Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43790 Filed 05/22/15 Page 1 of 140
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`No. 12-cv-11758
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`JURY TRIAL - VOLUME VI of XII
`PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Tuesday, April 14, 2015
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and
`Stone, PLC
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan,
`LLP
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
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`1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`No. 12-cv-11758
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`JURY TRIAL - VOLUME VI of XII
`PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Tuesday, April 14, 2015
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and
`Stone, PLC
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan,
`LLP
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
`
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43791 Filed 05/22/15 Page 2 of 140
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`APPEARANCES:
`For the Defendants:
`
`MR. STEVEN J. RIZZI
`MR. RAMY E. HANNA
`MR. RYAN SCHMID
`Foley and Lardner, LLP
`90 Park Avenue, 37th Floor
`New York, New York 10016
`(212) 682-7474
`MS. LISA S. MANKOFSKY
`MR. MICHAEL D. KAMINSKI
`Foley & Lardner, LLP
`3000 K Street N. W,
`Suite 600
`Washington, DC
`20007
`(202) 672-5300
`MR. JOHN R. TRENTACOSTA
`Foley & Lardner
`500 Woodward Avenue
`Detroit, Michigan
`(313) 234-2800
`
`48226
`
`Reported by:
`
`Merilyn J. Jones, RPR, CSR
`Official Federal Court Reporter
`merilyn_jones@mied.uscourts.gov
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43792 Filed 05/22/15 Page 3 of 140
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`TABLE OF CONTENTS
`
`WITNESSES:
`None
`
`PLAINTIFF
`
`DEFENDANT
`WITNESSES:
`DANIEL DOXSEE
`Direct examination by Ms. Mankofsky (continuing)
`Cross-examination by Mr. Palizzi
`MAGNUS GEORGE CRAFORD
`Direct examination by Ms. Mankofsky
`Cross-examination by Mr. Traupman
`YASANOBU NOGUCHI
`Direct examination by Mr. Kaminski
`Cross-examination by Mr. Nimrod
`Redirect examination by Mr. Kaminski
`
`3
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`PAGE
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`17
`35
`
`70
`86
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`94
`115
`119
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`EXHIBITS:
`Defendant's Exhibits:
`D099, D110, D628, D631,
`D644, D651, D656, D669,
`D674, D677, D710, D792,
`D852, D1903 D0001, P263,
`P385, P138, P438
`
`Identified
`
`Received
`
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43793 Filed 05/22/15 Page 4 of 140
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`Detroit, Michigan
`Tuesday, April 14, 2015 - 8:05 a.m.
`THE CLERK:
`All rise.
`The United States District
`Court for the Eastern District of Michigan is now in session,
`Honorable Gershwin A. Drain presiding.
`Calling Civil Action Everlight Electronics Company
`versus Nichia Corporation, Number 12-cv-11758.
`You may be seated.
`Counsel, please place your appearance on the
`
`record.
`
`Good morning.
`MR. NIMROD:
`Good morning.
`THE COURT:
`Ray Nimrod from Quinn Emanuel for
`MR. NIMROD:
`With me is Matt Traupman from Quinn Emanuel, and
`Everlight.
`Anastasia Fernands, Mike Palizzi from Miller Canfield, and Mike
`Simoni.
`And we have our corporate representative Bernd
`Kammerer here today, also.
`Thank you.
`THE COURT:
`All right.
`MR. RIZZI:
`Good morning, your Honor.
`THE COURT: Good morning.
`MR. RIZZI:
`Steven Rizzi, Foley & Lardner, for
`With me is Ramy Hanna, Lisa Mankofsky, Deb Lange, and
`Nichia.
`John Trentacosta, all from Foley & Lardner, and our corporate
`representative, Dr. Dan Doxsee.
`THE COURT:
`All right.
`
`When we concluded
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43794 Filed 05/22/15 Page 5 of 140
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`yesterday I think we had the Craford issue to deal with, is
`that right?
