Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 1 of 221
`
` 1
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`IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF NORTH CAROLINA
`
`)
`
`
`OPTOLUM, INC., )
`
` Greensboro, North Carolina )
` Plaintiff, November 4, 2021
` )
` vs. )
`
`)
`CREE, INC., )
`
` Case No. 1:17CV687 )
` Defendant. )
`_________________________________ )
`
`
`
`TRANSCRIPT OF TRIAL DAY 7
`BEFORE THE HONORABLE WILLIAM L. OSTEEN, JR.
`UNITED STATES DISTRICT JUDGE
`
`
`APPEARANCES:
`
`For the Plaintiff: ROBERT BROOKS
`LEAH R. MCCOY
`MCCARTER & ENGLISH, LLP
`265 FRANKLIN STREET
`BOSTON, MA 02110
`
`
`
`JACOB S. WHARTON
`WOMBLE BOND DISKINSON (US) LLP
`1 W. 4th STREET
`WINSTON-SALEM, NC 27101
`
`
`For the Defendant: BLANEY HARPER
`JONES DAY
`51 LOUISIANA AVE., N.W.
`WASHINGTON, DC 20001
`
`
`
`PETER D. SIDDOWAY
`SAGE PATENT GROUP
`4242 SIX FORKS ROAD, SUITE 1550
`RALEIGH, NC 27609
`
`Joseph B. Armstrong, FCRR
`Court Reporter:
` 324 W. Market, Room 101
`Greensboro, NC 27401
`
`
`
`Proceedings reported by stenotype reporter.
`Transcript produced by Computer-Aided Transcription.
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`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 2 of 221
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`WITNESSES FOR THE DEFENDANT:
`
`I N D E X
`
`CURT PROGL
`Direct Examination By Mr. Harper
`Cross-Examination By Mr. Martinson
`Redirect Examination By Mr. Harper
`
`CHUCK SWOBODA
`Direct Examination By Mr. Harper
`Cross-Examination By Mr. Brooks
`
`AL SAFARIKAS
`Direct Examination By Mr. Harper
`Cross-Examination By Ms. McCoy
`Redirect Examination By Mr. Harper
`
`JULIO GARCERAN
`Direct Examination By Mr. Harper
`Cross-Examination By Ms. McCoy
`
`JASON YOUNG
`Direct Examination By Mr. Harper
`Cross-Examination By Ms. McCoy
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` 2
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` PAGE
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`27
`36
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`67
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`78
`98
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`108
`137
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`141
`154
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`ERIC C. BRETSCHNEIDER
`Direct Examination By Mr. Harper
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`160
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`EXHIBITS: RCVD
`
`DX 0064
`DX 0065
`DX 0066
`DX 0068
`DX 0069
`DX 0221
`DX 0439
`
`CREEAZ_00404903 (Young Deposition Exhibit 1)
`CREEAZ_00404904 (Young Deposition Exhibit 2)
`CREEAZ_00404908 (Young Deposition Exhibit 3)
`CREEAZ_00404906 (Young Deposition Exhibit 6)
`CREEAZ_00352433 (Young Deposition Exhibit 7)
`CREEAZ_00404902
`File Designated as CREE_08578538 in
`Bretschneider Non-Infringement Exhibit B-1
`File Designated as CREEAZ_01216536 in
`Bretschneider Non-Infringement Exhibit B-2
`File Designated as CREEAZ_01216352 in
`Bretschneider Non-Infringement Exhibit B-2
`File Designated as CREEAZ_01216366 in
`Bretschneider Non-Infringement Exhibit B-2
`File Designated as CREEAZ_01215493 in
`Bretschneider Non-Infringement Exhibit B-2
`File Designated as CREEAZ_00944716 in
`Bretschneider Non-Infringement Exhibit B-3
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`141
`141
`141
`141
`141
`141
`159
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`DX 0447
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`DX 0451
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`DX 0453
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`DX 0458
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`DX 0464
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`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 3 of 221
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`I N D E X
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`EXHIBITS: RCVD
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`DX 0467
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`DX 0468
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`DX 0469
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`DX 0473
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`DX 0478
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`DX 0570
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`DX 0571
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`DX 0575
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`DX 0576
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`DX 0581
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`DX 0586
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`PTX 0662
`PTX 0663
`DX 0758
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`DX 0759
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`DX 0761
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`DX 0765
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`DX 0771
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`DX 0777
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`DX 0794
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`DX 0796
