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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` _________________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _________________________
`
` UNIFIED PATENTS, INC.,
` Petitioner
`
` v.
`
` INTELLECTUAL VENTURES II, LLC
` Patent Owner
` ________________________
` U.S. Patent No. 6,968,459
` IPR2016-01404
`
` Wednesday, September 13, 2017
`
` Deposition of PAUL D. FRANZON, Ph.D.,
`
` taken at the Law Offices of Finnegan, Henderson,
`
` Farabow, Garrett & Dunner, LLP, 901 New York
`
` Avenue, N.W., Washington, DC, beginning at
`
` 9:06 a.m., before Ryan K. Black, a Registered
`
` Professional Reporter, Certified Livenote
`
` Reporter and Notary Public in and for District
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` of Columbia.
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`IV 2008
`Unified Patents v. IV
`IPR2016-01404
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` _________________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` _________________________
`
` UNIFIED PATENTS, INC.,
` Petitioner
`
` v.
`
` INTELLECTUAL VENTURES II, LLC
` Patent Owner
` ________________________
` U.S. Patent No. 6,968,459
` IPR2016-01404
`
` Wednesday, September 13, 2017
`
` Deposition of PAUL D. FRANZON, Ph.D.,
`
` taken at the Law Offices of Finnegan, Henderson,
`
` Farabow, Garrett & Dunner, LLP, 901 New York
`
` Avenue, N.W., Washington, DC, beginning at
`
` 9:06 a.m., before Ryan K. Black, a Registered
`
` Professional Reporter, Certified Livenote
`
` Reporter and Notary Public in and for District
`
` of Columbia.
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`IV 2008
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`IPR2016-01404
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`
` A P P E A R A N C E S:
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`Page 2
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` FINNEGAN, HENDERSON, FARABOW, GARRETT &
`
` DUNNER, LLP
`
` BY: JAMES D. STEIN, ESQUIRE
`
` SABA N. DANESHVAR, ESQUIRE
`
` 271 17th Street, NW,
`
` Suite 1400
`
` Atlanta, Georgia 30363
`
` 404.653.6400
`
` james.stein@finnegan.com
`
` saba.daneshvar@finnegan.com
`
` Representing - Unified Patents, Inc.
`
` STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`
` BY: DANIEL BLOCK, ESQUIRE
`
` 1100 New York Avenue, NW
`
` Suite 600
`
` Washington, DC 20005
`
` 202.371.2600
`
` dblock@skgf.com
`
` Representing - Intellectual Ventures II, LLC
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` I N D E X
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` TESTIMONY OF: PAUL D. FRANZON PAGE
`
` By Mr. Block...................................4
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`Page 3
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` E X H I B I T S
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` EXHIBIT DESCRIPTION PAGE
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` Exhibit 1001 a photocopy of the '459
`
` patent........................13
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` Exhibit 1002 Dr. Franzon's Original
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` Declaration...................16
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` Exhibit 1004 the Bensimon reference........49
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` Exhibit 1012 Dr. Franzon's Supplemental
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` Declaration....................4
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`Page 4
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` Whereupon --
`
` PAUL D. FRANZON, PH.D.,
`
` called to testify, having been first duly sworn
`
` or affirmed, was examined and testified as
`
` follows:
`
` EXAMINATION
`
` BY MR. BLOCK:
`
` Q. Can you state your full name for the
`
` record, please?
`
` A. Paul Damian Franzon.
`
` (Previously marked Exhibit No. 1012,
`
` Dr. Franzon's Supplemental Declaration, was
`
` introduced.)
`
` BY MR. BLOCK:
`
` Q. Okay. I've handed you what's been
`
` marked Exhibit 1012 in this proceeding. Do you
`
` recognize this document?
`
` A. Yes.
`
` Q. This is the Supplemental Declaration
`
` that you submitted in this proceeding?
`
` A. Yes.
`
` Q. And you understand that you're here to
`
` testify regarding IPR Proceeding 2016-01404
`
` today?
`
` It's the bottom right.
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` A. Yes.
