`UNITED STATES
`INTERNATIONAL TRADE COMMISSION
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`In the Matter of: ) Investigation No.:
`CERTAIN LIGHT-EMITTING DIODE PRODUCTS, ) 337-TA-1168
`SYSTEMS, AND COMPONENTS THEREOF (III) )
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`OPEN SESSIONS
`REVISED AND CORRECTED
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`Ace-Federal Reporters, Inc.
`Stenotype Reporters
`555 12th Street, NW
`Suite 630-A
`Washington, D.C. 20006
`202-347-3700
`Nationwide Coverage
`www.acefederal.com
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`Pages: 1161 – 1455 (with excerpts)
`Place: Washington, D.C.
`Date: Wednesday, February 26, 2020
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`NICHIA-OSRAM Exhibit 1032
`Nichia Corp., et al. v. Lighting Science Group Corp., IPR2019-01259 Page 1
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` 1161
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` 1 UNITED STATES OF AMERICA
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` 2 BEFORE THE
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` 3 INTERNATIONAL TRADE COMMISSION
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` 4 - - - - - - - - - - - - - - - - - -X
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` 5 IN THE MATTER OF: : Investigation Number
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` 6 CERTAIN LIGHT-EMITTING DIODE : 337-TA-1168
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` 7 PRODUCTS, SYSTEMS AND COMPONENTS :
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` 8 THEREOF (III) :
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` 9 - - - - - - - - - - - - - - - - - -X
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` 10
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` 11 HEARING
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` 12
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` 13 Wednesday, February 26, 2020
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` 14 Courtroom A
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` 15 U.S. International Trade
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` 16 Commission
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` 17 500 E Street, SW
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` 18 Washington, DC
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` 19
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` 20 The Hearing commenced, pursuant to notice of the Judge,
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` 21 at 9:00 a.m., before the Honorable Clark Cheney,
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` 22 Administrative Law Judge for the United States
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` 23 International Trade Commission.
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` 24
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` 25
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`NICHIA-OSRAM Exhibit 1032
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` 1162
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` 1 APPEARANCES:
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` 2
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` 3 KAYVAN B. NOROOZI, ESQ.
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` 4 KARLY VALENZUELA, ESQ.
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` 5 JAMES A. MILKEY, ESQ.
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` 6 ANDREW GISH, ESQ.
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` 7 Noroozi PC
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` 8 11601 Wilshire Boulevard, Suite 2170
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` 9 Los Angeles, California 90025
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` 10 310.975.7074
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` 11 Appearing on behalf of Complainants Lighting Science
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` 12 Group Corporation and Healthe, Inc.
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` 13
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` 14 BARBARA A. MURPHY, ESQ.
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` 15 KANDIS C. GIBSON, ESQ.
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` 16 Foster, Murphy, Altman & Nickel PC
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` 17 1150 18th Street, NW, Suite 775
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` 18 Washington, DC 20036
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` 19 202.822.4100
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` 20 Appearing on behalf of Complainants Lighting Science
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` 21 Group Corporation and Healthe, Inc.
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` 22
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` 23
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` 24
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` 25 - continued -
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`NICHIA-OSRAM Exhibit 1032
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` 1163
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` 1 APPEARANCES (CONTINUED):
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` 2
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` 3 CHRISTOPHER S. STEWART, ESQ.
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` 4 HAMAD M. HAMAD, ESQ.
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` 5 BRADLEY J. CALDWELL, ESQ.
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` 6 JUSTIN T. NEMUNAITIS, ESQ.
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` 7 Caldwell, Cassady & Curry PC
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` 8 2121 North Pearl Street, Suite 1200
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` 9 Dallas, Texas 75201
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` 10 214.888.4848
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` 11 Appearing on behalf of Complainants Lighting Science
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` 12 Group Corporation and Healthe, Inc.
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` 13
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` 14 KENNETH G. PARKER, ESQ.
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` 15 Haynes and Boone LLP
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` 16 600 Anton Boulevard, Suite 700
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` 17 Costa Mesa, California 92626
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` 18 949.202.3000
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` 19 Appearing on Behalf of Complainant Global Value
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` 20 Lighting, LLC
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` 22
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` 24
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` 25 - continued -
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`NICHIA-OSRAM Exhibit 1032
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` 1164
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` 1 APPEARANCES (CONTINUED):
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` 2
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` 3 MARK HANNEMANN, ESQ.
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` 4 PATRICK R. COLSHER, ESQ.
