UNITED STATES PATENT AND TRADEMARK OFFICE
`------------------------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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`APPLE INC.
`Petitioner
`V.
`VIRNETX INC
`Patent Owner
`IPR 2017-00337
`PATENT NO. 9,038,163
`
`DEPOSITION OF ROBERTO TAMASSIA, PH.D.
`Washington, D.C.
`Thursday, September 7, 2017
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`Reported by: Michele E. Eddy, RPR, CRR, CLR
`Job No: 129531
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`VirnetX Exhibit 2007
`Apple Inc. v. VirnetX Inc.
`IPR2017-00337
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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`APPLE INC.
`Petitioner
`V.
`VIRNETX INC
`Patent Owner
`IPR 2017-00337
`PATENT NO. 9,038,163
`
`DEPOSITION OF ROBERTO TAMASSIA, PH.D.
`Washington, D.C.
`Thursday, September 7, 2017
`
`Reported by: Michele E. Eddy, RPR, CRR, CLR
`Job No: 129531
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`Page 1 of 41
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`VirnetX Exhibit 2007
`Apple Inc. v. VirnetX Inc.
`IPR2017-00337
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`Page 2
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` Thursday, September 7, 2017
` 1:45 P.M.
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` Deposition of ROBERTO TAMASSIA, PH.D., held
`at the offices of Sidley Austin LLP, 1501 K Street,
`Northwest, Washington, D.C., pursuant to notice,
`before Michele E. Eddy, a Registered Professional
`Reporter, Certified Realtime Reporter, and Notary
`Public of the District of Columbia.
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`APPEARANCES:
`
`SIDLEY AUSTIN
`Attorneys for Petitioner
`1501 K Street Northwest
`Washington, DC 20005
`BY: SAMUEL DILLON, ESQUIRE
` SCOTT BORDER, ESQUIRE
` TIMOTHY BROUGHAN, ESQUIRE
`
`PAUL HASTINGS
`Attorneys for Patent Owner
`875 15th Street, Northwest
`Washington, DC 20005
`BY: CHETAN BANSAL, ESQUIRE
` DANIEL ZEILBERGER, ESQUIRE
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` P R O C E E D I N G S
` Washington, D.C.
` September 7, 2017
` - - -
` ROBERTO TAMASSIA, Ph.D.,
`having been duly sworn, testified as follows:
` EXAMINATION
`BY MR. BANSAL:
` Q Good afternoon, Dr. Tamassia.
` A Hello.
` Q Can you please state and spell your name
`for the record.
` A Yes. It is Roberto Tamassia,
`R-O-B-E-R-T-O, T-A-M-A-S-S-I-A.
` Q Dr. Tamassia, you have been deposed
`before. Right?
` A That's right.
` Q How many times?
` A So I've actually stopped counting, but I
`think that this is my seventh deposition, so six
`previously, I believe.
` Q In these seven depositions, have you
`represented any other party other than Apple?
` A So my first deposition was in a case
`involving comScore.
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` Q How about the other six?
` A They were Apple versus VirnetX,
`including this one.
` Q Before we begin, I just wanted to go
`over some basic ground rules. You're aware of
`them, but I'll just repeat.
` A Sure.
` Q I'll be asking you questions during this
`deposition. Your counsel may object, but you must
`answer unless your counsel instructs you not to
`answer. You understand that?
` A Sure.
` Q If a question is unclear, please let me
`know. Otherwise, I'll assume that you understood.
` A This is fine.
` Q Our conversation will be transcribed by
`the court reporter here; therefore, it is
`important that you speak your answers. The court
`reporter cannot transcribe gestures. Is that
`understood?
` A Sure, understood.
` Q Again, for the benefit of the court
`reporter, let's make sure not to speak over each
`other.
` A Right.
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` Q Regarding breaks, we'll be taking breaks
`during this deposition, but if you need one, let
`me know. If a question is pending, though, I
`would request to you that you answer the question
`before we go for a break. Okay?
` A Okay. Sounds good.
` Q Any questions before we begin?
` A No.
` Q Is there any reason that would prevent
`you from testifying truthfully and accurately
`today?
` A I cannot think of any such reason.
` Q Dr. Tamassia, did you prepare for this
`deposition?
