HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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`Page 1
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` IN THE UNITED STATES DISTRICT COURT
` FOR THE SOUTHERN DISTRICT OF TEXAS
` HOUSTON DIVISION
`UTEX INDUSTRIES, INC., )
` )
` Plaintiff, )
` )
`v. ) Case No.
` ) 4:18-CV-01254
`TROY WIEGAND and )
`GARDNER DENVER, INC., )
` )
` Defendants. )
`_______________________ )
`
` HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
` VIDEOTAPED DEPOSITION OF
` ROBERT ASH
` Houston, Texas
` Wednesday, October 30, 2019
`
` Reported by:
` SUSAN PERRY MILLER, RDR, CRR, CRC
` JOB NO. 170133
`
`TSG Reporting - Worldwide (877) 702-9580
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`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 1 of 8
`
`

`

`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
`Page 2
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` A P P E A R A N C E S
`
`FOR PLAINTIFF, UTEX INDUSTRIES, INC.:
` Michelle Eber, Esq.
` Natalie Gonzales, Esq.
` BAKER BOTTS
` One Shell Plaza
` 910 Louisiana Street
` Houston, Texas 77002
`
`FOR DEFENDANTS, TROY WIEGAND and GARDNER
`DENVER, INC.:
` Sean McEldowney, Esq.
` Benjamin Behrendt, Esq.
` KIRKLAND & ELLIS
` 1301 Pennsylvania Avenue, N.W.
` Washington, DC 20004
`
`VIDEO TECHNICIAN:
` Madeline Nagy
` TSG REPORTING
`
` --oOo--
`
`Page 5
`
` R. ASH
` Ben Behrendt, also from Kirkland &
` Ellis.
` MS. EBER: Michelle Eber and
` Natalie Gonzales from Baker Botts LLP on
` behalf of the Plaintiff, UTEX
` Industries, and the Witness.
` THE VIDEOGRAPHER: Will the court
` reporter please swear in the witness.
` (Witness sworn by the reporter.)
` P R O C E E D I N G S
` ROBERT ASH,
`having sworn or affirmed to tell the truth,
`the whole truth, and nothing but the truth,
`was examined and testified as follows:
` EXAMINATION
`BY MR. McELDOWNEY:
` Q. Mr. Ash, can you please introduce
`yourself?
` A. My name is Robert Ash. I go by
`Bob.
` Q. Where do you work, sir?
` A. I work at UTEX Industries.
` Q. Which UTEX facility do you work at?
` A. All of them.
`
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` October 30, 2019
` 9:22 a.m.
`
` VIDEOTAPED DEPOSITION of ROBERT ASH,
`held at the offices of Baker Botts LLP,
`910 Louisiana Street, Houston, Texas, pursuant
`to Notice and the Federal Rules of Civil
`Procedure, before Susan Perry Miller,
`Registered Diplomate Reporter, Certified
`Realtime Reporter, Certified Realtime
`Captioner, and Notary Public in and for the
`State of Texas.
`
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`Page 4
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` R. ASH
`(Wednesday, October 30, 2019, 9:22 a.m.)
` THE VIDEOGRAPHER: This is the
` start of tape labeled No. 1 in the
` Videotaped Deposition of Robert Ash in
` the matter of UTEX Industries, Inc.
` vs. Troy Wiegand and Gardner Denver,
` Inc., in the United States District
` Court for the Southern District of
` Texas, Houston Division,
` No. 4:18-CV-01254.
` This deposition is being held at
` Baker Botts LLP, 910 Louisiana Street,
` Houston, Texas 77002, on Wednesday,
` October 30, at approximately 9:23 a.m.
` My name is Madeline Nagy from
` TSG Reporting Inc., and I am the legal
` video specialist. The court reporter is
` Susan Miller, in association with
` TSG Reporting.
` Will counsel please introduce
` yourself.
` MR. McELDOWNEY: Sean McEldowney
` from Kirkland & Ellis here on behalf of
` the Defendants. Also here with me is
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`TSG Reporting - Worldwide (877) 702-9580
`
`2
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`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 2 of 8
`
`

