UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`In the Matter of
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`CERTAIN ICEMAKING MACHINES
`AND COMPONENTS THEREOF
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`Inv. No. 337-TA-1369
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`COMPLAINANT’S WRITTEN SUBMISSION ON THE ISSUES UNDER REVIEW AND
`ON REMEDY, THE PUBLIC INTEREST, AND BONDING
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION .............................................................................................................. 1
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`RESPONSES TO COMMISSION QUESTIONS AND REQUESTS FOR
`BRIEFING .......................................................................................................................... 2
`A.
`Question No. (1)...................................................................................................... 2
`B.
`Question No. (2)...................................................................................................... 6
`C.
`Question No. (3).................................................................................................... 12
`D.
`Question No. (4).................................................................................................... 13
`E.
`Question No. (5).................................................................................................... 17
`F.
`Question No. (6).................................................................................................... 19
`G.
`Question No. (7).................................................................................................... 20
`H.
`Question No. (8).................................................................................................... 20
`I.
`Question No. (9).................................................................................................... 20
`J.
`Question No. (10).................................................................................................. 20
`K.
`Question No. (11).................................................................................................. 21
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`2.
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`B.
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`III. WRITTEN SUBMISSION ON REMEDY, THE PUBLIC INTEREST,
`AND BONDING .............................................................................................................. 24
`The Commission Should Issue the Remedial Orders
`A.
`Recommended by the CALJ. ................................................................................ 24
`The Commission Should Issue an LEO Directed to All
`1.
`Respondents. ............................................................................................. 25
`The Commission Should Issue a Cease-and-Desist Order
`Directed to Each Respondent. ................................................................... 25
`The Commission Should Not Include a Warranty,
`a)
`Service, and Repair Carveout in the Remedial
`Orders. ........................................................................................... 27
`There Are No Public Interest Concerns that Preclude Issuance of
`the Remedies Recommended by the CALJ. ......................................................... 29
`The Requested Remedial Orders Will Not Have an Adverse
`1.
`Effect on Public Health, Safety, or Welfare. ............................................ 29
`The Requested Remedial Orders Will Not Have an Adverse
`Effect on Competitive Conditions in the United States. ........................... 30
`The Requested Remedial Orders Will Not Have an Adverse
`Effect on U.S. Production of Articles That Are Like or
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`2.
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`3.
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`4.
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`Directly Competitive with Those That Are Subject to
`Exclusion................................................................................................... 31
`The Requested Remedial Orders Will Not Have an Adverse
`Effect on U.S. Consumers. ........................................................................ 31
`The Commission Should Enter Bond of 79.9% of the Entered
`Value of the Infringing Products. .......................................................................... 33
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`C.
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`TABLE OF AUTHORITIES
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`Cases
`AquaTex Indus., Inc. v. Techniche Sols.,
`479 F.3d 1320 (Fed. Cir. 2007) .............................................................................................. 2, 4
`Certain Baseband Processor Chips and Chipsets, Transmitting and Receiving (Radio) Chips,
`Power Control Chips, and Products Containing Same, Including Cellular Telephone
`Handsets,
`Inv. No. 337-TA-543, Comm’n Op. at 153-54 (June 19, 2007) ......................................... 30, 33
`Certain BotulinumToxin Products, Processes for Manufacturing or Relating to Same and Certain
`Products Containing Same,
`Inv. No. 337-TA-1145, Comm’n Op. (Jan. 13, 2021) ............................................................... 34
`Certain Crystalline Cefadroxil Monohydrate,
`Inv. No. 337-TA-293, USITC Pub. 2391, Comm’n Op. on Remedy, the Public Interest and
`Bonding at 38 (June 1991) ........................................................................................................ 28
`Certain Fluidized Supporting Apparatus & Components Thereof,
`Inv. No.337-TA-182/188, USITC Pub. 1667, Comm’n Op. at 23-25 (Oct. 5, 1984) ............... 31
`Certain High-Density Fiber Optic Equip.,
`Inv. No. 337-TA-1194, Comm’n Op. at 84 (Aug. 23, 2021) .................................................... 27
`Certain Industrial Automation Systems and Components Thereof Including Control Systems,
`Controllers, Visualization Hardware, Motion and Motor Control Systems, Networking
`Equipment, Safety Devices, and Power Supplies,
