Trials@uspto.gov
`571-272-7822
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`Paper No. 40 and 40
`March 3, 2015
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`- - - - - -
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`- - - - - -
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`APPLE, INC.
`Petitioner
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`v.
`VIRNETX, INC.
`Patent Owner
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`- - - - - - -
`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
`Technology Center 2400
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`Oral Hearing Held on Monday, February 9, 2015
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`
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`Before: MICHAEL P. TIERNEY, KARL D. EASTHOM, and
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`STEPHEN C. SIU, Administrative Patent Judges.
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`The above-entitled matter came on for hearing on Monday, February
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`9, 2015, at 2:00 p.m., in Hearing Room A, taken at the U.S. Patent and
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`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`
`571-272-7822
`
`
`
`
`
`Paper No. 40 and 40
`March 3, 2015
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`- - - - - -
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`- - - - - -
`
`
`APPLE, INC.
`Petitioner
`
`v.
`VIRNETX, INC.
`Patent Owner
`
`- - - - - - -
`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
`Technology Center 2400
`
`
`
`Oral Hearing Held on Monday, February 9, 2015
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`
`
`
`
`Before: MICHAEL P. TIERNEY, KARL D. EASTHOM, and
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`STEPHEN C. SIU, Administrative Patent Judges.
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`
`
`
`The above-entitled matter came on for hearing on Monday, February
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`9, 2015, at 2:00 p.m., in Hearing Room A, taken at the U.S. Patent and
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`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`JEFFREY P. KUSHAN, ESQ.
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`THOMAS A. BROUGHAN, III, ESQ.
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`SCOTT M. BORDER, ESQ.
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`Sidley Austin LLP
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`1501 K Street, N.W.
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`Washington, D.C. 20005
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`202-736-8000
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`ON BEHALF OF THE PATENT OWNER:
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`JOSEPH E. PALYS, ESQ.
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`NAVEEN MODI, ESQ.
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`Paul Hastings LLP
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`875 15th Street, N.W.
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`Washington, D.C. 20005
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`202-551-1700
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`JASON E. STACH, ESQ.
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`Finnegan, Henderson, Farabow,
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` Garrett & Dunner LLP
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`3500 Suntrust Plaza
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`303 Peachtree Street, NE
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`Atlanta, Georgia 30308
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`404-653-6400
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`P R O C E E D I N G S
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`(2:00 p. m.)
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`JUDGE TI ER NEY: You ma y be s eated. Welco me ,
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`ever yone , to the i nter par tes reviews, I PR2014 -00237 and
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`00238.
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`Before we begin t oday, do the parti es have an y
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`questions or concerns that we ne ed to address? Let' s start with
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`Petitioner?
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`MR. KUS HAN: No, we a re fine a nd read y to
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`proceed.
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`JUDGE TI ER NEY: Patent Owner , an y questi ons or
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`co mments before we begin toda y?
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`MR. PALYS: No , Your Honor.
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`JUDGE TI ER NEY: Thank you. Give me one
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`mo ment here and then we will be re ad y.
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`All right. Welco me , ever yone, to today's hea ring.
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`We have a co mbined hearing between the 00237 cas e and the
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`00238 cases. Tod a y we scheduled one hour for each side, with
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`the Petitioner beg inning, followed b y the Patent Owner, and
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`then both parties are able to r eserv e ti me for what n or mall y
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`would be rebuttal , but toda y we wi ll call it closing argu ments.
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`It is my understa nding that we hav e no questions
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`fro m counsel bef ore we begin toda y, so we will begi n with the
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`question: Would each side like to r eserve ti me for cl osing
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`argu ments, starti ng with Petitioner?
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`U.S. Patent No. 8,504,697
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`MR. KUS HAN: Yes, Your Honor. I will rese rve
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`app roxi matel y 20 minutes for closing, or whatever t he balance
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`would be.
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`JUDGE TI ER NEY: Oka y. 40 min utes and then
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`you will have 20 minutes r e maining.
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`MR. KUS HAN: Yes.
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`JUDGE TI ER NEY: And Patent Owner?
