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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` Patent No. 8,661,498
`
`&
`
`ZSCALER, INC.
` Petitioner,
` vs. IPR2017-01342
`SYMANTEC CORPORATION,
` Patent Owner.
`________________________________/
`
` ---oOo---
`VIDEOTAPED DEPOSITION OF DR. BJORN MARKUS JAKOBSSON
` Friday, January 26, 2018
` ---oOo---
`
`Reported by:
`LORRIE L. MARCHANT, RMR, CRR, CCRR, CBC
`CSR No. 10523
`Job No. 124415
`
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` Patent No. 8,661,498
`
`&
`
`ZSCALER, INC.
` Petitioner,
` vs. IPR2017-01342
`SYMANTEC CORPORATION,
` Patent Owner.
`________________________________/
`
` ---oOo---
`VIDEOTAPED DEPOSITION OF DR. BJORN MARKUS JAKOBSSON
` Friday, January 26, 2018
` ---oOo---
`
`Reported by:
`LORRIE L. MARCHANT, RMR, CRR, CCRR, CBC
`CSR No. 10523
`Job No. 124415
`
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`’
`
` INDEX
` INDEX OF EXAMINATION
` EXAMINATION BY PAGE
` MR. RICH 6
` ---oOo---
` INDEX OF PREVIOUSLY MARKED EXHIBITS
` EXHIBIT DESCRIPTION PAGE
` Exhibit 1003 Declaration of Dr. Markus 30
` Jakobsson in Support of Petition
` for Inter Partes Review of U.S.
` Patent No. 8,661,498
` Exhibit 1001 U.S. Patent No. 8,661,498 B2 37
` Exhibit 1008 U.S. Patent No. 7,681,032 B2 37
` Exhibit 2005 Decision Institution of Inter 51
` Partes Review
` Exhibit 2006 Excerpted pages from book 119
` entitled "Phishing and
` Countermeasures"
` Exhibit 1012 Document entitled "Identifying 144
` and Filtering Near-Duplicate
` Documents"
`
` ---oOo---
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` BE IT REMEMBERED that on Friday, January
`26, 2018, commencing at the hour of 7:58 a.m.,
`thereof, at Keker, Van Nest & Peters, LLP, 633
`Battery Street, San Francisco California, before me,
`LORRIE L. MARCHANT, CSR, RPR, CRR, CRP, CLR, a
`Certified Shorthand Reporter for the State of
`California, personally appeared
` DR. BJORN MARKUS JAKOBSSON,
`called as a witness by the Patent Owner herein, who,
`being by me first duly sworn/affirmed, was thereupon
`examined and testified as hereinafter set forth.
` ---oOo---
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` A P P E A R A N C E S
`
`)
`
`Appearing as counsel on behalf of Petitioner:
` KEKER, VAN NEST & PETERS, LLP
` BY: LEO LAM, ESQ.
` JUSTINA K. SESSIONS, ESQ.
` 633 Battery Street
` San Francisco, CA 94111
` Phone: (415) 391-5400
` e-mail: llam@keker.com
` jsessions@keker.com
`
`Appearing as counsel on behalf of Patent Owner:
` BAKER BOTTS, LLP
` BY: HARRISON RICH, ESQ.
` CHAD C. WALTERS, ESQ.
` 2001 Ross Avenue
` Dallas, TX 75201
` Phone: (214) 953-6511
` e-mail: harris.rich@bakerbotts.com
` chad.walters@bakerbotts.com
`
`Also present:
` Erik Parker, Videographer
` ---oOo---
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` SAN FRANCISCO, CALIFORNIA
` FRIDAY, JANUARY 26, 2018
` 7:58 A.M.
` THE VIDEOGRAPHER: Good morning, everyone.
`Here begins Media No. 1 of the videotaped deposition
`of Dr. Marcus Jakobsson, in the matter of Zscaler,
`Inc., versus Symantec Corporation, et al., being
`held at Keker, Van Nest & Peters, 633 Battery
`Street, San Francisco, California 94111.
` Today's date is January 26th, 2018, and the
`time is approximately 7:58 a.m.