`
`MR. TRAUPMAN:
`THE COURT:
`
`Yes, your Honor.
`Let's talk about that a little bit
`
`more.
`
`So just by way of background,
`MR. TRAUPMAN:
`Dr. Craford is a retired chief technology officer of a third
`party, Philips Lumileds, that Nichia subpoenaed.
`He's
`apparently agreed to come voluntarily and testify here beyond
`what he testified to in his deposition.
`Now, in their witness synopsis Nichia said that he
`would -- there would be direct and redirect examination
`concerning the secondary considerations rebutting invalidity of
`the Nichia patents in suit.
`That's what they said in their
`witness synopsis.
`Then when we get the demonstrative slides --
`I have attached a copy to the brief, your Honor, but I have
`another copy here, if you'd like.
`THE COURT:
`Okay.
`MS. MANKOFSKY:
`Your Honor, this goes beyond the
`scope of their objections.
`It absolutely does not.
`MR. TRAUPMAN:
`witness synopsis is in our brief.
`MS. MANKOFSKY:
`If you're talking about slides,
`you have gone beyond the scope of your objections, which was
`first expert testimony, which you withdrew yesterday, and as we
`
`The
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43795 Filed 05/22/15 Page 6 of 140
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`Okay.
`
`Let's move forward without --
`
`understood, it was simply relevance, so this --
`MR. TRAUPMAN:
`Excuse me.
`That's -- you're not
`representing -- I did not withdraw my expert -- my expert
`testimony objection, that's not at all accurate, Ms. Mankofsky.
`And the scope of the witness synopsis is quoted in our -- in
`our brief.
`It's directly quoted in our bench memo.
`MS. MANKOFSKY:
`The bench memo preceded our
`discussion yesterday, and your exact words to me -- and several
`of my colleagues were present -- was, then our objection is to
`relevance, unquote.
`THE COURT:
`go ahead, Mr. Traupman.
`So there -- they have
`MR. TRAUPMAN:
`demonstratives where they talk about all the awards that
`Mr. Craford has won, the IEEE award, the Nick Holonyak Award,
`National Medal of Technology and Innovation Award, that's all
`in their demonstratives.
`And now they -- and then the one
`exhibit that they disclosed that they want to use with him is a
`prior art patent.
`Now, the prior art patent is from Philips, the
`same company that Mr. Craford works for now, and from what I
`understand, what Ms. Mankofsky plans to do is, they plan to
`show this Philips patent to Dr. Craford and say, have you seen
`this before?
`And I guess the expected answer is going to be,
`no.
`And the intent of that is to show the jury that, here's
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43796 Filed 05/22/15 Page 7 of 140
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`this guy, he's the former chief technology officer at Philips,
`with all these awards, and he's never heard of this Philips
`prior art patent.
`That's clearly, A, beyond the witness synopsis,
`and B, it's creating the impression of an expert in the field
`of LEDs.
`
`And there's more problems with, with the fact that
`they're trying to put this prior art reference in front of
`Dr. Craford.
`It's that Dr. Craford didn't join Philips until
`the year 2000 and the Philips patent was filed in the 1980s and
`is in an entirely different division of Philips.
`It's clearly
`meant to create a misimpression of an LED expert not knowing
`about one particular prior art patent that happens to be the
`assignee from the same company he works for now.
`THE COURT:
`Let me hear what Ms. Mankofsky has to
`
`say.
`
`What
`
`What's this guy -- what's he going to say?
`of substance is he going to contribute here?
`MS. MANKOFSKY:
`The majority of his testimony
`concerns the secondary consideration of commercial success.
`THE COURT:
`Which are what?
`MS. MANKOFSKY:
`Well, of course, you have -- when
`there is an invalidity argument you can rebut it with secondary
`considerations.
`One of the secondary considerations is
`commercial success.