` Inv. No. 337-TA-1074, Comm’n Op. (Pub. Version) at 13 (Apr. 23, 2019) ........................... 35
`Certain Lens Fitted Film Packages,
`Inv. No. 337-TA-406, Comm’n Op. at 18 (June 28, 1999) ...................................................... 32
`Hockerson-Halberstadt, Inc. v. Avia Grp. Int’l, Inc.,
`222 F.3d 951 (Fed. Cir. 2000) .................................................................................................. 21
`Laerdal Med. Corp. v. Int’l Trade Comm’n,
`910 F.3d 1207 (Fed. Cir. 2018) ................................................................................................ 25
`Spansion, Inc. v. Int’l Trade Comm’n,
`629 F.3d 1331 (Fed. Cir. 2010) .......................................................................................... 30, 31
`Warner-Jenkinson Co. v. Hilton Davis Chem. Co.,
`520 U.S. 17 (1997) ...................................................................................................................... 4
`Other Authorities
`19 C.F.R. § 210.42(a)(1)(ii) .......................................................................................................... 33
`19 C.F.R. § 210.43(b)(4) ............................................................................................................... 19
`19 U.S.C. § 1337(d) ...................................................................................................................... 25
`19 U.S.C. § 1337(j)(3) ............................................................................................................ 33, 37
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`I.
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`INTRODUCTION
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`Complainant Hoshizaki America, Inc. (“Hoshizaki” or “Complainant”) hereby responds
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`to the Notice of a Commission Determination to Review a Final Initial Determination (“ID”)
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`Finding a Violation of Section 337 (“Notice”) by providing its responses to the Commission’s
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`requests for further briefing on the issues under review and its written submission on remedy, the
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`public interest, and bonding.1
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`As detailed below, the record of this Investigation strongly supports the CALJ’s
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`conclusion that Respondents’ “slightly curved inner portions” at the bottom of the dimples on its
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`evaporator plates are equivalent to the claimed “inner flat portions” in the ’785 and ’692 patents.
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`The CALJ correctly analyzed the issue under an unchallenged articulation of the function, way,
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`and result of including inner flat portions on an evaporator plate covered by the claims of those
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`patents, demonstrating the equivalence of the slight curve in the bottom of Respondents’ dimples
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`to a flat-bottomed dimple.
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`In the face of that well-reasoned decision, Respondents largely make irrelevant technical
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`arguments based on an improper comparison of Respondents’ products to a preferred
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`embodiment depicted in the patents. In particular, many of Respondents’ arguments relate to the
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`shape of the refrigerant conduit depicted in the ’785 and ’692 patents or to the dimensions of the
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`depicted inner flat portion. Even setting aside those fundamental flaws, Respondents’ expert
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`testimony is entirely conclusory, unsupported by testing or calculations, and directly contradicted
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`by Hoshizaki’s expert, Dr. Tanbour. The CALJ correctly determined that Dr. Tanbour’s
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`testimony was more credible, a conclusion that is strongly supported by the record evidence, as
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`demonstrated below.
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`1 Unless otherwise specified, Complainant uses the abbreviations set forth in the ID.
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`The Commission should, therefore, affirm the ALJ’s conclusion that the slightly curved
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`inner portions in the accused products are equivalent to the claimed inner flat portions and issue
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`the full remedial relief requested by Hoshizaki for the reasons detailed herein.
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`II.
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`RESPONSES TO COMMISSION QUESTIONS AND REQUESTS FOR
`BRIEFING
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`Hoshizaki responds to each of the Commission’s questions and requests for briefing
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`below. Hoshizaki’s responses include a short answer to each question, followed by a supporting
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`explanation of each answer that requires further explanation. As detailed below, the CALJ’s
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`conclusions regarding the function, way, and result of the inclusion of inner flat portions,
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`including his Honor’s determination of the equivalence of Respondents’ products’ “slightly
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`curved inner portions” are well supported by the law and the evidence, and should therefore be
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`affirmed on review.
