EXHIBIT 17

Case 2:24-cv-00093-JRG Document 114-17 Filed 12/19/24 Page 1 of 42 PageID #:

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9/10/2024 VirtaMove Corp. v. Amazon.com, Inc., et al. Donn Rochette 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND/ODESSA DIVISION 

VIRTAMOVE, CORP., 

Page 1 

PLAINTIFF, 

CASE NO. 

7:24-CV-00030 

v. 

AMAZON. COM, INC.; AMAZON. COM 

SERVICES LLC; AND AMAZON WEB 

SERVICES, INC., 

DEFENDANTS. 

VIDEOTAPED DEPOSITION OF DONN ROCHETTE 

TAKEN REMOTELY VIA ZOOM VIDEOCONFERENCE 

TUESDAY, SEPTEMBER 10, 2024 

11: 04 A.M. CDT 

I 2 EXAMINATION 

3 BY MR. ANAPOL 

4 BY MR. TONG 

5 BY MR. ANAPOL 

6 BY MR. TONG 

9 NO. 

10 1010 

11 1009 

12 

13 

14 1011 

15 1012 

16 

1 7 

PAGE 

14 

18 

24 

42 

I N D E X 

PAGE 

95 

139 

155 

E X H I B I T S 

DESCRIPTION 

US PATENT 7,519,814 

ARCHIVE VERSION OF THE 

HOMEPAGE ONCORE SYSTEMS 

CORPORATION 

US PATENT 7,784,058 

AUSTRALIAN UNIX SYSTEMS 

USER GROUP NEWSLETTER, 

VOLUME 8, NUMBER 5 

Page 3 

18 QUESTIONS INSTRUCTED BY COUNSEL NOT TO ANSWER 

PAGE LINE 

19 144 

REPORTED BY AUDRA E. CRAMER, CSR NO. 9901 145 

DIGITAL EVIDENCE GROUP 

1730 M Street, NW, Suite 812 

Washington, D.C. 20036 

(202) 232-0646 

VIDEOTAPED DEPOSITION OF DONN ROCHETTE, 

Page 2 

2 TAKEN REMOTELY VIA ZOOM ON BEHALF OF THE DEFENDANTS 

3 AT 11:04 A.M. CDT, TUESDAY, SEPTEMBER 10, 2024, BEFORE 

AUDRA E. CRAMER, CSR NO. 9901, PURSUANT TO SUBPOENA. 

6 APPEARANCES OF COUNSEL 

8 ON BEHALF OF THE PLAINTIFF: 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

RUSS AUGUST & KABAT 

BY: PETER TONG, ESQUIRE 

4925 GREENVILLE AVENUE, SUITE 200 

DALLAS, TEXAS 75206 

I 310 I 826-7474 

ptong@raklaw.com 

ON BEHALF OF THE DEFENDANTS: 

KNOBBE, MARTENS, OLSON & BEAR LLP 

BY: JEREMY ANAPOL, ESQUIRE 

2040 MAIN STREET, 14TH FLOOR 

IRVINE, CALIFORNIA 92614 

(949) 760-0404 

Jeremy.anapol@knobbe.com 

ALSO PRESENT 

BILLY FAHNERT, VIDEOGRAPHER 

20 REPORTER'S NOTE: All quotations from exhibits are 

reflected in the manner in which they were read into the 

21 record and do not necessarily indicate an exact quote 

22 from the document. 

1 

2 

3 

Page 4 

REMOTELY VIA ZOOM VIDEOCONFERENCE 

TUESDAY, SEPTEMBER 10, 2024, 11:04AM. CDT 

4 THE VIDEOGRAPHER: We are on the 

5 record. This is the remote video deposition of 

6 Donn Rochette in the matter ofVirtaMove Corp. 

7 versus Amazon.com, Inc., et al., filed in the 

8 United States District Court for the Western 

9 District of Texas. 

1 O My name is Billy Fahnert. I am the 

11 video technician today. The court reporter is 

12 Audra Cramer. We both represent Digital 

13 Evidence Group. 

14 Today's date is September 10, 2024. 

15 The time is 11:04 a.m. Central Standard Time. 

16 All parties have stipulated to the 

1 7 witness being sworn in remotely. 

1 8 Will Counsel please identify yourselves 

1 9 for the record, and then the witness will be 

20 swornm. 

21 MR. TONG: This is Peter Tong from Russ 

2 2 August & Kabat on behalf ofVirtaMove 

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1 Corporation? 1 A. Okay. 

2 MR.ANAPOL: Jeremy Anapol of Knobbe 2 Q. If you don't understand one ofmy ! 

3 Martens Olson & Bear on behalf of Defendants. 3 questions, please ask for clarification. I'm 

4 4 happy to provide it. 

5 DONN ROCHETTE, 5 If you need to take a break at any 

6 having been first duly sworn, was 6 time, please let me know, but if there's a 

7 examined and testified as follows: 7 question that's pending, I'll just ask that you 

8 8 give the answer, and then we'll take a break 

9 MR. ANAPOL: Thank you. 9 afterward. 

10 10 A. Okay. 

11 EXAMINATION 11 Q. Is there any reason why you cannot 

12 BY MR. ANAPOL: 12 provide complete and accurate testimony today 

13 Q. Mr. Rochette, thank you again for being 13 such as, you know, being on any medication or 

14 here today, taking time out of your schedule to 14 anything like that? 

15 help us collect some information that we hope 15 A. No. 

16 will be helpful in our case. 16 Q. And, Mr. Rochette, you used to work at 

17 Have you ever been deposed before? 17 a company called Trigence Corp.; is that right? 

18 A. No. 18 A. Yes. 

19 Q. Okay. So I'll cover some general 19 Q. And do you remember when you worked for 

20 background with you just to help you understand 20 Trigence? 

21 the process. 21 A. Gosh, I couldn't give you the dates off 

22 But before that, can we start by having 22 the top of my head, no. It's been a long time. 

-· Page 6 Page 8 

1 you state your full name for the record? 1 Q. Was it in the early 2000s? 

2 A. My name is Donn Rochette. 2 A. Yes. 

3 Q. And Mr. Rochette, where are you joining 3 Q. And did you understand that Trigence 

4 us from today? 4 later became AppZero? 

5 A. I am calling from my home in northern 5 A. Yes. 

6 Iowa. 6 Q. And then there's a company called 

7 Q. Okay. So the deposition is going to 7 AppZero Software Corp. which is now called 

8 follow a question-and-answer format, and Audra, 8 VirtaMove. 

9 our court reporter, is going to be transcribing 9 Do you understand that? 

10 the answers. Because she can only transcribe 10 A. I was not aware of that, no. Not until 

11 one person speaking at a time, I'll ask that you 11 very recently. 

12 wait until I finish my question to start 12 Q. And when did you become aware of that? 

13 answering, and I will try to wait until you 13 A. Oh, about two months ago someone from 

14 finish answering to ask the next question. 14 VirtaMove reached out to me over Linkedln --

15 Mr. Tong, who's representing the 15 Q. Okay. 

16 Plaintiffs, may have some objections which he 16 A. -- and pointed out the connection. 

17 might chime in with, but you can go ahead and 17 Q. Do you remember who from VirtaMove 

18 answer the question after he finishes his 18 reached out to you over Linkedln? 

19 objection. Those are for the record, so, if 19 A. The person identified himself as the 

20 necessary, the judge will look at those 20 CEO ofVirtaMove. I can't remember his name. 

21 objections later, but you don't need to concern 21 Sorry. 

22 yourself with those. 22 Q. Was his name Nigel Stokes? 

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1 

2 

A. That sounds familiar, yes. 

Q. And what did you talk about with 

3 Mr. Stokes? 

4 

5 

MR. TONG: Objection. Foundation. 

MR. ANAPOL: I'll rephrase the 

6 question. 

7 Q. So occasionally, Mr. Rochette, if Peter 

8 makes an objection like that, I might rephrase 

9 the question to help resolve the objection. 

1 O After this person purporting to be 

11 Mr. Stokes reached out to you via Linkedln, did 

12 you speak with him? 

13 A. Yes, I did. 

14 Q. And he identified himself as Mr. Stokes 

15 when you spoke to him? 

16 A. Yes. 

1 7 Q. Okay. And what did Mr. -- what did you 

18 talk about with Mr. Stokes? 

19 A. He identified the fact -- he explained 

2 O the fact that there was a lawsuit being formed 

21 over a couple patents that I had done. 

2 2 Basically asked me if I wanted to get involved. 

Page 10 

1 I said in no way was I interested in getting 

2 involved. And that was it. 

3 Q. And did you tell him why you didn't 

4 want to get involved? 

5 A. Yes. I said I'm retired. I don't want 

6 to have anything do with it. I don't have an 

7 opinion one way or the other. I don't have any 

8 involvement in it, and I would prefer to not be 

9 involved. 

10 Q. And when you say you don't have an 

11 opinion about, what was it that you didn't have 

12 an opinion about? 

13 A. The fact that the company called 

14 VirtaMove was suing several companies regarding 

15 a couple of the patents that I did, and I don't 

16 have any -- yeah, I -- what am I trying to say? 

1 7 I don't have any opinion one way or the other 

18 about that. 

19 Q. You mean opinion about the merits of 

2 0 the lawsuit? 

21 A. Well, it seemed like something that was 

2 2 far-reaching, that was not very -- didn't make a 

I 

Page 11 

1 whole lot of sense, and didn't see where it 

2 would go anywhere, didn't understand my 

3 involvement, how I could help at all in it. 

4 And so that's the reason why I said to 

5 him I don't want anything to do with it. It 

6 just seemed rather bizarre and farfetched, and I 

7 couldn't appreciate the merit of it at all. 

8 Q. And did Mr. Stokes suggest a particular 

9 role for you in the lawsuit? 

1 O A. No. He only suggested that I -- would 

11 I speak with counsel on his part, and I 

12 declined. 

13 Q. Did he offer you any sort of 

14 compensation? 

15 A. No. 

16 Q. So have you spoken with anyone else at 

1 7 VirtaMove besides Mr. Stokes? 

18 A. No. 

19 Q. And it was just that one conversation 

2 0 that you had with him; correct? 

21 A. That is correct. 

2 2 Q. So what was your role when you worked 

Page 12 

1 at Trigence? 

2 A. I was the chief technology officer and 

3 a software developer. 

4 Q. And can you explain what you were 

5 responsible for in those roles. 

6 A. I was responsible for the overall 

7 design and implementation of the software we 

8 were building, of the architecture of that 

9 software and the direction of it. 

10 Q. And what was the software you were 

11 building while you were at Trigence? 

12 A. Trigence was focused on software for 

13 the corporate data center, for applications 

14 specifically running for corporate purposes in, 

15 for the most part, large data centers. 

16 Q. And what did the software do? 

1 7 A. It would allow multiple versions of an 

18 application to run on one instance of an 

1 9 operating system. 

2 0 Q. And what was the name of that software? 

21 A. Good question. I don't remember. App 

2 2 something, I think. 

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Q. Was it Trigence AE? 

A. Oh, yeah. That's it. Yes. Thank you. 

Q. And--

A. Yeah. Yes. 

1 

2 

3 

4 

5 Q. And did the "AE" stand for "application 

6 environment"? 

7 A. Yes, I did. 

8 Q. And you worked on several patents while 

9 you were at Trigence; correct? 

10 A. Yes. 

11 Q. And do you understand that two of those 

12 patents are asserted in this case? 

13 A. Yes. 

14 Q. And I'm just going to show you some 

15 documents to help with this discussion. 

16 A. Okay. 

17 MR. ANAPOL: And so I'm going to ask 

18 Billy to mark them, but first I have to put them 

19 where Billy can see them. 

2 O So, Billy, could you go ahead and mark 

21 Document A as Exhibit 1010, please. 1010. 

22 THE VIDEOGRAPHER: Okay. Give me one 

Page 14 

1 moment to pull it down. 

2 (Whereupon, Exhibit 1010 was 

3 marked for identification.) 

4 BY MR. ANAPOL: 

5 Q. And, Mr. Rochette, do you recognize 

6 Exhibit 1010? 

7 A. Yes. 

8 Q. And this is a copy of US Patent 

9 No. 7,519,814. 

10 Do you see that --

11 A. Yes. 

12 Q. -- in the upper right? 

13 A. Yeah. 

14 Q. And you are listed as the first named 

15 inventor on this patent. 

16 Do you see that? 

17 A. Yes. 

18 Q. So where it says "Donn Rochette, 

19 Fenton, Iowa, United States," that's you; 

20 correct? 

21 A. That is me, correct. 

22 Q. And does the '814 patent generally 

I 

Page 15 

1 relate to containers? 

2 A. Yes. 

3 Q. When did you first become aware of 

4 containers? 

5 A. Early 2000s. Would have been about a 

6 year -- it would have been about two years 

7 before this patent was published. So, yeah, we 

8 were discussing the concepts and examining ways 

9 of creating an environment where applications 

1 O can run -- disparate applications could run, 

11 yes. 

12 Q. And I just want to clarify one thing 

13 you said. You said "about two years before this 

14 patent was published." 

15 Did you mean published or filed? 

16 A. Filed. Thank you for the 

1 7 clarification. Yes. 

18 Q. So you can see on this page here, on 

19 the bottom left corner of the portion that Billy 

2 O was showing -- Billy, if you scroll up. 

21 Under "Related US Application Data," it 

2 2 refers to two provisional applications that were 

Page 16 

1 filed in September 2003. 

2 A. Uh-huh. Right. 

3 Q. So those are the initial disclosures 

4 that this is based on. 

5 Is that the filing date that you were 

6 referring to --

7 A. Yes. 

8 Q. -- when you were saying two years 

9 earlier? 

10 A. Yes. We would have been discussing and 

11 talking about and envisioning things, yes, 

12 before this was -- before the provisional was 

13 filed. 

14 Q. And how did you first learn about 

15 containers? 

16 MR. TONG: Objection. Foundation. 

17 BY MR. ANAPOL: 

18 Q. You can go ahead and answer, 

19 Mr. Rochette. 

20 A. Oh, okay. 

21 I first learned about containers in 

22 discussions with corporate -- with people 

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1 running corporate data centers and their 

2 description of how difficult it was to get 

3 applications to run, to migrate older 

4 applications to newer platforms, the number of 

5 servers and hardware instances that were 

6 required for each application, things like that. 

7 And so we began envisioning an 

8 environment where multiple applications could 

9 run and trying to determine ifwe could solve 

10 the problem where an application that was run on 

11 one version of the operating system could run on 

12 a newer version of a very similar operating 

13 system was what -- some of the first things that 

14 caused us to think to arrive at what is now 

15 described here as containers. 

16 Q. Okay. But you worked on containers at 

1 7 your prior employer before Trigence; right? 

18 MR. TONG: Objection. Foundation. 

19 THE WITNESS: Yes, they would very 

2 0 loosely be called containers in a prior job. 

21 The work I did prior to Trigence was 

2 2 focused on embedded systems. So these were --

I 

Page 19 

1 Q. And is OnCore Systems Corporation where 

2 you worked before Trigence? 

3 A. Yes. 

4 Q. And do you see in the second black 

5 paragraph on this page what's written in bold? 

6 A. Yeah, you're right. They were called 

7 virtual computing containers, yeah. 

8 Q. So OnCore, where you worked before 

9 Trigence, had a capability that they called 

1 0 virtual computing containers; right? 

11 A. That is correct. 

12 Q. And the OnCore operating system allowed 

13 users to run Linux applications; correct? 

14 A. Yes. 

15 MR. TONG: Hold on. Before your next 

16 question, I want to object to this whole line of 

1 7 questioning as exceeding the scope of venue 

18 discovery that you're entitled to ask 

! 19 Mr. Rochette about. Venue discovery should be 

I 2 O limited to the locations of witnesses, the 

I :: ::::,:n:':;!::~::d,!: :::::~:: cnst 

-··-------------------------;,------------------------! 

Page 18 

1 this is software that would run on a computer 

2 platform that in itself is a part of a larger 

3 product, so the engine controller in your car 

4 or, you know, some sort of controller for a 

5 larger purpose, the controlling software that 

6 would be a part of that embedded computer is 

7 what we were working on. 

8 So we didn't at the time think of them 

9 as containers, but you could loosely define them 

1 O as containers in some respect because they are 

11 certain applications running, albeit for a 

12 lightly different purpose. 

13 MR. ANAPOL: Billy, could you mark 

14 Document C as Exhibit 1009. 

15 (Whereupon, Exhibit 1009 was 

16 marked for identification.) 

1 7 BY MR. ANAPOL: 

18 Q. So, Mr. Rochette, Exhibit 1009 is what 

1 9 appears to be an archive version of the homepage 

2 O for On Core Systems Corporation. 

21 

22 

Does that -- do you recognize this? 

A. Yes. That is a blast from the past. 

Page 20 

1 BY MR. ANAPOL: 

2 Q. Mr. Rochette OnCore Systems Corporation 

3 was located in California; correct? 

4 A. Yes. The corporate headquarters were 

5 located in California, yes. 

6 Q. And so OnCore Systems Corporation was 

7 developing containers in California; right? 

8 A. Yes. 

9 Q. In Northern California specifically; 

10 correct? 

11 A. Yes. In the Bay Area. 

12 Q. Thank you. 

13 And the OnCore operating system, which 

14 you helped develop before you went to Trigence, 

15 allowed users to run Linux operations; correct? 

1 6 A. Correct. 