`So he will talk about to what extent the
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43797 Filed 05/22/15 Page 8 of 140
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`invention of the patents in suit provided benefits to white
`LEDs and to what extent those white LEDs made using that method
`were sold successfully.
`And that's the nature of his
`deposition testimony, that's the nature of his testimony today.
`THE COURT:
`So is he going to give any expert
`
`testimony?
`
`No, not at all.
`
`MS. MANKOFSKY:
`fact witness, as he was --
`THE COURT:
`Is he going to talk about the patent?
`MS. MANKOFSKY:
`No, not at all.
`He's simply going
`
`He's completely a
`
`to talk --
`
`art?
`
`THE COURT:
`
`He's not going to talk about any prior
`
`And as we said in
`No, he's not.
`MS. MANKOFSKY:
`our filing yesterday, he's not going -- we're not in any way
`seeking from him any testimony as to the scope of prior art,
`what it means, what it doesn't mean, anything like that.
`He's
`simply a fact witness.
`And I don't know if you're going to consider the
`objection that they just raised a few moments ago that they
`never made to us before, but if you are, of course, they put in
`a tremendous amount of information about Professor Nakamura's
`background, and he's -- not only is he not an expert, he's not
`even a fact witness here.
`And I'm sure you recall hearing many
`times about him having won the Nobel Prize.
`So there's nothing
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`What personal knowledge does he have
`
`wrong with talking about the background of a fact witness, and
`in no way are we putting him up as an expert or seeking any
`expert testimony from him.
`It's simply fact testimony.
`The sole issue raised by their filing was whether
`or not he should be able to answer any questions about the one
`patent that they raised during their case in chief.
`And as we
`said in our filing from yesterday, just his personal knowledge
`about that patent is appropriate under the case law they cited
`and the various other things in this cite from the Muchhkin
`case, we're not seeking.
`THE COURT:
`about the patent?
`That's, that's just the question,
`MS. MANKOFSKY:
`you know, are you familiar with this patent, yes or no, and
`pretty much that's all we want, and move on.
`THE COURT:
`If he's not familiar with it, why are
`we even going to ask him about it?
`MS. MANKOFSKY:
`Well, we do think that there's
`some relevance to the fact whether or not he's familiar with
`it.
`You know, they put it forward as something that a person
`of ordinary skill in the art would know about or should know
`about, and this is one piece of information as to whether, in
`fact, he knows about it.
`If he doesn't have any personal
`THE COURT:
`knowledge, I'll sustain the objection to a question like that
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`about -- just about the patent in general.
`And how is his testimony going to be any different
`from Dr. Doxsee's testimony?
`So far he has testified quite a bit about the
`commercial success of Nichia's patents.
`What's he going to add
`to what Dr. Doxsee has said?
`There's some similarity in topic,
`MS. MANKOFSKY:
`however, they do have different focuses, and, of course, this
`is a third party talking about what Philips does with their
`white LEDs and what method they use, and that they took a
`license from Nichia.
`So there are some different issues, as
`well.
`And Dr. Craford's testimony will be very brief.
`THE COURT:
`Well, I'll sustain the objection to
`him testifying about any type of expertise.
`I'm going to
`sustain the objection to any reference to the patent and you
`can elicit any testimony about the commercial success of their
`LEDs and we will leave it at that.
`MS. MANKOFSKY:
`Just so I understand your ruling,
`I understand we will not mention the patent to him.
`THE COURT:
`Correct.
`MS. MANKOFSKY:
`When you say he should not talk
`about his expertise, we can talk about his background and his
`industry experience?
`Yes, you can talk about his background
`THE COURT:
`and his industry experience, yes.
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`Right.
`
`And that includes awards
`
`MS. MANKOFSKY:
`he has won, correct?
`You can talk about his awards.
`THE COURT:
`MS. MANKOFSKY:
`Okay.
`Thank you.
`THE COURT:
`We haven't put any limitation on
`awards so far.