`

`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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` R. ASH
`interference.
` Q. Okay. So there's a geometric
`difference between a header and a pressure
`ring, in your opinion.
` A. Yes, sir.
` Q. You said there's also a functional
`difference. What's that difference?
` A. So the header ring is a wiper ring
`and the pressure ring is the component in the
`assembly that actually contains the pressure,
`the discharge pressure of the pump.
` Q. Okay. Do they both act as seals?
` A. No, sir.
` Q. Which one -- or do either of them
`act as a seal?
` A. The pressure ring is the sealing
`component.
` Q. Okay. And so does the header ring
`have any sealing function in a packing
`product?
` A. It has a wiping function.
` Q. What's the difference between
`wiping and sealing?
` A. You want to -- in order for the
`
`Page 16
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` R. ASH
` A. Please rephrase that.
`BY MR. McELDOWNEY:
` Q. You're not able to answer that
`question?
` A. Restate the question, please.
` Q. Are you able to answer the question
`I asked?
` MS. EBER: Same objections.
`BY MR. McELDOWNEY:
` Q. I can repeat it -- I can repeat it
`if I need to.
` A. Please repeat it.
` Q. Sure.
` If the claims in the '691 patent
`were directed to a pressure ring, meaning a
`fabric-reinforced pressure ring, you'd agree
`that that would have been obvious in light of
`what people knew in the art in 2008?
` MS. EBER: Same -- same objections.
` Incomplete hypothetical, outside the
` scope, and vague as to what the question
` is directed to.
` A. You're asking me to speculate, and
`I'm not going to do that.
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` R. ASH
`seal to work effectively with a degree of
`longevity, you want it to seal on a
`debris-free surface. So the wiper ring would
`be wiping the solids from the plunger.
` Q. Okay. And then the sealing
`function is done entirely by the pressure
`ring, then.
` A. In my opinion, yes, sir.
` Q. Okay. If the claims in the '691
`patent were directed to a pressure ring, so a
`fabric-reinforced pressure ring, you agree
`that would have been obvious in 2008 in light
`of what people knew at the time, right?
` MS. EBER: Objection, incomplete
` hypothetical.
` A. Please rephrase that.
`BY MR. McELDOWNEY:
` Q. If the claims in the '691 patent
`were directed to a pressure ring, meaning a
`fabric-reinforced pressure ring, you'd agree
`that that would have been obvious in light of
`what people knew in the art in 2008?
` MS. EBER: Objection, incomplete
` hypothetical and outside the scope.
`
`Page 17
`
` R. ASH
`BY MR. McELDOWNEY:
` Q. Okay. You'd agree that in
`two-thousand- -- before 2008, people knew to
`make pressure rings out of fabric-reinforced
`rubber, right?
` A. Correct.
` Q. In fact, UTEX was selling
`fabric-reinforced pressure rings long before
`2008, wasn't it?
` A. Yes, sir, they were.
` Q. Okay. In your opinion, what was
`the invention of the '691 patent?
` MS. EBER: Objection to the extent
` it calls for a legal conclusion, but go
` ahead and answer.
` MR. McELDOWNEY: Just to be clear,
` is he going to be offering an opinion
` about the scope of the claims?
` MS. EBER: He can testify about his
` opinion as to the scope --
` MR. McELDOWNEY: Is he going to
` offer an opinion about the scope of the
` claims?
` MS. EBER: You didn't even let me
`
`TSG Reporting - Worldwide (877) 702-9580
`
`5
`
`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 3 of 8
`
`