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`DX 0799
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`File Designated as CREEAZ_00948506 in
`Bretschneider Non-Infringement Exhibit B-3
`File Designated as CREEAZ_00945160 in
`Bretschneider Non-Infringement Exhibit B-3
`File Designated as CREEAZ_00944687 in
`Bretschneider Non-Infringement Exhibit B-3
`File Designated as CREEAZ_00941175 in
`Bretschneider Non-Infringement Exhibit B-3
`File Designated as CREEAZ_00948545 in
`Bretschneider Non-Infringement Exhibit B-3
`File Designated as CREEAZ_01180321 in
`Bretschneider Non-Infringement Exhibit B-9
`File Designated as CREEAZ_01184882 in
`Bretschneider Non-Infringement Exhibit B-9
`File Designated as CREEAZ_01180250 in
`Bretschneider Non-Infringement Exhibit B-9
`File Designated as CREEAZ_01184952 in
`Bretschneider Non-Infringement Exhibit B-9
`File Designated as CREEAZ_00680378 in
`Bretschneider Non-Infringement Exhibit B-10
`File Designated as CREEAZ_00677712 in
`Bretschneider Non-Infringement Exhibit B-10
`Bulb Photographs
`Bulb Photographs
`File Designated as CREEAZ_01003670 in
`Bretschneider Non-Infringement Exhibit B-21
`File Designated as CREEAZ_01003670 in
`Bretschneider Non-Infringement Exhibit B-21
`File Designated as CREEAZ_00999862 in
`Bretschneider Non-Infringement Exhibit B-21
`File Designated as CREEAZ_00996738 in
`Bretschneider Non-Infringement Exhibit B-21
`File Designated as CREEAZ_00999951 in
`Bretschneider Non-Infringement Exhibit B-21
`File Designated as CREEAZ_01133535 in
`Bretschneider Non-Infringement Exhibit B-22
`File Designated as CREEAZ_01925780 in
`Bretschneider Non-Infringement Exhibit B-23:
`DPT Heatsink
`File Designated as CREEZA_00672973 in
`Bretschneider Non-Infringement Exhibit
`C-3-LAA000843G-LDE000105
`File Designated as CREEAZ_00780134 in
`Bretschneider Non-Infringement Exhibit
`C-6-LAA000938D-LDE000118
`
`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 4 of 221
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`I N D E X
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`EXHIBITS: RCVD
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`DX 0801
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`DX 0804
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`DX 0808
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`DX 809
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`DX 0810
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`DX 0827
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`DX 0829
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`DX 0830
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`DX 0831
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`DX 0832
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`DX 0834
`DX 0836
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`DX 0837
`DX 0838
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`DX 0839
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`DX 0840
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`DX 0841
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`DX 0842
`DX 0843
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`DX 0844
`DX 0845
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`25
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`File Designated as CREEAZ_00832061 in
`Bretschneider Non-Infringement Exhibit
`C-8-LAA001072C-LDE000118
`File Designated as CREEAZ_00897240 in
`Bretschneider Non-Infringement Exhibit
`C-11-LAA001100C-LDE000122
`File Designated as CREEAZ_00988297 in
`Bretschneider Non-Infringement Exhibit
`C-15-LAA001187B-LDE000128
`File Designated as CREEAZ_01003939 in
`Bretschneider Non-Infringement Exhibit
`C-16-LAA001190B-LDE000128
`File Designated as CREEAZ_01050523 in
`Bretschneider Non-Infringement Exhibit
`C-17-LAA001192F-LDE000129{TR:6}{P}
`Sylgard 182 Product Information
`(Bretschneider Non-Infringement Exhibit K)
`Image of Cree Bulb Part Number:
`Ba19-08050omf-12de26-2u_00
`Summary Thermal Image Comparing the 60 and
`100 Watt Cree LED bulbs w/Conventional
`60-watt Incandescent Lightbulb
`Summary of A Fraction Of The Rays Emerging
`From MHB-A LED Package
`Summary Irradiance At 50 µm Above The Light
`Emitting Surface of Cree MHB-A LED Package
`Image of DPT Base Fixture
`Image of A21 100W Open Cell Foam
`Installation
`Image of A21 100W Open Ambient Thermocouple
`Summary A21 100W Test Results: Filled
`Vertical
`Summary A21 100W Statistical Results: Filled
`Vertical
`Summary A21 100W Test Results: Filled
`Inverted
`Summary A21 100W Statistical Results: Filled
`Inverted
`Summary A21 100W Test Results: Open Vertical
`Summary A21 100W Statistical Results: Open
`Vertical
`Summary A21 100W Test Results: Open Inverted
`Summary A21 100W Statistical Results: Open
`Inverted
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`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 5 of 221
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`I N D E X
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`EXHIBITS: RCVD
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`DX 0846