`
` Q. And that IPR involves U.S. Patent
`
` Number 6,968,459?
`
` A. Yes.
`
` Q. If I refer to that patent as the '459
`
` patent, you'll understand what I'm referring to?
`
` A. Yes.
`
` Q. And you understand that you're here
`
` today to testify under oath?
`
` A. Yes.
`
` Q. And that means you need to give true
`
` and complete answers to the best of your ability
`
` to my questions?
`
` A. Yes.
`
` Q. So my job today is to ask you
`
` questions. Your job is to answer my questions
`
` to the best of your ability. If you don't
`
` understand one of my questions, would you
`
` -- will you ask me to -- to rephrase it?
`
` A. Yes.
`
` Q. And you understand -- you understand
`
` that if you answer my questions, I'm just going
`
` to assume that -- that you understood them,
`
` okay?
`
` A. Yes.
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` Q. What did you do to prepare for today's
`
` deposition?
`
` A. I went through some -- the -- the
`
` -- the documents on the weekend, and I also
`
` spent all the day yesterday going through the
`
` documents.
`
` Q. Did you meet with any attorneys in
`
` this case?
`
` A. I met with the attorneys yesterday.
`
` Q. About how long did you meet with the
`
` attorneys?
`
` A. Oh, most of the day, mm-hmm.
`
` Q. Now, you mentioned you reviewed some
`
` documents. Maybe it would help you if we turned
`
` to, let's see, I thought it was Paragraph 1 of
`
` your declaration.
`
` A. Yes.
`
` Q. Do you -- by looking at this list,
`
` do you recall which documents you reviewed in
`
` preparing for your deposition?
`
` A. Yes.
`
` Q. Which -- which documents -- so,
`
` actually, maybe we can make this easy, did you
`
` review all of the documents that are on this
`
` list?
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` A. I reviewed all of the documents on
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` this list. I didn't read all the documents
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` front to back, letter for letter, that are on
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`Page 7
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` this list.
`
` Q. Got it.
`
` And were there any documents in
`
` preparing for your deposition that you reviewed
`
` that are not on this list?
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` A. There are the patents themselves, the
`
` '459 and the Bensimon patent.
`
` Q. Okay. Besides the '459 patent and the
`
` Bensimon patent, were there any other documents
`
` you reviewed in preparation for your deposition?
`
` A. Not that I recall.
`
` Q. Now, turning to your declaration, this
`
` list, you know, sets forth the documents you
`
` reviewed in preparing your declaration. Are
`
` there any documents that are not on this list
`
` here in Paragraph 1 of your declaration that
`
` you reviewed when you were preparing your
`
` declaration?
`
` A. I have a list of documents that I
`
` reviewed for the declaration in the declaration.
`
` Q. Isn't that what we're looking at right
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` now?
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` A. Of course, yes.
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` As I stated, there's also the actual
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` patents in question, the '459 patent and the
`
` Bensimon patent.
`
` Q. And in preparing your declaration,
`
` besides the Bensimon and the '459 patent and the
`
` documents that are listed in Paragraph 1, were
`
` there any other documents you reviewed in
`
` preparing your declaration?
`
` A. Not that I recall.
`
` Q. How much time do you think you
`
` spent, approximately, in drafting this
`
` supplemental declaration?
`
` A. I do not remember the exact time I
`
` spent on it. It was over a period of several
`
` days.
`
` Q. Can you give me a ballpark?
`
` A. It was a number of hours over a period
`
` of several days.
`
` Q. Less than 20?
`
` A. I don't recall the exact number.
`
` Q. Was it less than a hundred?
`
` A. Yes.
`
` Q. Okay. So maybe less than 50?
`
` A. Probably. Mm-hmm. Mm-hmm.
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` Q. Okay. Now, you mentioned earlier
`
` that there was a difference -- you said that
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` you didn't -- you reviewed but you didn't read,
`
` I recall you saying that. It says here in
`
` Paragraph 1 that you reviewed these documents
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` in forming your opinions, expressing the
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` declarations. What do you mean by review here
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` in Paragraph 1?
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` A. Your previous question was in the
`
` scope of preparing for this deposition over the
`
` last few days.