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`A.
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`Question No. (1)
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`Question: For the ’785 and ’692 patents, please address whether the “function” of the
`“inner flat portion” limitation for purposes of the doctrine of equivalents analysis should include
`the overall function of making ice or be more narrowly defined to just the separation of active
`and passive cavities. As a legal matter, should the doctrine of equivalents analysis focus on the
`specific function of the claim limitation or the overall function of the claimed invention? See
`AquaTex Indus., Inc. v. Techniche Sols., 479 F.3d 1320, 1326–27 (Fed. Cir. 2007) (finding error
`where the identified function of promoting evaporation was for the filler layer as a whole rather
`than the specific function of the “fiberfill batting material” limitation). As a factual matter, please
`address what role, if any, the inner flat portions play with respect to the formation and harvesting
`of ice in the claimed invention. See, e.g., ’785 patent at 5:23-27 (“The degree to which ice
`extends over the inner flat portions 30 and the adjacent second protrusions 38 is determined, at
`least in part, by the length of time that water is applied to the front and rear plates 14, 16 during
`the ice forming cycle.”).
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`Short Answer: The CALJ correctly focused on the specific function of the “inner flat
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`portions” limitation, stating in the ID that the ’785 patent (and, by extension, the ’692 Patent,
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`which shares the same specification) “explains that the ‘inner flat portions’ separate active and
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`passive cavities, which are, in turn, interspersed so as to define ice forming cites.” ID at 70.
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`Regarding the role of inner flat portions in formation and harvesting, the inner flat portions serve
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`to separate active and passive cavities, thereby designating the intended area in which ice will
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`form.
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`Explanation: The CALJ provided a detailed explanation of the function of the “inner flat
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`portions” limitation that appears in the asserted claims of the ’785 and ’692 patents on pages 70-
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`71 of the ID. The CALJ found support in the specification2 for his characterization of the
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`function of the claimed “inner flat portions,” noting that the specification states, “the active and
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`passive cavities are interspersed and separated by respective inner flat portions so as to define a
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`plurality of ice forming sites in the ice forming columns of the respective plate.” ID at 70
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`(quoting JX-0002 (’785 patent) at 2:5-7).
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`Applying that straightforward description, the CALJ correctly found that the accused
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`inner curved portions of the BLMI-500A’s dimples “perform the same function as the flat
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`bottoms of the dimples that separate active and passive cavities in the claimed invention.” ID at
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`70; cf., CIB at 53 (characterizing the function of the inner flat portions as serving as the bottom
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`of the respective dimples); Tr. (Tanbour) at 326:8–12 (testifying that the bottom of each dimple
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`is represented by the inner flat portions). The CALJ found that the active and passive cavities in
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`the BLMI-500A (and, therefore, all accused products) perform that function because they “are
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`also interspersed so as to define a plurality [of] ice forming sites, as in the claimed invention.” ID
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`at 71 (referring to pages 77–79 of the ID in which the CALJ discusses how limitation 1[l] of the
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`’785 Patent is met by the accused products).
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`2 As detailed in the ID, the parties agree that the ’785 and ’692 patents share substantially
`the same specification, and the specification will therefore be referred to in the singular, with the
`understanding that references to the “specification” apply to both patents at issue in the
`Commission’s briefing questions. See ID at 6.
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`The CALJ’s focus on the enunciated—and limited—function of the claimed inner flat
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`portions is legally correct under governing case law. The Supreme Court, in Warner-Jenkinson
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`Co. v. Hilton Davis Chemical Co., stated that “the doctrine of equivalents must be applied to
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`individual elements of the claim, not to the invention as a whole.” 520 U.S. 17, 29 (1997). As
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`suggested in the Commission Notice, AquaTex Indus., Inc. v. Techniche Sols provides an
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`example of the United States Court of Appeals for the Federal Circuit applying that principle.
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`479 F.3d 1320 (Fed. Cir. 2007). There, the Federal Circuit assigned error to a district court
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`defining the function of the “fiberfill batting material” as the function of the filler layer as a
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`whole, as opposed to focusing on the more limited function of the “fiberfill batting material” in
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`question. AquaTex Indus., Inc., 479 F.3d at 1327.