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`MR. PALYS: Ye s, Your Honor. We will r eserve
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`10 mi nutes.
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`JUDGE TI ER NEY: Thank you. Oka y. With that,
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`Petitioner, a re yo u read y? Go ahea d.
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`MR. KUS HAN: I was a little bit u nclear. Are the y
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`entitled to a rebut tal after our --
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`JUDGE TI ER NEY: We a re calling it closing
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`argu ments.
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`MR. KUS HAN: Closin g argu ment s?
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`JUDGE TI ER NEY: Yes. B asically what I would
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`like to have toda y is have the last word b y the Paten t Owner ,
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`so the y will be given that ti me. Sh ould they bring u p
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`so mething you ob ject to, and need to object to , I a m sure you
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`will let us know.
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`MR. KUS HAN: Oka y. Thank you ver y much .
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`JUDGE TI ER NEY: And I was wo ndering, do you
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`b y an y chance ha ve de monstratives for the Panel?
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`MR. KUS HAN: Yes, Your Honor. M a y I
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`approach?
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`JUDGE TI ER NEY: Yes, please. And I think I see
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`Patent Owner has de mon stratives a lso. I f so, could we have a
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`copy?
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`All right. P etitioner, when you a re read y, would
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`you please begin.
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`MR. KUS HAN: Thank you ver y much , Your
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`Honors. As you noted, there are t wo proceedings a nd 237 and
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`238 are the ter mi nus of each .
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`The 23 7 proce eding is based on the Bese r r efer ence
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`as a pri ma r y refe r ence and the 238 proceeding is based on the
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`Wesinger r eferen ce, which is Exhi bit 1010 -- I' m so rr y, 1008.
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`Can you go to slide 4, ple ase. The first thing I
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`would like to do i s walk through th e clai ms because it is
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`i mportant to se e what the clai m la nguage is. And o nce you
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`have seen the clai m language and a ppreciate how broad the
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`clai m language is , it be co mes a little bit easier to na vigate
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`how the clai ms re ad on the prior ar t.
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`There are thre e el e ments of e ach cl ai m, thr ee steps.
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`The cl ai ms ar e ca st first in the for m of a method cla i m, cl ai m
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`1. Ther e is a pa r allel clai m. Go t o slide 5. This is the s yste m
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`clai m which is a parallel clai m to t he method clai m.
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`Go back to 4 for a minute. In each of these
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`e mbodi ments you have three operat ive steps. The fir st step is
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`an intercepting step. The second s tep is the deter mi ning step.
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`And the third ste p is an initiating step. That's the t hree things
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`I a m going to cover in sequence .
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`Go to slide 6 . Th e intercepting ste p is prett y
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`straightforward. It sa ys: " Intercep ting, fro m the firs t network
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`device, a request to look up an IP a ddress of the seco nd
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`network device b ased on a do main na me associated with the
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`second network d evice."
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`So what you h ave is an action word , interc epting,
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`and then a desc ription of what is b eing intercepted. It is a
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`request. What is in the request? A do main na me . The
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`e manation of that request is fro m t he first net work d evice.
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`Go to slide 7 , ple ase. You found c orrec tl y that
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`based on the wa y the language of t he clai m reads and how the
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`description is found in the specific ation, intercepting is si mpl y
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`receiving a reque st pertaining to a first entit y at ano ther
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`entity.
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`So in the instance of the patent, the destination
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`specified in the r equest would be t he destination you would be
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`inquiring about. And if that reque st is received b y a co mputer
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`other than that de stination, you have satisfied the int ercepting
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`step.
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`If you go to slide 19, please . The next ele ment of
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`the clai m is the d eter mining step. And what this sa ys is that it
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`is "deter mining, i n response to the request, whether t he second
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`network device is available for a se cure co mmunicati ons
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`service." And, again, this is a ver y broadl y -c ast phr ase,
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`deter mining, be ca use it doesn't give you an y details as to how
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`you must per for m the deter mining step. It just asks how does
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`the network devic e, se cond network device, is that se cond
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`network device a vailable for secur e co mmunications?