`
` Q. Mm-hmm.
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` A. The scope of your question right now
`
` is in the context of this document, --
`
` Q. Yeah. That's right.
`
` A. -- referring to this document, so
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` that's a different question.
`
` Q. Yeah, I know it is. That's why I was
`
` asking. You had mentioned in your answer that
`
` it seemed like there was some difference in your
`
` mind between reviewing and reading, and it says
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` here in Paragraph 1 review.
`
` A. I reviewed all these documents, as
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` well as the patents themselves, in preparing
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` this document. Even in preparing this document,
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` I did not necessarily read every single word in
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` all of these documents.
`
` Q. So give me an idea, what would a
`
` review, in your mind, be in terms of, you know,
`
` what did you do, say, to review your
`
` declaration?
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` A. So, for example, in my declaration,
`
` I did read the parts that I understand are
`
` related to the items being instituted by the
`
` Board. I did not spend a lot of time on the
`
` parts that were not instituted by the Board.
`
` Q. And what about Dr. Goldschlag's
`
` deposition, did you read all of that?
`
` A. I did not read all of that. I
`
` read the parts that I cited and reviewed it
`
` generally.
`
` Q. And what about, if we turn to Page 4,
`
` the petition, did you read the petition again,
`
` all of it?
`
` A. I only reviewed those parts of the
`
` petition that were relevant to this supplemental
`
` document.
`
` Q. And the decision to institute Inter
`
` Partes Review, did you read that?
`
` A. I only reviewed the parts of that that
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` are relevant to this document. In particular,
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` what the Board instituted and what the Board
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` didn't.
`
` Q. So, actually -- and that raises
`
` a question to me, so you said that you only
`
` reviewed the parts that were relevant to your
`
` opinion here. So can I assume that if you
`
` didn't cite, for example, the petition in
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` this document that you didn't review any of it?
`
` A. I did review the document as related
`
` to this petition. I remember looking at it,
`
` this is several weeks ago now that I -- I -- I
`
` prepared this document. I don't recall which
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` parts of it I actually read.
`
` Q. And turning on to the patent owner's
`
` response to the petition, did you read the
`
` entire patent owner response?
`
` A. Yes.
`
` Q. And what about the transcript of your
`
` deposition on May 4th, 2017, did you read your
`
` transcript?
`
` A. No. I only reviewed -- I only looked
`
` at it overall globally.
`
` Q. What do you mean you looked at it
`
` overall globally?
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` A. I flipped through it looking at some
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` key parts.
`
` Q. And the declaration of Dr. Goldschlag,
`
` did you review that?
`
` A. I reviewed the parts of it that were
`
` relevant to this document; however, I did not
`
` read the entire document.
`
` Q. So the '459 patent describes both
`
` user-specific and device-specific security
`
` information, correct?
`
` A. You asked me to summarize the '459
`
` patent in its totality?
`
` Q. I don't think I asked you that at all.
`
` I asked you a simple question, does the '459
`
` patent describe both user-specific and
`
` device-specific security information?
`
` A. The '459 patent goes -- has in it the
`
` terms device-specific. I don't recall if it
`
` has, specifically, the term user-specific.
`
` You're asking me to recall the patent from
`
` memory. Can I pull the patent out and look
`
` at it?
`
` Q. I can give you a copy of it, if that
`
` will help.
`
` ///
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`Page 13
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` (Previously marked Exhibit No. 1001, a
`
` photocopy of the '459 patent, was introduced.)
`
` BY MR. BLOCK:
`
` Q. I've handed you what's been marked as
`
` Exhibit 1001.
`
` Do you recognize this document?
`
` MR. STEIN: Thanks.
`
` THE WITNESS: Yes.
`
` BY MR. BLOCK:
`
` Q. This is the '459 patent that we've
`
` just been discussing, correct?
`
` A. Yes.
`
` Q. So I guess my -- so let's start
`
` with a simple question: You agree that the
`
` '459 patent describes device-specific security
`
` information, right?
`
` A. Yes.