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`Regarding the role of the inner flat portions in formation and harvesting of ice in the
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`claimed invention, the inner flat portions, by serving as the bottoms of the dimples, separate the
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`active and passive cavities so as to define the ice forming sites, and thereby also serve to denote
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`the preferred size of the ice cubes made. See JX-0002 (’785 patent) at 3:20-25, 4:20-22, 5:8-32.
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`Specifically, the ’785 patent specification, with reference to Figures 2 and 3 (reproduced below),
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`describes ice as beginning to form on the “first protrusion 36” and then “grow[ing]laterally
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`outwardly, preferably onto its adjacent inner flat portions 30 and onto at least part of the curved
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`portions 32 of the adjacent second protrusions[,]” which define the passive cavity. JX-0002 (’785
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`patent) at 5:11-19; see also Tr. (Tanbour) at 332:3–17.
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`JX-0002.0004 (’785 patent). The ’785 and ’692 patents, therefore, describe the preferred ice
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`cube as including the curved portion 32 on the side of the active cavity, the inner flat portion 30
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`at the bottom of the dimple described, and at least part of the curved portion 32 on the side of the
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`passive cavity.
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`As described in the specification, the length of time water is applied will determine
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`whether that preferred shape is achieved. JX-0002 (’785 patent) at 5:23-27 (“The degree to
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`which the ice extends over the inner flat portions 30 and the adjacent second protrusions 38 is
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`determined, at least in part, by the length of time that water is applied to the front and rear plates
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`14, 16 during the ice forming cycle.”). The patent describes further the general and specific
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`means by which the claimed evaporator, and the ice maker of which it is part, harvests the ice
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`once cubes of sufficient size have formed. JX-0002 (’785 patent) at 5:28-32 (describing the
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`general switch from ice forming to harvesting), 6:28-50 (describing a preferred method of
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`harvesting ice). Accordingly, the inner flat portions serve to demonstrate the preferred shape and
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`size of ice made in accordance with the inventions claimed in the ’785 and ’692 patents.
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`B.
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`Question No. (2)
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`Question: Please address whether the difference between an inner flat portion (as
`claimed) and a slightly curved inner portion (as found in the accused products) will affect the
`“way” in which ice is formed (i.e., by preventing the formation of “boundary layers,” or due to
`less surface area of contact between the plates and the water that forms ice during the cooling
`and harvesting cycles, or due to the shape of the surrounding tubing coil). See RRB at 18–20.
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`Short Answer: The CALJ correctly found that an inner flat portion and a slightly curved
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`inner portion will not affect the way in which ice is formed. ID at 71 (“[T]he accused BLMI-
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`500A would make ice the same way in the same locations no matter whether the device
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`incorporated the claimed ‘inner flat portions’ or the slightly curved portions it uses instead.”)
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`(citing Tr. (Tanbour) at 335:1–19; 334:20–25, 336:3–340:5; ID at 77–79). There is no credible
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`evidence of any substantial differences in the way ice is formed under a proper comparison of
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`inner flat portions and slightly curved inner portions.
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`Explanation: As an initial matter, in view of the correct description of the function, the
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`CALJ also correctly found that “the way the accused inner curved portions separate active and
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`passive cavities in the BLMI-500A is the same as the way the ‘inner flat portions’ of limitation
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`1[c] provide the same separation in the claimed invention.” ID at 71. That finding alone is
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`sufficient to warrant affirmance, and Respondents did not petition for review of that finding.
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`Nonetheless, the slightly curved inner portions do not affect the way ice is made when
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`compared to inner flat portions. Specifically, ice is made by applying water to the ice forming
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`site, whereby the water freezes first at the center of the refrigerator conduit and moves
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`“outward,” until it fills the dimples having the claimed inner flat portions as their bottoms. JX-
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`0002 (’785 patent) at 5:11-19; see also Tr. (Tanbour) at 332:2–17 (testifying that the slightly
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`curved inner portions that serve as the bottoms of the dimples in the accused products increase
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`efficiency in the same way as described in the patent). That progression, logically, results in ice
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`with a crescent-shaped “top” (with the peak of the crescent at the center), and a flat bottom with
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`projections therefrom corresponding to the dimples, which in turn have the inner flat portions or
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`slightly curved inner portions as their “bottoms.”