1 7 Q. And OnCore called its system for 

18 walling off applications virtual computing 

19 containers; correct? 

20 A. Yes. 

21 Q. And OnCore had those virtual computing 

2 2 containers before Trigence developed its 

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1 container product; correct? 1 Q. Okay. And when did you stop living in 

2 A. Correct. Yes. 2 Northern California? ! 3 Q. And when you worked for OnCore, were 3 A. Oh, I think -- I don't know. 2001, 

4 you physically in Northern California? 4 2002, something like that, we moved to Iowa. 

5 A. No. I worked out oflowa, near Fenton. 5 I'd have to go back and check the exact dates. 

6 Q. Did you visit Northern California for 6 Q. Is that around the same time that you 

7 work? 7 started working at Trigence? 

8 A. I did, yes. 8 A. It's around the same time that I 

9 Q. How often did you visit Northern 9 started working at OnCore. I moved to Iowa, 

10 California? 10 working remotely for the company based in 

11 A. Probably three or four times a year. 11 California, and then shortly thereafter I 

12 Q. And how long would you stay when you 12 started working for OnCore in Iowa. 

13 visited? 13 Q. Okay. And then after OnCore you 

14 A. Most often not more than a week at a 14 started working at Trigence; correct? 

15 time. 15 A. Correct. Yes. 

16 Q. And did you have contact during your 16 Q. And did you remain in Iowa when you 

17 time at OnCore with software developers who were 17 worked for Trigence? 

18 physically in Northern California? 18 A. Yes. 

19 A. Yes. 

I 

19 Q. And then briefly, what did you do at 

20 Q. Did OnCore have any employees who were 20 Microtec, the company you worked at before 

21 employed by OnCore that were physically based in 21 OnCore? 

22 Northern California? 22 A. I was a software developer working on 

I -·. 

Page 22 Page 24 

1 A. Yes. 1 real-time operating systems. 

2 Q. And did you speak with those people 2 Q. So before Trigence, how long would you 

3 when you would visit Northern California? 3 say you worked in the operating system field? 

4 A. Yes. 4 A. I think it was around 1998 or 1999 I 

5 Q. And what was your title at OnCore? 5 started focusing specifically on real-time 

6 A. The chief technology officer. 6 operating systems. 

7 Q. So were you well acquainted with how 7 Q. Okay. So several years before you 

8 OnCore's operating system worked? 8 filed the application for the '814 patent, you 

9 A. Yes. 9 were a software developer in Northern California 

10 Q. And were you well acquainted with how 10 working on operating systems before you moved to 

11 OnCore's containers worked? 11 Iowa; correct? 

12 A. Yes. 12 A. That is correct. 

13 Q. And before Encore, did you work for a 13 MR. ANAPOL: Billy, can we mark 

14 different company in Northern California? 14 Exhibit B as Exhibit 1011. 

15 A. Yes. I worked for Microtec -- well, 15 (Whereupon, Exhibit 1011 was 

16 wait Microtec was bought by another company 16 marked for identification.) 

17 out of Oregon. I can't remember the name of it 17 BY MR. ANAPOL: 

18 Yes, we lived and worked in Northern 18 Q. Mr. Rochette, do you recognize 

19 California before OnCore. 19 Exhibit 1011? 

20 Q. So when did you live in Northern 20 A. Yes. 

21 California? 21 Q. This is a copy of US Patent 

22 A. Early 2000s. 22 No. 7,784,058. 

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1 

2 

3 

Do you see that? 

A. Yes. 

Q. And you are listed as the first named 

4 inventor on this patent; correct? 

5 A. Yes. 

6 Q. And just for the record, I will refer 

7 to this as the '058 patent. Okay? 

8 A. Okay. 

9 Q. And Exhibit 1010, which we looked at 

1 o before, I will refer to as the '814 patent. 

11 Okay? 

12 A. Okay. 

13 Q. And the '058 patent generally relates 

14 to shared libraries; correct? 

15 A. Yes. 

1 6 Q. What is a shared library? 

1 7 A. It is a grouping of code that is 

18 assembled into an archive that gets linked into 

19 an application that would be called a binary or 

2 O an executable. 

21 So almost any executable in any of the 

2 2 operating systems that you would be familiar 

Page 26 

1 with would have several shared libraries linked 

2 to it. In Unix they're called shared libraries. 

3 In the Windows world they're called DLLs, or 

4 dynamic link libraries. 

5 Q. So the Windows equivalent of a Unix 

6 shared library is a dynamic link library? 

7 A. Correct. 

8 Q. And when did you first become aware of 

9 shared libraries? 

1 O A. Very early on in my career. They have 

11 been a part of Unix and Linux and Windows for --

12 since the beginning, so I would have been aware 

13 of them very early in my career. 

14 Q. By the 1980s would you have been aware 

15 of shared libraries? 

16 A. Yes, definitely. 

1 7 Q. And do you understand that -- let me 

18 withdraw the question and rephrase. 

1 9 Are you familiar with a company called 

2 O sun Mike systems? 

21 A. Yes. 

2 2 Q. And Sun Microsystems was based in 

I 

Page 27 

1 Northern California; correct? 

2 A. Yes. 

3 Q. And you were aware of an operating 

4 system from Sun Microsystems called Solaris? 

5 A. Yes. 

6 Q. And Solaris predated the two patents 

7 that we're looking at; correct? 

8 A. That's correct. 

9 MR. TONG: Objection. Vague. 

1 o THE WITNESS: Sorry. 

11 That is correct. 

12 BYMR.ANAPOL: 

13 Q. Okay. And before -- long before you 

14 filed these patent applications, Solaris had 

15 support for shared libraries; correct? 

16 A. Yes. 

1 7 Q. And you were aware of Solaris's support 

18 for shared libraries before you filed the 

19 applications that led to these two patents; 

20 correct? 

21 A. That is correct. 

2 2 Q. And many other operating systems also 

Page 28 

1 had shared libraries; correct? 

2 A. Correct. 

3 Q. And are you aware of any examples, from 

4 your personal experience, of developers moving 

5 the functionality from an operating system's 

6 kernel to a shared library? 

7 A. There is -- there are some examples. 

8 You have to -- you have to -- it's not as 

9 clear-cut as move code literally from the kernel 

1 O into a shared library, but functionality that 

11 you would normally expect to find in the kernel 

12 was -- has been -- had been implemented in 

13 libraries. 

14 Q. Can you give me an example of that? 

15 A. [Garbled] zones was a really big 

16 example of it. 

1 7 (The reporter requested clarification.) 

18 THE WITNESS: A feature in the Sun 

19 Microsystems operating system called Solaris, 

2 O the feature is callid zones, z-o-n-e-s. 

21 BY MR. ANAPOL: 

2 2 Q. And do you know where the people 

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1 responsible for Solaris zones would be located? 

2 

3 

4 

A. The Bay Area --

MR. TONG: Objection. Vague. 

THE WITNESS: Oh, sorry. 

5 BY MR. ANAPOL: 

6 Q. Go ahead, Mr. Rochette. Sorry for the 

7 interruption. 

8 A. Yeah, they're located in the Bay Area 

9 of California, yes. 

10 There's also examples where Apple has 

11 done the same kind of thing, and it's not -- I'm 

12 sorry. I'm answering questions you didn't ask. 

13 Sorry. 

14 Q. Well, I did ask for examples. 

15 So it sounds like you were going to 

1 6 mention Apple as another example; is that right? 

1 7 A. Yeah, Apple is another example with 

18 the -- with the diversion of macOS that we 

1 9 currently know, there's cases where Apple has 

2 O moved things that would be expected to be in 

21 other operating systems. Like, for example, 

2 2 Linux would be in the kernel or not not in the 

Page 30 

1 kernel in the macOS example. 

2 Q. And are you referring to the macOS 

3 version that is based on Unix? 

4 A. Yes. 

5 Q. And that is OS X? 

6 

7 

A. Correct. 

Q. And do you know where Apple is 

8 headquartered? 

9 

10 

A. Cupertino, California, in the Bay Area. 

I met with groups of both of these 

11 developers. 

12 Q. When did you meet with these groups of 

13 developers? 

14 A. Early on in the Trigence days. 

15 I'm sorry. No. Wait. Excuse me. I 

16 met with Apple at the end of the On Core days. I 

1 7 met with the Sunday's Solaris people early on in 

18 the Trigence days. So it's split between the 

19 two companies. 

2 0 Q. All right. So you met with the Apple 

21 folks before you started working at Trigence? 

22 A. That is correct. 

I 

Page 31 

1 Q. And what was that discussion with the 

2 Apple folks about? 

3 A. I met with the chief technology of 

4 Apple at the time. His name is Avie Tevanian. 

5 And A vie was deep into doing very similar things 

6 that we were doing at OnCore with a microkernel 

7 and multiple-user-mode operating system elements 

8 running, including shared libraries. 

9 And we were working with a 

1 O microprocessor architecture called the PowerPC. 

11 A vie and his teams were working with the 

12 microprocessor architecture with -- I think they 

13 moved to Intel at the time. But anyway, they 

14 were not -- and so they were interested in our 

15 experience with that hardware architecture, and 

1 6 we were discussing lots of deep software things 

1 7 related to CPU architecture and this mode of 

18 operation. 

1 9 Q. Can you repeat the last name of this 

2 O Avie. 

21 A. Avie Tevanian. I can't remember how to 

2 2 spell it. 

1 

Page 32 

Q. That's fine. We can look it up. Thank 

2 you. 

3 So did Mr. Tevanian reach out to you, 

4 or did you reach out to him? Do you recall? 

5 A. My recollection is that one of the 

6 salespeople that worked for OnCore in Northern 

7 California had a conversation that led to an 

8 interaction with Avie Tevanian, which led to an 

9 invitation for me to come out and meet with him. 

1 O Q. And where did you meet with him? 

11 

12 

A. In Cupertino in his office. 

Q. And at the time you met with him, had 

13 Apple started incorporating this functionality 

14 that would normally be in the kernel into a 

15 shared library --

16 A. Yes. 

1 7 Q. -- or was that a new feature? 

18 A. Yes. No, they were well underway with 

1 9 that, yes. 

2 O Q. And do you remember anything else about 

21 what you discussed with Mr. Tevanian? 

22 A. No, nothing -- he wanted us to do some 

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1 work for them, and we -- and that was about --

2 that's all I can recall. Lots of low-level 

3 technical detail. 

4 Q. Low-level technical detail related to 

5 operating system implementations? 

6 A. Yes. 

7 Q. And how long did you spend talking with 

8 Mr. Tevanian? Do you remember? 

9 A. My recollection would be a couple of 

10 hours. 

11 Q. Was it just, like, one session, or were 

12 there multiple sessions? 

13 A. There was only one session 

14 face-to-face. 

15 

16 

Q. Were there some phone calls or --

A. Email exchanges. There were email 

1 7 exchanges. 

18 Q. All right. And then what about your 

19 interactions with Solaris folks? Do you 

2 O remember who you spoke to at Sun Microsystems? 

21 A. No, I don't remember names. I remember 

2 2 we met with that entire software group 

Page 34 

1 responsible for Solaris, and I don't remember --

2 I don't remember the -- which -- the name of the 

3 group. It was quite a few software developers 

4 at their headquarters and -- yeah. 

5 Q. Do you remember if this was before or 

6 after 2003? 

7 A. No. I only remember it being early in 

8 the Trigence days. I don't remember a date. 

9 Q. Do you remember if it was before or 

1 O after you filed these patent applications? 

11 A. I don't remember for sure, no. I only 

12 have a feeling. 

13 

14 

Q. What is your feeling? 

A. I think that the provisionals had been 

15 filed, but I can't say for sure. 

16 Q. Okay. Can you tell me if you recognize 

1 7 any of these names: Andrew Tucker, John Beck, 

18 David Comay, Andrew Gabriel, Ozgur Leonard or 

19 Daniel Price? 

2 O A. I do recognize two of them. 

21 Q. Which two? 

2 2 A. John Beck and -- can you read the list 

I 

Page 35 

1 again, please. 

2 Q. Sure. 

3 Andrew Tucker, David Comay, Andrew 

4 Gabriel, Ozgur Leonard, Daniel Price. 

5 A. I recognize David's name, David Comay, 

6 and John Beck. 

7 Q. Do you know if these were among the 

8 people you spoke to at Sun Microsystems? 

9 A. I can't remember, no. 

10 Q. How do you know Mr. Beck? 

11 A. We met with him. I had conversations 

12 with him. I remember -- I just remember the 

13 name, because I -- when I worked with NASA in 

14 Florida, there was -- I worked with a guy by the 

15 name of John Beck, and I remember, you know, 

16 hey, another John Beck. You know, that just --

1 7 just a memory trigger is all. 

18 Q. Okay. But the John Beck -- let me 

19 clarify. 

2 0 Do you remember a John Beck who was 

21 affiliated with Sun Microsystems? 

22 A. Yes. 

Page 36 

1 Q. And what do you remember about David 

2 Comay? 

3 A. The name is familiar. I think it was 

4 in the meetings we had with Sun. That's -- I 

5 don't remember. I can't -- I don't remember why 

6 his name is familiar, but I recognize it. 

7 Q. Okay. And what did you discuss in your 

8 meetings with the Sun Microsystems folks? 

9 A. We discussed the differences between 

1 O Solaris zones and what we were doing at 

11 Trigence. 

12 Q. And what was the difference? 

13 A. Well, there's a lot of differences. 

14 The guys at Solaris were concerned that -- it 

15 was their feeling that we could not have 

16 implemented what we were doing in Solaris 

1 7 without having access to Solaris source code, 

18 and we not had any -- Solaris is closed source 

19 and was -- we didn't have any access to it. 

2 O And it was somewhat confrontational, 

21 and we had to sit down and explain to them how 

2 2 we were doing what we were doing and the way in 

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1 which it did not require internal knowledge -- '.1 

2 it didn't require knowledge to the internals of ; 

3 Solaris in order to do what we were doing. And 

4 they -- in the end -- it was a rather lengthy 

5 discussion. In the end they recognized what we 

6 were doing, and we parted friends. Everything 

7 was fine. 

8 Q. Okay. So initially Trigence AE was for 

9 Linux; right? 

1 0 A. Correct. 

11 Q. And--

12 A. Linux and Windows. 

13 

14 

15 

Q. Linux and Windows? 

A. Yes. 

Q. And then Solaris support was added 

16 later? 

17 A. Yes. 

18 Q. Okay. And so the meeting with Sun 

19 Microsystems was after you had developed some 

2 O sort of Solaris capability for Trigence AE? 

21 A. I don't think it was released to the 

2 2 public, but, yes, we had working versions. Yes. 

1 

Page 38 

Q. Okay. So what your understanding of 

2 Solaris zones? 

3 A. Oh gosh. That is a lengthy answer. 

4 Zones would provide a separate 

5 container, a separate security environment for 

6 each app and for our multiple -- and for an 

7 application to run it. So you could define a 

8 zone for each application you had running in 

9 Solaris. That zone would allow the application 

1 0 to have its -- potentially its own version of 

11 files. It would -- I don't recall if it had 

12 isolated networking, but it would provide a 

13 secure environment, and it would provide a 

14 separate instance of files and so forth. 

15 And, it was -- if you look at it at a 

1 6 very high level, it looked somewhat like what 

1 7 Trigence AE was doing very differently and at 

1 8 different -- very different results but 

1 9 largely -- largely the same -- well -- anyway, 

2 0 at the very, very highest level, objectives were 

21 similar. 

22 Q. Okay. 

1 

2 

A. Does that help? 

Q. Sure. 

Page 39 

3 So what are some of the differences 

4 between what Trigence AE was doing and what 

5 Solaris zones was doing? 

6 A. With zones, Solaris would utilize some 

7 operating system features to create a separate 

8 file area. They had modified the kernel, the 

9 internals of Solaris, to support this. It 

1 O relied on kernel internals to provide 

11 separations between applications' end zones. It 

12 would provide separate scheduling types of 

13 mechanisms and so forth also implemented in the 

14 kernel. 

15 The Trigence solution made no changes 

16 to the kernel -- or didn't require any changes 

1 7 to the kernel. It was all done with what was 

18 called function overlays, where the calls made 

19 to shared libraries could be, essentially, 

20 redirected to calls in the Trigence library, and 

21 we were able to manipulate things in that way. 

2 2 It had nothing to do with separate zones or 

Page 40 

1 kernel changes or anything. So ... 

2 Q. Okay. So when you say that Solaris 

3 zones was different from what Trigence was 

4 doing, you were contrasting Solaris zones with 

5 the Trigence product, not the patents; correct? 

6 A. Yes. 

7 Q. So can you explain these function 

8 overlays to me a little bit more. 

9 A. Function overlays use an operating 

1 O system capability called library preload. In 

11 Unix and Linux and Solaris it's called 

12 LD _Preload. In Windows it's called Appinit_ DLL. 

13 And what happens is you would use LD _ Preload or 

14 Appinit_ DLL to identify a library that you 

15 wanted loaded with your -- with an application 

1 6 as it starts. When that application starts, 

1 7 there's a dynamic loader that would load the 

18 application plus other requisite libraries. 