`

`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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` R. ASH
` A. Of '691?
` Q. Correct.
` MS. EBER: Objection, outside the
` scope.
` A. I am not aware.
`BY MR. McELDOWNEY:
` Q. Okay. So back to column 2,
`starting at line 20, it's describing Figure 3
`and 4, which are prior art figures, right?
` A. They are artist representations,
`yes, sir.
` Q. Right. And the text in column 2
`starting at line 21 is describing those artist
`representations of the prior art, correct?
` A. Yes.
` Q. And for Section 36, starting around
`line 26, it says: Section 36 of body portion
`32 comprised of fabric- or fiber-reinforced
`material.
` Do you see that?
` A. Referring to which figure?
` Q. Well, I think that region is in
`both Figure 3 and 4.
` A. Okay.
`
`Page 80
`
` R. ASH
` A. Fabric or fiber.
` Q. Okay. So the fiber-reinforced
`that's described here in your view
`corresponded to the dual durometer UTEX header
`ring.
` Do I have that right?
` A. Not only fabric, but also fiber.
` Q. Okay. Was the dual durometer UTEX
`header ring a fabric -- did it have
`fabric-reinforced material?
` A. It had varying degrees of chopped
`fabric; mostly depending on the degree of
`mincing of that compound, it could be reduced
`down to fibers.
` Q. I see. So some of the -- well, let
`me back up.
` What was the material? Was it
`cotton or something else?
` A. I believe in the case of our 1028
`header ring it was cotton.
` Q. Okay. And the way you made it was
`you started with cotton fabric and minced it
`up into small pieces?
` A. Not my degree of specialty.
`
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` R. ASH
` Q. So let's just start with you see
`where I'm reading from, "Section 36 of body
`portion 32 comprises a fabric- or
`fiber-reinforced material."
` Do you see that?
` A. I do.
` Q. Isn't this disclosing that the
`prior art -- that in the prior art, the region
`represented by 36 could have been
`fabric-reinforced?
` A. No.
` Q. How else do you read this sentence?
`What does the word "fabric" do in there?
` A. In regarding to Figure 3, it is
`referring to a dual durometer header ring that
`we manufactured.
` Q. Okay. Where does it say that in
`the specification? How would I know that,
`reading the specification?
` A. Because it tells you to go to
`Figure 3 or 4.
` Q. And where does it say that
`Figure 2 -- sorry, Figure 3 and 4 are the dual
`durometer header ring that UTEX manufactured?
`
`Page 81
`
` R. ASH
` Q. Okay. However it was made, what
`the end product was was there were some
`individual cotton fibers and some larger
`pieces of cotton fabrics that were still
`intact in the right half of the header ring in
`Figure 3?
` A. Are you referring to the header
`rings that I'm familiar with from CDI? Or
`from UTEX?
` Q. So let's stick with UTEX for right
`now and then let's just look at Figure 3 so
`that we have this -- so we can be more
`specific.
` The region that's identified as 36
`in Figure 3, that was made up of rubber that
`was reinforced with cotton, correct?
` A. I'm not privy to that information.
`That's not my realm of expertise,
`manufacturing.
` Q. So you're not sure if it was cotton
`or something else?
` A. I'm not sure.
` Q. Okay. Whatever --
` A. It could have been a different
`
`TSG Reporting - Worldwide (877) 702-9580
`
`21
`
`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 4 of 8
`
`