` Would counsel please identify yourselves
`and your affiliations.
` MR. LAM: Leo Lam and Justina Sessions from
`Keker, Van Nest & Peters for Petitioner, Zscaler.
` MR. RICH: Harrison Rich and Chad Walters
`of Baker Botts for patent owner, Symantec
`Corporation.
` THE VIDEOGRAPHER: My name is Erik Parker,
`and I'm the videographer, here with our court
`reporter, Lorrie Marchant.
` Would the reporter please swear in the
`witness.
`///
`///
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` DR. BJORN MARKUS JAKOBSSON,
` FIRST DULY SWORN/AFFIRMED, TESTIFIED AS FOLLOWS:
` EXAMINATION BY MR. RICH
` BY MR. RICH:
` Q. Good morning.
` A. Good morning.
` Q. Will you please state your name.
` A. Bjorn Markus Jakobsson.
` Q. And where do you live, sir?
` A. Portola Valley, California.
` Q. And what do you do for a living?
` A. I'm chief scientist at a company called
`Agari.
` Q. What does Agari do?
` A. Agari does e-mail security.
` Q. What do you mean by "e-mail security"?
` A. Agari has two products. One is a product
`that detects and blocks what is called spoofed
`e-mails. The second product is a product that
`detects and blocks targeted e-mail attacks.
` Q. Do you have any other jobs?
` A. I occasionally consult.
` Q. What type of consulting?
` A. Patent litigation consulting.
` Q. How many patent litigation cases have you
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`,
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`worked on?
` A. All in all?
` Q. Yeah.
` A. Maybe 20.
` Q. 20.
` And what percentage of your income comes
`from the litigation consulting?
` A. About 10 percent.
` Q. How many cases are you working on right
`now?
` A. This is the only active case right now.
` Q. Of the 20 cases that you've consulted on,
`how many cases have dealt with Internet security?
` A. The majority of them.
` Q. Have any of the cases dealt with data
`leakage?
` A. Yes.
` Q. What case or cases?
` A. There's at least one case in which data
`leakage was considered. And that is actually a case
`also involving Symantec, where I represented
`Symantec.
` Q. Do you remember the name of the case?
` A. I remember the parties in the case. It was
`Columbia University and Symantec.
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` Q. How long ago was that?
` A. On the order of two years ago.
` Q. And was that a district court case?
` A. I can't recall.
` Q. Or was it an IPR?
` A. No, not an IPR.
` Q. So it was a district court case?
` A. I think so.
` Q. But it -- maybe your terminology is the
`issue with district court.
` Was it a litigation, or was it an IPR?
` A. It was not an IPR.
` Q. So it was a litigation?
` A. Yes.
` Q. Was Symantec the patentee there?
` A. Would you repeat your question, please?
` Q. Was Symantec the patent owner in that case?
` A. No.
` Q. They were being sued for patent
`infringement?
` A. I don't remember the details of the case.
` Q. And it was two years ago?
` A. Approximately.
` Q. So you know that Symantec was not the
`patent owner?
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` A. It was a case that I believe involved
`patents, but I'm not certain whether it was a patent
`litigation case. I think it was -- the case
`involved a conflict over the previous engagement
`between Columbia University and Symantec.
` Q. Did you render an opinion on patent
`infringement?
` A. I believe I did, yes.
` Q. As part of that opinion, did you study
`Symantec's product?
` A. No. I'm sorry. I need to back off.
` I did not render an opinion regarding
`patent infringement, and I did not study Symantec's
`product. I studied what Columbia was doing. I was
`representing Symantec.
` Q. And why did you study what Columbia was
`doing if Symantec was not the patent owner?
` A. I do not remember the details of the case.
` Q. Have you ever been deposed before?
` A. Yes, I have.
` Q. How many times?
` A. On the order of ten.
` Q. And you understand you took an oath to tell
`the truth today?
` A. Yes.
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` Q. You understand that there's a court
`reporter here typing up the questions I'm asking and
`the answers you're giving?
` A. I do.
` Q. And you understand you'll have an
`opportunity to review the transcript and make any
`corrections that you want to make?