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`In an attempt to demonstrate a substantial difference between the slightly curved inner
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`portion of the accused products and inner flat portion claimed in the patent, Respondents’ expert,
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`Dr. Pokharna, presented five arguments comparing the accused products to the embodiment
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`depicted in Figure 2 of the ’785 patent. See generally, Tr. (Pokharna) at 521–526. As an initial
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`matter, Dr. Pokharna and Respondents have not demonstrated how the various arguments
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`advanced by Dr. Pokharna even relate to the function-way-result test. See RRB at 17–20
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`(advancing three arguments without specifying how they relate to a function, way, or result).
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`Nonetheless, his testimony is addressed below.
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`Dr. Pokharna’s first and second arguments appear to relate to the second argument
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`advanced in Respondents’ Responsive Post-Hearing brief, i.e., the circular-tube design with
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`slightly curved inner portions is more efficient than the “long flat section of the inner flat portion
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`that is described in the patent,” and that, accordingly, “there is more surface area in contact with
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`water on the outside” in the embodiment depicted in the patent. Tr. (Pokharna) at 522:2–16
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`(citing RDX-0003.30); RRB at 19–20. According to Dr. Pokharna, the additional surface area in
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`“Figure 2 versus the accused products” will “inherently mean that the temperature of the water or
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`the temperature on the outside of the tube will be higher in a product with inner flat portions
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`versus a product where you have a dimple with a curved surface like is in the accused products.”
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`Tr. (Pokharna) at 522:25–523:8.
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`Dr. Pokharna’s testimony, and Respondents’ argument in their responsive post-hearing
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`brief, appears to confuse the outer flat portions of the protrusions described in the ’785 patent,
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`which contact the tubing coil where they define active cavities, with the inner flat portions
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`described therein, which do not contact the tubing coil at all. See JX-0002.0004 (’785 patent)
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`(depicting outer flat portions of protrusions 34 and inner flat portions 30), JX-0002 (’785 patent)
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`at 4:45-50 (describing outer flat portions). Dr. Pokharna’s testimony regarding the surface area
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`of the plate that contacts the refrigerant conduit, therefore, is irrelevant to any difference in the
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`way that ice is formed in an evaporator with an inner flat portion versus a slightly curved inner
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`portion, neither of which even contacts the refrigerant conduit. Furthermore, even assuming the
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`additional contact with the refrigerant conduit caused by having outer flat portions that contact
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`an oval tube result in a decrease in efficiency, Respondents’ argument fails for the simple reason
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`that the ’785 patent does not require or claim an oval tubing coil. See Section II.G.,infra; ID at
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`72 n.20.
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`The “third difference” advanced by Dr. Pokharna, and the third argument advanced in
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`Respondents’ responsive post-hearing brief, relates to pressure differences between the two
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`designs Dr. Pokharna analyzed, i.e., between the accused product design and the embodiment
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`disclosed in Figure 2. See Tr. (Pokharna) at 523:9–16 (describing and citing RDX-0003.32);
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`RRB at 19–20. Once again, Dr. Pokharna’s testimony appears to relate to differences between a
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`“flattened tube” as compared to “a round tube[.]” But the shape of the tube is entirely irrelevant
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`to whether the “inner portions” are “flat” or “slightly curved.” Moreover, Respondents’ argument
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`based on that testimony fails to even specify any difference in the “way” ice is made as a result
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`of that irrelevant difference in design. Respondents’ argument, therefore, fails to demonstrate
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`any meaningful difference in the way ice is made in an evaporator with inner flat portions as
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`compared to slightly curved inner portions.