19 And LD _Preload/ Appinit_ DLL would say in 

2 O addition to the requisite libraries, also load 

21 this library, and load it first before any other 

2 2 libraries. So that has the effect of managing 

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1 the -- what's called the namespace that the '.I 

2 loader used. ; 

3 So if the application called a function 

4 called fu, let's say, for example, if fu were 

5 existent in a system library and also in a 

6 Trigence library, because of the preload, the 

7 loader would resolve fu to the Trigence library 

8 instead of the system library because the 

9 Trigence library was loaded first due to 

1 O LD _ Preload/ Applnit_ DLL. 

11 Q. Okay. So you mentioned that this 

12 function overlay capability that Trigence was 

13 using was called LD _ Preload in Solaris; is that 

14 right? 

15 

16 

A Correct. 

Q. Okay. So Solaris had this LD_Preload 

1 7 capability that could be used to provide the 

18 function overlay capability? 

Page 43 

1 page 3 of the PDF? 

2 Q. Mr. Rochette, do you see that this is 

3 the table of contents? 

4 A. Yes. 

5 Q. And do you see that it's dated October 

6 1987? 

7 A. Yes. 

8 Q. And towards the bottom, corresponding 

9 with page 112, there's an entry for "Shared 

10 Libraries in Sun OS." 

11 Do you see that? 

12 A. Yes. 

13 MR. ANAPOL: So, Billy, could you go to 

14 page 114ofthePDF? 

15 Q. And, Mr. Rochette, you see that this 

16 page shows the cover of an article entitled 

1 7 "Shared Libraries in SunOS"? 

18 A. Yes. I 19 Q. And you see that there's four authors 

I 

~ ~ from ~:::i::::s:;;s, 

1 9 A Correct. 

2 0 Q. And do you know when Solaris gained 

21 that function overlay capability that Trigence 

2 2 was using? I 22 A. I do, yes. 

-··-~· -----------------------------------------~ 

1 

Page 42 

A That capability has been present in 

2 Solaris since its first release of its origin. 

3 Q. Does the 1987 sound like approximately 

4 the right timeframe? 

5 A Yeah, that would be -- that would be in 

6 the range, yes. 

7 Q. I'm going to show you a document and 

8 see if it's referring to the same thing you're 

9 talking about when you say function overlay. 

10 A Okay. 

11 MR. ANAPOL: So, Billy, can you mark 

12 Document E as Exhibit 1012. 

13 (Whereupon, Exhibit 1012 was 

14 marked for identification.) 

15 (Discussion held off the record.) 

16 BY MR. ANAPOL: 

1 7 Q. So, Mr. Rochette, Exhibit 1015 the 

18 cover page says "Australia Unix Systems User 

19 Group Newsletter, Volume 8, No. 5." 

2 0 Do you see that? 

21 A Yes. 

22 MR. ANAPOL: And, Billy, can you go to 

1 

Page 44 

Q. And you see that they give an address 

2 in Mountain View, California; correct? 

3 A Yes. 

4 Q. And that's Northern California; right? 

5 A That is correct. 

6 MR. ANAPOL: And, Billy, could you 

7 please go to page 127 of the PDF. 

8 Q. So, Mr. Rochette, do you see the 

9 heading for Section 7.2 of this article? 

1 O A Interposition, yeah, uh-huh. 

11 Q. And could you just read this to 

12 yourself and let me know when you 're done. 

13 A Yeah, I'm done. 

14 Q. So is the interposition being described 

15 in this 1987 article the same as the function 

16 overlay capability that you were referring to in 

1 7 your earlier testimony? 

18 A It is functionally the same, yes. 

19 Q. And did you learn about this capability 

2 O in the '80s, or did you learn about it later? 

21 A Oh, probably did learn about it in the 

22 late '80s, yeah. 

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1 Q. Do you remember how you learned about 

2 it? 

3 A. I don't remember the first time I used 

4 it, no. I don't recall the scenario, no. 

5 MR. ANAPOL: Okay. Billy, you can 

6 close this. 

7 Q. So I want to briefly go back to OnCore, 

8 and then we'll take a break because we've been 

9 going for about an hour. 

1 O Did On Core's operating system have a 

11 networking stack during the time you worked 

12 there? 

13 A. Yes. 

14 Q. And let me just clarify that when I'm 

15 asking about OnCore, I'm only ask about the time 

16 you worked there, not anything that happened 

1 7 after. Okay? 

18 A. Okay. 

I 

Page 47 

1 noted. 

2 Q. But you still have to answer the 

3 question, Mr. Rochette. And, again, I'll 

4 just -- let me just repeat the question here. 

5 So Unix was running outside of the 

6 kernel in the OnCore operating system; correct? 

7 A. Yes. 

8 Q. And that includes the Unix networking 

9 stack; correct? 

10 A. Yes. 

11 Q. And was any part of that in a shared 

12 library? 

13 A. Yes, shared libraries were utilized for 

14 portions of it. Yes. 

15 Q. And did OnCore's operating system have 

16 a file system? 

1 7 A. Yes. 

18 Q. And was the file system implemented 

19 Q. So was the networking stack for the 

2 O On Core operating system implemented inside or 

21 outside of the kernel? 

2 2 A. Outside of the kernel. Q. Was any ofit in a shared library? I

ll :

2

1

2

: ;;:=:,[:,::~:: :::~::rating ~,tern 

,.._, ____ ,------~--------------l---~-------------------,-

1 

2 

Page 46 

Q. Do you remember how it was implemented? 

A. It was implemented as a separate --

3 what's called a process as a part of -- because 

4 all of Unix was implemented as a separate 

5 process. So it was a part of the Unix instance, 

6 which -- where all of Unix ran outside of the 

7 kernel in user mode. 

8 Q. So you had all of Unix running in user 

9 mode on top of the OnCore operating system; 

10 correct? 

11 A. Yes. 

12 Q. And so all of that was outside of the 

13 OnCore operating system's kernel; correct? 

14 MR. TONG: Objection --

15 THE WITNESS: Outside of the kernel, 

16 correct. 

1 7 MR. TONG: And I'm going to object to 

18 this line of questioning again as getting back 

19 into deep fact discovery, outside the scope of 

2 O venue discovery, and I don't think Mr. Donn 

21 Rochette needs to answer any of these questions. 

22 MR. ANAPOL: Well, your objection is 

1 

Page 48 

A. Yes, portions of it would have been 

2 implemented in a shared library -- one or more 

3 shared libraries, yes. 

4 Q. And are there anybody -- let me 

5 rephrase. 

6 Are there anybody-- I can't get my 

7 tenses to line up. 

8 Are there any people in Northern 

9 California who know about that functionality 

10 that On Core implemented in shared libraries? 

11 A. That OnCore implemented? Well, there 

12 are numerous people in Northern California that 

13 would be familiar with the way in which it was 

14 done or the way in which it is done, yes. 

15 Specifically OnCore, I don't -- I doubt it. I 

16 don't know. 

1 7 Q. Who aside from you would know, from 

18 working at OnCore, how those file system 

19 functionalities were implemented? 

2 0 A. Well, just about any software developer 

21 atApple. 

22 Q. Okay. 

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A. Because Apple's architecture runs in '.I 1 discussions with Sun Microsystems that you 

2 the same way, uses the same kernel we were ; 

1 

2 testified about earlier, do you know if they had 

3 using. 3 created zones yet at the time. 

4 Q. And who aside from you would know, from 

5 working at OnCore, how the networking stack was 

6 implemented? 

7 A. Same thing. Lots of people would 

8 understand how it works, maybe not specifically 

9 what OnCore was doing, but the architecture, the 

1 O concept, the techniques would all be well known 

11 by anybody at Apple. 

12 Q. And do you know if any software 

13 developers who worked with you at OnCore are 

14 still in Northern California? 

15 A. There's a gentleman called George 

16 Marrow that's still in Northern California. 

1 7 That's the only one that I know of that I can 

18 think of anyway right now. 

19 MR. ANAPOL: Mr. Rochette, would you 

2 O like to take a five-minute break? We've been 

21 going for about an hour. 

2 2 THE WITNESS: I would. Thank you. 

4 A. Yes, they had. It was very new, but 

5 they were out and released in the product. 

6 Q. I just want to at this point get an 

7 overview based on your experience working in 

8 Silicon Valley and with people in Silicon Valley 

9 about what they knew during the time you worked 

1 O for On Core. Okay? 

11 A. Okay. 

12 Q. Okay. So -- and I understand you left 

13 OnCore in 2002; is that right? 

14 A. I don't remember the exact date, but 

15 that sounds -- that sounds like the right range, 

16 yes. 

1 7 Q. Or maybe earlier, but by 2002? 

18 A. Yeah. 

I 19 Q. Okay. So by 2002 did software 

I

I 20 developers in Silicon Valley know that large 

21 numbers of computers running different operating I 22 systems could be connected in a network? 

-··--· ~--------~---------~----;,--------------------~---! 

Page 50 

1 MR ANAPOL: Back in five minutes 

2 everybody? 

3 MR TONG: That's fine with us. 

4 THE VIDEOGRAPHER: Going off the 

5 record. The time is 11:59. 

6 (Recess taken.) 

7 THE VIDEOGRAPHER: We are back on the 

8 record. The time is 12:09. 

9 BY MR. ANAPOL: 

1 O Q. Mr. Rochette, before the break you 

11 mentioned an individual named George Marrow. 

12 A. Uh-huh. 

13 Q. Could you give us the spelling of that 

14 if you know it. 

15 A. M-a-r-r-o-w. 

16 Q. And--

1 7 A. I haven't spoken to George in a long 

18 time. You asked ifthere might be anybody, and 

19 that's the only one I could think of who might 

2 O be around. 

21 

22 

Q. Okay. We can check. Thank you. 

At the time that you had it these 

Page 52 

1 MR. TONG: Objection. Foundation. 

2 Calls for speculation. 

3 THE WITNESS: Yes, there were many 

4 examples of that scenario you just described by 

5 that timeframe. 

6 BY MR. ANAPOL: 

7 Q. And by 2002 did software developers in 

8 Silicon Valley know that servers running 

9 different operating systems could work together 

1 O to provide a service? 

11 MR. TONG: Objection. Foundation. 

12 Calls for speculation. 

13 THE WITNESS: Yes, there are also 

14 examples of that by that date. 

15 BY MR. ANAPOL: 

16 Q. Can you give an example? 

1 7 A. We discussed things with Chase Bank in 

18 New York, and they were using Solaris and 

19 Windows together to form various applications, 

2 O Windows being the front end, Solaris being the 

21 data management in the back end, together 

2 2 forming a service. 

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1 Q. That reminds me. One follow-up 

2 question about OnCore: So was OnCore selling 

3 the operating system we discussed earlier by 

4 2021? 

5 

6 

A. Yes. 

Q. By 2002 did software developers in 

7 Silicon Valley know that software could run 

8 inside of containers? 

9 MR. TONG: Objection. Foundation. 

1 0 Calls for speculation. 

11 THE WITNESS: Yes. The use of the term 

12 "containers" is broad, but if you allow yourself 

13 a broad definition of "containers," the answer 

14 is yes. 

15 BY MR. ANAPOL: 

16 Q. Did software developers in Silicon 

1 7 Valley by 2002 know that servers could host more 

18 than one container? 

19 THE WITNESS: Yes. 

2 O MR. TONG: Same objection, belated. 

21 BY MR. ANAPOL: 

22 Q. By 2002 did software developers in 

Page 54 

1 Silicon Valley know that putting an application 

2 in a container could prevent the application 

3 from accessing files in another container? 

4 MR. TONG: Same objection. Calls for a 

5 legal conclusion. 

6 I'm also objecting to this whole line 

7 of questioning again as getting into fact 

8 discovery that Mr. Donn Rochette is not 

9 obligated to answer during venue discovery. 

1 o BY MR. ANAPOL: 

11 Q. Do you need me to repeat the question, 

12 Mr. Rochette? 

13 

14 

15 

A. Yes, please. 

Q. Sure. 

By 2002 did software developers in 

16 Silicon Valley know that putting an application 

1 7 in a container could prevent the application 

18 from accessing files in another container? 

19 MR. TONG: Same objections. 

2 o THE WITNESS: Yes. In the context of 

21 Solaris zones, that is a true statement. 

22 

I 

Page 55 

1 BY MR. ANAPOL: 

2 Q. By 2002 did software developers in 

3 Silicon Valley know that putting an application 

4 in a container could prevent the application 

5 from interfering with applications in another 

6 container? 

7 MR. TONG: Same objections. Calls for 

8 speculation. Foundation. Calls for a legal 

9 conclusion. Not venue discovery. 

1 o THE WITNESS: Again, in the context of 

11 Solaris zones, that would be an accurate 

12 statement. At least in the context of Solaris 

13 zones. 

14 BY MR. ANAPOL: 

15 Q. What about in the context of OnCore 

16 operating system? 

17 A. Yes. 

18 

19 

MR. TONG: Same objections. 

THE WITNESS: Well, no, not in OnCore. 

2 O In Trigence. Excuse me. 

21 BY MR. ANAPOL: 

22 Q. So did the OnCore containers not 

Page 56 

1 confine the applications in the container? 

2 MR. TONG: Objection. Calls for legal 

3 conclusions. 

4 THE WITNESS: Yeah, it's difficult to 

5 answer. 

6 The Unix applications running with Unix 

7 were not separated and could affect each other. 

8 Embedded applications were separated. 

9 BY MR. ANAPOL: 

1 O Q. So, in other words, you could have 

11 multiple applications in one container? 

12 MR. TONG: Objection. Vague. 

13 THE WITNESS: In a Unix context, yes. 

14 BY MR. ANAPOL: 

15 Q. And the applications running in the 

16 Unix context on top of OnCore would be prevented 

1 7 from interfering with the applications running 

18 on the real-time portion of the operating 

19 system; correct? 

20 A. Yes. 

21 MR. TONG: Objection. Calls for a 

2 2 legal conclusion. 

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1 BY MR. ANAPOL: 1 introduced? 

2 Q. Sorry. Can you just repeat the answer, 

3 Mr. Rochette. 

4 A. The answer is yes. 

5 Q. And is it also true that putting an 

6 application in the Unix container in the OnCore 

7 operating system would prevent it from 

8 interfering with files outside of that 

9 container? 

1 0 MR. TONG: Objection. Calls for 

11 speculation. Calls for a legal conclusion. 

12 THE WITNESS: That is a true 

13 statement -- an accurate statement. 

14 BY MR. ANAPOL: 

15 Q. By 2002 did software developers in 

16 Silicon Valley know that containers could have 

1 7 their own root file systems? 

18 MR. TONG: Objection. Calls for 

19 speculation. Leading. 

2 O THE WITNESS: That is an accurate 

21 statement in the context of zones and 

2 2 Trigence AE [garbled]. 

-·. 

Page 58 

1 (The reporter requested clarification.) 

2 THE WITNESS: Sorry. 

3 That is an accurate statement in the 

4 context ofSolaris zones, Trigence AE at least. 

5 BY MR. ANAPOL: 

6 Q. I want to clarify that because I'm 

7 asking about 2002. 

8 So does that change your answer? 

9 A. Oh. 

10 MR. TONG: Objection. Asked and 

11 answered. Same objection as well. 

12 THE WITNESS: In answer to your 

13 question, yes. I shouldn't use examples, but, 

14 yes, people knew that that was possible. 

15 BY MR. ANAPOL: 

16 Q. And are you familiar with a Unix 

17 command called chroot. 

18 A. Yes. 

19 Q. And did that Unix command allow a user 

20 to give an application its own root file system? 

21 A. Yes. 

22 Q. And do you know when chroot was 

I 2 A. It was introduced in the early Unix 

3 days before Solaris. It was introduced by the 

4 Bell Labs people when they first did Unix. It 

5 goes way back. 

6 Q. So by the 1980s at least? 

7 A. At least. Before then, yes. 

8 Q. And are you familiar with something 

9 called BSD jails? 

10 A. Yes. I forgot about those. Yes, I am. 

11 Q. And what was BSD jails? 

12 A. It was an open source response to the 

13 capabilities in Solaris zones. It was a way of 

14 obtaining very similar behavior exemplified by 

15 zones in an open source Unix capability that 

1 6 didn't require licensing yet. They're not 

1 7 exactly the same, but it was close enough. 

Q. So is BSD jails another container 

! 1 9 capability? 

I 20 A. Yes. 

18 

I ~~ concl:!~ ~~:~~r~:1:~:i::~s~:~~ for legal 

I 

Page 60 

1 BY MR ANAPOL: 

2 Q. And do you know one way or the other if 

3 "BSD" stands for "Berkeley Software 

4 Distribution"? 

5 A It is my understanding that that is 

6 what it stands for, yes. 

7 Q. And that's referring to the University 

8 of California, Berkeley, in Northern California? 

9 A That is my understanding, yes. 

1 O Q. By 2002 did software developers in 

11 Silicon Valley know that containers could run on 

12 top of a kernel that was residing outside of the 

13 caper? 

14 MR. TONG: Objection. Calls for 

15 speculation. Foundation. Leading. 

16 THE WITNESS: Yes. 

1 7 MR. TONG: Calls for a legal 

18 conclusion. Sorry. 

19 THE WITNESS: People understood that. 

2 O BY MR ANAPOL: 

21 Q. We're almost done with this line of 

2 2 questions, just so you know, Mr. Rochette. I 

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1 know it's repetitive in some sense. 

2 By 2002 did software developers in 

3 Silicon Valley know that servers could limit the 

4 resources used by a container? 

5 MR. TONG: Objection. Calls for 

6 speculation. Foundation. Leading. 

7 THE WITNESS: Yes. 

8 BY MR. ANAPOL: 

9 Q. And did the OnCore operating system 

1 O have the ability to limit resources used by a 

11 container? 