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`So if we look in t he patent, going t o slide 25, and I
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`want to dire ct yo u to the botto m passage here . In t he patent
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`itself there is an exa mple of ho w you perfor m the de ter mining
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`step, and it is fair l y straightfor war d. It sa ys: "If ac cess to a
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`secure site has be en requested (as deter mined , for e xa mple , b y
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`a do main na me ex tension, or b y re f erence to an inter nal table
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`of such sites), DNS prox y dete r mi nes whether the u ser has
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`sufficient security privileges to ac cess the site."
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`So one wa y that t he patent tells yo u that you can
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`perfor m the de ter mining step is to have the inco ming request
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`and the destination in it checked ag ainst the table tha t that
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`device has been maintaining to se e if the destination device is
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`on the table.
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`That's a f airl y str aightforward wa y of dete r mining
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`whether that dev ice is available fo r secure co mmuni cations.
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`The other exa mpl e it gives there is a do main na me
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`extension, so an a ttribute of the r equest co ming in is looked at
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`to deter mine if the destination is a vailable for secur e
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`co mmunications.
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`Slide 20, please . So you reach the conclusion I
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`think supported by that passage an d b y other exa mpl es in the
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`specification that you can me et the deter mining step a couple
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`of different wa ys .
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`One is whether the device, you know, checking
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`whether the reque sted destination is l isted with a public
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`Internet address a nd, if so , allocati ng a private address for the
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`second network d evice, or b y so me other indication of the
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`relative per mission level or se curity privileges of the
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`requester.
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`Now, these are ex a mples that you f ound fro m the
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`specification to be exa mples that might fit within the meaning
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`of deter mining, a nd we believe those deter minations, those
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`points you mad e are supported b y the disclosure.
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`JUDGE EASTHOM: Is there an yth ing in the spec
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`that sa ys that you have to conta ct t he second device to
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`deter mine if it is available? Is the re an y exa mple li ke that?
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`MR. KUS HAN: No, I think what we sa w in the
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`spec was that ther e is more of a rec ord kept of the de stination.
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`That table exa mpl e is one that I cited.
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`The other exa mp l e we se e mentioned so mewhat
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`frequentl y is the designation of the destination, such as an
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`SCOM or a speci al na me for the d o main na me you ma y be
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`going to. But we didn't see a quer ying exercise and certainl y
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`didn't see so mething which would suggest that has to be the
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`wa y you per for m the deter mining step.
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`If you go to slide 28, please . The last action
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`perfor med b y the method is initiating the secure
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`co mmunication li nk between the fi rst network devic e and the
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`second network d evice based on a deter mination th a t the
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`second network d evice is available .
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`This doesn't re ally add an ything in to the
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`require ments of what might be tested for that initiation step.
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`It basicall y takes the result of the d eter mining step a nd sa ys, if
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`that is positive, then initiate the se cure co mmunicati on.
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`In fact , ther e is n ot much of a dispute about this
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`last clause. The one dispute is wh at is a secure
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`co mmunication li nk and, rathe r, in particular, wheth er it
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`requires encr yption.
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`And our vie w is t hat it does not be cause, and if you
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`can go to slide 29 -- actuall y go ba ck to 28, pleas e. Let me tr y
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`again. Wher e is our clai m 2? Tha nk you ver y mu ch. Slide
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`33. Clai m 2 , which is dependent fr o m clai m 1 , adds the
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`require ment of en cr yption of the da ta being centered with a
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`secure co mmuni c ation link.
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`And that tells us prett y clearl y that the require ment
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`for encr yption is not in the parent clai m, clai m 1 . And so
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`when we look at clai m 1 with a we ll -established doctrine of
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`clai m diffe rentiation, and under th e broadest r easonable
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`U.S. Patent No. 8,504,697
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`constructi on, we don't think that the ter m secure
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`co mmunication li nk requires encr yption because it is now
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`called out specifi call y as an additional require ment in clai m 2.
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`JUDGE EASTHOM: Are there an y exceptions
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`here, excuse me , to the doctrine that ma y appl y?
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`MR. KUS HAN: The doctrine of cl ai m
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`differentiation?