`
` Q. Does the '459 patent describe
`
` user-specific security information?
`
` A. I don't recall if it uses that
`
` specific term.
`
` Q. Let me see if I can help you out here.
`
` Do you know if you have any opinions
`
` regarding whether the '459 patent describes
`
` user-specific information?
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`Page 14
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` A. You're asking me about my report now?
`
` Q. I'm just asking you, generally,
`
` have you ever opined on whether the '459 patent
`
` describes user-specific information?
`
` Sir, are you just going to review your
`
` entire declaration? Is that what you're doing
`
` right now?
`
` I just want to know because,
`
` otherwise, like, that's not what I'm looking for
`
` you to do here. I'm just asking a simple
`
` question.
`
` A. I was reviewing Part 3A of my
`
` declaration, which talks about device-specific
`
` security information.
`
` Q. Okay.
`
` A. So I notice that, as an example in
`
` the '459 patent, in Figure 2 it does refer to
`
` user-specific security -- get -- Block 208
`
` refers to get user-specific security information
`
` from the user. So that's an example in the '459
`
` patent where it uses the term user-specific.
`
` Q. And do you have an opinion on what
`
` user-specific information means?
`
` A. I did not define the term in my
`
` report.
`
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` Q. So you have no opinion on what
`
` user-specific information means?
`
` A. I was not asked to give a definition
`
` of that in my report.
`
` Q. Do you know the difference between
`
` user-specific information and device-specific
`
` information?
`
` A. In general, outside the context of
`
` my report, user-specific would be specific to
`
` a user, whereas device-specific is specific
`
` to a device. I do not believe that the
`
` device-specific specifically means unique,
`
` as you contend in your response.
`
` Q. Now, when you say you did not opine on
`
` that in your report, you're referring to both
`
` reports, right?
`
` A. This declaration -- deposition, I
`
` understand, is about the supplemental report.
`
` I would have to actually reread my original
`
` report to see if I opined on that in my original
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` report.
`
` Q. So you don't know what you opined on
`
` in your original report?
`
` A. I have not memorized my original
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` report.
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` Q. So you don't know whether you opined
`
` on user-specific information in your original
`
` report?
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` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: I did not memorize my
`
` original report.
`
` BY MR. BLOCK:
`
` Q. So you said earlier that outside the
`
` context of your patent -- outside the context of
`
` the patent, user-specific information means
`
` information specific to the user, right?
`
` A. I don't believe I said that.
`
` Q. What did you say, then?
`
` A. I said, outside the context of my
`
` supplemental report, user-specific would be
`
` specific to the user, whereas device-specific
`
` would be specific to the device.
`
` MR. BLOCK: All right. I'm going to
`
` hand you your original declaration. This is
`
` Exhibit 1002.
`
` (Previously marked Exhibit No. 1002,
`
` Dr. Franzon's Original Declaration, was marked.)
`
` BY MR. BLOCK:
`
` Q. Do you recognize this document?
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` And maybe you can turn to Page 19.
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` A. You had a question and a statement.
`
` Could you ask the question again, please?
`
` Q. Well, if you could just turn to
`
` Page 19, maybe that was the statement, and,
`
` specifically, Paragraph 41.
`
` So here you lay out your understanding
`
` of the term user-specific information, is that
`
` right, in Paragraph 41?
`
` A. Here in my original report, dated
`
` -- here in my original report, I do lay out what
`
` device-specific infor -- the term user -- I do
`
` discuss the term user-specific security
`
` information.
`
` Q. And what does the term user-specific
`
` security information mean?
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: In the context of
`
` my original report, not in the context of
`
` my supplemental report -- correct -- in the
`
` supplemental report, I did not discuss this
`
` term. In the original report, I did discuss
`
` this term. And I ex -- I gave the explanation,
`
` it's not a definition, but user-specific
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` information is information specific to a user,
`
` such as a password or biometric information such
`
` as input received from a fingerprint scan or a
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`Page 18
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` retina scan.
`
` BY MR. BLOCK:
`
` Q. Can you read the first sentence of
`
` Paragraph 41 into the record, please?