` A. Yes.
` Q. Is there any reason you can't give your
`best, most honest testimony today?
` A. No.
` Q. How many times have you rendered an expert
`opinion in a patent case?
` A. On the order of 15 times.
` Q. And of those 15 times, how many of those
`times were on behalf of the patent holder?
` A. Pretty much half of them.
` Q. Of the times that you weren't rendering an
`opinion on behalf of the patent holder, did you ever
`render an opinion that the patent was valid?
` A. Not that I can recall.
` Q. So every time you were representing -- or
`let me rephrase.
` Every time you were rendering an opinion
`for the defense, your opinion was that the patent
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`was invalid?
` A. When you say "defense," do you mean --
` Q. The nonpatentee.
` A. I carefully screen cases before I agree to
`be involved. So I only take cases that I believe
`I'm going to represent the party that is right. So
`I go to great pains to avoid situations where I
`wouldn't agree with the party I represent.
` Q. So every time that you were offering an
`opinion on behalf of the nonpatent holder, you found
`that the patent was invalid?
` A. I was not always considering validity of
`the patent. Sometimes I would consider
`infringement.
` Q. Every time that you were considering
`validity of the patent from the perspective of the
`nonpatent holder, you found that the patent was
`nonvalued -- invalid?
` A. I can't recall with certainty. If there
`was a disagreement with the party I represented, I
`would tell them early on that I would not feel
`comfortable rendering an opinion that they would
`want to hear.
` Q. You were retained by the nonpatent holder
`here?
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` A. I was retained by Zscaler here.
` Q. Have you ever testified in a district
`court?
` A. Yes.
` Q. Is this the first IPR you've worked on?
` A. No.
` Q. How many IPRs have you worked on?
` A. Approximately five.
` Q. Were any of those IPRs in the Internet
`security space?
` A. Yes.
` Q. And do you remember the -- the names of
`those cases?
` A. Not the full names.
` Q. Were any of the cases involving Symantec?
` A. Not that I can recall.
` Q. When did Zscaler retain you?
` A. I have an awful memory for dates. I'm
`sorry.
` Q. Was it the year 2017?
` A. Maybe very early 2017.
` Q. Did Zscaler also retain you for the
`district court case?
` A. Yes.
` Q. Are you planning to offer an opinion of
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`infringement in that case?
` A. I have not been asked to do so yet. But if
`I were to be asked, I would offer an opinion.
` Q. And have you been asked to offer opinion of
`invalidity in that case?
` A. We haven't spoken much about that case.
` Q. Is that "no"?
` A. I don't remember the details. It's been a
`long time since we spoke about the district case.
` Q. So you don't know what you were retained
`for in the district court?
` A. As an expert witness.
` Q. Sitting here today, are you personally
`represented by a lawyer?
` MR. WALTERS: Can we go off the record?
` THE VIDEOGRAPHER: We're going off the
`record. The time is 8:09 a.m.
` (Recess taken, from 8:09 to 8:10.)
` THE VIDEOGRAPHER: We are back on the
`record. The time is 8:11 a.m.
` MR. RICH: Welcome back.
` THE WITNESS: Thank you.
` BY MR. RICH:
` Q. Sitting here today, are you personally
`represented by a lawyer?
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` A. I do have a personal lawyer.
` Q. Is that Mr. Lam?
` A. No.
` Q. So you're not represented by anybody in
`this room?
` A. No.
` Q. Since you've been retained, how much time
`have you spent on this IPR?
` A. I would need to consult my spreadsheet to
`know for sure.
` Q. Can you estimate the amount of time that
`you spent on this IPR?
` A. Give me a moment.
` My estimate would be between 50 and 100
`hours.
` Q. Okay. And that includes all of your time
`reviewing prior art?
` A. Yes. But it's a rather approximate
`measure.
` Q. It includes all of your time consulting
`with the attorneys?
` A. Yes. But, again, it's a rather approximate
`measure.
` Q. Right. And that estimate includes all of
`your time drafting the declaration?
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` A. Yes.
` Q. Have you billed all of your time to
`Zscaler?