` A Yes.
` Q How many hours did you spend preparing
`for this deposition?
` A It was about 15 hours or so.
` Q When did you begin preparing?
` A I started one week ago.
` Q Who did you prepare with?
` A So I prepared by myself and with
`counsel.
` Q Could you specify who that counsel is.
` A Sure. Sam Dillon, Scott Border, and Tom
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`Broughan.
` Q Anyone else?
` A No.
` Q Did you review any documents in
`preparation for this deposition?
` A Yes.
` Q Which ones?
` A I reviewed the declaration that I
`submitted. I reviewed the '163 patent, which is
`the subject of this proceeding. And I also
`reviewed relevant prior art that I mention in my
`declaration, for example, Beser's patent, what I
`refer to as Beser's patent, and the RFC covering
`the SIP protocol.
` Q That is as to 2543?
` A I think that's the RFC of SIP.
` Q Any other documents you reviewed in
`preparation for this deposition?
` A What I mentioned were the main
`documents. I think I have taken a look at the
`prosecution history to refresh my memory. And I
`think that's what I looked at.
` Q Did you review any documents that are
`not mentioned in your declaration?
` A I did not.
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` Q How many hours did you spend preparing
`your declaration that you submitted in this
`proceeding?
` A So preparing the declaration took about
`25 hours or so.
` Q Did anyone help you prepare your
`declaration?
` MR. DILLON: Objection to the extent
`that it seeks protected information related to the
`preparation of his report or communications with
`counsel. The witness may answer in a way that
`does not reveal such information.
` A When I prepared the declaration, I had
`conversations with counsel.
` Q And who was that counsel?
` A So that was about one year ago. I
`remember conversations with Sam Dillon, I think
`Tom Broughan at the time. I don't remember if
`Scott was also involved.
` Q Did you have any interactions with
`anyone not affiliated with Sidley Austin during
`the preparation of your declaration?
` MR. DILLON: Objection. Form.
` A Can you clarify what you mean by
`interactions during the preparation? And the
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`reason I'm asking for the clarification is that I
`interacted with several people in my personal and
`professional life over the last week.
` Q Understood.
` So in forming your opinions that you
`have offered in the declaration, did you have any
`discussions regarding those opinions with anyone
`other than someone at Sidley Austin?
` A No, I did not have any discussions with
`people outside of Sidley Austin about my opinions.
` MR. BANSAL: I am handing the witness
`what has been previously marked as Exhibit 1007.
` (Exhibit 1007 was previously marked and
`referred to.)
` Q Do you recognize this exhibit,
`Dr. Tamassia?
` A Yes.
` Q What is it?
` A This exhibit is a patent, and I refer to
`this patent in my declaration. It's by Beser and
`coinventor Borella. I reviewed it as prior art in
`my declaration. Also I mention combinations in my
`declaration involving Beser's method.
` Q I understand from your prior testimony
`today that you reviewed Beser in preparation for
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`this deposition. Correct?
` A Yes, I did review this patent.
` Q Could you turn to the description of
`figure 5 in Beser starting at the bottom of column
`9.
` A Okay. I'm here.
` Q Would you agree with me that figure 5 of
`Beser describes a flow diagram for a Voice over IP
`association?
` A (Document review.)
` So figure 5 provides indeed a flow
`diagram. It overviews the general method that is
`described in the patent in the context of a Voice
`over IP association between two devices called
`originating and terminating.
` Q Those originating and terminating
`devices are 24 and 26, respectively. Right?
` A The labels 24 and 26 are indeed
`associated with the originating and terminating
`devices, respectively, and is labeled, refer to
`the network diagram of figure 1.
` Q Now, with respect to figure 5, I want to
`understand the process that occurs.
` So device 24, which is the originating
`device, transmits a request to initiate a Voice
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`over IP association. Correct?
` A So the Voice over IP association is
`being requested to be established between devices
`24 originating and 26 terminating, and that these
`requests would take place as beginning with the
`originating device 24. I think this is how you
`have expressed it.
` Q So let me repeat my question.
` Do you agree that device 24 transmits a
`request to initiate a VoIP association?