`And the other side did put in
`MS. MANKOFSKY:
`quite a bit of that kind of evidence even for someone who
`wasn't a fact witness.
`Okay.
`THE COURT:
`Thank you.
`MS. MANKOFSKY:
`Okay.
`All right.
`THE COURT:
`All right.
`I
`Okay.
`What other issues do we have here?
`haven't had a chance quite yet to look at what's been submitted
`with regard to the Taeus reports.
`Is that something new or
`different from -- because did we get into that issue either in
`the Daubert or claim construction or any of those kinds of
`things?
`Because I kind of remember this issue coming up
`before.
`
`Your Honor, we didn't get into the
`MR. NIMROD:
`issue we're raising here, which is that the reports shouldn't
`come in for the -- they're not authenticated and they're
`hearsay, so they can't be relied on for any purpose whatsoever.
`This was not an issue that was raised in Daubert.
`MR. RIZZI:
`Your Honor, we disagree.
`
`We think
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`this issue was raised in Daubert and should have been raised
`then, it wasn't raised then.
`They filed a motion at midnight
`last night trying to exclude these reports, which are part
`and parcel of our infringement case.
`So if you're going to
`entertain it, we would request the opportunity to respond to
`that.
`
`Is the person who is going to be
`THE COURT:
`testified about these reports going to get to the witness stand
`today?
`
`today.
`
`He will get to the witness stand
`MR. RIZZI:
`Whether he will get to those reports or not, unlikely.
`THE COURT:
`Okay.
`All right.
`Do you want to
`file something in writing or how do you want to handle your
`response to this?
`MR. RIZZI:
`writing, your Honor.
`THE COURT:
`
`We would request to file something in
`
`And then I guess we won't get to it
`
`today.
`
`There may well be
`Yes, your Honor.
`MR. RIZZI:
`other issues, objections they raised with our expert witness,
`who will start testifying today.
`THE COURT:
`Who is that?
`MR. RIZZI:
`Professor Schubert.
`THE COURT:
`Oh, Schubert.
`Okay.
`MR. NIMROD:
`We have objections to some of their
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`demonstratives that we received at, I think, 5:00 or whatever
`the time is for demonstratives, and then some charts that he
`wants to put in as evidence, analysis charts.
`THE COURT:
`Will we get to those before the
`
`break?
`
`Well, we just this morning received a
`MR. RIZZI:
`new objection to one of the slides that is early on in the
`presentation.
`I expect we -- well, before the break, no, not
`to the break, your Honor.
`THE COURT:
`Have you all talked about resolving
`those issues dealing with the slides?
`We can try.
`MR. NIMROD:
`We can do that.
`THE COURT:
`Okay.
`Why don't you do that and see
`if you can resolve it.
`Okay?
`MR. RIZZI:
`And on the first issue they raised,
`can we have until the end of the day to submit our response?
`THE COURT:
`Which, you mean the Taeus reports?
`MR. RIZZI:
`The Taeus reports.
`THE COURT:
`Yes.
`Well, let's make it 4:30.
`MR. RIZZI:
`4:30.
`THE COURT:
`Is anything else coming up today of
`
`consequence?
`
`Would we be able to just confirm the
`MR. RIZZI:
`time used to date by each side?
`THE COURT:
`Oh, okay.
`
`Let me just tell you what
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`As of the end of yesterday I've got
`the cumulative times are.
`Everlight at eight hours and 41 minutes, and I have got Nichia
`at three hours and 27 minutes.
`So that's the count right now.
`MR. RIZZI:
`Thank you, your Honor.
`THE COURT:
`And I'm sticking like glue to that
`16-hour mark.
`And like I said, if you get down to your closing
`arguments and all you have is five minutes left, that's what
`your argument is going to be.
`So make sure you reserve at
`least an hour for that.
`Your Honor, there is one other issue.