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` 5 AHMED EL DESSOUKI, ESQ.
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` 6 Shearman & Sterling LLP
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` 7 599 Lexington Avenue
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` 8 New York, New York 10022
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` 9 212.848.7696
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` 10 Appearing for Respondents Osram GmbH, Osram Licht AG,
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` 11 OSRAM Opto Semiconductors GmbH; and OSRAM Opto
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` 12 Semiconductors, Inc.
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` 13
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` 14 THOMAS R. MAKIN, ESQ.
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` 15 PATRICK R. COLSHER, ESQ.
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` 16 ERIC LUCAS, ESQ.
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` 17 Shearman & Sterling LLP
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` 18 599 Lexington Avenue
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` 19 New York, New York 10022-6069
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` 20 212.848.7698
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` 21 Appearing on behalf of Respondents Nichia America
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` 22 Corporation and Nichia Corporation
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` 24
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` 25 - continued -
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` 1165
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` 1 APPEARANCES (CONTINUED):
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` 2
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` 3 S. ALEX LASHER, ESQ.
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` 4 Quinn, Emanuel, Urquhart & Sullivan LLP
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` 5 1300 I Street, NW, Suite 900
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` 6 Washington, DC 20005
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` 7 202.538.8000
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` 8 Appearing on behalf of Respondents Cree, Inc.,
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` 9 Cree Hong Kong Ltd., and Cree Huizhou Solid State
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` 10 Lighting Co. Ltd.
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` 11
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` 12 RICHARD W. ERWINE, ESQ.
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` 13 RAYMOND N. NIMROD, ESQ.
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` 14 KEVIN JANG, ESQ.
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` 15 Quinn, Emanuel, Urquhart & Sullivan LLP
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` 16 51 Madison Avenue
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` 17 New York, New York 10010
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` 18 212.849.7000
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` 19 Appearing on behalf of Respondents Cree, Inc.,
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` 20 Cree Hong Kong Ltd., and Cree Huizhou Solid State
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` 21 Lighting Co. Ltd.
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` 25 - continued -
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` 1 APPEARANCES (CONTINUED):
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` 2
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` 3 BRYAN A. KOHM, ESQ.
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` 4 MICHAEL SACKSTEDER, ESQ.
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` 5 SHANNON TURNER, ESQ.
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` 6 Fenwick & West LLP
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` 7 555 California Street, 12th Floor
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` 8 San Francisco, California 94104
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` 9 415.875.2300
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` 10 Appearing on behalf of Respondents Lumileds Holding
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` 11 B.V. and Lumileds LLC
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` 12
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` 13 JONATHAN T. MC MICHAEL, ESQ.
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` 14 Fenwick & West LLP
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` 15 1191 Second Avenue, 10th Floor
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` 16 Seattle, Washington 98101
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` 17 206.389.4510
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` 18 Appearing on behalf of Respondents Lumileds Holding
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` 19 B.V. and Lumileds LLC
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` 25 - continued -
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` 1 APPEARANCES (CONTINUED):
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` 2 ERIC MENIST, ESQ.
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` 3 Fenwick & West LLP
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` 4 902 Broadway, Suite 14
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` 5 New York, New York 10010-6035
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` 6 212.430.2600
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` 7 Appearing on behalf of Respondents Lumileds Holding
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` 8 B.V. and Lumileds LLC
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` 9
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` 10 ADAM D. SWAIN, ESQ.
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` 11 Alston & Bird LLP
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` 12 950 F Street, NW
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` 13 Washington, DC 20004
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` 14 202.239.3622
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` 15 Appearing on behalf of Respondents Signify N.V. and
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` 16 Signify North America Corporation
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` 17
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` 18 JOHN D. HAYNES, ESQ.
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` 19 Alston & Bird LLP
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` 20 One Atlantic Center
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` 21 1201 West Peachtree Street, Suite 4900
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` 22 Atlanta, Georgia 30309-3424
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` 23 404.881.7000
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` 24 Appearing on behalf of Respondents Signify N.V. and
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` 25 Signify North America Corporation - continued -
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` 1 APPEARANCES (CONTINUED):
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` 2 EDWIN WHEELER, ESQ.
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` 3 Intelink Law Group, PC
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` 4 One Market Street, Spear Tower, 36th Floor
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` 5 San Francisco, California 94105
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` 6 415.688.7809
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` 7 Appearing on behalf of Respondents MLS Co., Ltd.,
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` 8 LEDVANCE GmbH, and LEDVANCE LLC
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` 9
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` 10 MICHAEL MARION, ESQ.