12 MR. TONG: Same objections. 

13 THE WITNESS: That was not the intent 

14 of the On Core system, no. There was no explicit 

15 limiting of resources or -- in that -- in that 

1 6 architecture. 

1 7 BY MR. ANAPOL: 

18 Q. But the OnCore system would allow a 

1 9 real-time program to preempt an application 

2 O running in a Unix container; correct? 

21 A. That is correct. But not for -- it 

2 2 would not allow -- it would not enforce the 

Page 62 

1 amount of memory, for example, that a Unix 

2 application would use. Nothing of that nature 

3 was done. 

4 Yes, the really important thing was 

5 that an application running in a real-time 

6 context could preempt anything running in Unix 

7 and be able to respond immediately. 

8 Q. And when the real-time application 

9 preempts the application in the Unix container, 

1 O the real-time container is taking processing 

11 resources away from the container at that time? 

12 A. Absolutely correct, yes. 

13 MR. TONG: Same objections. 

14 THE WITNESS: Sorry. I should wait for 

15 you to object. 

16 Yes. 

1 7 BY MR. ANAPOL: 

18 Q. By 2002 did software developers in 

19 Silicon Valley know that servers could monitor 

2 O and log a container's resource usage? 

21 MR. TONG: Same objections. 

22 THE WITNESS: Yes. 

I 

Page 63 

1 BY MR. ANAPOL: 

2 Q. And by 2002 did software developers in 

3 Silicon Valley know that containers could have 

4 their own IP address separate from a host? 

5 MR. TONG: Same objections. 

6 THE WITNESS: I'm not 100 percent sure 

7 of that. That was very difficult -- that's very 

8 difficult to accomplish, the IP address, and I 

9 don't -- honestly don't recall if that was 

1 O considered sort of commonplace. 

11 BY MR. ANAPOL: 

12 Q. But would it surprise you if someone 

13 had that capability before 2002? 

14 MR. TONG: Objection --

15 THE WITNESS: It would not surprise 

16 me --

17 MR. TONG: -- foundation. 

18 THE WITNESS: -- no. 

19 Oh, sorry. 

2 o BY MR. ANAPOL: 

21 Q. Can you repeat the answer, 

22 Mr. Rochette. 

1 

2 

Page 64 

A. It would not surprise me, no. 

Q. And by 2002 did software developers in 

3 Silicon Valley know how to move software 

4 functionality into a shared library? 

5 MR. TONG: Objection. Calls for 

6 speculation. Foundation. Legal conclusion. 

7 Not venue discovery. Leading. 

8 THE WITNESS: Yes. 

9 BY MR. ANAPOL: 

10 Q. And do you know whether Trigence 

11 released its container software before or after 

12 Solaris zones? 

13 A. I don't recall whether anything in 

14 Windows or Linux was released before or after 

15 zones, no. I don't recall the dates, no. 

1 6 Q. Have you ever heard of Docker? 

1 7 A. Yes. 

18 Q. And what is your understanding of 

19 Docker? 

2 0 A. Docker is a container technology that 

21 is in wide use today. 

2 2 Q. And when did you first hear about 

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1 Docker? 

2 A. Maybe after the Trigence days, at the 

3 end of Trigence -- my time at Trigence. I don't 

4 recall a date. 

5 Q. Have you personally used Docker? 

6 A Yes. 

7 Q. In what context? 

8 A. Creating containers. Allowing -- for 

9 development purposes. For production purposes. 

10 For monitoring purposes. We use Docker quite a 

11 bit. 

12 Q. When you say, "We have used Docker," 

13 who are you referring to? 

14 A Oh, I'm sorry. Multiple development 

15 teams that I've been a part of. We have all 

16 used Docker. 

1 7 Q. Which companies that you've worked at 

18 have used Docker? 

19 A AppFirst. ScienceLogic. I worked as a 

2 0 contractor for the US Air Force for a while. 

21 And Crib! most recently. 

22 Q. Okay. So all four of those 

Page 66 

1 organizations used Docker? 

2 A Correct. 

3 Q. And, Mr. Rochette, have you ever heard 

4 of containerd? 

5 

6 

A Yes. 

Q. What's your understanding of 

7 containerd? 

8 A. Containerd is a process that runs in 

9 the background as a part of Docker and is --

10 implements a large portion of the Docker 

11 functionality. 

12 Q. And do you have an understanding of 

13 where Docker originated? 

14 MR. TONG: Objection. Calls for 

15 speculation. 

16 THE WITNESS: I don't, actually. I 

1 7 know it's open source, but I don't know where or 

18 what group originated it, no. 

19 BY MR. ANAPOL: 

2 0 Q. You mentioned Cribl in one of your 

21 earlier answers. 

22 Where is Cribl located? 

I 

1 

2 

Page 67 

A. Crib! is located in San Francisco. 

Q. And do you know if Cribl is using 

3 Docker in San Francisco? 

4 A. Yes. 

5 Q. And did you visit San Francisco when 

6 you worked for Cribl? 

7 A. Yes. 

8 Q. How often? 

9 A. Not very often. Once a year. 

10 Q. And are there a lot of people in 

11 Northern California who know about Docker? 

12 A. Yes. 

13 MR. TONG: Objection. Calls for 

14 speculation. 

15 BY MR. ANAPOL: 

16 Q. And Cribl is the most recent company 

1 7 that you worked at? 

18 A. That is correct. 

19 Q. Do you still work there? 

20 A. No. I am retired. 

21 Q. Oh, right. You mentioned that earlier. 

2 2 When did you retire from Cribl? 

1 

2 

3 

4 

Page 68 

A 1st of September two years ago. 

Q. 2022? 

A Yes. 

Q. And how does Docker compare to the 

5 technology developed at Trigence? 

6 MR. TONG: Objection. Calls for legal 

7 conclusions. And Daubert. 

8 THE WITNESS: It is very similar. 

9 Docker containers are quite similar to what is 

1 0 described in the Trigence patent. There are --

11 there are a lot of differences. You know, any 

12 software developer can describe those 

13 differences to you. But overall the ability to 

14 create multiple containers with, you know, 

15 multiple disparate applications running in them 

16 is consistent. 

1 7 BY MR. ANAPOL: 

18 Q. And what do you mean by "disparate 

19 applications"? 

2 0 A Primarily referring to applications 

21 that would require a specific version of an 

2 2 operating system. So something that would run 

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1 on -- something that was originally running in a 

2 Windows 10 environment that would be placed in a 

3 container and could run in a Windows 12 

4 environment. That's what I mean by "disparate," 

5 meaning --

6 Q. So the environments are disparate, 

7 meaning different versions of the same operating 

8 system? 

9 A. Different versions of the same 

1 0 operating system, correct. 

11 Q. Okay. So did you make the decision to 

12 use Docker at the four companies you mentioned, 

13 or did somebody else make that decision? 

14 A. Oh, no, somebody else made the 

15 decision. It was -- yeah. 

16 Q. Did you ever suggest to any of those 

1 7 four companies that they use Trigence AE instead 

18 of Docker? 

19 A. No. 

2 O Q. Why not? 

21 A. Because -- the primary reason is 

2 2 because of the difference in the way the 

I 

1 Q. And do you have an understanding of 

2 whether any of the four companies you worked at 

3 that use Docker were also using containerd? 

4 A. If you were using Docker, you were 

5 using containerd. 

6 Q. So all four of those companies were 

7 also using containerd? 

8 A. Yes. 

9 Q. Okay. I want to talk a little bit more 

1 O about the disparate computing environments that 

11 you mentioned. 

12 A. Okay. 

13 MR. ANAPOL: And, Billy, could you 

14 please pull up Exhibit 1010 for us, and scroll 

15 down to Column 2, please. And around lines 1 7 

16 to 19, can you blow that up for us. 

17 Q. So in the '814 patent, Mr. Rochette, do 

18 you see that there's this definition of I 19 "disparate computing environments"? 

I ~

2 2

~ ~: ;:s~ou know what this means? 

A. Yeah. It's -- it's worded like a 

I -··------------------------;,------------------------1 

Page 70 

1 Trigence AE is implemented, which requires 

2 function overlays and shared libraries and so 

3 forth. It's difficult for larger companies' 

4 environments to adopt that kind of approach. 

5 Q. Why? 

6 A. Because it modifies the way -- there 

7 are modifications in the way in which an 

8 application would run that are reliant on 

9 private, non-open-sourced libraries and so forth 

1 O that make it very difficult for someone to be 

11 able to validate -- and you need support and 

12 things like that. 

13 So it's much more difficult to adopt 

14 that kind of an approach. And I think one of 

15 the reasons -- it's one of the reasons why 

1 6 Docker is very typically chosen over an approach 

1 7 like Trigence AE. 

18 Q. And did you ever think that the 

1 9 companies you were working for that use Docker 

2 O needed a license to the '814 or '058 patents? 

21 A. No. Never crossed my mind. It never 

2 2 crossed my mind that they were similar. 

Page 72 

1 lawyer would word it. Sorry. 

2 It is -- it's meant to speak to the 

3 ability for applications that are unrelated to 

4 each other to run in a common compute platform. 

5 Q. So it says, "Environments where 

6 computers are stand-alone or where there are 

7 plural computers and where they are unrelated." 

8 So does "unrelated" refer to the 

9 computers or to the applications running on 

10 them? 

11 

12 

A. In this statement it refers --

MR. TONG: Objection. Calls for a 

13 legal conclusion. 

14 THE WITNESS: Oh, sorry. 

15 BY MR. ANAPOL: 

16 Q. Go ahead, Mr. Rochette? 

1 7 A. In this statement it refers to the 

18 computer platform -- the computer platforms. 

19 Q. And what does it mean for computer 

2 O platforms to be unrelated? 

21 MR. TONG: Objection. Calls for a 

2 2 legal conclusion. 

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1 THE WITNESS: It would be having a -- '.1 

2 there would be stand-alone, having -- presumably ; 

3 having a network connection where information 

4 could be exchanged, but they are not necessarily 

5 related to each other. 

6 If you go back to the example of a 

7 corporate business application where it's using 

8 Windows as a front end and some Unix or Solaris 

9 background for data would be an example of that. 

1 O They are unrelated to each other, Windows is 

11 Windows, Unix is Unix, and they are stand-alone, 

12 but -- and [unintelligible] of things unrelated 

13 that can be made to be related by applications 

14 that talk to each other. 

15 Does that help? I'm not sure I'm 

16 answering the question. 

1 7 BY MR. ANAPOL: 

1 

2 

Page 75 

A. Yes. 

Q. So you're not employed in any state 

3 outside of Iowa; is that right? 

4 A. That is right. 

5 Q. And are there any states outside of 

6 Iowa that you regularly travel to for business? 

7 A. Not for business. Only for personal. 

8 Q. And before you retired, you worked for 

9 Cribl; right? 

1 0 A. That is correct. 

11 Q. Which was based in San Francisco? 

12 A. Yes. 

13 Q. And sorry if you already answered this. 

14 I can't recall. 

15 How often did you visit San Francisco 

16 when you worked for Cribl? 

1 7 A. About once a year. Not frequently. 

18 Q. Yeah, I'm just trying to understand how 18 The company was remote. So we had 

19 you tell whether two computers are stand-alone 

2 O or unrelated. 

! 19 people in Europe and all across the United 

I 2 0 States, and we all worked remotely. 

21 Do they have to be running different 

2 2 operating systems? 

I ~ ~ Do~~e~~ay. I just want to get back to 

I -··--· ~--------~---------~...-;,--------------------~---! 

1 

Page 74 

A. No. They would just be separate 

2 instances. 

3 If you look at a rack of computers, 

4 each hardware platform is a separate stand-alone 

5 device. Even if they're already all running the 

6 same hardware and all running the same operating 

7 system, they are different from each other. 

8 Q. Okay. So they're considered unrelated 

9 even if they're all in the same place, they're 

1 O all connected to the same network and they're 

11 all running the same operating system? 

12 A. Yes. 

13 MR. TONG: Objection. Calls for a 

14 legal conclusion. 

15 THE WITNESS: Oh, sorry. 

16 One way to differentiate that is that 

1 7 they would all have a different network address 

18 would make them standalone and separate. 

19 BY MR. ANAPOL: 

2 O Q. Okay. You reside in Iowa; correct? 

21 A. Yes. 

22 Q. And you're retired now; right? 

1 

2 

Page 76 

A. Okay. 

Q. -- and then hopefully we'll be able to 

3 wrap up here. 

4 So Docker, based on your experience --

5 I'm sorry. I didn't mean Docker. I meant 

6 Solaris zones. 

7 A. Okay. 

8 Q. So Solaris zones, based on your 

9 experience, can operate in disparate computing 

1 O environments? 

11 A. Yes. 

12 MR. TONG: Objection. Calls for a 

13 legal conclusion. Daubert. 

14 BY MR. ANAPOL: 

15 Q. And Solaris zones was capable on 

16 running of on a plurality of servers, meaning 

1 7 multiple servers? 

18 A. Yes. 

19 Q. And those servers would include a 

2 O processor; right? 

21 A. Yes. 

2 2 Q. And an operating system; right? 

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1 kernel from the operating system hosted on the 

2 server? 

1 

2 

A Yes. 

Q. And a kernel; right? 

3 A Yes. 

4 Q. And local system files compatible with 

5 the processor? 

6 A Yes. 

7 Q. And the server could provide executable 

8 applications related to a service? 

9 MR. TONG: Objection. Calls for legal 

10 conclusions. Daubert. 

11 THE WITNESS: Yes. 

12 BY MR. ANAPOL: 

13 Q. And Solaris zones allowed applications 

14 to be executed in a secure environment? 

15 A Correct. 

16 MR. TONG: Same objections. And 

1 7 leading. 

18 THE WITNESS: Yes. 

19 BY MR. ANAPOL: 

2 0 Q. I will rephrase the last question. 

21 Could a server running Solaris zones 

2 2 provide executable applications relating to a 

I 

3 MR. TONG: Same objections. 

4 THE WITNESS: Yes. 

5 BY MR. ANAPOL: 

6 Q. And that kernel would be on the server 

7 regardless of whether it was running any 

8 containers; right? 

9 MR. TONG: Same objections. 

1 o THE WITNESS: Yes. 

11 BY MR. ANAPOL: 

12 Q. Would the kernel be running on the 

13 operating system regardless of whether the 

14 server was running any containers? 

15 MR. TONG: Same objections. 

16 THE WITNESS: Yes. The kernel would 

1 7 run first and foremost, yes, in all instances. 

18 BY MR. ANAPOL: 

I 19 

I

I 2 O containers be compatible with the kernel? 

Q. And would the system files in the 

21 MR. TONG: Same objections. 

22 THE WITNESS: That is a major 

I -··-~· -----------------------------------------~ 

Page 78 

1 service? 

2 MR. TONG: Same objections. 

3 THE WITNESS: Yes. 

4 BY MR. ANAPOL: 

5 Q. And could a server running Solaris 

6 zones execute applications in a secure 

7 environment? 

8 MR. TONG: Same objections. 

9 THE WITNESS: Yes. 

1 O BY MR. ANAPOL: 

11 Q. And could a server running Solaris 

12 zones store multiple secure containers in 

13 memory? 

14 MR. TONG: Same objections. 

15 THE WITNESS: Yes. 

1 6 BY MR. ANAPOL: 

1 7 Q. And could those multiple containers 

18 have applications and system files in them? 

1 9 MR. TONG: Same objections. 

20 THE WITNESS: Yes. 

21 BY MR. ANAPOL: 

22 Q. And would those containers use the 

Page 80 

1 difference. In zones they would have to be 

2 compatible with the kernel and the version of 

3 the kernel being used, yes. 

4 BY MR. ANAPOL: 

5 Q. And did each container have its own 

6 kernel or did they share a kernel? 

7 A. No --

8 MR. TONG: Same objections. 

9 THE WITNESS: -- one kernel shared 

1 O by -- oh, I'm sorry. 

11 One kernel shared by all applications. 

12 BY MR. ANAPOL: 

13 Q. And could a container contain system 

14 files that were also present outside of the 

15 container? 

16 MR. TONG: Same objections. 

1 7 THE WITNESS: I'm sorry. Could you 

1 8 clarify that. 

1 9 BY MR. ANAPOL: 

2 o Q. Yeah. So imagine you have a service 

2 1 running outside of the container, like, you 

2 2 know, you have an instance of Apache, for 

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1 example. 

2 A. Okay. 

3 Q. And then you also have an instance of 

4 Apache running inside the container. 

5 A. Uh-huh. 

6 Q. Could you have system files, like, the 

7 configuration file for Apache, one inside the 

8 container and one outside the container? 

9 A. Yes. 

10 MR. TONG: Objection. Incomplete 

11 hypothetical. Leading. Daubert. Calls for a 

12 legal conclusion. Foundation. 

13 THE WITNESS: Yes. That's actually a 

14 common scenario. 

15 BY MR. ANAPOL: 

16 Q. And--

1 7 A. A configuration file is a very common 

18 scenario. 

1 9 Q. And would the instance of Apache inside 

2 O the container use the configuration file inside 

21 of the container instead of the one outside of 

2 2 the container? 

Page 82 

1 MR. TONG: Same objections. 

2 THE WITNESS: Yes. 

3 BY MR. ANAPOL: 

4 Q. And would the applications inside of a 

5 container on Solaris zones be able to access 

6 software in another container? 