`MR. NIMROD:
`We received their charts last night and we -- for their
`infringement expert, Dr. Schubert, and the charts suggest that
`they're only going to be asserting six claims now instead of
`16 or 20, and so we ask for confirmation if that, in fact, is
`the case, because we have done a lot of work on these other
`claims, and we're still putting together our cross for
`Dr. Schubert, so we would just like to know if that is the
`case.
`
`Your Honor, we haven't made a final
`MR. RIZZI:
`We -- you know, part of it depends on
`decision on that yet.
`time, how much time we have, and obviously everything is
`changing day by day, but, you know, by tomorrow as the
`infringement evidence comes in, I expect we'll be in a position
`to confirm that.
`MR. NIMROD:
`
`Your Honor, they are putting their
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`They must know whether
`infringement expert on this afternoon.
`or not they are going to -- and they've given us charts and the
`chart only go to six claims.
`It's really not fair.
`We just
`put in a validity case that addressed all these claims and now
`they might be dropping them, which I think is -- it took up a
`lot of our clock, you know, which is very prejudicial, and now
`he is saying, well, I can't even tell you what my infringement
`expert will say, who is going on today, until tomorrow.
`That's
`really not fair.
`We don't expect him to even begin
`MR. RIZZI:
`testifying on the substantive infringement analysis until
`tomorrow, Your Honor, with how much time is left today.
`MR. NIMROD:
`We need to prepare.
`I think if we
`could set a deadline for maybe the 4:30 deadline to let us
`know.
`
`THE COURT:
`
`Yes, yes, let's do that.
`
`Let's do
`
`that.
`
`The other point I want to make, your
`MR. RIZZI:
`Honor, this is an issue we raised with them a month ago trying
`to negotiate a reduction both of the asserted claims and prior
`art and they refused.
`Now that, you know, they didn't do that,
`now they are trying to take advantage, having already put in
`their prior art, without having to reduce what they present.
`And it's really not fair for them to now tell you that we
`should be forced to unilaterally reduce the number of claims
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43805 Filed 05/22/15 Page 16 of 140
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`when they didn't do that on the prior art.
`One is
`MR. NIMROD:
`Two responses, your Honor.
`that we did not refuse, we made a counterproposal and they
`rejected it, number one.
`And they knew the prior art we were
`relying on, because when our deadline came for submitting which
`ones we would be using with our expert, that came 24 hours in
`advance of the testimony.
`They did ask what prior art we were relying on in
`advance of openings, and we told them, also, your Honor.
`So
`they must know.
`I think the 4:30 deadline is fair.
`THE COURT:
`Yeah, I'll impose that 4:30 deadline.
`Let them know by 4:30 so they can prepare for that.
`All right.
`Anything else?
`Okay.
`Then we'll take a break and we will start
`with the jury right at 8:30.
`All right.
`We'll be in recess.
`THE CLERK:
`All rise.
`(At 8:20 a.m. to 8:30 a.m. court in recess)
`THE CLERK:
`Please remain seated.
`This court is
`back in session.
`Let's bring the jury in.
`All right.
`THE COURT:
`THE CLERK: All rise for the jury.
`(At 8:31 a.m. jury present)
`You may be seated.
`THE COURT:
`All right.
`All right.
`Good morning, ladies and gentlemen.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43806 Filed 05/22/15 Page 17 of 140
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`Good morning.
`JURORS:
`THE COURT:
`I think we are approaching the halfway
`point of this case and things seem to be moving pretty
`smoothly.
`
`So I want to commend you again for being timely
`and punctual and attentive.
`And I have really noticed that as
`I have looked over and kind of watched you all a little bit
`during the testimony.
`So I think we're ready to continue now, and so,
`Ms. Mankofsky, you may continue your direct examination.
`MS. MANKOFSKY:
`Thank you, your Honor.
`And good
`morning to you.
`Good morning, members of the jury.
`And good morning, Dr. Doxsee.
`THE WITNESS:
`Good morning.