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`DX 0847
`DX 0848
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`DX 0849
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`DX 0850
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`DX 0851
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`DX 0852
`DX 0853
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`DX 0854
`DX 0855
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`DX 0856
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`DX 0857
`DX 0858
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`DX 0859
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`DX 0860
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`DX 0861
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`DX 0862
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`DX 0863
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`DX 0864
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`DX 0865
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`DX 0866
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`DX 0867
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`DX 0868
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`Summary Table And Illustration Summarizing
`The Results For Series of Tests For the A21
`100W WW Product (BA21-16027OMF-12DE26-1U_00)
`Image of A19 60W Open Cell Foam Installation
`Summary A19 60W Test Results: Filled
`Vertical
`Summary A19 60W Statistical Results: Filled
`Vertical
`Summary A19 60W Test Results: Filled
`Inverted
`Summary A19 60W Statistical Results: Filled
`Inverted
`Summary A19 60W Test Results: Open Vertical
`Summary A19 60W Statistical Results: Open
`Vertical
`Summary A19 60W Test Results: Open Inverted
`Summary A19 60W Statistical Results: Open
`Inverted
`Table Summarizing The Results For The A19
`60W WW Gen 2 Product
`(BA19-08027OMF-12DE6-2U_00, Sample A
`Image of A19 60W Positions Of Thermocouples
`Image of A19 60W (sample B) Open Cell Foam
`Installation
`Summary A19 60W (sample B) Test Results:
`Filled Vertical
`Summary A19 60W (sample B) Statistical
`Results: Filled Vertical
`Summary A19 60W (sample B) Test Results:
`Filled Inverted
`Summary A19 60W (sample B) Statistical
`Results: Filled Inverted
`Summary A19 60W (sample B) Test Results:
`Open Vertical
`Summary A19 60W (sample B) Statistical
`Results: Open Vertical
`Summary A19 60W (sample B) Test Results:
`Open Inverted
`Summary A19 60W (sample B) Statistical
`Results: Open Inverted
`Table Summarizing The Results For The A19
`60W WW Product (BA19-08027OMF-12DE6-2U_00
`Sample B)
`Image of A19 60W 12DE26 Open Cell Foam
`Installation
`
`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 6 of 221
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`I N D E X
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`EXHIBITS: RCVD
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`DX 0869
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`DX 0870
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`DX 0871
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`DX 0874
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`DX 0875
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`DX 0876
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`DX 0877
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`DX 0878
`DX 0879
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`DX 0888
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`DX 0889
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`DX 0890
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`25
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`Summary A19 60W 12DE26 Test Results: Filled
`Vertical
`Summary A19 60W 12DE27 Statistical Results:
`Filled Vertical
`Summary A19 60W 12DE28 Test Results: Filled
`Inverted
`Summary A19 60W 12DE29 Statistical Results:
`Filled Inverted
`Summary A19 60W 12DE30 Test Results: Open
`Vertical
`Summary A19 60W 12DE31 Statistical Results:
`Open Vertical
`Summary A19 60W 12DE32 Test Results: Open
`Inverted
`Summary A19 60W 12DE33 Statistical Results:
`Open Inverted
`Table And Illustration Summarizing The
`Results For The A19 60W WW Product
`(BA19-08027OMF-12DE26-1U_00
`Image of Open Cell Foam Installation
`Summary A19 60W CW Test Results: Filled
`Vertical
`Summary A19 60W CW Statistical Results:
`Filled Vertical
`Summary A19 60W CW Test Results: Filled
`Inverted
`Summary A19 60W CW Statistical Results:
`Filled Inverted
`Summary A19 60W CW Test Results: Open
`Vertical
`Summary A19 60W CW Statistical Results: Open
`Vertical
`Summary A19 60W CW Test Results: Open
`Inverted
`Summary A19 60W CW Statistical Results: Open
`Inverted
`Table And Illustration Summarizing The
`Results For The A19 60W CW Product
`Image of A19 60W CW 12DE26 Open Cell Foam
`Installation
`Summary A19 60W CW 12DE26 Test Results:
`Filled Vertical
`The Temperature Data For The External Collar
`Of The Heat Sink
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`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 7 of 221
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`EXHIBITS: RCVD
