item listed
`20 in paragraph 12 in preparation for your second motion
`21 to amend declaration?
`22 A. This is my second?
`
`Page 20
`
`1 Q. Yes.
`2 MR. RICHETTI: Objection.
`3 Do you mind if I -- you just said did you
`4 review each and every listed in paragraph 12?
`5 He said, I did.
`6 You said, did you review it in preparation
`7 to the second motion to amend?
`8 This is -- I just want to make sure he's
`9 answering your question about paragraph 12 to
`10 the right motion, because, I mean, that would be
`11 the same answer to both.
`12 MS. GORDON: Not necessarily.
`13 MR. RICHETTI: I apologize.
`14 MS. GORDON: I think the first question was
`15 broader and the second one was limited to the
`16 specific declaration.
`17 MR. RICHETTI: My apologies.
`18 MS. GORDON: No problem.
`19 BY MS. GORDON:
`20 Q. So circling back, so each and every item in
`21 paragraph 12, it's 12A through 12II, you reviewed in
`22 preparation for the second motion to amend. Is that
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`Veeam Software Corporation v. Symantec Corporation
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`Dr. Matthew Green
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`1 correct?
`2 A. I did.
`3 Now, just to be clear, there are
`4 thousands of pages of documents here. I did not
`5 review all of the documents, you know, every single
`6 word of them. So I reviewed them all to some extent.
`7 Q. Okay. Are there any particular documents
`8 that you reviewed in more detail than others?
`9 A. Not that I recall.
`10 Q. So, in your opinion, you gave each of these
`11 documents a fairly cursory look?
`12 A. No, I don't think so.
`13 Q. So what did your review consist of for each
`14 of these documents?
`15 A. So I reviewed, to be clear what I'm talking
`16 about, largely the patent. I reviewed each of these
`17 to understand the subject matter and what was being
`18 described as the invention.
`19 Of course, to correct my answer, I
`20 reviewed the declaration of Dr. Shenoy in more detail
`21 than every single patent.
`22 Q. Turning to specifically item 12B, it states
`Page 22
`1 that you reviewed the '086 patent prosecution
`2 history, including the references cited during
`3 prosecution of the '086 patent and during prosecution
`4 of the US Patent 7,533,229, which I understand to be
`5 a continuation.
`6 Do you see that statement?
`7 A. I do.
`8 Q. When did you review the references cited
`9 during prosecution of the '229 patent?
`10 A. I reviewed them over the last several
`11 weeks.
`12 Q. Okay. Did you review those documents prior
`13 to preparing your first declaration for your motion
`14 to amend?
`15 A. So I believe I may have reviewed some of
`16 them before but I think some of them were after as
`17 well.
`18 Q. Okay. So you did not review all of the
`19 references cited during prosecution of the '229
`20 before your first motion to amend?
`21 A. I don't believe so.
`22 There's a lot -- there are a lot of
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`1 patents here and they come from different sources.
`2 So I can't tell you that I know every single source
`3 of every single patent. I don't know. I don't think
`4 so.
`5 Q. Okay. Turn to paragraph 12R.
`6 12R states that you reviewed the
`7 invalidity contentions served by Veeam on patent
`8 owner in the district court litigation.
`9 Do you see that?
`10 A. Yes.
`11 Q. When did you receive the invalidity
`12 contentions served by Veeam?
`13 A. I don't remember. I don't know, the last
`14 few weeks.
`15 Q. Okay. Did you receive the invalidity
`16 contentions served by Veeam prior to your first
`17 motion to amend declaration?
`18 A. I don't think so, no, I don't think I
`19 reviewed them then.
`20 Q. Okay. And did you review each and every
`21 reference cited for the '086 patent in Veeam's
`22 invalidity contentions in preparation of your second
`Page 24
`
`1 motion to amend declaration?
`2 A. I reviewed those references, yes.
`3 Q. Roughly, how much time did you spend on
`4 each reference?
`5 A. I couldn't tell you that. I spent more
`6 time on some, less time on others.
`7 Q. Were there any that you recall spending
`8 more time on?
`9 A. There were many, many different references.
`10 I can't tell you which ones I spent more and which
`11 ones I spent less.
`12 Q. Why did you spend more time on some than
`13 the others?