` A So the word "transmit" is not used in
`the initial part of the paragraph that describes
`figure 5, but it is understood that the
`originating device 24 is the one who intends to
`establish a Voice over IP connection to the
`terminating device and, hence, issues a request
`for this connection.
` Q Dr. Tamassia, do you agree that the
`originating device 24 sends out a request to
`initiate a Voice over IP association?
` A So the way I view the specification is
`that the originating device 24 or the end user
`operating that device intends to establish a
`telephony-like communication with the terminating
`device. That's the scope of the flow diagram in
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`figure 5. And it's possible that the end user or
`the device are intending to use specifically Voice
`over IP, or it could be also that the intention is
`simply to establish a communication.
` What is clear in the specification is
`that there is an identifier that is included in
`the request that is used to establish this
`association. And so the invention definitely
`covered the case, which is the one that you
`mentioned, sends and transmits a request to
`initiate the Voice over IP association.
` The way I interpret it is that the
`invention can also cover the case where the
`request is the one of establishing a communication
`via Voice over IP session, and, as part of the
`later processing, this is realized through a
`specific Voice over IP with the specific
`characteristics of the Voice over IP protocol.
` So it was briefly what you initially
`asked, but I will say that the invention includes
`the case of first -- of the originating device
`transmitting or sending out a request to establish
`a Voice over IP association. But it may not be
`the only case.
` Q Could you please read column 10, lines 2
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`through 6, to yourself.
` A (Document review.)
` Yes, 2 through 6 in 10, yes.
` Q Would you agree that in column 10, lines
`2 through 6 of Beser, Beser discloses that the
`originating end device 24 sends out a request to
`initiate a Voice over IP association?
` A So can you repeat it again just to make
`sure I understand the exact terminology because
`your question is very similar to the previous one.
` Q Would you agree that in column 10, lines
`2 through 6 of Beser, Beser discloses that the
`originating end device 24 sends out a request to
`initiate a Voice over IP association?
` A (Document review.)
` So what I will say is that those lines
`focus on the receipt of the request, not the
`sending of the request. They focus on the receipt
`of the request to initiate the Voice over IP
`association on the first network device. And from
`the context outside of those lines, it includes
`the case as I mentioned before where the request
`is transmitted, is sent by the originating device
`24.
` Q What do you mean by "from the context
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`outside of those lines"?
` A What I mean is that those lines do not
`by themselves state what is the transmitting
`entity. They state what is the receiving entity,
`which is first network device 14, and then they
`mention that the first network device is
`associated with originating device 24. They don't
`explicitly talk about who is sending the request,
`but it is clear to me from the context that the
`disclosure of this patent includes the fact that
`the first network device transmits -- sorry, that
`the originating network device transmits such
`request.
` Q So, Dr. Tamassia, you disagree that
`column 10, lines 2 through 6, of Beser disclose an
`originating end device 24 sending out a request to
`initiate a Voice over IP association. Correct?
` MR. DILLON: Objection, form.
` A No, I do not disagree with this case. I
`believe that I was clear that the scenario of
`originating network device sending the request to
`the first network device is disclosed in Beser,
`and by reading those lines in the context, it's
`definitely a scenario that is covered. My
`previous answers were just about which language is
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`explicit versus which language is clear, according
`to my understanding, from the surrounding context.
` Q Is it your opinion that without reading
`other sentences in Beser other than column 10,
`lines 2 through 6, one of ordinary skill in the
`art would not understand column 10, lines 2
`through 6, to be stating that the originating end
`device 24 sends out a request to initiate a Voice
`over IP association?
` MR. DILLON: Objection. Form.
` A So is your question about just having
`someone of ordinary skill of the art at the time
`being presented with just those lines, without any
`other context, without any other definition of the
`meaning of the terms there, of the network diagram
`or anything else, what they could infer? Is that
`what you're asking me?
` Q No, well -- let me back up and ask you
`this.
` A Okay.
` Q Does column 10, lines 2 through 6, of
`Beser disclose that the originating end device 24
`sends out a request to initiate a Voice over IP
`association?
` A I think you already asked me this
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`question, and I think I already answered. Is it
`any different than the question you just asked me?
`I'm sorry, I'm getting a bit confused. Are you
`actually going back to the previous question or
`are you elaborating on the most recent one?