`D A N I E L
`D O X S E E,
`called by the Defendant at 8:32 a.m., previously sworn by the
`Clerk, testified as follows:
`DIRECT EXAMINATION (Continued)
`BY MS. MANKOFSKY:
`Q.
`So yesterday I think where we left off, when we were just
`about to start talking about how Nichia's white LEDs are made?
`A.
`That's right.
`Q.
`So let's go back to topic, that topic.
`topic you have some knowledge on?
`
`And is that a
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43807 Filed 05/22/15 Page 18 of 140
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`Yes, it is.
`A.
`So in focusing on the white LEDs, what kind of phosphors
`Q.
`are used in them?
`A.
`All of Nichia's white LEDs, whether they be cool white or
`warm white, all contain a YAG family phosphor, yttrium aluminum
`garnet.
`Q.
`So if YAG stands for yttrium aluminum garnet, that means
`that YAG is a garnet phosphor?
`A.
`That's right.
`Q.
`Do the Nichia white LEDs sometimes include another
`phosphor?
`A.
`Yes, they do, sometimes, especially for what we call the
`warm white or more of a yellowish tone of white, like an
`incandescent bulb, those very often will contain a second or
`even sometimes a third phosphor, but they always contain a YAG
`phosphor.
`If there is another phosphor in addition to the
`Q.
`Okay.
`YAG, is that other phosphor a garnet?
`A.
`It, it usually isn't.
`I can't think of a case where there
`is a second garnet.
`Q.
`Okay.
`Does Nichia make nonwhite phos -- I'm sorry --
`nonwhite LEDs?
`A.
`Yes, we do.
`Q.
`And those nonwhite LEDs, are they made used -- are they
`made using an InGaN chip and a YAG-based phosphor?
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43808 Filed 05/22/15 Page 19 of 140
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`For example, Nichia makes amber LEDs that are
`Some are.
`A.
`used in the street lights, traffic signals, the yellow for the
`traffic signals.
`And then, also, some amber LEDs for the
`automotive application, turn signals and warning signals,
`things like that on the car that are amber, those are made with
`blue InGaN chips and YAG phosphor.
`Q.
`Does Nichia have internal codes that will tell it which
`phosphor is being used?
`A.
`Yes.
`Every phosphor has its own product code, its own
`data sheet.
`Q.
`Is that true for the YAG-based phosphors as well?
`A.
`Yes, it is.
`Q.
`Can you give us some examples of internal codes for
`YAG-based phosphors?
`They always start with
`A.
`Sure.
`They're relatively simple.
`NP, for Nichia phosphor, and then there would be a number, like
`a 204 or 206, for example.
`Q.
`Are there others, as well?
`A.
`There's many others.
`There's many different variations of
`YAG, and depending on what kind of LED, what exact color you're
`trying to make or what tone of white you're trying to make, you
`may have a slightly different composition of YAG, and so each
`composition has its own phosphor data sheet.
`Q.
`Mr. Taylor, please bring up slide 14.
`What is this?
`Do you recognize it?
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43809 Filed 05/22/15 Page 20 of 140
`
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`This is an LED product code for a Nichia white LED.
`Yes.
`A.
`And by looking at the product code can you tell some
`Q.
`information about the LED?
`A.
`I can, yes.
`For example, I can tell that this is a white
`LED by the fourth digit.
`Q.
`Which one do you mean by fourth digit?
`There are other
`A.
`The NESW, so this W refers to white.
`colors, for example, if this was a B, it would be blue, if it
`was an R, it would be red.
`The products that use blue InGaN
`chips and YAG phosphors would either be a W for white, an L for
`warm white, or an A for amber.
`Q.
`So an L also indicates a white LED?
`A.
`That's right, yes.
`Q.
`These internal codes that Nichia keeps for its phosphors,
`are those found in Nichia's records?
`A.
`They are, yes.
`Q.
`Which records?
`A.
`They would be on the bill of materials for each LED and on
`the phosphor data sheets.