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`JUDGE EASTHOM: Right.
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`MR. KUS HAN: So in this instance your clai m 2 is
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`further li miting the nature of the s ecure co mmunica tions that
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`the data is being t rans mitted and re quiring the data be
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`encr ypted. So th at suggests that in the parent clai m, the
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`parent clause doe sn't carr y that req uire ment.
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`JUDGE TI ER NEY: I believe my colleague
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`understands the doctrine of clai m d ifferentiation. What I
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`believe he is getti ng at is that it is a weak presu mpti on at be st,
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`and that there are other f actors that ma y be taken int o account.
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`Are there an y other f actors present which would
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`lead a wa y f ro m th e e mplo yment of the doctrine of clai m
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`differentiation?
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`MR. KUS HAN: No, I think the wa y that the patent
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`generall y t alks ab out the techniques it is describing for
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`providing secure co mmunications doesn't li mit it to an
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`encr yption -based method.
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`There are obfusca tion techniques that are described
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`in the patent that don't require enc r yption, that involve hiding
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`the destination or the origination of the address bet ween the
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`points of a co mmunication path.
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`JUDGE EASTHOM: For exa mple , I mean , the
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`clai m sa ys that th e audio data and t he video data, one of the m
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`must be encr ypte d. I mean, is ther e an ything else in the clai m
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`that cou ld be encr ypted that is broa der than clai m 1?
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`MR. KUS HAN: The wa y we re ad the clai m
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`language, it is pr ett y broad . And when we go back to the
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`specification we didn't find exa mp les that co mpelle d the
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`conclusion that there must be enc r yption because they provide
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`other exa mples of secure co mmunic ation links that don't use
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`encr yption.
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`And it's i mportan t to appreciate , th ere is not a
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`passage in the pat ent that gives a d efinition for a se c ure
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`co mmunication li nk. There is no o vert definition of the ter m.
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`So you don't have a resource like t hat to go to to eq uate and
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`give attributes to the meaning of th e ter m. Wh at you have a re
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`exa mples .
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`JUDGE EASTHOM: Are there other known wa ys
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`to secure the data other than the three that we listed in the
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`definition?
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`MR. KUS HAN: I think, actuall y, your
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`construction is a prett y fair construction. And that' s, I think,
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`U.S. Patent No. 8,504,697
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`on slide 29. You found that the sec ure co mmunication link is
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`a trans mission path that restricts a ccess to data addr esses and
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`other infor mation on the path.
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`And then you point to the use of o bfuscation
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`methods, which c an include authentication, encr yption or
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`address hopping. And I would only add to that it could ma ybe
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`be a co mbination of those three exa mples to make that secure
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`co mmunication p ath, but it a lso envisions the possibility that
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`only one of the m might be used in a particular instance.
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`JUDGE TI ER NEY: Assu ming for the sake of
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`argu ment that sec ure co mmunications does require e ncr yption
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`in clai m 1. Does that alter our anal ysis on patentability?
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`MR. KUS HAN: No, Your Honor. We have
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`addressed the issue of kind of the narrowest e mbodiment as
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`well in our briefi ng where there is encr yption used.
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`So if you c an go t o slide 3, let me move into the
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`first grounds, whi ch is Bese r, and I would like to wa lk through
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`Beser so we see what is on the tab le.
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`This is figure 1 f r o m Beser , which is Exhibit 1009.
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`And what you see on that figure 1 i s a sche me which has an
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`originating device nu mbe r 24, and a ter minating dev ice
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`nu mber 26. Those ar e on private network s.
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`There is a first and second network device, which
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`are 14 and 16 res pectively. Those will have a public IP
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`address. And also on the public network, acc essible through
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`U.S. Patent No. 8,504,697
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`the public networ k is the trusted th ird -part y network device
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`nu mber 30.
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`And in th is Bese r sche me you have an origination
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`of a request starti ng with ite m 24 . It gets intercepte d at t wo
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`points in this path. That request will first get inter cepted b y
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`the first net work device 14, and then it will subsequently be
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`intercepted b y the second device, the trusted third -pa rt y
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`network device n u mber 30.