`14 A. Well, some of them I was already familiar
`15 with. Others, I understood the subject matter and
`16 felt that I had enough material, enough understanding
`17 of them without going into detail on them.
`18 Q. And did you consider some more relevant
`19 than others?
`20 A. It really depends what you mean by
`21 "relevant."
`22 Q. Relevant to the claims at issue in the '086
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`Veeam Software Corporation v. Symantec Corporation
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`Dr. Matthew Green
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`1 patent.
`2 A. So, I mean, they're all relevant,
`3 especially the ones that are cited as art on the face
`4 of the patent and so on. They're all relevant in
`5 some way. I don't know.
`6 Q. Okay. Did you find some more material to
`7 patentability of the '086 patent than others?
`8 A. Well, I found that there were many that
`9 were material and then -- but the thing, some
`10 referenced to other -- different aspects of the
`11 technology. So it's hard to say which ones are more
`12 material and which ones weren't.
`13 Q. Okay. Did you review the claim charts that
`14 were provided in Veeam's invalidity contentions for
`15 the '086 patent?
`16 A. So I understand that there are claim charts
`17 and I looked at them, but it was a very cursory
`18 glance.
`19 Just to clarify on that answer, when I
`20 reviewed the contentions, my focus was really more on
`21 what were the inventions and how were they being
`22 combined, and so on.
`
`Page 26
`1 Q. When you say, "what were the inventions and
`2 how were they being combined" --
`3 A. What was the art that was listed.
`4 I couldn't go through the claim charts
`5 in detail.
`6 Q. When you were assessing the references, you
`7 didn't take into consideration the claim charts that
`8 Veeam had provided?
`9 A. I took into consideration my understanding
`10 of the inventions or what was being taught in these
`11 references.
`12 Q. But not the claim charts provided by Veeam?
`13 A. I didn't go into detail on the claim
`14 charts.
`15 Q. Okay. Now, turning to item 12S, invalidity
`16 contentions served by Acronis on the patent owner in
`17 the district court litigation.
`18 Do you see that?
`19 A. I do.
`20 Q. When were you provided with the invalidity
`21 contentions served by Acronis?
`22 A. I received them both at the same time as
`Page 27
`
`1 the -- Veeam. And, again, I don't remember exactly
`2 when.
`3 Q. Was it after you had filed the first motion
`4 to amend declaration?
`5 A. So I think, consistent with my answer
`6 before, that would be the case.
`7 Q. Okay. Did the invalidity contentions
`8 served by Acronis include claim charts?
`9 A. I don't recall exactly. I reviewed the
`10 main invalidity contentions in the same way I did for
`11 Veeam. I did not review any claim charts in detail.
`12 Q. Were there any references cited in the
`13 Acronis invalidity contentions that you reviewed in
`14 more detail than others?
`15 A. That's a big question. I guess I reviewed
`16 them all with different levels of detail. It's hard
`17 for me to say.
`18 Q. Were there any references cited in the
`19 invalidity contentions by Acronis that you felt were
`20 more applicable to the claims of the '086 patent than
`21 others?
`22 A. Again, there were different claims and
`Page 28
`1 there were different combinations. So I can't think
`2 of one or any that I would give a specific answer to
`3 right now.
`4 Q. Do you recall what references were cited in
`5 the Acronis invalidity contentions?
`6 A. I remember there were quite a few. I'm
`7 happy if you want to go through them, I'll talk about
`8 them, but off the top of my head, I can't list them
`9 all.
`10 Q. Okay. And so sitting here today, did you
`11 consider any claim charts provided by Acronis when
`12 assessing the references cited in the Acronis
`13 invalidity contentions?
`14 A. So I considered the inventions themselves
`15 and I used my skill of one of ordinary skill in the
`16 art to understand how they, the inventions, worked
`17 and how they would apply.
`18 So I did not specifically base my
`19 opinions on reviewing claim charts.
`20 Q. In your answer, when you're referring to
`21 inventions, are you referring to the inventions in
`22 the references themselves or the inventions in the
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`3/28/2014
`
`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`1 '086 patent?
`2 A. No, I'm sorry, my apologies. I meant the
`3 references.
`4 Q. Okay.
`5 If we can turn to paragraph 24 of your
`6 second motion to amend declaration.
`7 A. Uh-huh.