` Q Dr. Tamassia, I would appreciate you
`just answering my question, which is, does column
`10, lines 2 through 6, of Beser disclose that the
`originating end device 24 sends out a request to
`initiate a Voice over IP association?
` MR. DILLON: Objection. Form.
` A As I said before, this disclosure is
`covered by lines 2 through 6 at column 10 and the
`context of the patent. And the context is set by
`the rest of this specification.
` Q So your answer is yes to my question?
` MR. DILLON: Objection. Form.
` A So I think I have answered your
`question, and I'm sorry that it was not just a
`simple, you know, yes or no. I wanted to provide,
`you know, a more complete answer that indicates,
`you know, my complete opinion rather than giving
`you just a simple yes or no because I felt that
`that is the best way, in my mind, to answer your
`question.
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` Q Dr. Tamassia, are you saying that you
`cannot give me a yes or no answer to my question
`whether Beser, column 10, lines 2 through 6,
`discloses originating end device 24 sending out a
`request to initiate a Voice over IP association?
` MR. DILLON: Objection. Form.
` A I'm simply saying that I believe that,
`for the record, the best way for me to answer has
`been what I have done previously for your question
`and several variations of the question. I know
`that I am on record. I know that the Board will
`review my answers. So I'm trying to be as
`accurate as possible in presenting my opinion.
` Q So is that a yes that you cannot answer
`my question without a yes or no answer?
` MR. DILLON: Objection. Form.
`Foundation.
` Q Let me rephrase.
` So you cannot answer my question without
`a yes -- sorry. Strike that.
` So you cannot answer my question with a
`yes or no answer. Is that what you're saying?
` MR. DILLON: Objection. Form.
`Foundation.
` A I'm simply saying that I prefer to give
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`an answer that best represents my thinking rather
`than this single-word answer that could be
`misinterpreted.
` Q Dr. Tamassia, I'm not asking for your
`preference. I'm just asking you, does Beser
`column 10, lines 2 through 6, disclose originating
`end device 24 sending out a request to initiate a
`Voice over IP association. Yes or no?
` MR. DILLON: Objection. Form.
` A As I answered before, my opinion is that
`those lines and surrounding context of the
`specification do include the disclosure of
`originating device 24 sending the request to
`initiate the Voice over IP association.
` Q Okay, Dr. Tamassia, I want to move on
`from this question, but I do not believe that you
`answered my question, which is quite simple,
`whether column 10, lines 2 through 6, discloses
`terminating device -- sorry -- originating device
`24 sending out a request to initiate a Voice over
`IP association.
` A Thank you for moving on. I'm sorry you
`feel I did not fully address what you wanted me to
`answer.
` Q I think the record speaks for itself.
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` Dr. Tamassia, the request to initiate a
`Voice over IP association that is disclosed in
`column 10, when it is sent by a user of device 24,
`is the user of device 24 trying to make a Voice
`over IP call? Let me rephrase.
` A Okay.
` Q Would the Voice over IP association
`request be sent out when the user of device 24 is
`trying to make a Voice over IP call with a user of
`device 26?
` A Sorry, now you mentioned device 26.
`Sorry. Can you re- -- can you repeat. Because we
`were focusing before on 24 and now ...
` Q So you're aware of terminating telephone
`device 26, right, in Beser?
` A Yes.
` Q And figure 5 refers to both originating
`device 24 and terminating device 26. Correct?
` A Right.
` Q So my question is, would the Voice over
`IP association request be sent out when the user
`of device 24 is trying to make a Voice over IP
`call with the user of device 26?
` A So the beginning of the process of
`initiating a Voice over IP call can happen in a
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`variety of scenarios, some of which are described
`in the specification within column 10, including
`the bottom part of column 10.
` For example, the user may have a device
`that looks like a transitional telephone and may
`want to establish the communication maybe by
`dialing a number following the same format as
`traditional phone numbers. Or it could be that
`the user may have some kind of graphical user
`interface and then uses the graphical user
`interface on a computer screen or other device
`screen to initiate the Voice over IP call.
` In general, as discussed by Beser, the
`request includes an identifier of the terminating
`device or an identifier of the party with whom or
`with which the originating device wants to
`connect. And there is a discussion about the
`identifier remaining the same even if the
`terminating end of the call is a mobile user that
`changes, let's say, physical location or may
`access different equipment.