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`The ite ms 24 and 26 are able to be reached through
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`the public networ k addresses of ite ms 14 and 16, res pectively.
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`And that's done b y an association that the trusted third -part y
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`network device es tablishes. So the trusted third -party net work
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`device is going to associate the public IP addresses o f these
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`ter minal devices with their respect ive edge routers o r devices
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`14 and 16.
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`Go to slide 8 , ple ase. In the proce ss that Beser
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`follows, the requ est w ill include a n identifier, a uni que
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`identifier. Actually go back to slide 3 for one seco nd.
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`And just on the ri ght passage here, on the passage
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`of text, this is Ex hibit 1009, just in the beginning, c olu mn 246
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`to 67, there is an overview of the p rocess an d it spea ks of this
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`unique identifier. And the unique identifier in the Beser
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`sche me is of the t er minating device 26.
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`So now go to slide 8, please. As I said, that
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`process that flows has two interce ption events. One is b y the
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`first network devi ce 14 a nd the sec ond one is b y the trusted
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`third -part y net work device nu mber 30.
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`And in this seque nce the fi rst inter ception event
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`occurs when the d evice 14 re ads a special datagra m t hat sa ys
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`route this over to the trusted third -part y net work de vice 30.
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`Go to slide 15, pl ease. The s econd aspect of this
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`is, that I wanted t o bring up, is that the unique identifier, the
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`ter minating devic e, as I mentioned before, is going to use and
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`associate a public IP address of tha t ter minating device with a
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`private internal I P address of that device.
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`Between the t wo events, two ite ms of data , is how
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`it can a chieve the routing with the traffic to it. And so what
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`happens is that the trusted third -pa rt y net work devic e will
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`associate the priv ate -- the public I P addresses of t h ese
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`ter minating devic es with the unique identifiers of those
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`ter minating devic es.
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`So you can i magi ne a table being maintained in a
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`co mputer , a trust ed third -part y net work device 30, which will
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`have a unique I P address -- or unique identifier cor r elated to
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`the IP address, the public IP addre ss, through which it can be
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`reached.
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`And when a reque st co mes in with t he unique
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`identifier, that tr usted third -part y network device will look up
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`the unique identifier in this associa tion, perhaps a da tabase or
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`a tab le, find a public IP address an d then begin a ne gotiation
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`between that edge router 16 and the originating edge router 14.
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`And betwe en that process of negotiation it then
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`enables the two devices to have the public IP and the private
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`IP addresses of th e de vices at the e nd of a secure
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`co mmunication li nk.
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`If you go to slide 21, this is an exa mple that Bese r
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`gives of one of the t ypes of databas es that can maint ain a
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`director y. And it is using in this e xa mple what the y call E.164
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`nu mbers, which i s a 10 -digit telep hone nu mber .
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`And what you see being described here is the
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`10-digit telephone nu mbe r is being associated with the public
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`IP address of the edge router throu gh which that nu mber can
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`be reached .
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`Now, I' m going t o switch over to t he ELM O for a
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`minute, because one of the things that is ver y i mport ant to
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`appreciate about Beser is that Bese r gives a nu mbe r of
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`different exa mple s of unique identifiers, one of whic h is the
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`telephone nu mber of the destination device. Another exa mple
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`is a do main na me .
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`And if we go to Exhibit 1009 at col u mn 10. Well ,
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`so technology is f ailing me , so wha t I will do is just read this
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`rather than to tr y to make it i mposs ible to read there. I ' m
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`reading fro m column 10, lines, abo ut 38 through 41. And it
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`sa ys: In another exe mpl ar y pref err ed e mbodi ment of the
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`present invention, the unique identifier is an y of the dialup
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`nu mber , an electr onic mail address , or a do main na me.
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`And then as you proceed down thr ough that
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`description, at co lu mn 10, through the end of the col u mn, you
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`see exa mples bei ng used of a do main na me instead of a
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`telephone nu mber and so me of the benefits that ma y provide,
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`such as you can tr ack a do main na me so mewhat more readil y if
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`a user is moving, the y a re moving s ites or whatever, and their
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`na me will re ma in con stant, but their phone nu mbe r ma y
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`change.