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`DX 0891
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`DX 0892
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`DX 0893
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`DX 0894
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`DX 0895
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`DX 0896
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`DX 0897
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`DX 0898
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`DX 0899
`DX 0900
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`DX 0901
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`DX 0902
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`DX 0903
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`DX 0904
`DX 0905
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`DX 0906
`DX 0907
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`DX 0908
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`DX 0909
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`DX 0910
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`DX 0911
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`DX 0912
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`DX 0913
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`25
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`Summary A19 60W CW 12DE27 Statistical
`Results: Filled Vertical
`Summary A19 60W CW 12DE28 Test Results:
`Filled Inverted
`Summary A19 60W CW 12DE29 Statistical
`Results: Filled Inverted
`Summary A19 60W CW 12DE30 Test Results: Open
`Vertical
`Summary A19 60W CW 12DE31 Statistical
`Results: Open Vertical
`Summary A19 60W CW 12DE32 Test Results: Open
`Inverted
`Summary A19 60W CW 12DE33 Statistical
`Results: Open Inverted{TR:6}{P}
`Table Summarizing The Results For The A19
`60W CW Product (BA19-80850OMF-12DE26-2U_00)
`Image of A19 40W Open Cell Foam Installation
`Summary A19 40W Test Results: Filled
`Vertical
`Summary A19 40W Statistical Results: Filled
`Vertical
`Summary A19 40W Test Results: Filled
`Inverted
`Summary A19 40W Statistical Results: Filled
`Inverted
`Summary A19 40W Test Results: Open Vertical
`Summary A19 40W Statistical Results: Open
`Vertical
`Summary A19 40W Test Results: Open Inverted
`Summary A19 40W Statistical Results: Open
`Inverted
`Table And Illustration Summarizing The
`Results For The A19 40W WW Product
`(BA19-04527OMN-12DE26-2U_00)
`Image of A19 40W CW Open Cell Foam
`Installation
`Summary A19 40W CW Test Results: Filled
`Vertical
`Summary A19 40W CW Statistical Results:
`Filled Vertical
`Summary A19 40W CW Test Results: Filled
`Inverted
`Summary A19 40W CW Statistical Results:
`Filled Inverted
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`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 8 of 221
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`I N D E X
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`EXHIBITS: RCVD
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`DX 0914
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`DX 0915
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`DX 0916
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`DX 0917
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`DX 0918
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`DX 0919
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`DX 0920
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`DX 0921
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`DX 0922
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`DX 0923
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`DX 0927
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`DX 0928
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`DX 0929
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`DX 0931
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`DX 0933
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`DX 0935
`DX 0936
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`Summary A19 40W CW Test Results: Open
`Vertical
`Summary A19 40W CW Statistical Results: Open
`Vertical
`Summary A19 40W CW Test Results: Open
`Inverted
`Summary A19 40W CW Statistical Results: Open
`Inverted
`Table Summarizing The Results For The A19
`40W CW Product (BA19-04550OMF-12DE26-2U_00)
`Image of A19 75W CW Open Cell Foam
`Installation
`Summary A19 75W CW Test Results: Filled
`Vertical
`Summary A19 75W CW Statistical Results:
`Filled Vertical
`Summary A19 75W CW Test Results: Filled
`Inverted
`Summary A19 75W CW Statistical Results:
`Filled Inverted
`Summary A19 75W CW Test Results: Open
`Vertical
`Summary A19 75W CW Statistical Results: Open
`Vertical
`Summary A19 75W CW Test Results: Open
`Inverted
`Summary A19 75W CW Statistical Results: Open
`Inverted
`Data Table And Illustration Summarizing The
`Results For The A19 75W CW Product
`(BA19-11050OMF-12DE26-1U_00)
`Summary Thermal Imaging Photo In Which The
`Fins Are Cooling The Device
`OPTOLUM-AZ00021872 Information Published By
`Omega
`Image of Tag On The Certification Specimen
`Summary Table Showing Temperatures From Mr.