` Q Do you agree that there is a user
`operating device 24 and a user operating device 26
`in the figure 5 embodiment?
` A So what I'll say is that when one thinks
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`about Voice over IP, one often thinks about calls
`placed between human users. However, one can view
`user more generally as the party on behalf of
`which the association is established, and the
`patent does not limit itself to human users. You
`know, it could cover, say, human-to-machine call,
`machine-to-human, machine-to-machine
`communication. I think it's important not to view
`users simply in the basic scenario of human users.
` Q Does Beser provide specific examples of
`human-to-human communication in the context of
`figure 5?
` A So in the description of figure 5,
`starting at the bottom of line 9, continuing on to
`line 10, there are sentences that suggest that
`human users could be part of the communication but
`does not exclude others. And I can give you
`examples of such sentences.
` In column 10, line 42 to 45, it is
`stated that "The originating telephony device is a
`phone." "A user may simply be required to lift a
`telephone handset ... and dial." The verbs "lift"
`and "dial" seem to suggest that it will be a human
`performing such actions. Again, these are
`examples. This is not limited to this.
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` Later on, it is mentioned about device
`26, the scenario of the user of the terminating
`telephony device having "moved from one office to
`another office." This is lines 57 through 60. So
`moving from office to office seems to suggest a
`human occupying an office, not a robot. But,
`again, these are illustrations of possible Voice
`over IP calls. And, of course, Voice over IP is
`not the only type of application covered by Beser.
`Beser talks about, in general, tunneling
`associations, and figure 5 shows the diagram
`referring to the Voice over IP application, but
`there are more applications that are contemplated
`by Beser.
` Q So in the context of the Voice over IP
`association described with reference to figure 5,
`I would like to understand that if a user of 24 is
`trying to call a user of 26, what are some of the
`initial steps that would happen in that process.
`Would one of the initial steps be that the request
`to initiate a Voice over IP association is sent by
`device 24?
` A (Document review.)
` The specification of Beser's patent
`regarding Voice over IP associations does include
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`the scenario where indeed the initiation of the
`association begins with a user intending to make a
`Voice over IP call and the telephony device
`transmitting, sending out a request for this Voice
`over IP association. And there are examples in
`column 10 about messages that could be exchanged
`on the network or electrical signals that indicate
`the request is being made and will be received.
` Q The request is made by device 24.
`Correct?
` A (Document review.)
` So the disclosure includes the case of
`device 24 sending a request. For example, lines
`from 52 through 55 mention the dial-up number
`included in the payload of a data packet sent from
`24, originating device, to 14, the first network
`device. So it does include this scenario. And
`that's one scenario. Notice how it starts with
`"alternatively," this sentence.
` Q Dr. Tamassia, at the bottom of column 9,
`last sentence, do you see it says, "Voice over IP
`is described in ITU standard H.323"?
` A Yes, I see this reference.
` Q Did you review the H.323 Voice over IP
`standard when you were preparing your declaration?
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` A I had an understanding at the time I
`prepared the declaration of what is H.323 and what
`are related multimedia communication standards
`over networks. I don't remember right now off the
`top of my head if I relied on my knowledge or if I
`also reviewed in detail those specifications. I
`don't remember right now.
` Q Turning back to figure 9 of Beser.
` A Figure 9.
` Q Yes.
` A So now I am looking at a different ...
` Yes, I am on figure 9 now.
` Q Do you know what is the relationship
`between figure 9 and figure 5 of Beser?
` A (Document review.)
` So figure 9 is the diagram that
`illustrates the transmission of packets between
`the first network device, trusted-third-party
`network device, and the second network device.
`That corresponds to the flow diagram of figure 8,
`which describes the negotiation of private IP
`addresses.
` Now, since Voice over IP is a protocol
`that is meant to be used over an IP network,
`figure 9 together with figure 8 are also
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`applicable to what would be the private IP address
`negotiation that should be discussed on figure 5.
` Q Could you please read column 12,
`line 63, through column 13, line 9, to yourself.
` A Okay. So you said column 12, starting
`at 63, you were saying --
` Q Yes.
` A -- and then ending at 13 --
` Q 9.