7 MR. TONG: Same objections. 

8 THE WITNESS: No. 

9 BY MR. ANAPOL: 

10 Q. And would each of those containers be 

11 able to have its own root file system? 

12 MR. TONG: Same objections. 

13 THE WITNESS: Yes. 

14 BY MR. ANAPOL: 

15 Q. And do you know if Solaris zones 

1 6 allowed resource limits to be placed on a 

1 7 container? 

1 8 A. Yes, it is. 

19 MR. TONG: Same objection. 

2 o BY MR. ANAPOL: 

21 Q. Mr. Rochette? 

22 A. Yes. 

I 

Page 83 

1 Q. And would applications inside of a 

2 container be prevented from accessing system 

3 files outside of the container? 

4 MR. TONG: Same objections. 

5 THE WITNESS: Yes, that is correct. 

6 BY MR. ANAPOL: 

7 Q. And do you know how a container would 

8 be created in Solaris zones, in other words, how 

9 you would get the necessary files into the 

1 O container? 

11 A. There were very specific command line 

12 options that you used with Solaris zones. A 

13 zone create command and a zone command for 

14 specifying resources, a zone command for 

15 specifying files that were used in the zone, and 

16 things like that. So you would -- you would 

1 7 configure these things using a command line. 

18 Q. So did Solaris zones have the ability 

19 to create a container -- basically take an 

2 O application that's already running outside of a 

21 container and then make a copy of it inside of a 

2 2 container? 

Page 84 

1 MR. TONG: Same objections. 

2 THE WITNESS: You would make a copy --

3 oh, sorry. Excuse me. Sorry. 

4 Yes, you would make a copy of it. You 

5 would create the zone, then you would copy files 

6 as needed, very likely you'd have to modify the 

7 configuration of something, and then you could 

8 start your application. 

9 BY MR. ANAPOL: 

10 Q. And when you would copy files into the 

11 container, it would be applications and system 

12 files, or no? 

13 A. Application files for sure. System 

14 files would be optional, depending on what you 

15 were doing. You might need some system files, 

1 6 you might not, depending on what the application 

1 7 was and what you were trying to accomplish. 

18 Q. And when you made that copy, you would 

1 9 still have the original version outside of the 

2 O container; right? 

21 A. You would -- it would be possible, yes. 

2 2 Q. I think you mentioned earlier that 

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1 Solaris zones had the capability of moving 1 address is used, define what routing is used for 

2 certain functionality that would normally be in 

3 an operating system kernel into a shared 

4 library; is that right? 

5 MR. TONG: Objection. 

6 Mischaracterizes. Leading. 

7 THE WITNESS: Yes, there were some 

8 capabilities that were represented outside of 

9 the kernel in user mode, correct. 

1 o BY MR. ANAPOL: 

11 

12 

Q. What capabilities were those? 

A. File system separation. The use of 

13 something like the chroot command, or the chroot 

14 command you referred to earlier. The -- oh, I 

15 can't think of other examples. I mean, there 

16 were several examples of it. 

1 7 Q. And how did you learn that Solaris 

18 zones had that capability? 

19 A. Sitting down in front of a Solaris 

2 O operating system and using it. Reading the 

21 documentations and using the capabilities and 

2 2 testing it. 

I 2 a container separate from the kernel and was --

3 would be accessed by applications before going 

4 to the kernel. 

5 So you would have had very similar 

6 capability in the kernel that was accessed by 

7 applications in these zones before going to the 

8 kernel. 

9 BY MR. ANAPOL: 

10 Q. So just for the sake of a concrete 

11 discussion, can you think of an example of a 

12 shared library that we could talk about that had 

13 this operating system functionality? 

14 A. I can't recall the names of them in 

15 Solaris. They would have been a libnetwork.so 

16 or lib -- something with the name "network" in 

1 7 it or "net." And it would have the network --

18 the things that would otherwise -- the things 

! 19 that were also present in a kernel, like 

I 2 O defining an IP address, like defining routes, 

I 21 like defining -- not TCP protocol, but these I 2 2 would have been used by zones to configure the 

,.._, ____ ,------~-------------l---~-------------------,-

1 

Page 86 

Q. And how did you determine that those 

2 capabilities were implemented in shared 

3 libraries rather than the kernel? 

4 A. If you go to an application and -- you 

5 would execute the command called LDD. LDD shows 

6 you what libraries are required by a certain 

7 executable, and it would -- it's very clear --

8 clearly shown what libraries are referenced, and 

9 you could then look at the libraries and very 

1 O clearly see what is implemented in those 

11 libraries. 

12 Q. So do you know if there was any shared 

13 library functionality in Solaris that was also 

14 in the kernel, in other words, the shared 

15 library functionality was a duplicate or 

16 performing a similar function to what was in the 

1 7 kernel? 

18 MR. TONG: Objection. Foundation. 

19 Leading. Calls for a legal conclusion. 

2 O THE WITNESS: There were some 

21 networking capabilities and shared libraries and 

2 2 some -- for example, that would define what IP 

Page 88 

1 network capabilities present in that zone or 

2 container for use by the application. 

3 I don't remember exactly the names. 

4 It's a long time ago, but there were shared 

5 libraries used by Solaris that did those things. 

6 Q. So for the networking shared library, 

7 if there were two applications using that shared 

8 library, would they each have their own instance 

9 in the sense of, you know, internal data used by 

1 O the shared library having two different copies 

11 of that data? 

12 MR. TONG: Objection. Foundation. 

13 Leading. Calls for a legal conclusion. 

14 Daubert. 

15 THE WITNESS: The way it works is the 

1 6 code for that library in question, once loaded 

1 7 into memory, is shared by all applications. 

18 That's the -- hence, the term "shared library." 

1 9 And -- so multiple zones could make use of the 

2 O same networking library. 

2 1 The difference is that the data that 

2 2 they use is distinct. So the actual code that 

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1 gets executed is common across zones; the data 

2 that they use is separate for each zone. 

3 And any writes that would happen into 

4 memory -- oh, gosh, at the risk of going into 

5 detail would be -- would implement an operating 

6 feature called copy-on-write, which would create 

7 a different instance of a page in memory, but 

8 it's specific to that zone. 

9 Sorry. I think I went too deep. 

1 o BY MR. ANAPOL: 

11 Q. And did the Trigence AE approach to 

12 shared libraries work the same way? 

13 A. Yes. 

14 Q. So are you aware of any differences 

15 between how your '058 patent uses shared 

16 libraries versus how the Solaris zones used 

1 7 shared libraries? 

18 A. There are fundamental differences, yes. 

19 Q. Okay. What are the differences? 

2 0 A. I'm pausing to think about how to make 

21 it very simple. 

2 2 The most -- the biggest difference or 

Page 90 

1 the most salient difference is the use of the 

2 library preload. I referred to it earlier, 

3 LD _ Preload and Applnit_ DLL. The Trigence patent 

4 defines the use of these capabilities by and 

5 from an operating system so that a 

6 Trigence-specific library gets loaded 

7 independent of the application or in addition to 

8 the libraries required by the application. And 

9 these function overlays I referred to earlier 

1 O are used a lot. It's the foundation to the way 

11 that technology is defined. 

12 This is not used in zones. Zones did 

13 not do any of that. Where they required, for 

14 example, different -- where they required, for 

15 example, specific behavior for one zone versus 

16 another zone, they were able to rely on kernel 

1 7 internals in Solaris do that. Trigence AE is 

18 not able to do that and therefore would rely on 

19 preload and function overlays in order to 

2 O accomplish those kinds of things. 

21 Q. Okay. 

22 A. Really big difference. There are 

I 

Page 91 

1 others, but that's the biggest. 

2 Q. And do you know if the claims of the 

3 '058 patent reflect that difference? 

4 MR. TONG: Objection. Daubert. Calls 

5 for a legal conclusion. 

6 THE WITNESS: When I reviewed the 

7 patents in preparation for this discussion, I 

8 did not look at the claims. I don't -- I 

9 couldn't answer that effectively right now. 

1 o MR. ANAPOL: All right. So I'm almost 

11 done. I probably have a couple more questions, 

12 but I want to give you an opportunity to take a 

13 lunch break if you want one. 

14 THE WITNESS: If it's okay with 

15 everybody else, I'd rather just finish. 

16 MR. ANAPOL: Okay. All right. 

1 7 THE WITNESS: If everybody else is 

18 okay. 

19 MR. ANAPOL: We've been going about an 

2 O hour. So, Audra, do you want to do five minutes 

21 or ten minutes for a break? 

22 We'll do a ten-minute break. I'll have 

Page 92 

1 a few questions to wrap up. Mr. Tong might have 

2 some questions after that, but hopefully we can 

3 just wrap this up before you need to eat lunch. 

4 THE WITNESS: Thank you. 

5 THE VIDEOGRAPHER: Okay. Going off the 

6 record. The time is 12:59. 

7 (Recess taken.) 

8 THE VIDEOGRAPHER: We are back on the 

9 record. The time is 1: 10. 

10 BY MR. ANAPOL: 

11 Q. Okay. So before the break, we were 

12 talking about Solaris zones. 

13 Do you remember that? 

14 A. Yes. 

15 Q. And so, as you sit here today, are you 

16 able to identify any difference between the 

1 7 claims of the '058 patent and what was in 

18 Solaris zones? 

19 MR. TONG: Objection. Calls for a 

2 O legal conclusion. Daubert. 

21 THE WITNESS: I would have a difficult 

2 2 time being specific about claims because, as I 

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1 said, I didn't review the claims. I can -- I am 

2 comfortable with differences in technology or 

3 differences in implementation, but the specific 

4 claims I would have to -- I couldn't answer 

5 right now. 

6 BY MR. ANAPOL: 

7 Q. So when we go back to the court, just 

8 so you understand, there's going to be some 

9 briefing where we explain, you know, our 

10 position and the other side's position, and when 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

1 

we are describing to the court what happened 

here, I want to be able to tell the court 

whether you're what we call a willing witness or 

an unwilling witness. 

So an unwilling witness would be 

someone who is only going to come if they're 

subject to subpoena that requires them to come 

to the trial, and a willing witness is someone 

who would come willingly even if they're not 

compelled to come. 

And so would you put yourself in the 

willing or unwilling category? 

Page 94 

A. In all honesty, I would put myself in 

2 the unwilling category. 

3 Q. Okay. And then I just wanted to back 

4 briefly to the Docker issue. 

5 A. Okay. 

6 Q. So you used Docker and containerd at 

7 four different companies; right? 

8 A. Correct. 

9 Q. And you are the named inventor on both 

10 the '814 patent and the '058 patent; correct? 

11 A. Yes. 

12 Q. The first named inventor. 

13 A. Yes. 

14 Q. And it never occurred to you at any of 

15 those four companies that your company needed a 

16 license from Trigence or VirtaMove to use Docker 

1 7 or containerd? 

18 

19 

20 

MR. TONG: Objection --

THE WITNESS: It never occurred to me. 

MR. TONG: -- leading. 

21 THE WITNESS: It never occurred to me, 

22 no. 

I 

! 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

Page 95 

BY MR. ANAPOL: 

Q. Do you think now that Cribl needs a 

license to the '814 or '058 patent to use Docker 

and containerd. 

MR. TONG: Objection --

THE WITNESS: Absolutely not. 

MR. TONG: -- leading. Calls for a 

legal conclusion. 

THE WITNESS: I'm sorry. I keep doing 

that. 

Absolutely not, no. 

MR. ANAPOL: No further questions. 

EXAMINATION 

BYMR. TONG: 

Q. Mr. Rochette, it'll be my turn to ask a 

few more questions. 

A. Okay. 

Q. First of all, I want to thank you for 

your time here today. 

In preparation for this deposition, 

have you been in communication with Amazon or 

Page 96 

1 its counsel? 

2 A. I spoke with Mr. Anapol very briefly to 

3 clarify whether or not -- to clarify what I 

4 needed to be prepared -- what I needed to bring 

5 in; if there was any response that was required 

6 that was -- yep. 

7 So I had one conversation on the phone 

8 just to make sure I was doing what I was 

9 supposed to be doing. 

1 0 Q. Did you speak with anyone else other 

11 than Mr. Jeremy Anapol? 

12 A. No. 

13 Q. About how long did you speak with 

14 Mr. Anapol? 

15 A. Oh, I think the conversation might have 

1 6 lasted ten, fifteen minutes is all. 

1 7 Q. Did you speak with any other lawyers 

18 from other firms? 

19 

20 

A. No. 

Q. Okay. And did you try and retain your 

21 own attorney to defend you in this deposition? 

22 A. No. 

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1 Q. Did Amazon offer you any type of 

2 compensation or paid role as a consultant? 

3 A. No. 

4 Q. Did you have any email exchanges either 

5 with Amazon or its attorneys or other 

6 representatives? 

7 A. The only email I've had is a 

8 clarification of which Zoom I could use. 

9 Q. Did -- on your -- when you had that 

1 O discussion with Mr. Anapol, what topics did he 

11 tell you to be prepared about? 

12 A. He explained that there was a -- I 

13 think he described it as a motion before the 

14 court about change of venue, and he explained 

1 5 why they were doing that. 

16 He explained that this was in reference 

1 7 to the two patents, making sure that I was 

18 comfortable with what those patents were. 

1 9 And, yeah, that's about it. 

2 O Q. Did he discuss any lines of questioning 

21 with you? 

22 A. No. 

I 

1 And as you know, Peter, he was subject 

2 to subpoena, so he was required by law to 

3 attend. 

4 MR. TONG: Okay. No speaking 

5 objections, please. 

6 MR. ANAPOL: You can answer, 

7 Mr. Rochette. 

8 THE WITNESS: I was required by law to 

9 attend based on federal subpoena, yeah. 

1 o BY MR. TONG: 

11 Q. So you recall what you said was you 

12 speaking with Mr. Nigel Stokes? 

13 A. Yeah. 

14 Q. That was through Linkedln; right? 

1 5 A. Correct. 

16 Q. Okay. It wasn't actual speaking, like, 

1 7 by telephone, was it? 

18 A. Yes, we had a phone conversation. He 

! 1 9 contacted me over Linkedln, he asked for 

I 2 O permission to call me, and we had a -- we had a 

I ~ ~ :~=~:;s::i::~versation, a brief telephone 

I -··--· ~--------~---------~----;,--------------------~---1 

Page 98 

1 Q. Did he talk about how you should answer 

2 any of the questions that he was going to ask 

3 today? 

4 A. No. He was very careful to say just be 

5 honest and answer to the best of your ability. 

6 That was my recollection. 

7 Q. Did you have any communications with 

8 Amazon today during the breaks in this 

9 deposition, either Amazon or its 

10 representatives, like Mr. Jeremy Anapol? 

11 A. No. 

12 Q. Did you read the patents in preparation 

13 for this deposition? 

14 A. Yes. Like I said, I did not read over 

15 the claims, but I did read over the patents, 

16 yes. 

1 7 Q. If you didn't want to be involved with 

18 this lawsuit, why did you prepare for this 

19 deposition and agree to, you know, so willingly 

2 O join us today? 

21 MR. ANAPOL: Objection. Argumentative. 

2 2 And mischaracterizes testimony. 

Page 100 

1 Q. Okay. And during that conversation, 

2 you generally expressed that you did not want to 

3 be involved with this case; correct? 

4 A That is correct. 

5 MR. ANAPOL: Objection. Leading. 

6 BY MR. TONG: 

7 Q. And so today you heard me object 

8 several times that this deposition is supposed 

9 to be limited to venue facts. 

1 O Do you remember that? 

11 A I do recall you saying that, yes. 

12 Q. Why did you keep answering questions 

13 after that objection? 

14 A Because I was told -- informed by other 

15 counsel that I was required to answer it. 

16 Q. And was that Mr. Anapol --

17 A Yes. 

18 Q. -- who informed you of that? 

19 A Yes. 

20 Q. Did he tell you that you had to 

21 cooperate with him other than by showing up at 

22 this deposition today? 

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1 

2 

A. I don't understand that question. 

Q. Did he tell you that the subpoena 

3 required you to cooperate with him in any other 

4 way outside of this deposition? 

5 A. No. 

6 Q. Does Amazon represent you in any 

7 capacity? 

8 A. No. 

9 Q. Does Mr. Jeremy Anapol represent you --

1 O or any other member of his law firm, Knobbe 

11 Martens, represent you in any capacity? 

12 A. No. 

13 Q. If you recall, earlier today we looked 

14 at the '814 patent, and--

15 A. Yes. 

16 Q. -- you said it was generally related to 

1 7 containers. 

18 A. Yes. 

19 Q. At a high level, what was it about the 

2 0 use of containers that you thought was inventive 

21 and worth filing a patent on? 

2 2 A. The ability to create separate 

Page 102 

1 application environments or environments for 

2 applications to run in Windows and Linux. 

3 Q. And you thought that was inventive at 

4 the time you came up with it; right? 

5 A. Yes. 

6 Q. Did OnCore do that already by the time 

7 that you had filed the application for the 

8 '814 patent? 

9 A. Not -- they're not the same. OnCore 

1 O created -- they used the term "container." You 

11 saw what was displayed earlier. They used the 

12 term "virtual containers," and they are; they're 

13 virtual containers. But they're very different. 

14 They are -- the intent of what On Core 

15 did was to create priority preemptable, embedded 

16 applications running side by side with Linux. 

1 7 What this patent describes is very different 

18 from that. 

19 Q. Could you elaborate a little bit more 

2 0 on what this patent describes that is very 

21 different from the virtual containers of On Core. 