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`The “fourth difference between the[] two designs” compared by Dr. Pokharna at the
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`hearing—i.e., between the embodiment in Figure 2 of the ’785 patent and Respondents’ accused
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`products—relates to alleged “[d]elayed ice formation” in an evaporator with “inner flat
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`portions.” Tr. (Pokharna) at 523:17–525:2; RDX-0003.0033. According to Dr. Pokharna, in a
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`“continuously curved dimple like is in the accused products, you do not form what is called a
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`boundary layer,” as you would with the design depicted in Figure 2 of the ’785 patent, where,
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`according to Dr. Pokharna, in a flat portion, “you have gravity always acting down, so the
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`boundary layer gets fully formed.” Tr. (Pokharna) at 523:20–524:4.
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`As part of the basis for his argument that the design in Figure 2 would have “delayed ice
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`formation” as compared to the Accused Products, Dr. Pokharna also asserted that “water will
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`simply roll” from” a “vertical flat surface” but, “if you have a curved surface, because of the
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`surface tension differences, the water will get more stuck there.” Id. at 524:15–20.
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`Dr. Pokharna’s “fourth difference” between the embodiment depicted in Figure 2 and the
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`Accused Products also suffers from fatal flaws that warrant its disregard. As an initial matter, Dr.
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`Pokharna’s assertions regarding microscopic differences at the crystal level regarding how ice
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`will form in the two different designs—which are unsupported by any testing, observation, or
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`analysis of actual products—do not represent substantial differences in how ice is formed in an
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`evaporator with inner flat portions versus one with slightly curved inner portions. Stated
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`differently, as the function was defined by the ALJ, the way in which inner flat portions perform
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`that function is substantially the same in both products, even if Dr. Pokharna’s theories were
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`correct regarding how ice is formed at the crystal level in the embodiment in Figure 2 versus the
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`Accused Products.
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`In particular, the ice grows from the center of the conduit, then “down” the curved
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`portion on the side of the protrusion that defines the active cavity, into the flat or curved inner
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`portion, and then “up” the curved portion on the side of the protrusion that defines the passive
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`cavity. When the “way” is properly analyzed in that manner, another flaw in Dr. Pokharna’s
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`analysis becomes clear: Dr. Pokharna testified only that, in the embodiment in Figure 2, “the
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`boundary layer gets fully formed,” but did not consider whether that related to the existence of an
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`inner flat portion (all that is required by the asserted claims) or the size of the particular inner
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`flat portion in Figure 2. See Tr. (Pokharna) at 524:1–4 (citing RDX-0003.0033). As the
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`description in the patent demonstrates, much of the growth of ice in Figure 2 is on the curved
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`surfaces 32 that project from the inner flat portion:
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`JX-0002.0004 (’785 patent). If the inner flat portion 30 were decreased in length, there is no
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`evidence that the alleged boundary layer effects or surface tension effects would have any impact
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`on the way ice is made, even at the microscopic level referenced in Dr. Pokharna’s testimony.
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`Respondents appear to have abandoned any argument related to application of the
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`function-way-result test based on Dr. Pokharna’s “fifth difference,” which related to ice
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`separation. See Tr. (Pokharna) at 525:3–19; RRB at 16–19. Hoshizaki reserves the right to
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`respond to any argument made relating to that testimony regarding the function-way-result test.
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`The above discussion demonstrates that Dr. Pokharna’s five arguments fail to
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`demonstrate any difference in the way ice is formed between an evaporator that employs slightly
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`curved inner portions versus one that has inner flat portions. But even assuming Dr. Pokharna’s
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`fourth argument does not suffer from the fatal flaws detailed above, Hoshizaki’s expert, Dr.
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`Tanbour, testified that the shape of the bottom of the dimple does not impact performance of an
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`ice maker because the bottoms of the dimples, whether curved or flat, are not in contact with the
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`refrigerant tube:
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`I don’t believe that the bottom of the dimple itself is in contact with
`the refrigerant tube. In both, whether it is defined as planar, flat, or
`curved, the fact that it is not in contact with the refrigerant tube, and
`it is already slighter in size than the entire dimple, which is already
`a slight depression, I don’t see that the shape that is disputed should
`impact the overall performance of the icemaking machine . . . .