`

`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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` R. ASH
`fiber.
` Q. Okay. And that region identified
`as number 36 in Figure 3 would have had some
`individual fibers and then some larger chunks,
`depending on the mincing, that would have been
`small pieces of fabric in region 36?
` A. Potentially.
` Q. And that's why, in the patent, you
`referred to it as a fabric- or
`fiber-reinforced material in column 2, because
`some of it would have been fibers and some of
`it could have been small pieces of fabric?
` A. Yes.
` Q. Okay. Do you know when UTEX
`started selling the dual durometer product
`that we're talking about?
` A. I do not.
` Q. Okay. You know it was before the
`'691, though?
` A. Yes.
` Q. Okay. And that's why it's
`described as prior art in the '691 patent?
` A. Yes.
` Q. Okay. Now, you mentioned the CDI
`
`Page 84
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` R. ASH
`corresponds to the second annular portion
`touch the plunger when this header ring is
`installed?
` A. I'm sorry, '691 patent?
` Q. Yeah.
` A. Is that the one you're referring
`to?
` Q. Correct.
` A. Figure 6?
` Q. Figure 6, and if you need look at
`Figure 8 where it has the installed
`configuration, you can look there as well.
` But my question ultimately is does
`that region that corresponds to what you've
`marked as the second annular portion, does
`that rub up against or touch the plunger when
`it's in operation, installed?
` A. No, it does not.
` Q. And so the fabric-reinforced
`section of the -- well, let me back up and get
`some -- and make sure I understand where the
`XLH header ring fits in.
` So UTEX makes a product that's
`described in this patent, right?
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` R. ASH
`header ring a minute ago. What did you have
`in mind there?
` Let me back up. CDI had made some
`header rings before the '691 patent that had
`some fabric reinforcement, correct?
` A. They also manufactured a dual
`durometer header ring.
` Q. And you used to work at CDI, right?
` A. I did.
` Q. Okay. And when you were -- when
`did you move from CDI to UTEX?
` A. January 2005.
` Q. And before you left CDI, CDI was
`selling their dual durometer header ring,
`right?
` A. Correct.
` Q. And that dual durometer header ring
`would have had fiber and/or fabric
`reinforcement in the elastomer, right?
` A. That is my understanding.
` Q. Okay. So let's talk about a few of
`the other figures in the patent. So Figure 6,
`and maybe you need to refer to Figure 8 also,
`but my question is: Does the region that
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` R. ASH
` A. Of '691?
` Q. Yes.
` A. Yes.
` Q. And you call it the XLH header
`ring?
` A. Correct.
` Q. Now, Figures 5, 6 and 7 in the
`patent show three different configurations?
`Do you see that?
` A. Correct. I do.
` Q. Okay. And figure -- and the
`difference between the three is how much of
`the outer surface is covered or wrapped in
`fabric, right?
` A. Rephrase that for me.
` Q. Sure.
` The difference between Figures 5, 6
`and 7 is the extent to which the outer surface
`is covered in the fabric-reinforced elastomer,
`right?
` A. The degree to which it's
`reinforced.
` Q. So in Figure 7, for instance, the
`entire outer surface all the way around the
`
`TSG Reporting - Worldwide (877) 702-9580
`
`22
`
`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 5 of 8
`
`