2 2 A. The '814 patent describes an ability to 

I 

Page 103 

1 utilize library preloads, function overlays in 

2 order to support a environment in which 

3 applications with run in secure containers, in 

4 separate containers that the OnCore technology 

5 did not use library preload or function overlays 

6 at all. 

7 

8 

Q. Thanks. 

By the time you had filed the 

9 '814 patent, do you think the technology was --

10 of the '814 patent--was that different from 

11 what Solaris zones was doing at the time? 

12 A. Yes, it was different. And the way in 

13 which it was implemented was different, and 

14 the -- much of the features were different. 

15 But, yeah, there were differences. 

1 6 The primary difference is the 

1 7 technology defined in the '814 patent could be 

18 used outside of Solaris. Zones is specific to 

19 Solaris. 

2 0 Q. Other than that the technology of 

21 Solaris zones was specific to Solaris, were 

2 2 there any other ways that zones and the 

Page 104 

1 technology of the '814 patent were different? 

2 A. Well, the fundamental design was vastly 

3 different. The architecture was vastly 

4 different. 

5 I feel like I'm repeating myself, but 

6 zones relied on specific Unix commands and 

7 modifications to the kernel in Solaris in order 

8 to implement those containers. What's defined 

9 in the '814 patent does not rely on changes to 

1 O the kernel and does not rely on specific Unix 

11 commands to implement these -- the containers 

12 that are described. 

13 Q. And that would have been -- modifying 

14 the kernel in something like Solaris, that would 

15 be very difficult to do for an average 

16 programmer if that programmer did not have 

1 7 access to the Solaris kernel source code; 

18 correct? 

19 

20 

MR. ANAPOL: Leading. 

THE WITNESS: It would be very 

21 difficult. Virtually impossible. 

22 

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1 BY MR. TONG: 

2 Q. My previous question asked you about 

3 the difference between the '814 patent and the 

4 virtual containers of On Core. 

5 Did those differences exist at the time 

6 that you had filed the provisional applications 

7 that the '814 patent claims priority to? 

8 A. I'm sorry. Make sure I understand your 

9 question. 

10 Did the differences between what the 

11 OnCore technology defined and what's defined in 

12 the '814 patent exist at the time the 

13 provisional was submitted? 

14 Yes, those differences did exist at 

15 that timing. 

16 Q. And similar question for Solaris zones: 

1 7 Did the differences between Solaris zones and 

18 the technology of the '814 patent exist at the 

19 time that you filed the provisional applications 

2 0 that led to the '814 patent? 

21 A. As I stated earlier, I don't recall the 

2 2 timing when zones were announced and released 

I 

1 Q. Initially were they skeptical when you 

2 denied accessing Solaris source code? 

3 A. I suppose they were. 

4 Q. And you had to more or less convince 

5 them and dissolve that skepticism through lots 

6 of details and discussions of how Trigence AE 

7 worked; correct? 

8 A. Yes. 

9 MR. ANAPOL: Objection. Leading. 

1 o BY MR. TONG: 

11 Q. So when you were talking with 

12 Mr. Anapol, you had said that at your previous 

13 job at On Core you only very loosely worked on 

14 containers. 

15 Do you remember using the words "very 

16 loosely" in an answer? 

17 A. Yes. 

18 Q. What did you mean by you only very 

! 19 loosely worked on containers? 

I 2 O A. The use of the term "containers" has 

I 21 taken on today -- in today's understanding of 

2 2 the technology has taken on a fairly specific 

I -··--· ~--------~---------~----;,--------------------~---1 

Page 106 

1 relative to the provisional patent application. 

2 I don't recall the timing of that. It was 

3 close. 

4 Q. So earlier you had discussed a meeting 

5 with the folks at Solaris zones. 

6 Do you remember discussing that 

7 meeting? 

8 A. Yes. 

9 Q. And initially they thought that you or 

1 O someone else had gained access to the zone 

11 source code? 

12 A. That was their impression when we went 

13 into the meeting, correct. 

14 Q. Okay. And then you explained to them 

15 that you had, in fact -- well, what did you 

16 explain to them in response to that accusation? 

1 7 A. We explained in a lot detail how 

18 Trigence AE worked, why it worked, what we did, 

19 how to make it work, and they were able to see 

2 O in that discussion and whiteboarding that what 

21 we were doing was able to be accomplished 

2 2 without access to Solaris internals. 

Page 108 

1 and well-understood understanding of what that 

2 means. 

3 When the OnCore work was done, there 

4 was not such an understanding of what 

5 "containers" mean. It was a new kind of topic, 

6 and there was not a common understanding of it, 

7 and so we could -- the website and marketing 

8 people and salespeople could use the term 

9 "containers," and it was acceptable. 

10 And so that's what I mean by a loose --

11 use of the word "containers," you would not be 

12 able to do that. It would -- you would not be 

13 able to use that term today for what OnCore is 

14 doing or had -- did do. That's what I was 

15 trying to imply. 

16 Q. Okay. How was OnCore using the term 

1 7 "containers" back then? 

18 A. OnCore would take a microkemel, would 

19 deploy embedded real-time applications using 

2 0 that microkemel and, in parallel with that, 

21 would employ Unix or Linux in an application. 

22 So a real-time application would be running as a 

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1 peer to all of Unix. 

2 And so the term "container" would be 

3 used to describe the real-time application 

4 running as well as Unix as an application, and 

5 all of the applications on top of Unix would 

6 be -- that's how they -- the term "container" --

7 "virtual container" was used in the OnCore 

8 context. 

9 Q. When you were at OnCore, did you ever 

1 O use the word "docking" or "docker"? 

11 A. I don't recall the use of that term in 

12 the OnCore context. 

13 Q. Before you filed either of the '058 or 

14 '814 patents at issue in this case, did you hear 

15 anyone else use the word "docking" or "docker"? 

16 MR. ANAPOL: Objection. Vague. 

1 7 THE WITNESS: I don't recall whether or 

18 not "docker" was a commonly used -- at the time 

1 9 that was used. I don't recall. 

2 O MR. TONG: Let's tum to the 

21 '058 patent for a little bit. 

22 Could we please put Mr. Rochette back 

Page 110 

1 in the main window? 

2 THE VIDEOGRAPHER: Do you not want me 

3 to share? 

4 

5 

MR. TONG: No, it's not necessary. 

Q. So earlier do you remember discussing 

6 how this patent related to shared libraries? 

7 A. Yes. 

8 Q. Now, you're not claiming to be the 

9 inventor of shared libraries; correct? 

1 O A. That is correct. 

11 Q. The '058 patent covers and discloses 

12 more than just the use of a shared library by 

13 itself; correct? 

14 A. That is correct. 

15 Q. Okay. So what did you think was 

16 inventive about the use of shared libraries in 

1 7 the '058 patent? 

18 A. A number of things. The biggest thing 

19 was the ability to implement things that were at 

2 O the time only implemented in the kernel. So you 

21 could, for example, provide an application that 

2 2 required an older version of Windows. Say 

I 

Page 111 

1 something ran on Windows 8; you could run it on 

2 Windows 10. 

3 The -- it would be required that that 

4 application get specific files and libraries 

5 used only by Windows 8 that not are not 

6 available on Windows 10. So you had to ensure, 

7 when a file was opened, that you were able to 

8 use these shared library techniques in order to 

9 open the file related to that application --

1 O required by that application, not the file 

11 provided by the operating system. 

12 Another example of that would be an 

13 ability to have an application use an IP address 

14 specific to that application or container which 

15 is separate from other IP addresses. So you had 

16 to again use code in these shared libraries in 

1 7 order to basically ensure that the application 

18 thought it had one IP address. 

And that's where that whole use of the 

Page 112 

1 be available in a kernel and putting that into 

2 libraries that you caused that application to 

3 use. 

4 Q. So you said that that was the biggest 

5 thing. 

6 Were there any other inventive concepts 

7 related to the '058 patent that you felt like 

8 you had invented? 

9 A. Well, the ability to do --

1 o MR. ANAPOL: Objection. Calls for --

11 sorry. Sorry, Mr. Rochette. 

12 Calls for a legal conclusion. 

13 Go ahead. 

14 THE WITNESS: The ability to do any of 

15 these things we've been discussing in a Windows 

16 context at the time was very inventive. There 

1 7 was no way to do any of this in Windows without 

18 what was described at the time in these 

19 technologies. 

2 o BY MR. TONG: 

21 Q. Let's talk for a minute about possibly 

2 2 conflicting libraries. 

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THE VIDEOGRAPHER: Oh, 1012. My bad. 

MR. TONG: Yeah. 

1 If I had an application running in an 

2 old operating system that needed to use a 

3 particular library file called, let's say, ABC, 

4 and I moved that application to a newer 

5 operating system: What was the solution to 

6 allow the moved application to still use the 

7 library file ABC from the old operating system 

8 rather than having it look at ABC from the new 

9 operating system? 

10 MR. ANAPOL: Okay. Mr. Rochette, 

11 before you start, I have a couple objections, so 

12 I don't want to interrupt you. 

13 Calls for opinion. Outside the scope. 

14 Lacks foundation. Incomplete hypothetical. 

15 Go ahead. 

16 THE WITNESS: The way it works is you 

1 7 would use Appinit_ DLL or LD _Preload to load a 

18 library that -- again, as I described earlier, 

19 that would have an effect on the namespace. 

2 O So when the application opened ABC 

21 library, the function overlay would cause the 

2 2 open to actually be implemented in one of these 

I 

1 

2 

3 Q. Ifl recall, we had looked at page 114 

4 together. 

5 Mr. Rochette, do you remember looking 

6 at this? 

7 A. Yes. 

8 Q. Okay. Do you think that what you had 

9 described in the '058 patent is different from 

1 O what is being described in this paper titled 

11 "Shared Libraries in SunOS"? 

12 MR. ANAPOL: Objection. Vague as to 

13 "what you had described in the '058 patent." 

14 THE WITNESS: Yeah, it's a very broad 

15 question. 

1 6 This is -- this paper is describing 

1 7 what your libraries are and the use of shared 

18 libraries and examples of how to use them. As 

! 19 you previously pointed out, the '058 patent is 

I

I 2 O not claiming, you know, the invention of shared 

21 libraries. I 2 2 It is using shared libraries and the 

-··--· ~--------~---------~.......;,--------------------~---! 

Page 114 

1 critical system libraries or the Trigence 

2 library. The Trigence library would go and look 

3 for a file by that name in container-specific 

4 sources, and if it found it, it would use that. 

5 Even -- and if it didn't find it, then it would 

6 fall back to use the one in the operating 

7 system. 

8 So if ABC -- if the library ABC existed 

9 in the container, it would use that instead of 

1 O the operating system one, and that's how 

11 versions of the older operating system code and 

12 configuration data would be utilized by the 

13 application. 

14 MR. TONG: Could we tum back, please, 

15 to page -- Exhibit 1012. 

16 THE VIDEOGRAPHER: Do you want me to 

1 7 share this time? 

18 MR. TONG: Yes, please do. 

19 THE VIDEOGRAPHER: Okay. I'm sorry 

2 O which page? 

21 MR. TONG: Exhibit 1012. I think this 

22 was the --

Page 116 

1 way in which shared libraries are utilized and 

2 the dynamic loader in order to accomplish 

3 these -- you know, in order to accomplish 

4 certain things, but it's not changing what 

5 shared libraries are or how they're loaded or 

6 anything like that. So it's making use of what 

7 your libraries are and how they are used. 

8 I'm not -- am I answering the question? 

9 Is that -- I don't --

1 o BY MR. TONG: 

11 

12 

Q. You are. Thank you very much. 

A. Okay. 

13 Q. And what was the command to -- that you 

14 had mentioned earlier, I think you said to 

15 preload a library? 

16 A. To preload a library, you used a 

1 7 function in the operating -- in Unix operating 

18 systems you used a command called LD _Preload. 

1 9 In Windows you used a feature called 

20 Appinit_DLL. 

21 Q. And in the '058 patent you're not 

2 2 claiming to invent a preload command; correct? 

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A. That is correct. We're utilizing a '.I 

2 preload command to accomplish what's described. ; 

1 

3 Q. Thank you. 

4 By the time you had filed the 

5 provisional applications that led to the 

6 '058 patent, was OnCore doing -- or performing 

7 the technology that was described in the 

8 '058 patent? 

9 MR. ANAPOL: Objection. Vague as to 

1 O "the technology described in the '058 patent." 

11 Vague as to time. And lacks foundation. 

12 THE WITNESS: Yeah, it's my 

13 understanding that OnCore was no longer a 

14 company. It was out of business by the time the 

15 provisionals were submitted for the '058 and 

16 '814. There was no OnCore. It was gone. 

17 BYMR. TONG: 

18 Q. At any time before the filing of the 

19 provisional patent that led to the '058 patent, 

2 O did OnCore perform the technology that you had 

21 described as being disclosed in the '058 patent? 

2 2 MR. ANAPOL: Foundation. 

Page 118 

1 THE WITNESS: Again, in the broadest 

2 use of the term "containers," it can be 

3 conceived that they were using containers. But 

4 there was nothing -- did not specifically, no. 

5 The specifics defined in both the '814 and '085 

6 patents are very different from what OnCore was 

7 doing, but in the broadest use of the term 

8 "containers," they both had containers. 

9 BY MR. TONG: 

1 O Q. And similar question for Solaris zones: 

11 At any time before the filing of the provisional 

12 patent that led to the '058 patent, did Solaris 

13 zones perform the technology that you had 

14 described as being disclosed in the '058 patent? 

15 A. Again, there's two parts to that 

16 answer, ifl understand the question correctly. 

1 7 No. 1, I don't recall the timing. As 

18 I've said, I don't -- I just don't recall when 

1 9 zones were announced and published relative to 

2 O when the patents were -- when the provisionals 

21 were submitted. I just don't recall, No. 1. 

22 No. 2, there are -- there's similar --

Page 119 

1 both zones and the '814 patent define 

2 "containers." There are very fundamental 

3 differences in how that's accomplished. 

4 Q. Do you remember identifying two people 

5 that you had -- sorry. Strike that. 

6 So you had mentioned talking to several 

7 people who worked for Solaris zones at a 

8 meeting. 

9 Do you know where those people live 

10 today? 

11 

12 

A. No. Not today, no. 

Q. Not even generally in terms of a city 

13 or state? 

14 

15 

A. No. I'm not aware. 

Q. And I think you had mentioned talking 

16 to John Beck and David Comay, or at least that 

1 7 you recognized their names. 

18 A. Yes. 

19 Q. Do you know what city or state they 

2 O live in today? 

21 A. No, I do not. 

22 Q. We had talked about interposition 

Page 120 

1 earlier. 

2 A. Yes. 

3 Q. Do you remember that? 

4 A. Yes. 

5 Q. And you described interposition as 

6 "functionally the same as a function overlay." 

7 What did you mean by "functionally the 

8 same"? 

9 A. It's my personal understanding; right? 

1 0 So, I mean, other people can have their 

11 own view of it, but they are accomplishing the 

12 same thing. There are a couple different ways 

13 in which it can be accomplished, but they are 

14 doing the same thing. 

15 

16 

Q. So what's different? 

A. Well, again, they're doing the same 

1 7 thing. You can -- you can cause that behavior 

18 to be accomplished in a couple different ways. 

19 The paper from Australia showed one way. 

2 0 LD _Preload is another example of doing that. 

21 The end result is the same where --

2 2 when an application is running and it makes a 

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1 call to a function, you are causing that call to 

2 be resolved by -- in a library that you have 

3 caused to be loaded instead of the system 

4 library; right? 

5 So in the example of Read, you load a 

6 library that implements Read, and you cause the 

7 loader to load that library either by linking 

8 directly to it or using LD _Preload when that --

9 there's also a function called Read in the 

1 0 system library called libc. And without the 

11 function overlay, without the interposition, 

12 when the application calls Read, it will call a 

13 function in libc. 

14 However, with interposition/function 

15 overlay what you've done is you've caused that 

1 6 application to call a function called Read in 

1 7 the library that you've specified and not in 

18 libc. 

1 9 Q. What was the primary use case for 

2 O preload at the time of, say, 2002? 

21 A. One --

22 MR. ANAPOL: Foundation --

1 

2 

3 

Page 122 

THE WITNESS: Oh, sorry. Go ahead. 

MR. ANAPOL: Foundation and vague. 

THE WITNESS: There are multiple. 

4 No. 1, you are using preload to cause a 

5 library to be loaded that wouldn't otherwise be 

6 loaded. 

7 No. 2, you are causing -- you are 

8 enabling, by the act of loading that library, 

9 interposition/function overlay. You are then 

1 O using function overlay to accomplish direction 

11 of files to the container, specific IP addresses 

12 and things of that nature that are described in 

13 the invention. 

14 BY MR. TONG: 

15 Q. To be clear, in 2002 are you aware of 

16 others who used function overlay in the context 

1 7 of containers and things of that nature as 

18 described in the invention, or was that -- or 

19 were you just -- sorry. Let me rephrase that. 

2 O My question was what was the primary 

21 use case for preload in the time of, say, 2002. 

2 2 The part of your answer, which was, you 're then 

I 

Page 123 

1 using function overlay to accomplish direction 

2 of files to the container-specific IP addresses 

3 and things of that nature. 

4 Was that part of your answer to 

5 something that was a primary use case for 

6 preload in 2002? 

7 A. To the best of my understanding, there 

8 were examples ofpreload being used in 2002. 