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` 11 Intelink Law Group, PC
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` 12 2375 East Camelback Road, Suite 600
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` 13 Phoenix, Arizona 85016
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` 14 623.473.5301
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` 15 Appearing on behalf of Respondents MLS Co., Ltd.,
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` 16 LEDVANCE GmbH, and LEDVANCE LLC
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` 17
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` 18 MATTHEW S. YUNGWIRTH, ESQ.
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` 19 ALICE E. SNEDEKER, ESQ.
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` 20 Duane Morris LLP
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` 21 1075 Peachtree Street, N.E., Suite 2000
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` 22 Atlanta, Georgia 30309
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` 23 404.253.6900
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` 24 Appearing on behalf of Respondents Acuity Brands, Inc.
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` 25 and Acuity Brands Lighting, Inc. - continued -
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` 1 APPEARANCES (CONTINUED):
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` 2 DANIEL TARR, ESQ.
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` 3 ALEKSANDER GORANIN, ESQ.
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` 4 Duane Morris LLP
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` 5 30 South 17th Street
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` 6 Philadelphia, Pennsylvania 19103-4196
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` 7 215.979.1829
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` 8 Appearing on behalf of Respondents Acuity Brands, Inc.
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` 9 and Acuity Brands Lighting, Inc.
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` 10
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` 11 STEVEN ADKINS, ESQ.
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` 12 McGuire Woods
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` 13 2001 K Street, NW, Suite 400
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` 14 Washington, DC 20006-1040
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` 15 202.857.1704
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` 16 Appearing on behalf of Respondent Current Lighting
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` 17 Solutions, LLC
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` 18
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` 19 MATTHEW W. CORNELIA, ESQ.
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` 20 McGuire Woods
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` 21 2000 McKinney Avenue, Suite 1400
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` 22 Dallas, Texas 75201
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` 23 214.932.6400
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` 24 Appearing on behalf of Respondent Current Lighting
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` 25 Solutions, LLC - continued -
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` 1 APPEARANCES (CONTINUED):
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` 2
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` 3 STEPHANIE L. ROBERTS, ESQ.
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` 4 ERIC S. NAMROW, ESQ.
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` 5 Morgan, Lewis & Bockius LLP
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` 6 1111 Pennsylvania Avenue, NW
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` 7 Washington, DC 20004-2541
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` 8 202.739.5556
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` 9 Appearing on behalf of Respondents General Electric
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` 10 Company, Consumer Lighting (U.S.), LLC
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` 11 (d/b/a GE Lighting LLC)
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` 12
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` 13 CHRISTOPHER D. BRIGHT, ESQ.
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` 14 Morgan, Lewis & Bockius LLP
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` 15 600 Anton Boulevard, Suite 1800
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` 16 Costa Mesa, California 92626-7653
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` 17 714.830.0516
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` 18 Appearing on behalf of Respondents General Electric
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` 19 Company, Consumer Lighting (U.S.), LLC
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` 20 (d/b/a GE Lighting LLC)
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` 25 - continued -
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` 1 APPEARANCES (CONTINUED):
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` 2
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` 3 HERSH MEHTA, ESQ.
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` 4 Morgan, Lewis & Bockius LLP
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` 5 77 West Wacker Drive
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` 6 Chicago, Illinois 60601-5094
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` 7 312.324.1739
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` 8 Appearing on behalf of Respondents General Electric
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` 9 Company, Consumer Lighting (U.S.), LLC
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` 10 (d/b/a GE Lighting LLC)
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` 11
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` 12 MATTHEW N. BATHON, ESQ.
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` 13 STANLEY C. KUO, ESQ.
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` 14 THOMAS YEBERNETSKY, ESQ.
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` 15 Steptoe & Johnson LLP
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` 16 1330 Connecticut Avenue, NW
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` 17 Washington, DC 20036
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` 18 202.429.3000
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` 19 Appearing on behalf of Respondents Leedarson America,
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` 20 Inc. and Leedarson Lighting Co., Ltd.
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` 25 - continued -
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` 1 APPEARANCES (CONTINUED):
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` 2
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` 3 PAUL M. BARTKOWSKI, ESQ.
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` 4 TOM M. SCHAUMBERG, ESQ.
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` 5 MICHAEL R. DOMAN, JR., ESQ.
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` 6 HAYLEY M. OSTRIN, ESQ.