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`And so it is sa yin g this sche me obviously can be
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`i mple mented usin g a telephone nu mber or it can be
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`i mple mented usin g a do main na me . And the other thing to
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`recognize is that the trusted third -part y net work de vice itself
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`also can make the do main na me ser ver.
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`And that's anothe r thing that Beser teaches us , and
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`that's at colu mn 1 1, lines 26 to 44, where Beser is explaining
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`that the trusted third -part y network device c an have the
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`capability of do main na me se rvice re solution to i mple ment its
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`sche me .
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`And so that satisf ies, again, the det er mining step
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`that we have been talking about, where a do main na me in the
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`request is going to be intercepted, evaluated b y the t rusted
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`third -part y net work device against the table of associated
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`entries, and then route the traf fic a nd conduct that negotiation
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`to set up the tunnel.
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`If you go to slide 16, please . So t he last step of
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`the clai ms is the i nitiation step. And that basicall y sa ys
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`initiate a secure t unnel between th e two dev ices, the first and
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`second devices. And Bese r does t his as I have desc ribed.
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`There is a negotiation process that occurs whe re
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`the private IP add resses of the ter minating ends of that IP
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`tunnel will be sen t to the other net work devices. And then the
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`internal, those ed ge routers, those network devices, the first
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`and second netwo rk devices 14 and 16 will have a ta ble of
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`entries with the public IP address a nd the private I P address,
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`which it c an then use to route the t r affic.
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`So the device 14, for exa mple , will have a table
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`that has the I P ad dress of device 16 along with the private IP
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`address at the t er minating device 2 6. And that allows it to
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`route that traf fic directl y to the de stination and set up the
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`secure I P tunnel.
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`Now, go to 34. B eser explains that its sche me
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`could be used to r oute a variet y o f t ypes of data. An d it gives
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`so me exa mples, t he VoI P, multi me dia, Web - TV. These ar e all
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`t ypes of exa mples which show that the t ype of data c an refle ct
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`or e mbod y video or audio data.
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`And that's the las t clause of the cla i m. It is a
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`wherein clause th at's added to the clai ms which specifies that
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`the data that's going to be sent over that tunnel will i nclude
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`audio or video data.
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`The point I would like to make abo ut this is that
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`there is no volu me or rat e of distri bution or other kind of
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`require ments about the nature of t hat audio or vide o data. And
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`the clai m just sa ys that the data ha s to be audio or video. It
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`doesn't have to be strea med . It doesn't have to be de livered in
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`certain qualit y. I t just sp ecifies what the data is .
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`So based on the r un -through, we se e that, in Bese r,
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`a co mplete mapping of ever y ele me nt of the cl ai m, a nd we
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`believe Beser doe s anticipate clai ms 1 and 16 along with the
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`other clai ms that have been r ecited.
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`The last thing I wo uld flag on -- go to 45, ple ase - -
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`Beser also meets the VP N li mitatio n of the dependen t clai m 3 ,
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`which requires , a s you found, that the secure co mmu nication
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`link at least trave rse at so me point a public network.
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`Now, the differ ence of opinion that we hav e with
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`Patent Owner is e mbodied and r esolved in the obviousness
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`question, which i s does the Bese r s che me r equire or teach
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`awa y or is agnostic about use of en cr yption in setting up these
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`IP tunnels? And we obviousl y disa gree with Patent Owne r's
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`suggestion that Beser tea ches a wa y fro m use of encr yption in
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`IP tunnels.
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`If you go to 36. Wh at Bese r te ach es is that
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`encr yption is the nor m in IP tunnels that it's describi ng. And
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`most notable her e is that B eser poi nts directl y to IP Sec, which
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`is the secondar y r e ference we have cited, R FC 2401.
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`And the I PSec is a protocol that governs
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`para meters you might use to i mple ment a se cure IP tunnel.
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`And within the IP Sec protocol itsel f is a lot of information
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`telling the person of skill how to a djust or adapt the sche m e to
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`incorporate encr yption over an IP t unnel.