`Q.
`What's a bill of materials?
`A.
`A bill of materials is kind of like a recipe or building
`block or list of all the components that go into the LED.
`So,
`for example, for the NESW-008, there will be a bill of
`materials showing what chip is used, what package is used, what
`resin is used, what phosphor is used, etcetera.
`So that list
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43810 Filed 05/22/15 Page 21 of 140
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`The
`
`is called the bill of materials.
`Q.
`So I think you identified two kinds of documents.
`first one, the bill of materials, is that kept in --
`A.
`Right.
`Q.
`-- the regular course of Nichia's business?
`A.
`Yes, it is.
`Q.
`And the other one, the phosphor data sheet, is that kept
`in the regular course of Nichia's business?
`A.
`Yes, it is.
`Q.
`Okay.
`Would you please bring up Exhibit D852?
`What is this?
`This is a compilation of a list, if you will, of all the
`A.
`different types of LEDs that Nichia makes that are based on
`blue InGaN chips and YAG-based phosphors.
`Q.
`And do you understand this to be an Excel spreadsheet?
`A.
`Yes, I do.
`Q.
`Are we looking at the entirety of the spreadsheet now?
`A.
`No.
`It's quite a huge spreadsheet.
`Nichia makes many,
`many different styles of LEDs for different applications and
`then each, each particular style will have its own bill of
`materials and each variation of the color would have its own
`bill of materials, also.
`Q.
`Okay.
`And if you look at the headings here --
`A.
`Right.
`Q.
`Are those normally in English?
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43811 Filed 05/22/15 Page 22 of 140
`
`22
`
`Nichia
`
`This document is normally kept in Japanese.
`No.
`A.
`is a Japanese company.
`Q.
`And so other than the translation of those headings into
`English, do you recognize any other changes that were made to
`this spreadsheet?
`A.
`I think only the heading was translated.
`Q.
`Okay.
`Now, would you please bring up slide 15?
`And what is this?
`So this is from that, from that spreadsheet, this shows
`A.
`the bill of materials for the LED I just talked about, the
`NESW-008C, and so this is the product code that the customer
`would use to order the LED or that a salesperson would use to
`promote the LED.
`This is an internal document, the specification of
`the document.
`And again, that's something that would be shared
`with the customer if they're interested in buying the LED.
`And then it's got other information.
`For example,
`it shows the material code and the raw material name.
`And
`these codes here refer to the type of phosphor that's used to
`make that LED.
`Q.
`Okay.
`So for model number NESW-008C, what can you tell
`about what the phosphor is that's in it?
`A.
`So these are -- this is a code for a YAG, a YAG-type
`phosphor.
`Q.
`And you know that because of what?
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43812 Filed 05/22/15 Page 23 of 140
`
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`I'm just familiar with that particular code, and then you
`A.
`can cross-reference that code with the phosphor data sheet.
`Q.
`So 206 means YAG?
`A.
`Correct.
`Yeah.
`Q.
`Let's move on to another topic.
`Do Nichia's phosphors have a controlled particle
`size distribution?
`A.
`Yes, they do.
`Q.
`What is a controlled particle size distribution?
`A.
`That's -- you can think of phosphor like grains of sand,
`only it's not sand, it's this inorganic material called YAG.
`And Nichia puts a lot of effort into making all the grains of
`YAG in as close to the same size to each other as possible.
`And there are methods to do that.
`Q.
`Is the phosphor as big as a grain of sand?
`A.
`No.
`It's typically measured in the microns, which is very
`small.
`It's smaller than the diameter of a hair, of a human
`hair.
`Q.
`And so how many of Nichia's phosphors have a controlled
`particle size distribution?
`A.
`All of them.
`Q.
`Does Nichia have information that reflects the particle
`size distribution of the phosphors that are used in its white
`LEDs?
`A.
`Yes.
`
`This is shown on the phosphor data sheet.