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` 7 Adduci, Mastriani & Schaumberg LLP
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` 8 1133 Connecticut Avenue, NW, 12th Floor
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` 9 Washington, DC 20036
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` 10 202.467.6300
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` 11 Appearing for Respondents Osram GmbH, Osram Licht AG,
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` 12 OSRAM Opto Semiconductors GmbH; and OSRAM Opto
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` 13 Semiconductors, Inc.
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` 1 P R O C E E D I N G S
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` 2 JUDGE CHENEY: We're now on the public record in
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` 3 Investigation Number 337-TA-1168. This is the
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` 4 light-emitting diodes case. When we concluded yesterday,
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` 5 we were listening to the direct examination of Respondents'
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` 6 expert Nan Jokerst, and today we will have the last day of
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` 7 the evidentiary hearing.
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` 8 Before we begin today's session, are there any
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` 9 housekeeping matters the parties wish to address?
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` 10 MR. CALDWELL: Good morning, your Honor, Brad
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` 11 called well on behalf of the Complainants.
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` 12 JUDGE CHENEY: Good morning, Mr. Caldwell.
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` 13 MR. CALDWELL: I don't want to run up the same
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` 14 hill as we did before about time. I'd like to report time
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` 15 and then clarify something that concerns the Complainants,
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` 16 at least to lodge it, if not to obtain a ruling at this
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` 17 point.
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` 18 And that is I think yesterday we told you we
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` 19 estimated we had around 95 minutes left. I think like
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` 20 based on the back and forth with the parties, we really
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` 21 have something like 89 minutes left. And then when you
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` 22 take their time and you add it altogether, it's a little
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` 23 bit more than what we could do in six hours.
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` 24 So even if you scale it to six hours, we as the
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` 25 Complainants have something like 82 minutes.
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` 1 Our intention is to reserve a solid 22 minutes
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` 2 to 30, but hopefully at least 22 minutes, for our rebuttal
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` 3 case. And what our concern is , I don't use this word as
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` 4 sort of like vilification or whatever, but the consequence
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` 5 of what amounts to sort of a filibustering-type outcome
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` 6 where we don't get a chance to put on our rebuttal case and
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` 7 we get to 4:30 and we've never had a chance despite saving
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` 8 time for our rebuttal case.
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` 9 And I wanted to raise that to your Honor,
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` 10 because we think it would be manifestly unfair, just as it
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` 11 would have been unfair if they were never to have a chance
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` 12 to respond to our infringement case. They bear the burden
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` 13 on validity, and we need to say some things.
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` 14 And I know your Honor is very familiar with
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` 15 patents, so there's something kind of unique in this case
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` 16 that I think makes it one where we can't just sort of waive
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` 17 rebuttal on validity and say you haven't met your burden,
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` 18 which is there's actually a reference where we've basically
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` 19 stipulated to the fact that it can meet the elements. And
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` 20 the question comes down to whether we have priority
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` 21 claiming back to a provisional, and we need to be able to
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` 22 put on that evidence.
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` 23 So I don't know if it's appropriate for a ruling
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` 24 now, but one thing we would suggest is maybe that there at
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` 25 least be some time, if we're going to end at 4:30, at 4:00
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` 1 can we begin our rebuttal case? Or something of that
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` 2 nature. Because we're reserving time to do that and
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` 3 worried that, either through objections or, respectfully,
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` 4 your Honor's questions, whatever the case may be, we're
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` 5 worried that we may be in a world where it becomes 4:30 and
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` 6 gee, sorry, you didn't get a chance to do a rebuttal case.
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` 7 And that's what I wanted to flag for you.
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` 8 JUDGE CHENEY: Okay. It is completely in your
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` 9 control to have 22 minutes for your rebuttal case.
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` 10 MR. CALDWELL: Yes, sir. And we will save it to
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` 11 where we have that time. What we feel is not in our
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` 12 control is the 4:30. And what we would be worried about is
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` 13 if due to the way time is used -- because our time has been
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` 14 eroded via this enormous asymmetry in objections.
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` 15 JUDGE CHENEY: If you want a ruling on whether I
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` 16 think that there has been asymmetry in objections, I'm
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` 17 happy to give you that ruling. Is that what you're asking
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` 18 me to do?
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` 19 MR. CALDWELL: I'm not actually sure what that
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` 20 ruling would mean. I just know as to --
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` 21 JUDGE CHENEY: I'm trying to figure out what
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` 22 you're asking me to do.
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` 23 MR. CALDWELL: I'm just asking that we be
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` 24 allowed to present a rebuttal case if we have kept back 22
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` 25 minutes or whatever the number is at the time.