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`And most i mporta ntly what it tells us is that -- and
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`this is straight out of B eser -- Bese r is telling us that IPS ec is
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`the wa y to go with setting up IP tu nnels. And what that means
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`is that you are going to t ypicall y a nd ordinarily encr ypt data .
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`But what Beser fl ags is a pr actical concern over a
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`ver y li mited setting, which is strea ming data flows such as
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`multi media or Voice -over-Internet - Protocol data flo ws.
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`And what this is sa ying is this is a practical
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`challenge. It is not so mething whi ch makes the sche me not
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`work. It is sa yin g this could be an issue whe re you might lose
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`packets if you ar e trans mitting this high volume of d ata and
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`your equip ment is n't up to the sc ale it needs to be .
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`And what that te l ls us in the la w o f teaching a wa y
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`is that this is not a teaching a wa y r eference . This is n't sa ying
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`that this co mbina tion is inoperative or won't work. It is
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`telling you this is a pr actical challe nge that you migh t have to
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`address if you att e mpt to do th is.
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`And what is nota ble about this is that the re cord is
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`prett y clear that t he challenges pre sented b y integrat ing
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`encr yption in the Beser sche me are no minal.
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`Our expert explai ned that you could solve this
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`proble m b y using, for exa mple, higher qualit y or higher
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`powered equip me nt. This is basica lly a volu me of data being
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`trans mitted over t he network issue.
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`If you go to 39.
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`JUDGE TI ER NEY: Please just br iefl y address
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`your expert , though. Is he one of ordinar y skill in t he art?
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`MR. KUS HAN: Yes, we believe h e is. He has
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`been working in t he field for more than 15 yea rs with hands -on
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`experience. He has had relevant tr aining across the spectru m
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`of technology tha t we see in these patents.
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`He was the editor of Net work Wo rld for man y
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`years where he a c t ually would take and deplo y these t ypes of
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`equip ment, and te st the m, put the m in test settings a nd
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`me asure their cap abilities. He is i nti matel y f a milia r with the
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`technology.
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`And I think so me of the challenges we have heard
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`about hi m you c a n easil y resol ve b y looking to see what
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`opinions he has e xpressed that have been shown to b e
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`inaccurate. None .
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`You look at the deposition transcript of Mr . Fratto,
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`not one question was posed to hi m about an y of his t echnical
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`U.S. Patent No. 8,504,697
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`opinions, which, if there was so me i mp act of his lac k of
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`training or bias or an ything else , would have been re vealed in
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`the for m o f inacc urate testi mon y, which we have not seen.
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`JUDGE EASTHOM: Could you ad dress the second
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`question then on your slide 36, the second sentence,
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`accu mulating the pack ets see ms to be another argu ment Patent
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`Owne r is making about teaching awa y? Go ahead .
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`MR. KUS HAN: Yeah, no, so what our expert
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`looked at, and if you go back to 36, this is basicall y a
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`practical challeng e i mple mentation, sa ying that my e dge
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`router, for e xa mp le, c an't proc ess a ll of the encr ypti on of all
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`of the packets tha t are being sent o ut in order to avoid
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`disruption via lost packets.
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`JUDGE EASTHOM: No, no, I me a n the part about
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`the hacker. I mea n, the whole point of B eser is to pr eclude
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`so meone fro m gai ning, figuring out what a source is.
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`So it see ms like t his sentence is sa ying, if the y a re
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`all co ming fro m t he sa me source a nd you ac cu mulat e the m
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`there, that , throu gh the securit y, t hat that would so rt of de feat
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`what B eser is doing here.
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`MR. KUS HAN : Well, so one of the great strengths
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`of the Bes er sche me is that it conc eals the ter minati ng and
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`originating sites or addresses of the tunnel. B y usin g the
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`trusted third -party net work device it is able to set u p that
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`Case Nos. IPR2014-00237 and IPR2014-00238
`U.S. Patent No. 8,504,697
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`tunneling association by concealin g the infor mation that would
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`be used to locate those ends of the tunnel.
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`And the other thing that Beser does do is teach us
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`that you c an use e ncr yption, parti
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