`

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` R. ASH
` A. I know they do.
` Q. Okay. Have you done that testing
`now?
` A. It's our current production
`offering.
` Q. But have you specifically tested to
`compare the Figure 7 embodiment to the
`Figure 6 embodiment?
` A. There wasn't any declination of
`performance.
` Q. But you actually did field tests on
`that?
` A. Not necessarily in the same
`environment with the same customer.
` Q. Okay. You haven't done testing to
`compare the performance of Figure 6 and 7 --
`let me start again.
` You haven't done any testing to
`compare the performance of Figure 6 or 7
`embodiments with the Figure 5 embodiment, have
`you?
` A. Can you rephrase that, please?
` Q. Sure.
` So the testing that we've just been
`
`Page 152
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` R. ASH
`you want me to say the name, the customer?
`BY MR. McELDOWNEY:
` Q. Yeah, please do.
` A. We did a test with Halliburton Well
`Services in the Haynesville shale west of
`Bossier City, Shreveport, Louisiana. I was
`actually on location, embedded with
`Halliburton service crews, monitoring the
`performance of that component in numerous
`fluid ends.
` The component had been lasting,
`prior to utilizing current prior art
`components, homogeneous components, had been
`lasting 24 hours.
` With the placement of the XLH, the
`testing surpassed everyone's expectations and
`lasted 350 hours, on average.
` Q. Okay. And in the declaration here,
`you used that test essentially to explain to
`the Patent Office that the invention here
`worked and made the header ring last longer.
`Right?
` A. The modifications and improvements
`to the header ring made the entire packing
`
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` R. ASH
`talking about was the commercial embodiments,
`commercial products UTEX made that correspond
`to Figures 6 and 7 in the patent, right?
` A. Correct.
` Q. You haven't done field testing of a
`header ring that's an embodiment of Figure 5,
`have you?
` A. No, we have not.
` Q. Now, the field test for Figure 6
`that you're describing in paragraph 17, can
`you describe what the field test was that you
`did? So what did you actually do? Did you
`take the ring out, gave it to a customer, they
`put it in their product and ran? Is that
`basically it?
` A. A little more involved than that,
`but that's --
` Q. Yeah.
` A. -- that's essentially it.
`Actually, we had to take it from several fluid
`ends. The current in 2007 -- let me make sure
`I get my date right.
` (Document review by witness.)
` A. In 2007, we did a test with -- do
`
`Page 153
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` R. ASH
`assembly last longer.
` Q. Okay. And that's what you're
`telling the Patent Office based on the field
`test you just described.
` A. Essentially, yes.
` Q. Is that a -- is a field test like
`that where you compare two products using the
`same customer's fluid ends, is that a
`legitimate way to show that one of the header
`rings either performs better or similar to
`another header ring?
` A. It wasn't done on one header ring.
`It was done on approximately six header rings
`in two different fluid ends.
` Q. I see. So six of the -- you tested
`six of the header rings that were embodiments
`of Figure 6 during this Haynesville field
`test?
` A. Correct.
` Q. Okay. And do you remember --
`I guess, did you simultaneously test the
`homogeneous header rings, or you just already
`knew how long they had been lasting?
` A. There was side-by-side comparisons,
`
`TSG Reporting - Worldwide (877) 702-9580
`
`39
`
`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 6 of 8
`
`

`

`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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` R. ASH
`and so six assemblies represented at that time
`one pumping unit with two HT-400 pumps. That
`was -- that essentially is one pump on a
`location that could possibly have 20 pumps on
`it.
` Q. I want to make sure I understand
`that. So there's one pump. It has three
`fluid ends in it?
` A. No, sir.
` Q. How many fluid ends did it have in
`it?
` A. One pump unit --
` Q. Okay.
` A. -- could have two back-to-back
`pumps assemblies, meaning two fluid ends, six
`packing bores.
` Q. Six packing bores?
` A. Because these were in Triplex
`pumps.
` Q. Is that six packing bores per fluid
`end or three in each?
` A. Three in each, as in Triplex.
` Q. Got it.
` So you ran one of those pumping
`
`Page 156
`
` R. ASH
` A. Correct.
` Q. I see.
` And that kind of field test where
`you put the header ring into a packing, that's
`a pretty standard way to figure out if a
`header ring or the packing in total is
`performing better than another header ring or
`another packing, right?
` A. That is one method and it was the
`method that the customer wanted to see.
` Q. Okay. And you used that to
`characterize the performance to the Patent
`Office, right?
` A. Correct.
` Q. And you thought that was a fair way
`to characterize the performance based on the
`kind of field test you just described?
` A. Correct.
` Q. Now, the comparison that you're
`describing here was a comparison between the
`homogeneous header ring of Figure 1, right?
` A. That's one of them.
` Q. Did that setup at Haynesville also
`have the dual durometer header ring?
`
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` R. ASH
`units with six of the Figure 6 type XLH header
`rings?
` A. Correct.
` Q. And then what was the comparison
`point that you made for the homogeneous? In
`other words, did you then take those out and
`put six of the homogeneous ones in that same
`equipment and compare the results?
` A. The homogeneous were failing --
` Q. Okay.
` A. -- left, right and center, all
`around this one particular pump unit that I
`was strictly monitoring.
` Q. Okay.
` A. And at one point in time, I believe
`it was 100 hours into the evaluation, the
`actual fluid end failed. And I had some
`conversations with the customer and they made
`an exception for me and they allowed me to
`take the old packing and put it into a new
`pump to continue the test.
` The packing survived the life of
`the fluid end.
` Q. With the Figure 6 XLH header ring?
`
`Page 157
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` R. ASH
` A. At the time, not all of the fluid
`ends had UTEX brand packing, nor did I repack
`all 70 holes on location. So I can't honestly
`answer that.
` Q. Okay. Have you done a comparison
`of the '691 -- strike that.
` Have you done a comparison of the
`XLH header ring to the dual durometer header
`ring?
` A. Yes.
` Q. And what was the result of that?
` A. Essentially the same. It surpassed
`the life.
` Q. Sorry?
` A. Of the dual durometer.
` Q. Okay. Have you compared the dual
`durometer to the homogeneous?
` A. Yes.
` Q. And what's that comparison like?
` A. It was slightly better but not the
`quantum leap that the customer was really
`after.
` Q. Okay. So the dual durometer header
`ring performed somewhat better, i.e., lasted
`
`TSG Reporting - Worldwide (877) 702-9580
`
`40
`
`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 7 of 8
`
`