9 You could -- you could find a number of 

10 examples. 

11 To the best of my understanding, there 

12 were not examples of pre load being used to 

13 redirect files and accomplish the networking 

14 things. It wasn't used in that nature or in 

15 that scope, to the best of my recollection. 

16 Q. Okay. 

1 7 A. You see the difference I'm trying to 

18 say? 

19 LD _Preload -- preload was being used, 

2 0 and there are -- there were examples of it, but 

21 not in the context of creating a container-type 

2 2 environment --

1 

2 

3 

Page 124 

Q. Got it. 

A. -- is my recollection. 

Q. Okay. Thank you for clarifying. 

4 So do you remember talking about how 

5 Unix applications were separated and could not 

6 affect each other in the context of containers? 

7 

8 

A. Yes, generally. 

Q. What did you mean by the part of your 

9 answer that applications running Unix were not 

1 O separated and could affect each other? 

11 A. Without any containers, applications 

12 running in Unix can affect other applications by 

13 the -- well, one of the simplest examples is 

14 Application A comes up and uses the system IP 

15 address and binds Port No. 1000 to that. 

16 Application B comes up, wants to do the same 

1 7 thing and is not able to -- it will receive an 

18 error and will crash because that IP number is 

19 port number is already in use. 

2 O So you've got Unix Application A 

21 causing application Unix Application B not to be 

2 2 able to proceed because of the way it uses 

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1 networking. It's a very simple example. '.1 

2 Q. And-- ; 

3 A. That would be one Unix behavior, you 

4 know. 

5 Q. And is that conflict of port number 

6 something that was solved by the technology in 

7 either the '814 patent or the '058 patent? 

8 A. Yes. 

9 MR. ANAPOL: Objection. Vague as to 

1 O the patent and vague as to the technology. 

11 THE WITNESS: Sorry. 

12 BYMR. TONG: 

13 Q. Which of those patents solved this type 

14 of port conflict number? 

15 A. It's described in the '814 patent. 

16 Q. When you spoke with Mr. Anapol, did he 

1 7 inform you that Amazon was a defendant in this 

18 case, accused of patent infringement? 

19 A. Actually, I don't recall there being a 

2 O discussion of that. 

21 It was very clear to me from the 

2 2 summons I received that that was the case. I 

Page 126 

1 don't recall talking with Mr. Anapol about 

2 anything like that. 

3 Q. Did Mr. Anapol tell you that Amazon 

4 intends to pursue a defense in this case that 

5 your patents are, in fact, invalid? 

6 A. No, that was not described to me. 

7 Q. Do you think that either of your '814 

8 or '058 patent are invalid? 

9 A. That would not be for me to comment. 

1 O I'm not a -- I'm -- I'm not -- I have nothing to 

11 do with the patent, you know, organization. I'm 

12 not a reviewer. I... 

13 Q. You are an inventor, though; right? 

14 A. I am an inventor, yes. 

15 Q. And at the time that you filed for your 

16 patent applications, for both of those, you 

1 7 thought that they were, in fact, true inventions 

18 in the sense of the -- in the common of the word 

19 "invention"; correct? 

20 MR. ANAPOL: Objection. Leading. 

21 Objection. Vague. Objection to the extent it 

2 2 calls for a legal conclusion. 

Page 127 

1 THE WITNESS: Obviously we -- when we 

2 submitted the patent, we thought that it was 

3 inventive, or we wouldn't have submitted it. 

4 BY MR. TONG: 

5 Q. And has your opinion changed since the 

6 day you had filed the application? 

7 MR. ANAPOL: Objection. Legal 

8 conclusion. Lacks foundation. 

9 THE WITNESS: Well --

1 O MR. ANAPOL: And to the extent it calls 

11 for expert opinion. 

12 THE WITNESS: Yeah, I mean, it-- I'd 

13 have to -- I can only give you an opinion. 

14 I mean, there are -- at the time the 

15 biggest advantage was use of this kind of 

16 containerization in Windows and open source 

1 7 Linux kinds of things because it wasn't 

18 available at the time. Today there are lots of 

19 better solutions. 

2 O BY MR. TONG: 

21 Q. If Amazon were to attempt to invalidate 

2 2 your patents at trial and to argue that what you 

Page 128 

1 filed for is not really an invention, would you 

2 be willing to show up and testify on the stand 

3 and defend the validity and the integrity of 

4 your status as an inventor? 

5 A Does it change the status of my -- no. 

6 The answer is no. I don't have -- I do not feel 

7 the need to defend the work we did or defend 

8 this patent. I don't feel the need to do that, 

9 and I would not do that unless I wasn't given 

1 0 any option. 

11 Q. Okay. And is that because you're 

12 comfortable knowing that you are, in fact, an 

13 inventor and there's no one you need to prove 

14 that to? 

15 MR. ANAPOL: Objection. Leading. 

16 THE WITNESS: Yeah, I don't need to 

1 7 prove myself to anybody. I'm very comfortable 

18 with what I've accomplished and what these 

1 9 things -- they are what they are, and ... 

20 MR. TONG: And could we -- we've been 

21 going for a little bit could we take a short 

2 2 maybe five- or ten-minute break, and then I'll 

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1 wrapup? 

2 THE WITNESS: Yeah, fine by me. 

3 MR. TONG: Okay. Thanks. 

4 MR. ANAPOL: Let's go off the record, 

5 and then I want to talk about the break. 

6 THE VIDEOGRAPHER: Going off the 

7 record. The time is 1 :58. 

8 (Recess taken.) 

9 THE VIDEOGRAPHER: We are back on the 

1 0 record. The time is 2:06. 

11 BY MR. TONG: 

12 Q. Thank you, Mr. Rochette. I have just 

13 five more lines of questioning. They should 

14 hopefully all be short. 

15 The first one, again, relates to your 

16 willingness to attend trial. It's possible that 

1 7 Amazon may raise a defense and say that you had, 

18 in fact, committed fraud upon the patent office 

19 because you should have told the patent office 

2 O about your work at On Core or your knowledge of 

21 Solaris zones. 

2 2 If Amazon tried to accuse you of fraud 

Page 130 

1 at this trial, would you in that case be willing 

2 to show up and defend yourself? 

3 MR. ANAPOL: Objection. Lacks 

4 foundation. Amazon hasn't done that. Calls for 

5 speculation. 

6 THE WITNESS: No. I have no -- they 

7 can -- once again, I don't feel the need to 

8 defend myself. It is what it is. I -- and ... 

9 BY MR. TONG: 

1 O Q. Thanks. 

11 Are you proud of being an inventor on 

12 these patents? 

13 A. I feel like we did good work, yeah, 

14 that was needed at the time. 

15 Q. For--

16 MR. ANAPOL: Outside the -- sorry. 

1 7 Outside the scope. 

18 BY MR. TONG: 

1 9 Q. Are you a lawyer or do you have any 

2 O type oflaw degree? 

21 A. No. 

2 2 Q. Are you aware of any orders from the 

I 

Page 131 

1 court designating you as an expert in this case? 

2 A. No. 

3 Q. Can you confirm that you have not 

4 received any claim constructions for either the 

5 '814 or '058 patent from the court? 

6 A. What did you describe it as? Claim 

7 what? 

8 Q. Claim constructions. 

9 I take it from your question that you 

1 O haven't received any from the court; is that 

11 correct? 

12 A. No. I don't even know what it is. 

13 Q. From the '814 patent, which is titled 

14 "System for Containerization of Application 

15 Sets," could you please look into the camera, 

1 6 and -- assuming that this may get shown to the 

1 7 judge or jury if we're unable to call you at 

18 trial because you 're not willing to attend, and 

1 9 if this is the only thing that the jury hears 

2 O from you about the '814 patent, what would you 

21 say to the jury about why the '814 patent was a 

2 2 new and inventive technology at the time that 

Page 132 

1 you had filed it? 

2 MR. ANAPOL: Objection. Outside the 

3 scope. Lacks foundation. Assumes facts not in 

4 evidence and calls for speculation. 

5 THE WITNESS: At the time that this 

6 was -- these applications were submitted, there 

7 was no generally accepted definition of what 

8 containers are. You have to put yourself back 

9 in the -- back in time. Today containers are 

1 0 well understood and are everywhere, and at the 

11 time there was nothing like that. 

12 Very close to the time that this came 

13 out -- again, as I've said many times, I don't 

14 know the exact timing -- Solaris had a version 

15 that did something similar that was specific to 

1 6 the Solaris operating system. You could not do 

1 7 what this -- these patents describe on Linux or 

18 Unix or Windows. And so in particular on 

19 Windows, it was a -- it was a solution. It was 

2 0 a way to create a form of container capability 

21 that was not present at the time. 

22 So if you look at things now, you 

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1 can -- you know, it's a very different world, '.I 

2 but at the time, particularly on Windows, you ; 

1 I'll also reiterate that it really had 

2 nothing to do with OnCore. What OnCore was 

3 doing was very different. Despite the broad use 

4 of the term "container," they're not the same. 

3 couldn't do anything like this. 

4 And one of the things that was thought 

5 to be quite useful and inventive was an ability 

6 to run older versions of an application on newer 

7 versions of an operating system. So companies 

8 could upgrade their systems, get requisite 

9 security updates and stuff that came with newer 

1 O operating systems and also be able to continue 

11 running those old applications without having to 

12 rebuild and recertify, all kinds of things like 

13 that. It was -- for Windows and Unix, Linux, it 

14 was helpful and useful. 

15 BY MR. TONG: 

16 

17 

Q. Thank you. 

And you already somewhat started to 

18 answer my next question, but, again, if you just 

19 had one chance to say something to the judge or 

2 O jury about why the invention in the '814 patent 

21 was valuable and worth patenting, what would you 

2 2 say to the jury? 

5 BY MR. TONG: 

6 Q. Okay. Thank you. 

7 Next two questions are going to be 

8 about the '058 patent. 

9 So for the '058 patent, which is titled 

1 O "Computing System Having User Mode Critical 

11 System Elements As Shared Libraries," if you 

12 could only have one chance to say something to 

13 the jury about why the invention in this patent 

14 is, in fact, new and inventive, what would you 

15 tell the jury? 

16 

17 

MR. ANAPOL: Same objections. 

THE WITNESS: It was taking 

18 functionality that heretofore at the time of the 

! 19 invention was only available and only 

I

I 2 O implemented in protected kernel-space code. It 

21 wasn't moving it out of protected space. It I 2 2 wasn't copying it. It was performing 

-··------------------------;,------------------------1 

1 

Page 134 

MR. ANAPOL: Same objections. And 

2 vague as to "value." 

3 THE WITNESS: Well, again I would say 

4 that at the time that the provisionals were 

5 submitted, there wasn't the capability to do 

6 this in any way on Windows. Now, there might 

7 have been something that you could play with on 

8 Linux or something like that, but it wasn't --

9 it wasn't a full-feature product or capability, 

1 O and the use of interposition/function overlays 

11 in order to accomplish this was quite unique, 

12 quite inventive. 

13 As I outlined the discussion with the 

14 guys at Solaris, they didn't think it was 

15 possible. We sat down and went through, here's 

16 how we did it, and there's a whole community of 

1 7 people that went, oh, yeah, that's a -- that is 

18 different, that's unique, that's inventive and, 

19 you know, works well with Unix and Windows. So 

2 O I would say that at the time it was a valuable 

21 way to consider container techniques and 

2 2 capabilities. 

Page 136 

1 similar-type behaviors in user mode. That's the 

2 term "critical system elements." 

3 The -- maybe the simplest example is 

4 the use of Application A in one of these 

5 container environments could use an IP address; 

6 Application B could use a different IP address. 

7 With -- you could not do that without the 

8 capability in these function overlays and this 

9 interposition capability. The applications 

1 O would not function without an ability to manage 

11 these networking components. 

12 Same example with versions of the 

13 operating system; right? An older version of 

14 an -- an application that was running on an 

15 older version of the operating system could not, 

1 6 at the time that this was created, run on a 

1 7 newer version of the operating system because 

1 8 the libraries and other configuration files were 

1 9 not compatible. And so you -- this gave you the 

2 O ability to maintain compatibility. 

2 1 The big -- the important thing about 

2 2 this is it gave people in the data center the 

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1 ability to upgrade their operating system '.1 

2 without having to go back and recompile, ; 

3 recertify, rebuild, redeploy certain 

4 applications. 

5 Q. Thank you. 

6 And last question: For the '058 patent 

7 at the time of filing, if you had one chance to 

8 explain to the judge and jury why the invention 

9 was valuable, what would you tell them? 

1 0 MR. ANAPOL: Same objections. 

11 THE WITNESS: I think I would focus on 

12 the -- 1, the use of this in Windows. At the 

13 time this was filed, you could not do anything 

14 like this on Windows. 

15 No. 2, the ability to run older 

16 applications on new operating systems. At that 

1 7 time it was a pretty big deal. It's a very big 

18 deal. And if you think about, for example, 

1 9 security updates -- everybody knows about 

2 O security updates now. It's very important to be 

21 able to get a new version of the operating 

2 2 system apply updates to that which include all 

Page 138 

1 the security updates and stuff you need. When 

2 you do that, you break the older applications. 

3 So what is your option? Your option is 

4 to run with an older version of the operating 

5 system, to pay more licensing fees, to pay -- to 

6 run with relatively less secure environments. 

7 This technology, as defined in '058, 

8 would allow you to update those environments, 

9 provide consistency across your data center, get 

1 0 into a more secure environment, manage the 

11 number of licenses you have, and at the same 

12 time be able to continue to use the applications 

13 that have been around for a while. 

14 That is one of the major advantages 

15 that people saw with the technology as defined 

16 in '058. 

1 7 BY MR. TONG: 

1 8 Q. Thanks. Just one follow-up question. 

19 You said that was one of the major 

2 O advantages. 

21 Were there any other secondary or 

2 2 tertiary advantages? 

1 

2 

Page 139 

MR. ANAPOL: Same objections. 

THE WITNESS: The ability to get around 

3 the port number limitations was another -- was 

4 an advantage. The ability to use multiple IP 

5 addresses on the same environment that would 

6 otherwise be rather difficult to do are a couple 

7 of other examples. 

8 MR. TONG: All right. Thank you so 

9 much for your time, Mr. Rochette. 

10 Jeremy, I pass the witness. 

11 MR. ANAPOL: Thank you, Peter. 

12 

13 FURTHER EXAMINATION 

14 BY MR. ANAPOL: 

15 Q. So, Mr. Rochette, I just have a few 

16 follow-up questions related to what Mr. Tong 

1 7 asked you about. 

18 So he mentioned your conversation with 

1 9 Nigel Stokes. 

2 0 Do you remember that? 

21 A Yes. 

2 2 Q. When you worked at Trigence and 

Page 140 

1 developed the '058 and '814 patents, was 

2 Mr. Stokes there? 

3 A Not to my knowledge, no. Never spoke 

4 with -- no. 

5 Q. So when did Mr. Stokes become 

6 interested in these patents? 

7 A I don't know when. I just know that a 

8 couple months ago he reached out to me on 

9 Linkedln. 

10 Q. So Mr. Stokes had no interest in the 

11 patents at the time they were filed; correct? 

12 

13 

A That's my understanding. 

MR. TONG: Objection. Calls for 

14 speculation. 

15 BY MR. ANAPOL: 

16 Q. All right. Okay. And we talked 

1 7 earlier about the patent claims versus the rest 

18 of the patent. 

19 

20 

Do you remember that? 

A Yes. 

21 Q. Did you write the claims in either the 

22 '814 or the '058 patent? 

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1 A. They were written by a patent attorney, '.1 

2 notbyme. ; 

3 Q. And the testimony you gave today about 

4 differences between the patents and other 

5 technology we discussed, was that informed by 

6 the claims? 

7 

8 

A. No. 

Q. So it's possible that the lawyer who 

9 wrote the claims didn't capture the distinctions 

1 O that you discussed; is that right? 

11 A. I could only speculate, but -- yeah, I 

12 don't know. 

13 Q. Well, we don't want you to speculate, 

14 so let's talk about one of the things you 

15 identified. 

16 A. Okay. 

17 Q. You said that before the patents, there 

18 was some container capability on Solaris but not 

19 on Windows. 

2 O Do you remember that? 

21 A. Yes. 

2 2 MR. ANAPOL: Billy, can you pull up 

Page 142 

1 Exhibit 1010 and go to the claims, which are at 

2 the end of the patent, starting Column 17. And 

3 can you blow up Claim 1 for us. 

4 Q. So, Mr. Rochette, do you see anything 

5 in the claim that requires the invention to be 

6 implemented on Windows or Linux? 

7 MR. TONG: Objection. Calls for a 

8 legal conclusion, expert opinion. Daubert. 

9 Also outside the scope of venue discovery. 

1 O THE WITNESS: I don't think I've -- no. 

11 And I don't think I've represented that it 

12 required -- that anything in the patent is 

13 required to run on Windows. 

14 What I feel like I've been describing 

15 is it is able to run on Windows, and at the time 

16 that was a big enabler. It was also able to run 

1 7 on Windows and Linux. 

18 BY MR. ANAPOL: 

1 9 Q. And it was able to run on Solaris; 

2 O right? 

21 A. It was able to run on Solaris. 

2 2 Q. And nothing in the patent claim says 

Page 143 

1 we're only claiming the invention outside of 

2 Solaris; right? 

3 MR. TONG: Objection. Foundation. 

4 Scope. Calls for a legal conclusion, expert 

5 opinion. Daubert. 