`
` A. The above-identified challenge
`
` claims recite device-specific information and
`
` user-specific security information. In my
`
` opinion, these terms mean information specific
`
` to the device and information specific to the
`
` user.
`
` Q. Is that not a definition for the term
`
` user-specific security information?
`
` A. I was not asked to give a definition
`
` very explicitly in the context of a definition
`
` that the IPB means, but here I'm explaining what
`
` I believe these terms mean.
`
` Q. So when you say, in my opinion, these
`
` terms mean information specific to the device
`
` and information specific to the user, that's
`
` not a definition of user-specific security
`
` information --
`
` MR. STEIN: Objection. Asked and
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` answered.
`
` BY MR. BLOCK:
`
` Q. -- and device-specific information?
`
` A. No.
`
` Q. But it's your understanding of what
`
` those terms mean, right?
`
` A. Elsewhere in this report, I do explain
`
` device-specific information and I go -- and I
`
` give -- I also possibly discuss user-specific
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` information.
`
` I think I need to review my whole
`
` report in order to answer further questions down
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` this line.
`
` Q. So --
`
` A. Do you want me to review my whole
`
` report?
`
` Q. No. I have another question for you,
`
` though.
`
` So you keep saying, in the context of
`
` your supplemental report. Did your opinions
`
` change between your original report and your
`
` supplemental report?
`
` A. My understanding my purpose here
`
` today, as you stated at the beginning of these
`
` proceedings, was I'm here to answer questions on
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` the supplemental report. I understand we met
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` previously where you asked me questions on my
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` original report. You're also asking me for one
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` paragraph from this. I need to review my entire
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` report if I'm going to give you a complete
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` answer.
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` Q. Okay. So I don't think that answered,
`
` actually, any part of my question, so I'm going
`
` to ask it again. Did your opinions change
`
` between your supplemental report and your
`
` original report?
`
` A. My supplemental report supplements the
`
` opinions in my original report, but if you're
`
` asking me about specific terms in the original
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` report, I need to review the entire original
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` report.
`
` Q. I'll ask my question again.
`
` Did your opinions change between your
`
` supplemental report and your original report?
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: The -- my supplemental
`
` report is a supplement to my original report.
`
` You're asking me questions about the original
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` report. I have not memorized the original
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` report. I need to actually review the entire
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` original report to see where else I discuss
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` these terms. I discuss device-specific security
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` information multiple times in the original
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` report.
`
` BY MR. BLOCK:
`
` Q. Yeah. So I'm not asking about these
`
` terms. I'm asking about any of your opinions
`
` -- so you set forth some opinions in your
`
` supplemental report, right?
`
` A. Yes.
`
` Q. Are those -- are those -- did any of
`
` your opinions change in your supplemental
`
` report, --
`
` MR. STEIN: Objection.
`
` BY MR. BLOCK:
`
` Q. -- compared to your original report?
`
` A. The supplemental report --
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: -- supplements the
`
` opinions presented in my original report.
`
` BY MR. BLOCK:
`
` Q. When you use the term supplement,
`
` do you mean that it changes the opinions in your
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` original report?
`
` A. It means it builds on top of.
`
` Q. So your supplemental report doesn't
`
` change any of the opinions in your original
`
` report?
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: My supplemental report
`
` is a supplement to the original report. It
`
` builds on top of the opinions on the original
`
` report. You asked me to read something into the
`
` record, and then you asked a follow-on question.
`
` You have not given me a chance to answer that
`
` follow-on question.
`
` BY MR. BLOCK:
`
` Q. Well, because that's not what I'm
`
` asking about now. What I'm asking about, just
`
` generally speaking, did your opinions change
`
` between your original report and your
`
` supplemental report?
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: My supplemental report
`
` builds on top of the opinions in the original
`
` report. So it is a supplement to the original
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` report, hence the word supplemental.
`
` BY MR. BLOCK:
`
` Q. Right. But I'm just trying to
`
` understand, when you use the term supplement, do
`
` you mean that your supplemental report changed
`
` any of your opinions in your original report?