` A. Not yet.
` Q. What rate are you charging?
` A. 625 per hour.
` Q. Have you charged any other rates during the
`course of this IPR?
` A. To Zscaler?
` Q. Right.
` A. No.
` Q. What did you do to prepare for today's
`deposition?
` A. I met with counsel yesterday and had a
`phone call with counsel the day before yesterday.
`Over the past week, I have been reviewing the
`materials. And I did that last night as well.
` Q. Who did you meet with?
` A. Leo Lam and Tina -- Tina Sessions.
` Q. About how much time each day?
` A. Yesterday we met for three hours and 45
`minutes.
` Q. What about the day before?
` A. The day before was a phone call of a little
`bit more than an hour.
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` Q. You mentioned you reviewed materials. What
`materials did you review?
` A. I reviewed my declaration last night.
` Q. Is the declaration the only thing that you
`reviewed to prepare for today's deposition?
` A. No.
` Q. What else did you review?
` A. I reviewed the Court's -- the PTAB's
`decision. Is that -- no, I am using the wrong term
`now.
` Q. Institution decision?
` A. Yes. Thank you.
` I reviewed the appellate patent. And I
`reviewed the '498 patent. I reviewed portions of
`the history. I'm missing a word here.
` Q. The file history of the '498 patent?
` A. Thank you.
` Nothing else comes to mind right now.
` Q. Did you review the petition?
` A. Yes, I did.
` Q. And Zscaler provided its strongest
`arguments in the petition?
` MR. LAM: Objection. Vague.
` MR. RICH: Counsel, that's an improper
`speaking objection.
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` THE WITNESS: Would you please explain what
`you mean.
` BY MR. RICH:
` Q. Zscaler provided its best arguments in the
`petition?
` MR. LAM: Objection. Vague.
` THE WITNESS: As opposed to at another
`time?
` MR. RICH: Counsel, that's an improper
`speaking objection in the PTAB.
` THE WITNESS: I'm sorry. Do you mean as
`opposed to at other times or as opposed to Symantec?
` BY MR. RICH:
` Q. Zscaler wouldn't have provided its weakest
`arguments, would it?
` A. In my view, the arguments in the petition
`were strong.
` Q. Did Zscaler withhold its best arguments?
` A. Not to my knowledge.
` MR. LAM: Objection. Vague. Hang on.
`Objection. Vague.
` MR. RICH: Again, the PTAB does not allow
`vagueness objections. Please limit your objections
`to "Objection. Form."
` THE WITNESS: Not to my knowledge.
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` MR. LAM: Counsel, I disagree.
` BY MR. RICH:
` Q. And you made your strongest arguments in
`the declaration?
` MR. LAM: Objection. Vague.
` THE WITNESS: I'm not so sure how to answer
`the question. I'm sorry.
` BY MR. RICH:
` Q. Did you withhold any arguments from the
`petition?
` A. No, I did not.
` Q. Did you review Symantec's preliminary
`response?
` A. Yes, I did.
` Q. And have you spoken to anybody about this
`IPR other than Zscaler's attorneys?
` A. No. Yes, I have. I'm sorry. I have
`spoken with attorneys for Quinn Emanuel about this,
`because I was working for them, representing
`Symantec in the case referred to before.
` Q. They represent Symantec?
` A. Symantec in the case against Columbia, and
`I spoke to them about this case. I would like to
`say about eight or nine months ago.
` Q. And what were those discussions about?
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` A. They wished for me not to be engaged in
`this case.
` Q. Did you discuss the substance of the case
`with them?
` A. No, I did not.
` Q. Can you tell me a little bit about your
`education.
` MR. LAM: Can you hold on one second. I
`will admit I was wrong. I shouldn't have said the
`word "vague." I should have just said "form."
` MR. RICH: Thank you, Counsel.
` MR. LAM: So -- but in any event, you
`answered the questions.
` THE WITNESS: Thank you.
` BY MR. RICH:
` Q. Tell us a little bit about your educational
`background after college -- or starting with college
`and on.