`8 Q. This paragraph says, "As can be seen from
`9 the foregoing and further discussed in the different
`10 sections below, I believe the substitute claims are
`11 supported by the '086 patent original disclosure."
`12 Do you see that?
`13 A. I do.
`14 Q. And when you say, "As can be seen from the
`15 foregoing," what foregoing paragraphs are you
`16 referring to?
`17 A. Well, give me a moment to read them.
`18 So it's really referring to a large
`19 number of paragraphs, really sort of much of the
`20 earlier section of this declaration, which also cites
`21 to my other declarations. So it's a general
`22 statement.
`
`Page 30
`1 Q. Okay. And those paragraphs in the second
`2 motion to amend, those foregoing paragraphs were
`3 provided to show support for the substitute claims?
`4 A. Well, that's part of what they do, yes.
`5 Q. Okay. You say, "Part of what they do."
`6 Are they provided for any other reason?
`7 A. Well, as you can see, they also reference
`8 other declarations and so on. So they also talk
`9 about some of the claims that have been made, you
`10 know, against their support.
`11 So they talk about -- essentially, they
`12 talk about supporting these claims, yes.
`13 Q. Okay. So why did you include those
`14 paragraphs? What was your motivation for including
`15 those paragraphs?
`16 A. Well, in my first declaration in support of
`17 the motion to amend, I felt that -- first of all, I
`18 felt that the substitute claims were very obviously
`19 supported by the specification of the patent.
`20 However, I also provided support in that declaration
`21 that I think was fairly clear.
`22 My understanding, at least after
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`1 reading the reply -- the more recent reply, was that
`2 there was a question as to whether they were
`3 supported raised by Veeam.
`4 So I included some additional
`5 paragraphs and I referenced the claim chart at the
`6 end of this report to provide, essentially,
`7 clarification -- not even clarification but just to
`8 address those questions.
`9 Q. In your opinion, the -- your declaration in
`10 your first motion to amend declaration provided
`11 adequate support. Is that correct?
`12 A. I believe so, yes.
`13 Q. In your opinion, you did not believe that
`14 additional clarification was necessary?
`15 A. At the time that I wrote my original
`16 declaration, I did not. When Veeam appeared to raise
`17 a question, then I felt that it would be helpful to
`18 provide additional clarification.
`19 Q. And these statements in your declaration
`20 providing additional clarification, they were not
`21 included in your original declaration. Is that
`22 correct?
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`Page 32
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`1 A. So I think --
`2 MR. RICHETTI: Objection.
`3 A. So, actually, I think "clarification" isn't
`4 even the right word. I think clarification is -- I
`5 think what really this is is just sort of a response
`6 to some of the questions that were raised and
`7 additional information, but it's not information that
`8 wasn't present in the first declaration. It's,
`9 essentially -- there were some issues that were
`10 raised, and here is support.
`11 Q. Okay.
`12 ---
`13 (Green Exhibit 3 is marked.)
`14 ---
`15 BY MS. GORDON:
`16 Q. You've been handed what's been marked as
`17 Exhibit No. 3. It's titled "Patent Owner's Motion to
`18 Amend."
`19 Do you see that document?
`20 A. I do.
`21 Q. And have you seen this document before?
`22 A. I have.
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`3/28/2014
`
`Veeam Software Corporation v. Symantec Corporation
`
`Dr. Matthew Green
`
`1 Q. Okay.
`2 We're going to use this primarily just
`3 to -- as a base for the language of the substitute
`4 claims. So if you could, turn to page 1 where we see
`5 substitute claim 31 listed.
`6 Do you see that?
`7 A. I do.
`8 Q. Okay. And is it your understanding that
`9 claim 31 is being proposed as a substitute for claim
`10 1? Is that correct?
`11 A. So, yes, that's what it says.
`12 Q. Okay. So I'd like you to leave claim 31
`13 out and turn to your second motion to amend
`14 declaration, please, paragraph 37.
`15 A. Give me one second. Okay.
`16 Q. In this paragraph it states that "I
`17 disagree with the statement, as I have provided what
`18 I believe to be support for this feature in both my
`19 declaration in support of patent owner's motion to
`20 amend (see paragraph 54) and in the claim chart in
`21 Appendix B to this declaration."
`22 Do you see that?
`
`Pa