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` 1 JUDGE CHENEY: Yeah, if you have not used your
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` 2 full half of the remaining time or whatever calculation
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` 3 you've come to agreement with the Complainants about, I'm
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` 4 happy to give you that time.
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` 5 MR. CALDWELL: Thank you. That is the request.
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` 6 JUDGE CHENEY: There seems to be an opinion on
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` 7 the part of the Complainants that there has been some
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` 8 tactical maneuvering in objections, and I have seen
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` 9 tactical maneuvering in objections in these hearings. And
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` 10 this has not been one of those hearings.
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` 11 These have been normal objections that have
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` 12 required some time to dissect. And if parties were better
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` 13 prepared to respond to the objections, it would have taken
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` 14 less time to deal with them.
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` 15 So I don't see this as a case where there has
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` 16 been tactical maneuvering on objections. I'll just put
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` 17 that out there right now.
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` 18 MR. CALDWELL: Okay.
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` 19 JUDGE CHENEY: And I expect everyone will
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` 20 maintain that same standard of conduct throughout the rest
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` 21 of the hearing today.
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` 22 MR. CALDWELL: Yes, sir. Thank you.
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` 23 JUDGE CHENEY: Anything else you want to raise?
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` 24 MR. CALDWELL: No, sir.
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` 25 JUDGE CHENEY: Okay. Anything that Respondents
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` 1 want to raise this morning?
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` 2 MS. ROBERTS: Your Honor, one quick thing.
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` 3 We've agreed on some of Respondents' exhibits yesterday, so
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` 4 we move to admit those. The parties have agreed.
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` 5 JUDGE CHENEY: Okay. No objection from
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` 6 Complainants?
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` 7 MR. STEWART: No objection, your Honor.
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` 8 JUDGE CHENEY: Okay. The list of exhibits that
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` 9 the Respondents and Complainants have conferred upon will
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` 10 be admitted into evidence. Please make sure that the court
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` 11 reporter has an accurate account of those exhibits.
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` 12 (Exhibits received here to be listed in index.)
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` 13 JUDGE CHENEY: Any other issues before we resume
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` 14 the taking of evidence?
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` 15 MR. SWAIN: Your Honor, may I approach?
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` 16 JUDGE CHENEY: You may.
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` 17 MR. SWAIN: Good morning, your Honor. I'd like
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` 18 to resume the direct examination of Dr. Nan Marie Jokerst
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` 19 with your permission.
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` 20 JUDGE CHENEY: Let's do so.
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` 21 Whereupon,
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` 22 NAN MARIE JOKERST
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` 23 was recalled as a witness and, having previously been duly
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` 24 sworn, was examined and testified further as follows:
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` 25 DIRECT EXAMINATION (Continued)
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` 1 BY MR. SWAIN:
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` 2 Q Could I have RDX-3 and RDX-4 back up, Ray.
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` 3 Dr. Jokerst, if you recall when we left off
`
` 4 yesterday, we were talking about your investigation of LED
`
` 5 assemblies that the luminaire Respondents use in their
`
` 6 products.
`
` 7 Do you remember that?
`
` 8 A Yes, I do.
`
` 9 Q Okay. And hopefully RDX-3 and 4 are making
`
` 10 their way up to the screen. But let's talk about those --
`
` 11 there we go, these LED assemblies here on 3 and on 4. And
`
` 12 these are the ones you're providing your opinion on today;
`
` 13 correct?
`
` 14 A Yes.
`
` 15 Q Okay. Now, when we left off, we were talking
`
` 16 about electroplating of these LED assemblies.
`
` 17 Do you recall that?
`
` 18 A Yes.
`
` 19 Q Okay. Now, Dr. Jokerst, could you explain again
`
` 20 how this electroplating is applied to the lead frame?
`
` 21 A So electroplating can occur via electrical
`
` 22 current or without electrical current, so that's called
`
` 23 electroless plating. And the electroplating takes place in
`
` 24 a bath. Let's take silver electroplating for example.
`
` 25 The item to be electroplated, such as the lead
`
`
`
`
`
`
`
`NICHIA-OSRAM Exhibit 1032
`Nichia Corp., et al. v. Lighting Science Group Corp., IPR2019-01259 Page 19
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`
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` 1179
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`
`
` 1 frames, are dipped into the solution and an electrode for
`
` 2 electroplating is dipped into the solution. And as a
`
` 3 current is applied between the electrode and the lead
`
` 4 frames, the silver in the solution is deposited onto the
`
` 5 lead frame in a thin conformal coating.