` A. I have a master's degree in computer
`engineering. I have a master's degree in computer
`science and engineering. And I have a Ph.D. in
`computer science and engineering. The first one of
`these three is from a Swedish university called Lund
`Institute of Technology. That's L-U-N-D.
` The two latter are from University of
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`California, at San Diego. The last degree was from
`1998, or at least 1998 was when I defended my
`thesis.
` Q. Have you also taught college courses?
` A. Yes. Sorry. One correction. I meant to
`say 1997. I think it came out as '98.
` Q. Fair enough.
` A. I have taught college courses, yes.
` Q. Have any of those courses involved data
`leakage technology?
` A. Yes, they have.
` Q. You've also worked for a number of large
`research labs?
` A. That is correct.
` Q. Did any of your research involve data
`leakage?
` A. Yes.
` Q. Can you tell me about -- when that
`occurred?
` Let me rephrase.
` Can you just tell me about the research
`involving data loss.
` A. One form of data is what's referred to as
`PII, personally identifiable information. Detecting
`its leakage, it's important to detect potential
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`fraud. That is something that many organizations
`are concerned with.
` When I was principal scientist at PayPal,
`that was one of the important aspects, to detect
`when PII was being or might be leaked. I am, in my
`current position, involved in detection of messages
`that, whether incoming or outgoing, trigger a
`policy.
` Q. While you were at PayPal, did you develop a
`product that detected data loss?
` A. PayPal does not have products, per se.
` Q. Did you write any code that would have
`detected data loss?
` A. I haven't written code for many years;
`however, I often work with developers who write
`code.
` Q. You also cofounded FatSkunk?
` A. That is correct.
` Q. That was a mobile malware company?
` A. Yes.
` Q. They did antivirus?
` A. Yes.
` Q. So that was scanning for viruses?
` A. Yes.
` Q. And that's -- is that different than data
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`loss?
` A. Yes, it is.
` Q. In what way?
` A. Whereas antivirus technology sometimes use
`similar techniques, from data loss prevention
`techniques, the goal is different.
` The goal of antivirus is to determine
`whether, first of all, a machine is infected or not,
`and, second, whether a piece of information arriving
`at a machine poses a risk to that machine.
` Q. What would be an antivirus scanning
`technique?
` A. Are you referring in general?
` Q. Yeah, just in general.
` A. In general, there are two very common
`techniques. One is referred to as a signature-based
`method, and the other one behavioral.
` Q. What's the signature-based method?
` A. Signature-based method looks for strings
`representing malicious code to determine whether a
`machine has or is receiving something that is of
`high risk.
` Q. What do you mean by "malicious code"?
` A. Such as a virus.
` Q. So you would detect malicious code by
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`scanning for the malicious code?
` MR. LAM: Objection. Form and foundation.
` THE WITNESS: What you would do is you
`would scan, for example, attachments and
`communication to determine whether there's a match
`with a signature or a signature is a representative
`of code that is dangerous.
` BY MR. RICH:
` Q. Code that is dangerous -- let me rephrase.
` What do you mean, "code that is dangerous"?
`You're talking about malicious code?
` A. Yes.
` Q. And that's -- malicious code is something
`different than information that you're trying to
`protect from leaking from an organization?
` A. The underlying methods are closely related
`in the case of the approach that involves
`signatures.
` Q. But the malicious code itself is something
`different than the information that you want to
`protect from leaking?
` A. So when you say "leaking," do you mean
`leaving the organization, or do you mean leaving or
`entering the organization?
` Q. When I'm talking about "leaking," I'm
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`’)
`talking about sensitive information that may -- you
`want to protect.
` So sensitive information that you want to
`protect from leaving an organization is different
`than malicious code.
` A. So there would be two clear similarities.
`One is that you wish to disrupt the transmission of
`the data, whether this is sensitive information or
`code. And the other one is that the methods are
`commonly related based on the principles they're
`using.
` The goals, though, are very different. And
`the adversarial model, as it's often referred to, is
`different.
` Q. I'm not wondering about the methodology.
`I'm just asking is malicious code different than
`sensitive information that you want to protect?