` A 13, 9, okay. (Document review.)
` Okay, yes.
` Q Would you agree with me that this
`portion, which is column 12, line 63 through
`column 13, line 9, discloses that the first
`network device 14 selects a first private IP
`address which it assigns to the originating end
`device 26? Can I just correct my sentence?
` A Yes, if you could clarify, is it 26 or
`24?
` Q 24.
` A Okay.
` Q Let me repeat again.
` A Yes, sure, sure. I think I understand
`you, but if you repeat, it is better.
` Q Would you agree with me that column 12,
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`line 63, through column 13, line 9, of Beser
`discloses that the first network device 14 selects
`a first private IP address which assigns to the
`originating end device 24?
` A (Document review.)
` I'll agree that a private IP address is
`selected on the first network device from an
`available pool of private addresses, and then this
`selected private IP address is assigned to 24,
`which is the originating device for the tunneling
`association.
` Q So you agree that the first network
`device selects a first private address which it
`assigns to the originating end device 24?
` A Well, I thought I already answered, but
`let me repeat that I do agree that the first
`network device 14 selects a private IP address
`that is referred to in the specification as first
`private IP address. This address is selected from
`a pool of IP addresses, which is referred to as
`the first pool. And it is then removed from the
`pool so that it is not reused later, and it is
`assigned to the originating end device, which has
`been referred throughout as device 24.
` Q This first private IP address is
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`transmitted to the third-party network device in
`the first packet of figure 9. Correct?
` A (Document review.)
` It is indeed correct that this private
`IP address is transmitted in a packet referred to
`as the first packet in figure 9. And this packet
`is an IP packet on the public network sent from
`the first network device to the
`trusted-third-party network device. This is
`explained in the subsequent paragraphs of
`figure -- sorry, of column 13.
` Q Could you please review column 13, lines
`49 through 63.
` A (Document review.)
` Q Let me know when you're done reviewing.
` A (Document review.)
` Yes, I've reviewed them.
` Q Would you agree that this portion,
`column 13, lines 49 through 63, discloses that the
`second network device, 16, selects a second
`private address which it assigns to the
`terminating end device 26?
` A I would agree that on the second network
`device, a selection occurs of a private IP
`address, which is referred to as "second private
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`IP address." This selection is done by taking
`this address from a pool of private IP addresses
`on the second network device. And then this
`selected private IP address called "second private
`IP address" is assigned to 26, which refers to a
`terminating end device for the tunneling
`association.
` Q The selection is done by the second
`network device. Correct?
` A (Document review.)
` So the specific language in the
`specification is selected on the second network
`device, and my understanding is that this
`disclosure includes the second network device
`performing the selection, which I understand is
`your question. But it could cover in addition
`some other scheme where the second network device
`may employ some other process where there could be
`some other entity, you know, that does perform the
`selection on behalf.
` But I will say that it is clear that
`it -- that the disclosure includes the scenario of
`the second network device performing the
`selection.
` Q So column 13, lines 49 through 63, does
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`not explicitly state what entity performs the
`selection of the second private IP address.
`Correct?
` MR. DILLON: Objection. Form.
` A (Document review.)
` So I will say that the passive form that
`is used in this passage of the specification
`allows for generality. So I will say that it
`explicitly includes the scenario of the second
`network device performing the selection but leaves
`it open that some alternate mechanism could be
`used. This should be viewed also in conjunction
`with figure 9, where we have these boxes that use
`now the active form of the verb in the column
`associated with the device, for example, select
`the second private IP address, select the first IP
`address in the symmetric situation for the first
`network device.
` So I will say that we are in a situation
`of generality, in my understanding, where it
`definitely covers this case, it definitely
`discloses the case of the second network device
`performing the selection. But I view the use of
`the passive form as leaving open the possibility
`of some more complex mechanism being used.
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` Q So if I understand you correctly, what
`you're saying is that the disclosure in column 13,
`lines 49 through 63, is generic and that it can be
`interpreted in different ways?
` A No. When I used "generic," I did not
`mean to indicate ambiguity or that there could
`be -- I did not mean to say that there could be
`conflicting interpretations. What I meant to say,
`that it does include the simple, basic case that
`you asked before, which is second ne
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