`
`There's a
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43813 Filed 05/22/15 Page 24 of 140
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`measurement called a D50, which is a technical description of
`the exact size of the particle size.
`Q.
`Can you describe a little more what that D50 stands for?
`A.
`Sure.
`What that is, it's a measurement of how big the,
`the most commonly occurring grains of YAG are.
`And then it
`gives a range where 50 percent of the particles fall within
`that size range, so that's called the D50 for that reason.
`Q.
`And how many of Nichia's phosphors have a D50 value?
`A.
`All of them.
`Q.
`And where would you find the D50 value for Nichia's
`phosphors?
`A.
`That's recorded on the phosphor data sheet for each YAG.
`Q.
`Would you bring up Exhibit D710, please?
`What is this?
`This is a phosphor data sheet.
`A.
`can see it.
`There we go.
`On the top part of the slide you can see that this
`is for a phosphor material called Nichia phosphor 206-65, and a
`little further down in the sheet you can see the chemical
`composition of that phosphor is Y3 AL5 O12 doped with cerium,
`and that's otherwise known as YAG, yttrium aluminum garnet.
`And you can also see that this is intended for
`460 nanometer excitation, which that's a fancy way of saying
`blue light.
`
`It's -- I'm not sure we
`
`And then if you scroll a little further down on
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`Case 4:12-cv-11758-GAD-MKM ECF No. 531, PageID.43814 Filed 05/22/15 Page 25 of 140
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`This is the exact phosphor that's used for the
`
`the data sheet this gives some technical specifications to the
`YAG.
`And the part that's circled in red, this shows something
`that's called the median particle size in microns, so in this
`case it's 11 microns, plus or minus 2.5 microns.
`Q.
`Okay. And who circled these things?
`A.
`I did.
`I asked the graphics guy to.
`Q.
`And this phosphor, 206-65, do you recall, was that the
`same phosphor we were looking at for the model number we were
`looking at?
`A.
`Correct.
`NESW-008C.
`Q.
`And is the D50 value on this phosphor data sheet?
`A.
`Yes.
`This is the -- what's typically referred to as the
`D50 value here.
`So again, what that means is, 11 microns,
`plus or minus 2.5 microns.
`So that means in the range from
`8.5 microns to 13.5 microns, 50 percent of the particles fall
`within that size.
`So that's what's referred to as the D50.
`Q.
`Okay.
`And does Nichia also keep information about the
`concentration of phosphors in its LEDs?
`A.
`Yes, we do.
`That's typically done during the development
`of an LED and then sometimes again later if some
`post-production analysis of an LED is needed.
`Q.
`And what does that analysis show about the concentration
`of Nichia's white LED chips?
`A.
`The way that's done is to take an LED and actually cut
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`it in half, physically cut in half, and that's called a
`cross-section, and then take a microscope picture of the
`cross-section of the LED.
`And what that shows is, the LED, you can see the
`actual LED chip, and then you can see how the phosphor is
`arranged around the chip, and that tells you the concentration
`of the phosphor and how that changes relative to the position
`of the chip.
`Q.
`And what is the concentration of the phosphor near the
`chip?
`A.
`So, Nichia tries to make the concentration of the phosphor
`in what's call a gradient or a gradation, where the
`concentration gets higher as you get closer to the chip.
`Q.
`And is that the case with all the white LEDs?
`A.
`That is the case for Nichia's LEDs, yes.
`Q.
`Let's talk now about the chips that are used in the white
`LEDs.
`What kind of chips are used in Nichia's white LEDs?
`A.
`These are blue-emitting chips that are made from indium
`gallium nitride.
`Q.
`We have heard a lot in this case about an InGaN chip.
`A.
`Right.
`Q.
`What is that?
`A.
`InGaN is kind of an abbreviation or an acronym for indium
`gallium nitride.
`So if you write out the chemical letters,
`indium is In, gallium is Ga, and nitrogen is N.
`S
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