`

`HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY
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` R. ASH
`
` _____________________
` ROBERT ASH
`
`1
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`23456
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` R. ASH
` EXAMINATION
`BY MS. EBER:
` Q. And that's Judge Lake's Markman
`order from this case. Have you seen that
`before?
` A. I have.
` Q. And if you'd turn to pages 9
`through 12, Judge Lake provides the definition
`of "layer" that should be applied in this
`case. Do you see that?
` A. I do.
` Q. And you understand that's the
`definition of "layer" that would be applied in
`the case?
` A. Yes.
` Q. Are nibbling and extrusion the same
`phenomena?
` A. No.
` MS. EBER: No further questions.
` MR. McELDOWNEY: Nothing here.
` THE VIDEOGRAPHER: The time is
` 3:59. We are off the record.
` (Deposition recessed at 3:59 p.m.)
` --oOo--
`
`Page 196
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`Page 197
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` ------------- INDEX --------------
` Page
` APPEARANCES 3
` EXAMINATION OF ROBERT ASH:
`
` BY MR. McELDOWNEY............................. 5
` BY MS. EBER................................. 194
`
` REPORTER'S CERTIFICATE 196
`
` Page Line
` Confidential Designation 193 20
`
` PREVIOUSLY MARKED EXHIBITS Ref. Page
`MacLean ......................... 29
`Exhibit 3
`
` ---------------- EXHIBITS -----------------
` Ash Page Line
`Exhibit 14 '691 Patent, 11 14
` Miller et al.
` UTEX0000001 - 009
`Exhibit 15 '529 Patent, Mastin, 122 11
` dated Mar. 22, 1921
` GARDNER165938 - 165941
`Exhibit 16 '291 Patent, 125 15
` Heinze et al.
` GARDNER165935 - 165937
`
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` C E R T I F I C A T E
`STATE OF TEXAS )
`COUNTY OF HARRIS )
` I, SUSAN PERRY MILLER, CSR, CCR,
`RDR, CRR, CRC, Notary Public in and for the
`State of Texas, do hereby certify:
` That ROBERT ASH, the witness whose
`deposition is hereinbefore set forth, was duly
`sworn by me and that such deposition is a true
`record of the testimony given by the witness;
` That pursuant to Rule 30 of the
`Federal Rules of Civil Procedure, signature of
`the witness was not reserved by the witness or
`other party before the conclusion of the
`deposition;
` I further certify that I am not
`related to any of the parties to this action
`by blood or marriage; and that I am in no way
`interested in the outcome of this matter.
` IN WITNESS WHEREOF, I have hereunto
`set my hand this 1st day of November, 2019.
`
` _____________________________
` SUSAN PERRY MILLER, RDR, CRR, CRC
`
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`TSG Reporting - Worldwide (877) 702-9580
`
`50
`
`Utex Exhibit 2010
`IPR2020-00333
`Gardner Denver, Inc. v. Utex Industries, Inc.
`Page 8 of 8
`
`