6 THE WITNESS: To my understanding, 

7 there's nothing in this patent that says that it 

8 is limited to Solaris or -- that it's limited to 

9 any specific operating system. I don't --

1 O that's not my understanding. 

11 BY MR. ANAPOL: 

12 Q. Okay. Can you point to any language in 

13 this claim that reflects the idea that you are 

14 the first to do this type of container 

15 functionality on Windows or Linux? 

16 MR. TONG: Objection. Foundation. 

1 7 Scope. Calls for legal conclusions, expert 

18 opinion. Daubert. 

19 MR. ANAPOL: Okay. I'll withdraw the 

2 O question. 

21 Q. Did you look at the patent claims and 

22 compare them to Solaris zones or the OnCore 

Page 144 

1 operating system? 

2 A. No. Not in preparation for this and --

3 no. 

4 Q. Did--

5 A. I didn't look at the claims. I didn't 

6 read the claims. 

7 Q. Did you ever have a conversation with 

8 the patent attorney who wrote the claims to 

9 explain how OnCore operating system worked? 

1 O MR. TONG: Objection. Potentially 

11 privileged. 

12 Mr. Rochette, if you think your 

13 conversations with your attorneys are 

14 privileged, you absolutely do not have to answer 

15 this question. 

16 THE WITNESS: I don't --

17 MR. TONG: And, in fact, if you did 

18 this as part of your work for either App Zero or 

19 Trigence, you may not be able to waive privilege 

2 O at all. So I would suggest that you do not 

21 answer this question. 

22 THE WITNESS: Okay. 

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1 BY MR. ANAPOL: 1 about how it works and what the intent is and 

2 Q. Do you recall ever providing any 

3 documentation about the OnCore operating system 

4 to the patent attorney who answered these 

5 claims? 

6 MR. TONG: Same objection. You don't 

7 have to answer this question. 

8 Privileged. 

9 BY MR. ANAPOL: 

10 Q. You're free, Mr. Rochette, to, I guess, 

11 make your own decision here. Mr. Tong doesn't 

12 represent you. 

13 I'll caution you that to the extent you 

14 don't answer a question because Mr. Tong thinks 

15 it's privileged and later we show that it's not 

16 privileged, then we might have to have another 

1 7 deposition to have you answer the question. 

18 A. I had no conversations with anything --

19 about OnCore. No conversations about OnCore. 

2 O It is my understanding and belief that OnCore is 

21 very different than and umelated to these 

22 patents. 

I 2 things like that, but I don't -- I have -- I 

3 don't know what the claims are. 

4 BY MR. ANAPOL: 

5 Q. Okay. But you just testified that 

6 OnCore is different from the claims, so I'm just 

7 trying to understand the basis for that 

8 testimony. 

9 A. Okay. 

10 Q. But if you don't -- if that's not your 

11 opinion, then that's fine. I'm just trying to 

12 clarify. 

13 MR. TONG: Objection --

14 

15 

16 

THE WITNESS: OnCore is --

MR. TONG: -- asked and answered. 

THE WITNESS: OnCore is very different 

1 7 from any of this, from what's described in 

18 these -- for the way in which these patents 

! 19 work, OnCore is very different. It is -- it's 

I

I 2 O very, very different. 

21 BY MR. ANAPOL: 

2 2 Q. And when you say "the way in which 

I -··--· ~--------~---------~----;,--------------------~---! 

1 

Page 146 

Q. To the patent specification or to the 

2 claims? 

3 

4 

A. Both. 

Q. And how did you reach your conclusion 

5 that OnCore is different from the claims? 

6 A. OnCore is doing something extremely 

7 different. OnCore has nothing do with any 

8 function overlays, any preloading, any 

9 networking redirection. OnCore didn't do any of 

1 0 that at all. 

11 Q. So you just listed three things: 

12 function overlays, preloading and networking 

13 redirections. 

14 Can you point to me in Claim 1 where 

15 any of those three concepts are required? 

16 MR. TONG: Objection. Foundation. 

1 7 Calls for a legal conclusion. Calls for expert 

18 opinion. Daubert. 

19 THE WITNESS: Again, I haven't read the 

2 0 claims. I don't -- I don't feel capable 

21 representing the claims. I can tell you how the 

22 technology works. I can try to answer questions 

Page 148 

1 these patents work," are you talking about 

2 what's claimed or what is disclosed in the 

3 patents? 

4 A. What is disclosed in the patents. 

5 Again, I don't -- did not read the claims. I 

6 can't represent to you anything about the 

7 claims. I don't -- I didn't -- I don't -- I 

8 don't know about the claims. I didn't read 

9 them. 

1 0 Q. And your understanding is that those 

11 were written by an attorney and not by you; 

12 correct? 

13 

14 

A. That's true. 

MR. TONG: Objection. Asked and 

1 5 answered. 

16 BY MR. ANAPOL: 

17 Q. And your answer that you just gave 

18 about the claims and the fact that you haven't 

19 read them and didn't write them, is that also 

2 0 true of the '058 patent? 

21 A. Yes. 

2 2 Q. So whatever distinctions you pointed 

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1 out between the '058 patent and either OnCore or 

2 Solaris zones or other technology, that was by 

3 comparison to the disclosure and not the claims? 

4 MR. TONG: Objection. 

5 Mischaracterizes. 

6 THE WITNESS: The implementation -- if 

7 by "disclosure" you meant the implementation, 

8 then, yes, the way in which -- what is -- yes, 

9 the way they're implemented. I didn't 

1 O represent -- it was not my intention to 

11 represent anything in the claims. 

12 BYMR.ANAPOL: 

13 Q. Okay. And, to your knowledge, did you 

14 provide any information about the OnCore 

15 operating system or the Solaris zones to the 

16 patent examiner who was responsible for 

1 7 examining these claims? 

18 A. I'm pretty confident in saying nothing 

19 about -- that I didn't -- that there was no 

2 O conversation or interaction about On Core. 

21 Solaris zones, I don't know. Could have been. 

2 2 I don't recall. 

I 

1 A. I don't recall doing any -- I don't 

2 recall there being any mention ofV-Server, no. 

3 Q. And have you ever heard of something 

4 called User Mode Linux? 

5 

6 

A. Yes. 

Q. And what's your understanding of User 

7 Mode Linux? 

8 A. I don't recall the details of it. 

9 There's -- there's a lot of -- I don't know. 

1 O I'd have to go back and look at that. I 

11 remember -- I remember it, and there were 

12 discussions about it, but I don't recall at this 

13 moment how it works. 

14 Q. So do you recall ever providing any 

15 information about User Mode Linux to the patent 

1 6 examiner? 

1 7 A. I don't recall answering any questions 

18 about that in the context of the patent, no. 

! 19 Not to my recollection. 

I 2 0 Q. And so when you testified earlier that 

I 21 certain aspects of the patent seemed inventive I 2 2 to you, did you check to see whether any of 

-··------------------------;,------------------------1 

Page 150 

1 Q. Okay. You don't recall providing any 

2 information about Solaris zones to the patent 

3 examiner? 

4 

5 

A. I do not recall. 

MR. TONG: Objection. Asked and 

6 answered. 

7 BY MR. ANAPOL: 

8 Q. And were you aware -- actually, I'll 

9 withdraw that question. You already answered 

10 it. 

11 And were you aware that there was a 

12 product called Linux V-Server that provided 

13 containers on Linux? 

14 MR. TONG: Objection. Vague. 

15 Ambiguous. Foundation. 

16 THE WITNESS: I'm not aware of Linux 

1 7 V-Server, no. 

18 BY MR. ANAPOL: 

19 Q. So when you testified earlier that 

2 O Linux didn't have the capability provided by 

21 these patents, you had not done any comparison 

22 between the patents and Linux V-Server; correct? 

Page 152 

1 those aspects were in User Mode Linux? 

2 A. I believe there was some -- that we did 

3 look at User Mode Linux, but it's not -- the 

4 conclusion -- it was pretty easy to conclude 

5 that they weren't the same and they weren't 

6 going to be -- we were providing something very 

7 different from that, but I don't recall the 

8 details. 

9 Q. So you can't recall what you thought 

1 O was inventive about the patents compared to User 

11 Mode Linux? 

12 A. No, I can't recall how User Mode Linux 

13 works. No. I would have to go back --

14 MR. TONG: Jeremy --

15 BY MR. ANAPOL: 

1 6 Q. Do you --

1 7 MR. TONG: -- [overspoken] User Mode 

18 Linux and the --

19 

20 

(The reporter requested clarification.) 

MR. TONG: Yeah. I'm objecting to the 

21 line of questions ofU ser Mode Linux as outside 

2 2 the scope. 

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1 MR. ANAPOL: All right. Well, I don't 1 BY MR. ANAPOL: 

2 have any more questions on User Mode Linux, so 

3 that's fine. 

4 Q. Do you recall testifying earlier, 

5 Mr. Rochette, about the capability of running 

6 different operating systems -- sorry. Let me 

7 rephrase. 

8 Do you recall testifying earlier about 

9 running applications from an earlier version of 

1 O an operating system on a later version of an 

11 operating system? 

12 A. Yes. 

13 Q. And do you recall Solaris having that 

14 capability? 

15 A. I don't -- I don't recall whether or 

16 not you could run older versions of applications 

1 7 in Solaris zones and stuff like that. I don't 

18 recall. 

1 9 Q. You don't know whether Solaris 9 

2 O applications could run in zones on Solaris 10? 

21 A. I don't recall, no. 

2 2 Q. And are you aware of a system called 

I 2 Q. And we talked a lot about LD_Preload 

3 and function overlays. 

4 Do you remember that? 

5 A. Yes. 

6 Q. And do you know if the function overlay 

7 aspect of what you developed was recited in the 

8 patent claims? 

9 A. The behavior was described, yes -- oh, 

1 O in the claims. You asked about the claims. No, 

11 I don't know about the claims. No. 

12 MR. ANAPOL: Thank you so much for your 

13 time, Mr. Rochette. No further questions. 

14 

15 FURTHER EXAMINATION 

16 BY MR. TONG: 

17 Q. I have just one very short line of 

18 questioning, Mr. Rochette, and then we should be 

! 1 9 done after this. 

I 2 O So when Jeremy was questioning you, you 

I 21 had answered that you have not read or written 

2 2 the claims. I -··--· ~--------~---------~.......;,--------------------~---! 

Page 154 

1 Alpine from the University of Washington? 

2 MR. TONG: Objection to the scope of 

3 questioning as outside the scope of cross. 

4 THE WITNESS: I am aware of Alpine 

5 Linux. 

6 BY MR. ANAPOL: 

7 Q. Oh, sorry. Not Alpine Linux. It's a 

8 library called Alpine that ran on top of BSD. 

9 

10 

A. Oh. No, I'm not aware of that. 

MR. TONG: Same objection. Outside the 

11 scope. 

12 BY MR. ANAPOL: 

13 Q. So when you testified earlier about 

14 having this ability to avoid port conflicts as 

15 part of the patents, you don't know whether the 

16 Alpine library that ran on BSD had that 

1 7 capability or not? 

18 A. I'm not aware --

19 MR. TONG: Same objection. 

2 O THE WITNESS: -- of Alpine, no. I 

21 don't know how it works. 

22 

Page 156 

1 When you had filed for the -- strike 

2 that. 

3 When you were in the process of filing 

4 for the '058 patent application, would it have 

5 been your intent for the claims to capture the 

6 technology as you understood and described it 

7 today? 

8 MR. ANAPOL: Objection. Vague. Lacks 

9 foundation. Calls for speculation. Improper 

10 hypothetical. 

11 THE WITNESS: That seems logical. 

12 BY MR. TONG: 

13 Q. And same question for the other patent, 

14 the -- sorry. I'm blanking on the number. 

15 Same question for the '814 patent: 

16 When you were in the process of filing for the 

1 7 '814 patent, would it have been your intent for 

18 the claims to capture the technology as you 

19 understood and described it today? 

2 O MR. ANAPOL: Same objections. 

21 THE WITNESS: I don't -- I honestly 

22 don't -- I would -- I don't know. The claims 

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1 were very -- very abstract to me. The lawyer '.1 

2 did them, and we had conversations about the ; 

3 technology and how it worked. I would --

4 BY MR. TONG: 

5 Q. Don't--

6 MR. ANAPOL: Don't --

7 BY MR. TONG: 

8 

9 

Q. Don't discuss anything --

MR. ANAPOL: Peter -- Peter, you have 

1 O to let him finish his answer. 

11 MR. TONG: Well, I'm going to tell him 

12 not to reveal anything privileged. 

13 Q. So to the extent you're about to say 

14 anything about your discussions with a lawyer, 

15 don't reveal that. But otherwise, go ahead and 

1 6 finish answering the question. 

1 7 A. Yeah, in a very -- discussions about 

Page 159 

1 Can you confirm, Jeremy? 

2 MR. ANAPOL: Yes. 

3 Thanks again for your time, 

4 Mr. Rochette. 

5 MR. TONG: Thank you so much. 

6 THE WITNESS: Am I free to go? 

7 MR. ANAPOL: You are free to go. 

8 MR. TONG: Mr. Rochette -- we can go 

9 off the record. 

10 THE VIDEOGRAPHER: Okay. We are going 

11 off the record. This deposition is concluded at 

12 2:39. 

13 

14 

(Discussion held off the record.) 

THE REPORTER: Counsel, do you need a 

15 rough draft of this? 

16 MR. ANAPOL: Yes, please. 

1 7 THE REPORTER: And, Peter, do you need 

18 the claims were always very vague and very 18 arough? 

1 9 legal, and I would -- I don't know. I make 

2 O no -- I don't know how to -- I don't know how to 

21 defend or answer your questions about claims. I 

2 2 just don't. I'm not the right guy to do that. 

1

1 

2

2

\

1

9 

MR.(::~~p::~-at 2:44 P.M. CDT 

the deposition of DONN ROCHETTE I 22 was adjourned.) 

-··--· ~--------~---------~...-;,--------------------~---! 

1 

Page 158 

Q. Yeah, to clarify my question, it's not 

2 whether or not the claims ended up one way or 

3 another. My question was about your intent at 

4 the time. 

5 Would it have been your intent for your 

6 patent to capture the technology as you 

7 understood and described it today? 

8 MR. ANAPOL: Same objections --

9 THE WITNESS: It was my --

1 O MR. ANAPOL: -- and relevance. 

11 THE WITNESS: It was my intent to get 

12 the description of the invention -- to describe 

13 it as it worked. That was my intent. It's up 

14 to the company and the lawyers and so forth to 

15 nail down the claims. That was not my -- I 

16 wasn't involved. Not my -- no intent. My 

1 7 intent was to be able to describe how the 

18 invention worked. 

19 MR. TONG: Okay. Thank you, 

2 O Mr. Rochette. 

21 Pass the witness. And we should be 

Page 160 

1 STATE OF CALIFORNIA 

2 COUNTY OF LOS ANGELES ) SS. 

3 

4 I, AUDRA E. CRAMER, CSR No. 9901, in and for the 

5 State of California, do hereby certify: 

6 That, prior to being examined, the witness named 

7 in the foregoing deposition was by me duly sworn to 

8 testify the truth, the whole truth and nothing but the 

9 truth; 

1 O That said deposition was taken down by me in 

11 shorthand at the time and place therein named, and 

1 2 thereafter reduced to typewriting under my direction, 

1 3 and the same is a true, correct and complete transcript 

1 4 of said proceedings; 

15 I further certify that I am not interested in the 

1 6 event of the action. 

1 7 Witness my hand this 18 day of September, 

18 2024. 

19 

20 

21 Certified Shorthand 

22 done. 22 

Reporter for the 

State of California 

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Donn Rochette, c/o 

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Page 161 

Case: VirtaMove Corp. v. Amazon.com, Inc., et aL 

Date of deposition: September 10, 2024 

Deponent: Donn Rochette 

Please be advised that the transcript in the above 

referenced matter is now complete and ready for signature. 

The deponent may come to this office to sign the transcript, 

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or the deponent and/or counsel may waive the option of 

signing. Please advise us of the option selected. 

Please forward the errata sheet and the original signed 

signature page to counsel noticing the deposition, noting the 

applicable time period allowed for such by the governing 

Rules of Procedure. If you have any questions, please do 

not hesitate to call our office at (202)-232-0646. 

Sincerely, 

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Copyright 2024 Digital Evidence Group 

Copying is forbidden, including electronically, absent 

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Page 162 

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1730 M Street, NW, Suite 812 

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(202) 232-0646 

SIGNATURE PAGE 

Case: VirtaMove Corp. v. Amazon.com, Inc., et al. 

Witness Name: Donn Rochette 

Deposition Date: September 10, 2024 

I do hereby acknowledge that I have read 

and examined the foregoing pages 

of the transcript of my deposition and that: 

(Check appropriate box): 

( ) The same is a true, correct and 

complete transcription of the answers given by 

me to the questions therein recorded. 

( ) Except for the changes noted in the 

attached Errata Sheet, the same is a true, 

correct and complete transcription of the 

answers given by me to the questions therein 

recorded. 

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Digital Evidence Group, LLC 

1730 M Street, NW, Suite 812 

Washington, D.C. 20036 

(202)232-0646 

ERRATA SHEET 

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Case: VirtaMove Corp. v. Amazon.com, Inc., et al. 

Witness Name: Donn Rochette 

Deposition Date: September I 0, 2024 

Page No. Line No. Change 

Signature Date 

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