`Mccreary’s Simulations
`Summary Illustration of Early Version Of The
`Heat Sink Design
`Search For “Peclet” In Help Menu For
`SolidWorks Flow Simulation
`OPTOLUM-AZ00019162 Output From The 100W Bulb
`OPTOLUM-AZ00019843 Passages Inside The
`Filament Tower
`
`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 9 of 221
`
` 1
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`I N D E X
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`
`EXHIBITS: RCVD
`
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`DX 0941
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`DX 0944
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`DX 0945
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`DX 0948
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`DX 1025
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`DX 1029
`DX 1030
`DX 1040
`DX 1045
`DX 1046
`DX 1067
`DX 1074
`DX 1116
`
`DX 1121
`DX 1138
`
`DX 1144
`
`Summary Cross-Sectional Image Of A21 100W
`SOLIDWORKS Model
`Summary Illustration and Image of Spring
`Contact In The A21 100W Assembly
`Summary Illustration Wall Of The Heat Sink
`Tower
`Summary Illustration Overlap Between The LED
`MCPCB and the Filament Tower for Both the
`60W Summary Simulation and the 100W
`Simulation
`Summary of The Interface Between Two Solid
`Surfaces
`Summary of A Horizontal Cross-Section Taken
`At 5.2 cm Above the Origin
`Summary Relationship Between The Efficiency
`Of The Power Supply and the Efficiency of
`the LEDs
`Summary Differences In Performance Assumed
`In The Model and the Requirements of the
`Energy Balance
`Summary of The Heat Generation Rates For
`Different Simulation Scenarios
`Summary Cross Section Of The 60W Gen 2
`Assembly Of Mr. McCreary's Simulation
`Summary Table of The Maximum Temperature,
`The Average Bulk Velocity & the Mass Flow
`Rate Through the Lid Position at the Top of
`the Filament Tower Structure for Four
`Different Scenarios
`60W final LED intersection under LEDs JPG
`File
`60Wgen 2 with silicone JPG File
`60W gen 2 no silicone JPG File
`100W final intersection under LEDs JPG File
`100W with silicone JPG File
`100W no silicone JPG File
`CREEAZ_00010992-995 PDF File
`CREEAZ_00303192-195 PDF File
`CREEAZ_01934147_60W
`Gen2_Flow_Sim_Bretschneider filament
`tower-board intersection JPG file
`OPTOLUM-AZ00013902
`OPTOLUM-AZ00017631-7734 (pcb to filament
`tower 100W PDF File)
`OPTOLUM-AZ00019162 JPG File
`
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`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 10 of 221
`
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`
`I N D E X
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` 2
`
`EXHIBITS: RCVD
`
` 10
`
`OPTOLUM-AZ00019178 JPG File
`OPTOLUM-AZ00019824 JPG File
`OPTOLUM-AZ00019796 JPG File
`OPTOLUM-AZ00003455 (Dry Deposition Exhibit
`32)
`OPTOLUM-AZ00003455 (Dry Deposition Exhibit
`32)
`OPTOLUM-AZ00011192-1287 (Dry Deposition
`Exhibit 45)
`OPTOLUM-AZ00013862-3863 (Dry Deposition
`Exhibit 57)
`LexisNexis release: "Heat Rises: and so do
`the Stakes in the Solid-State Lighting
`Industry"
`LEDVANCE Agreement
`CREEAZ_00366224
`CREEAZ_00358499
`CREEAZ_00369521
`CREEAZ_00392129
`OPTOLUM-AZ00017627 (McCreary Deposition
`Exhibit 221)
`OPTOLUM-AZ00017630 DX 1363
`McCreary Deposition Exhibit 224
`McCreary Deposition Exhibit 231
`McCreary Deposition Exhibit 232
`Color Photos – DPT Top View – Engaged Driver
`Clip
`Color Photo of Gen 2.5 Bulb (Bretschneider
`Non-Infringement Report P. 194
`Color Photo of Gen 2 Bulb
`Cree-LED Thermal Management of XLamp® LEDs
`Color Photo of a Close-Up View of the 100W
`Bulb Without Globe
`SolidWorks Screenshot (60W-Gen2-Up-14)
`SolidWorks Screenshot (60W-Gen2-Up-13)
`
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`November 4, 2021 - Trial Day 7
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`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 11 of 221
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`P R O C E E D I N G S
`
`(At 9:27 a.m., proceedings commenced)
`
`THE COURT: Mr. Harper, any additional authority you
`
` 4
`
`want to hand up this morning?
`
` 5
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`MR. HARPER: No, Your Honor. I think you've got our
`
` 6
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`brief that we filed this morning.
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` 7
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`THE COURT: Mr. Martinson, do you want to be heard in
`
` 8
`
`response to that?
`
` 9
`
`MR. MARTINSON: Yeah, considering he filed it at 8:43
`
`10
`
`this morning, didn't give me a copy, I'll do my best, Your
`
`11
`
`Honor. But nothing in here changes anything.
`
`12
`
`The cases he cited are about inventors talking about
`
`13
`
`their inventions. Mr. Progl's not an inventor of anything at
`
`14
`
`issue in this case. He's not an inventor on the '303 patent or
`
`15
`
`the '028 patent.
`
`16
`
`Further, this issue was the exact question presented
`
`17
`
`in motion in limine No. 7, right. From the briefing:
`
`18
`
`Cree designers will be testifying at trial raises --
`
`19
`
`raises -- about what the products were designed to do, right?
`
`20
`
`We knew this issue was coming, and we asked you to rule on it,
`
`21
`
`and you did. And you said:
`
`22
`
`Evidence of subjective intent is not an element of
`
`23
`
`infringement.