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: The supplemental report
`
` builds upon the original report and, thus, it
`
` does add detail on top of the opinions in the
`
` original report.
`
` BY MR. BLOCK:
`
` Q. So would it be fair to say that it
`
` adds detail but does not change any of the
`
` opinions in your original report?
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: No. That's not what I
`
` said. It's a supplement to the opinions in my
`
` original report.
`
` BY MR. BLOCK:
`
` Q. So your supplemental report does
`
` change the opinions in your original report?
`
` MR. STEIN: Objection. Asked and
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` answered.
`
` THE WITNESS: My supplemental report
`
` is a supplement to the original report. It
`
` builds on top of them -- on top of the original
`
` report.
`
` BY MR. BLOCK:
`
` Q. Do you understand what the word change
`
` means?
`
` A. I understand what the word change
`
` means, but you're not asking me a specific
`
` question. You're asking me a very general
`
` and vague question about these reports. I
`
` don't understand the question.
`
` Q. Do you know whether or not your
`
` opinions changed between your supplemental
`
` report and your original report?
`
` MR. STEIN: Objection. Asked and
`
` answered.
`
` THE WITNESS: My supplemental report
`
` offers additional information, and -- and
`
` additional finesse of the opinions in my
`
` original report, mm-hmm.
`
` BY MR. BLOCK:
`
` Q. Do you understand that there either
`
` are changes in your opinions or there aren't
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` changes in your opinions between the reports?
`
` A. Opinion is a loaded word in the
`
` context of this discussion. In my supplemental
`
` report, I give additional information on what I
`
` feel that device-specific security information
`
` is specific to the device and not unique to the
`
` device. I also opine that on -- I also
`
` supplement my discussion on user-specific
`
` information to include the example, if it's
`
` necessary, that user-specific information, such
`
` as a password, can actually be unique, if that
`
` is necessary to satisfy the claim construction.
`
` But my supplemental report builds on top of the
`
` original report. I just gave you two examples
`
` on the way in which it builds on top of it.
`
` Q. In both of those examples you just
`
` gave me, you've held those opinions since your
`
` first report, right?
`
` A. I was asked to opine on those specific
`
` aspects of my first report in the second report,
`
` so I added them to my second report.
`
` Q. So it's fair to say that you -- that
`
` you never thought device-specific information
`
` meant that it needed to be unique, correct?
`
` MR. STEIN: Objection.
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` Mischaracterization.
`
` THE WITNESS: In the context of my
`
` supplemental report, device-specific information
`
` does not have to be unique. The '459 patent
`
` gives examples of device-specific information
`
` that is not unique to the device, and I discuss
`
` those in my report.
`
` BY MR. BLOCK:
`
` Q. When you were drafting your original
`
` report, though, did you think device-specific
`
` information needed to be unique?
`
` A. I have to reread my original report to
`
` answer the question.
`
` Q. Now, when you say you have to reread
`
` it, are you going to reread your entire report?
`
` A. I'll read the portions I feel are
`
` relevant.
`
` Q. Sure.
`
` A. Could you restate your question,
`
` please?
`
` Q. When you were drafting your
`
` original report, did you think device-specific
`
` information needed to be unique?
`
` A. In Paragraph 37 of my report, I state
`
` -- opine that I understand the above-identified
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` challenged claims recite device-specific
`
` security information. In my view, that means
`
` information that is specific to the storage
`
` device -- storage device that is used to secure
`
` access to the storage device.
`
` I don't recall that I go on defining
`
` the difference between specific and unique, but
`
` to me the plain and ordinary usage of the word
`
` specific is broader than the plain and ordinary
`
` usage of unique. Unique means a one-to-one
`
` mapping. Specific just means it is just -- it
`
` is specific to that device and, thus, it can be
`
` specific to other devices.
`
` I give examples in my supplemental
`
` report where I very explicitly supplement my
`
` definition here to characterize how unique is
`
` different than specific in the context of the
`
` '459 patent.
`
` In the '459 patent, it gives examples
`
` that are specific but not unique; for example,
`
` the bottom of Column 3 to the top of Column 4,
`
` depending upon the s
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