` A. It's different in the adversarial model and
`the goals, but it's similar in terms of the
`technical approach often taken to contain it and
`identify it.
` Q. So my question is just is the malicious
`code something different than sensitive information,
`not whether the methods or the models are similar.
` A. I need to know in what sense you mean
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`"different." Because there are both similarities
`and differences, and it depends on which one you're
`asking me about.
` Q. In the context of antivirus scanning,
`malicious code is something different than sensitive
`information you want to protect?
` A. Yes. But the methods are related to each
`other for achieving the goal you're referring to.
` Q. Did FatSkunk do data loss prevention?
` MR. LAM: What was that word?
` MR. RICH: We were talking about FatSkunk
`earlier. I'll reask the question.
` BY MR. RICH:
` Q. Did your company, FatSkunk, do data loss
`prevention?
` A. Not directly. But indirectly, yes. Let me
`qualify that. Data can be lost when a device has
`been corrupted. By "corrupted," I mean running
`malicious code. You often wish to make sure that
`data isn't lost by first making sure that the device
`isn't running malicious code.
` One of the goals of FatSkunk was to perform
`such determination before any sensitive information
`was accessed and could be leaked; however,
`FatSkunk's technology was not directly addressing
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`data leak prevention but was only directly effecting
`the detection of malicious code.
` Q. So what you're saying is that they were
`looking for malicious code, and that malicious code
`could be used to steal sensitive information?
` A. That would be one of the reasons why it
`would be produced.
` Q. Okay. So you were -- at FatSkunk, they
`were scanning for the malicious code, but that
`wasn't scanning for, you know, the sensitive
`information itself?
` A. We actually did not scan for malicious
`code. We tried to identify its absence. "Scanning
`for" means to look for its presence.
` Q. So you looked for its absence?
` A. Yes.
` Q. And did that involve scanning for anything?
` A. Yes.
` Q. You have a lot of patents, don't you?
` A. Do you mean where I'm inventor?
` Q. Yes.
` A. Yes.
` Q. Over 100; is that right?
` A. Yes.
` Q. Do any of your patents involve data loss
`
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`prevention?
` A. When you say "involve," do you mean
`associated with or that the subject matter by itself
`is data loss prevention?
` Q. Do any of your patents in any way relate to
`data loss?
` A. Many relate to the detection of malicious
`code or a machine that is not in a pure
`unadulterated state. That is a desirable condition
`for accessing sensitive data. And, therefore, being
`able to determine that a device is secure in this
`regard and then allow it access to data is
`indirectly relating to data loss prevention, but not
`directly.
` Q. So some of the patents may look for
`malicious code is what you're saying?
` MR. LAM: Objection. Form.
` THE WITNESS: No. They look for the
`absence of malicious code, to put it somewhat
`simplified.
` BY MR. RICH:
` Q. Have you ever drafted patent claims?
` A. Yes, I have.
` Q. How many times have you drafted patent
`claims?
`
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` A. At least 20 times.
` Q. Have you ever drafted a patent
`specification?
` A. Yes.
` Q. How many times?
` A. At least 50 times.
` Q. Do you know what an office action is?
` A. Yes.
` Q. Have you ever drafted a response to an
`office action?
` A. Yes.
` Q. How many times?
` A. By drafting the office action, do you mean
`provide arguments or to complete the writing of it?
` Q. Both.
` A. I've never completed the writing of it.
`But I have often provided the technical insights
`that were used by the patent attorney I worked with
`to finalize the office action -- response to the
`office action. I'm sorry.
` Q. You've given speeches at the patent office?
` A. Yes, I have.
` Q. What did you talk about?
` A. Internet security in general.
`Authentication. I believe I covered malware. This
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`was many years ago. Digital signatures.
` Q. So were you educating the patent office on
`technology or --
` A. Yes. I was asked to come there and speak
`about topics that they had a hard time keeping up
`with the growth and in which they had lost
`examiners.
` Q. Do you think any of your patents are
`invalid?
` A. I would not know that.
` By the way, do you, by my patents, refer to
`patents where I'm the inventor?
` Q. Right.
` A. Most of
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