`
`24
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`It's quite clear. Further, there are cases that we
`
`25
`
`looked at on our own that, when you talk about inventors,
`
`November 4, 2021 - Trial Day 7
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 12 of 221
`
` 12
`
` 1
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`sometimes, they're not even allowed to testify about what they
`
` 2
`
`invented.
`
` 3
`
`THE COURT: Okay. Let's assume that's correct. One
`
` 4
`
`of the arguments in the brief is that the door's been open when
`
` 5
`
`Mr. McCreary testified about the intent of the designer,
`
` 6
`
`Mr. Progl.
`
` 7
`
`MR. MARTINSON: Okay. I'm happy to address that as
`
` 8
`
`well. What Mr. McCreary was asked, if you read the full
`
` 9
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`transcript, is: Did you see any objective evidence of what was
`
`10
`
`going on with the design? In his opinion.
`
`11
`
`12
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`THE COURT: Um-hum.
`
`MR. MARTINSON: Okay? He said: With respect to this
`
`13
`
`specific drawing, that's solid.
`
`14
`
`The next thing he said was -- the designer put holes
`
`15
`
`in it, okay, which he said: ...isn't probably a good design.
`
`16
`
`But, it seemed to me, the intent was to put holes.
`
`17
`
`That was it. That's a fact. He did put holes in it.
`
`18
`
`It's on page 3 right in the middle. It's nice and highlighted,
`
`19
`
`too.
`
`20
`
`THE COURT: What they've quoted is: Poking holes in
`
`21
`
`it tells me the designer wanted to facilitate convection. And
`
`22
`
`I'm pretty sure this would not be an effective design, but it
`
`23
`
`seems to me that was the intent is to poke holes on the outside
`
`24
`
`and perhaps bring in fresh air, but I don't see what would be
`
`25
`
`driving the fresh air in.
`
`November 4, 2021 - Trial Day 7
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 13 of 221
`
` 13
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` 1
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`MR. MARTINSON: Right. And that's not even in the
`
` 2
`
`accused product, that -- that design.
`
` 3
`
`And then, on -- the second thing they point to that
`
` 4
`
`runs over to page 4, which is highlighted, which are, of
`
` 5
`
`course, intended for convection -- convection heat transfer.
`
` 6
`
` 7
`
` 8
`
`outside.
`
`THE COURT: Um-hum.
`
`MR. MARTINSON: They're talking about the fins on the
`
` 9
`
`THE COURT: They were trying to maximize their heat
`
`10
`
`transfer, and by doing so by two different mechanisms.
`
`11
`
`MR. MARTINSON: That's right, two different
`
`12
`
`mechanisms, again, the design, which Mr. McCreary had said
`
`13
`
`didn't make it into the product. He was talking about his
`
`14
`
`opinion, which was fully disclosed under Rule 702.
`
`15
`
`Mr. Harper could have cross-examined it on him --
`
`16
`
`could have cross-examined him on it if he so choose [sic]. He
`
`17
`
`vetted this issue in his deception. That's a choice he made.
`
`18
`
`Dr. Progl never issued a report for me to ask him any of these
`
`19
`
`questions.
`
`20
`
`21
`
`THE COURT: Did you depose Dr. Progl?
`
`MR. MARTINSON: I personally did not. He was deposed
`
`22
`
`in this case.
`
`23
`
`24
`
`THE COURT: Okay.
`
`MR. MARTINSON: Sorry. Just one last point. You
`
`25
`
`know, we've talked about keeping it simple for the jury and
`
`November 4, 2021 - Trial Day 7
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 14 of 221
`
` 14
`
` 1
`
`trying not to confuse them, you know, and you've made a ruling
`
` 2
`
`on this already. Under 403, all Mr. Harper is trying to do is
`
` 3
`
`confuse the jury with testimony from someone who's not
`
` 4
`
`disclosed as an expert about an issue squarely within the
`
` 5
`
`expert's purview in this case.
`
` 6
`
`THE COURT: All right. Well, the distinction between
`
` 7
`
`701 and 702 is, I think, often very difficult to draw,
`
` 8
`
`particularly in cases where the lay witness -- the tendered lay
`
` 9
`
`witness has experience in a particular profession or field, and
`
`10
`
`I -- I mean, I don't know, because they weren't tendered as
`
`11
`
`experts. But between Negley and Progl, you've got physics
`
`12
`
`degree and experience in the field with Negley, and then you've
`
`13
`
`got chemical engineering, mechanical engineering, and materials
`
`14
`
`with Progl. So we're talking about a very educated -- or a
`
`15
`
`very educated group of individuals who were performing work on
`
`16
`
`this particular product, which makes the distinction even more
`
`17
`
`difficult to draw.