`
` 6 Q And in your opinion, why is electroplating used
`
` 7 to put this metal onto the lead frame?
`
` 8 A Well, for a variety of reasons. Number one,
`
` 9 corrosion resistance is incredibly important in these lead
`
` 10 frames, and a conformal coating, in other words a coating
`
` 11 that's uniform over all of the surfaces, not leaving voids
`
` 12 or uncoated portions, is important for corrosion
`
` 13 resistance.
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` 14 Also, in LED assemblies in particular, the
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` 15 reflectivity of the metal is very important to the light
`
` 16 output characteristics of the particular LED assembly.
`
` 17 And so having an electroplated layer that gives
`
` 18 a smooth, highly reflective surface is very important.
`
` 19 Those are two aspects.
`
` 20 Q And what did you do to confirm the electroplated
`
` 21 layer in the accused assemblies?
`
` 22 A So I ran, as I said yesterday, the SEM and the
`
` 23 EDS experiments on the LED assemblies, and I also ran
`
` 24 TOF-SIMS, S-I-M-S.
`
` 25 Q And in addition to that, did you procure these
`
`
`
`
`
`
`
`NICHIA-OSRAM Exhibit 1032
`Nichia Corp., et al. v. Lighting Science Group Corp., IPR2019-01259 Page 20
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`
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` 1180
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`
`
` 1 and look at the LED assemblies yourself as well?
`
` 2 A Yes. As I said yesterday, I took apart a large
`
` 3 number of these LED assemblies, the luminaires, I'm sorry,
`
` 4 not the LED assemblies. I took apart the luminaires and
`
` 5 visually inspected the insides of the luminaires. I also
`
` 6 procured a large number of the accused products that were
`
` 7 unsoldered for these tests.
`
` 8 Q And unsoldered, you mean unsoldered to a circuit
`
` 9 board; correct?
`
` 10 A Yes, the bare LED assemblies.
`
` 11 Q Thank you.
`
` 12 I'm showing you -- you had mentioned some tests.
`
` 13 I'm showing you, in your binder, should be RX-2566?
`
` 14 Do you see that?
`
` 15 A Yes, I do.
`
` 16 Q And as you're examining that, Dr. Jokerst, are
`
` 17 these the results of your SEM, EDS and TOF-SIMS tests you
`
` 18 ran?
`
` 19 A Yes, yes, they are.
`
` 20 Q Thank you.
`
` 21 And generally, Dr. Jokerst, what did your SEM,
`
` 22 EDS and TOF-SIMS reveal about the accused assemblies?
`
` 23 A Well, I was interested in validating the
`
` 24 well-known fact that LED assemblies have a silver or highly
`
` 25 reflective, typically silver, electroplated layer on the
`
`
`
`
`
`
`
`NICHIA-OSRAM Exhibit 1032
`Nichia Corp., et al. v. Lighting Science Group Corp., IPR2019-01259 Page 21
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` 1181
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` 1 outside of the lead frame.
`
` 2 Q What did your tests reveal?
`
` 3 A So the EDS, SEM tests showed there was silver or
`
` 4 mixed nickel-silver layer on the outside of every one of
`
` 5 the tested LED assemblies of the luminaire products.
`
` 6 The TOF-SIMS results validated my belief that
`
` 7 these were electroplated layers based on the thinness and
`
` 8 uniformity of these layers.
`
` 9 Q How thin again, could you remind the Court?
`
` 10 A So the outer silver electroplated layer is
`
` 11 between 20 nanometers and 1 micron thick on the lead frame.
`
` 12 Q How might that compare to a human hair?
`
` 13 A Oh, so 1 micron is 1/100 the thickness of a
`
` 14 human hair.
`
` 15 Q I'm going to show you RDX-13 on the screen.
`
` 16 Dr. Jokerst, do you recognize the graphs on RDX-13?
`
` 17 A Yes, I do.
`
` 18 Q And for the record, they cite RX-2566 at pages 1
`
` 19 and 2. On the left is an SEM microscope result. Could you
`
` 20 explain what that is for the Court?
`
` 21 A Yes, so this is a microscope image using
`
` 22 scanning electrons of the bottom of an LED assembly. So
`
` 23 the sort of lightish part that's very smooth is the lead
`
` 24 frame, the bottom of the lead frame, and the little square
`
` 25 is where the EDS data w
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