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`Tr. (Tanbour) at 335:1–20. Dr. Tanbour expanded on that point by making a proper comparison
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`between the slightly curved inner portion of the Accused Products to a design with a flattened
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`inner portion, testifying that, “from a heat transfer point of view, it’s insubstantially – I mean,
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`there’s no substantial difference between the two.” Tr. (Tanbour) at 338:21–23; see also Tr.
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`(Tanbour) at 336:3–340:5 (describing CDX-0001.0056).
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`The above discussion demonstrates that the CALJ correctly concluded that there is no
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`substantial difference in the way ice is formed in products with a flat-bottomed dimple versus
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`products with dimples having a slightly curved bottom. See ID at 71.
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`C.
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`Question No. (3)
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`Question: Please address the “result” that should be considered for purposes of the
`doctrine of equivalents analysis, e.g., the efficiency of the icemaking process or the quantity or
`quality of ice produced from the icemaking machine. Please address whether the difference
`between an inner flat portion (as claimed) and a slightly curved inner portion (as found in the
`accused products) will affect that result.
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`Short Answer: The “result” of having inner flat portions that constitute the bottom of
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`dimples and separate active and passive cavities is, as the ALJ found, “separated active and
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`passive cavities and ice formation sites on evaporator plates with substantially the same
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`performance.” ID at 72. In measuring that performance, the evidence demonstrates that an
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`evaporator achieves increased heat transfer efficiency through the inclusion of the dimples, of
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`which the “inner portions” are part, whether the inner portions are flat or slightly curved.
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`Explanation: As detailed above, Respondents failed to articulate any substantial
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`differences in the function, way, or result between an evaporator with inner flat portions and one
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`with slightly curved inner portions. See Section II.B., supra (detailing flaws in all five technical
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`points made by Dr. Pokharna and the arguments based thereon). The technical and
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`methodological flaws in those arguments apply equally to alleged differences in the result of
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`slightly curved versus flat inner portions in an evaporator.
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`In particular, the inclusion of inner flat portions, which serve as the bottom of the dimples
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`that are inherent in the claimed design, results in separated active and passive cavities, with ice
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`being created in a manner that is more efficient than in legacy designs, which did not have active
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`and passive cavities, dimples, or inner portions at the bottom of those dimples.
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`12
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`PUBLIC VERSION
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`Dr. Tanbour testified that, “[w]ithout the dimple, we would not have the additional
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`surface area” in contact with the refrigerant tube, and he testified that “the result that is coming
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`out of this bottom of these dimples is clear, which is to increase the efficiency of heat transfer,”
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`whether the bottom of the dimple is flat or slightly curved. Tr. (Tanbour) at 333:2–9; see also Tr.
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`at 333:25–334:3 (Q: “Does a dimple with a slightly curved bottom improve efficiency and ice
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`production differently than a dimple with a planar bottom?” A: “I am going to show that the
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`answer is no . . . .”), see also 334:20–25, 335:14–337:22.
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`Accordingly, the gains in efficiency from Hoshizaki’s innovative design are achieved
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`irrespective of whether the evaporator has dimples with inner flat portions or slightly curved
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`inner portions as their bottoms.
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`D.
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`Question No. (4)
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`Question: Assuming that the icemaking function should be considered in determining
`equivalency, please address the expert testimony and other supporting evidence for or against
`your positions in response to the questions above (and in particular why the final ID found Dr.
`Tanbour’s testimony to be more credible than Bluenix’s expert). See ID at 72 n.20.
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`Short Answer: The discussion above (Section II.B., supra ) of the five points made by Dr.
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`Pokharna regarding the alleged differences between a device with inner flat portions and one
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`with slightly curved inner portions strongly supports the CALJ’s conclusion that Dr. Tanbour
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`provided more credible testimony regarding the lack of effect on icemaking caused by a change
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`from an inner flat portion to a slightly curved inner portion. Dr. Pokharna’s analysis suffered
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`methodological flaws that demonstrated his lack of credibility on the topic of the effect of an
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`evaporator including slightly curved inner portions.
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`Explanation: Though detailed above with respect to any impact on the “way” the inner
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`flat portions’ achieve their function, Dr. Pokharna’s five testimonial arguments are assessed
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`below to demonstrate the lack