`
`18
`
`This comes from a treatise, and then I'll cite a
`
`19
`
`couple of cases to address it directly:
`
`20
`
`In the final analysis, one of the major distinctions
`
`21
`
`between lay witness and expert testimony is that experts are
`
`22
`
`permitted to speak without personal knowledge of the underlying
`
`23
`
`facts, and lay witnesses are not. Put another way, experts are
`
`24
`
`allowed, under Rule 703, to rely on outside sources for their
`
`25
`
`opinion, and lay witnesses are not. Focusing on the source of
`
`November 4, 2021 - Trial Day 7
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 15 of 221
`
` 15
`
` 1
`
`information that a witness employs is a good rule of thumb for
`
` 2
`
`distinguishing expert from lay opinion.
`
` 3
`
`There's a fed -- I didn't -- I guess we still call it
`
` 4
`
`Shepardize, but I didn't Shepardize these cases, but there's a
`
` 5
`
`federal claims case, Authentic Apparel Group versus United
`
` 6
`
`States, a 2017 case, 134 Federal Claims 78, discusses the
`
` 7
`
`issues similar to those that are present here, and quotes 701:
`
` 8
`
`Lay witness testimony and opinion has to be rationally based on
`
` 9
`
`witness perception, helpful to clearly understanding the
`
`10
`
`witness's testimony, or to determining a fact in issue, and not
`
`11
`
`based on scientific, technical, or other specialized knowledge
`
`12
`
`within the scope of Rule 702.
`
`13
`
`Then goes on to quote from the advisory committee
`
`14
`
`notes: The distinction between lay and expert testimony is
`
`15
`
`that lay testimony results from a process of reasoning familiar
`
`16
`
`in everyday life, while expert testimony results from a process
`
`17
`
`of reasoning which can only be mastered -- which can be
`
`18
`
`mastered only by specialists in the field.
`
`19
`
`The advisory committee notes further discussed the
`
`20
`
`requirements of Rule 701, explaining that, A is the familiar
`
`21
`
`requirement of firsthand knowledge or observation. And that
`
`22
`
`the addition of Section C is intended to eliminate the risk
`
`23
`
`that the reliability requirement set forth in Rule 702 will be
`
`24
`
`abated through the simple expedient of proffering an expert in
`
`25
`
`lay witness clothing, thereby avoiding the requirement of
`
`November 4, 2021 - Trial Day 7
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 16 of 221
`
` 16
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` 1
`
`disclosing the expert witnesses.
`
` 2
`
`And that Court went on to say: It appears that
`
` 3
`
`Plaintiff anticipating eliciting these witnesses' personal
`
` 4
`
`observations based upon their experience in the industry to
`
` 5
`
`counter or clarify factual assumptions made by Defendant's
`
` 6
`
`expert. This type of lay testimony is acceptable under
`
` 7
`
`Rule 701. The fact that a witness has specialized knowledge
`
` 8
`
`does not necessarily preclude the witness from testifying under
`
` 9
`
`Rule 701, but the testimony must not be rooted exclusively in
`
`10
`
`the witness' expertise.
`
`11
`
`The fed circuit recently -- or in 2020, decided a
`
`12
`
`case, HVLPO2, LLC, versus Oxygen Frog, LLC, talking about a lay
`
`13
`
`witness who had been called to testify based on his experience
`
`14
`
`regarding obviousness. And that testimony was allowed, and the
`
`15
`
`Court held that determination was wrong, admission of that
`
`16
`
`individual's testimony, opining that: It would be obvious to
`
`17
`
`modify a prior art system in a particular way that would match
`
`18
`
`the claimed invention, was improper. Federal Rule of Evidence
`
`19
`
`702 provides -- everybody knows what that says. This precisely
`
`20
`
`describes testimony that would pertain to an obviousness
`
`21
`
`invalidity challenge in a patent trial. It is often helpful to
`
`22
`
`have a technical expert explain, for example, and so on and so
`
`23
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`forth.
`
`24
`
`This lay witness testimony, which is directed to the
`
`25
`
`conclusion of obviousness and its underlying technical
`
`November 4, 2021 - Trial Day 7
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 17 of 221
`
` 17
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`questions is the province of qualified experts, not lay
`
` 2
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`witnesses.
`
` 3
`
`So, I think, in looking at those cases and
`
` 4
`
`considering the source -- sources of information, I do think
`
` 5
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`that there is some testimony from Mr. -- or Dr. Progl that is
`
` 6
`
`admissible under 701. That testimony -- that testimony which
`
` 7
`
`is based upon his experience, number one; and number two, is
`
` 8
`
`not -- does not go to an opinion based on scientific testing or
`
` 9
`
`other 702 type information as to whether the bulb infringes or
`
`10
`
`doesn't infringe.
`
`11
`
`Now, specifically, I don't expect Dr. Progl to be
`
`12
`
`asked does this infringe the patent. But when Dr. Progl starts
`
`13
`
`talking about things like here's the way the heat -- we'll take
`
`14
`
`an example: Is the heat being conducted or convected in the
`
`15
`
`bulb?
`
`16
`
`It seems to me that determination -- you can't see
`
`17
`
`what's happening. And, at this point in time, there's been
`
`18
`
`nothing to suggest that Dr. Progl did anything personally to
`
`19
`
`determine how the heat was being transferred within the bulb,
`
`20
`
`whether conducted, convected, or otherwise.
`
`21
`
`And to the extent Dr. Progl then did some testing
`
`22
`
`using MATLAB or whatever, SOLIDWORKS, or whatever it was, now
`
`23
`
`he's moving into the realm -- for example, SOLIDWORKS testing
`
`24
`
`would be, as I understand it, it's an algorithm that would
`
`25
`
`be -- likely fall under a type of hearsay evidence that is
`
`November 4, 2021 - Trial Day 7
`
`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 18 of 221
`
` 18
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` 1
`
`almost exclusively within the province of an individual
`
` 2
`
`qualified as an expert.
`
` 3
`
`So I think there are ways that Dr. Progl can testify
`
` 4
`
`as to things like: I put a heat sink on it to help us with the
`
` 5
`
`heat problem, if he can testify to it without test -- relying
`
` 6
`
`upon the results of scientific testing or other things, I think
`
` 7
`
`he can explain, you know, the heat sink -- what a heat sink
`
` 8
`
`does, things like: We raised the column up so the LEDs would
`
` 9
`
`shine, what they described, a 270-degree angle out from the
`
`10
`
`bulb itself like an incandescent bulb, and so on and so forth;
`
`11
`
`those things he observed, those things based on his experience.
`
`12
`
`But when he starts to move from those matters based
`
`13
`
`on his experience, we tested this bulb, it didn't work; we
`
`14
`
`tested this bulb, it didn't work; and as a result, we
`
`15
`
`redesigned, and we did this bulb, and it did work, I think
`
`16
`
`those kind of -- that type of testimony based on his experience
`
`17
`
`is fine.
`
`18
`
`But when he starts to move into the processes that
`
`19
`
`are taking place within the bulb, it seems to me that you're
`
`20
`
`then moving to scientific -- specific scientific knowledge that
`
`21
`
`is the province of an expert witness. And because he wasn't
`
`22
`
`designated as an expert witness, and his opinions weren't
`
`23
`
`provided in advance of trial in a report, he can't testify in
`
`24
`
`that capacity as an expert.
`
`25
`
`Last question. Whether the -- poking holes was for
`
`November 4, 2021 - Trial Day 7
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`

`

`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 19 of 221
`
` 19
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` 1
`
`conduction, or whether the designs that Dr. Progl went through
`
` 2
`
`in terms of creating that heat sink had a purpose. To the
`
` 3
`
`extent that door was opened by McCreary's testimony as to what
`
` 4
`
`he thought the designer was doing when he conducted that, I
`
` 5
`
`think it's -- I think that door's been opened, and it's fair
`
` 6
`
`for Dr. Progl to respond as to what he was doing when he poked
`
` 7
`
`holes or those specific items. I think that's relevant at this
`
` 8
`
`point.
`
` 9
`
`Anything else we need to take up before we bring the
`
`10
`
`jury in?
`
`11
`
`MR. HARPER: There's one housekeeping matter, unless
`
`12
`
`you have anything.
`
`13
`
`MR. MARTINSON: No. I was just going to ask a
`
`14
`
`clarifying question, so if -- because I don't want to have to
`
`15
`
`stand up all the time.
`
`16
`
`17
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`18
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`THE COURT: Just object when you need to object.
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`MR. MARTINSON: Okay.
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`THE COURT: You'll know whether I'm frustrated with
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`the questions that are coming or the objections that are
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`coming. So just object when you need to object.
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`MR. MARTINSON: Thank you. So if he -- just so I'm
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`clear. If Dr. Progl starts talking about any simulation he
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`ran, I'm going to stand up and say, 701.
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`THE COURT: I think he can say, I ran a simulation.
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`I don't think that's -- I mean, that's what he did.
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`November 4, 2021 - Trial Day 7
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`Case 1:17-cv-00687-WO-JLW Document 380 Filed 08/09/22 Page 20 of 221
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