Trials@uspto.gov
`Tel: 571.272.7822
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`
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`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LKQ CORPORATION
`Petitioner
`
`v.
`
`Patent of CLEARLAMP, LLC
`Patent Owner
`_____________
`
`Case No. IPR2013-00020
`Patent 7,297,364
`_____________
`
`PETITIONER’S OBSERVATIONS ON TESTIMONY OF MR. A. HARVEY
`BELL IV
`
`
`
`
`
`
`Tel: 571.272.7822
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LKQ CORPORATION
`Petitioner
`
`v.
`
`Patent of CLEARLAMP, LLC
`Patent Owner
`_____________
`
`Case No. IPR2013-00020
`Patent 7,297,364
`_____________
`
`PETITIONER’S OBSERVATIONS ON TESTIMONY OF MR. A. HARVEY
`BELL IV
`
`
`
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`
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
`
`Petitioner has the following observations on the November 12, 2013
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`crossexamination testimony (submitted as Exh. 1034) of Patent Owner’s reply
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`declarant, Mr. A. Harvey Bell IV:
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`
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`1. In Exh. 1034, on page 7, lines 20 to 23, Mr. Bell testified that he did not know
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`who performed the experiments described in paragraphs 54 and 55 of his initial
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`declaration.
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`Q. Do you know who at Clearlamp performed this test?
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`A. I can find out. I talked to them. I don't remember their name at
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`the moment.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
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`37 CFR § 42.65(b).
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`
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`2. In Exh. 1034, on page 7, line 24 to page 8, line 1, Mr. Bell testified that he was
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`not present at any of the experiments.
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`Q. Were you present for this test?
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`A. I was not present for the test.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`1
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
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`37 CFR § 42.65(b).
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`
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`3. In Exh. 1034, on page 8, lines 2 to 5, Mr. Bell testified that he does not know
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`what clear coat was being removed in the paragraph 54 experiment.
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`Q. Do you know what the clear coat on the headlamp was as they
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`were trying to remove?
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`A. No. I do not know exactly what the clear coat composition was on
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`the lamp.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
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`37 CFR § 42.65(b).
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`
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`4. In Exh. 1034, on page 8, lines 6 to 9, Mr. Bell testified that he does not know if
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`the lamps were braced in a jig.
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`Q. Do you know if the lamp was braced at all using any type of jig or
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`other structure?
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`A. No. I do not know exactly the -- how it was -- whether it was
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`2
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`braced in a jig.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
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`37 CFR § 42.65(b).
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`
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`5. In Exh. 1034, on page 13, line 13 to page 15, line 10, Mr. Bell testified that a
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`document describing the test results was emailed to him.
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`Q. I understand -- I understand the words in the sentence, Mr. Bell. I
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`am trying to establish whether you know for a fact which sandpaper
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`was applied to which reading and what your basis for that
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`understanding is.
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`A. So obviously I was not at -- present at the test when they actually
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`did it.
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`Q. And so the basis --
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`A. My basis is the -- is the -- is the document, the description that was
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`provided to me.
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`Q. There was a document provided to you?
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`A. Well, in the -- in the e-mail description of -- much the same way
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`as what we're looking at right now.
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`3
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`Q. Okay. Who sent you that e-mail?
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`MR. ROBINSON: Doug Robinson. Objection; misstates testimony.
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`THE WITNESS: I'm not sure, to tell you the truth.
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`BY MR. ENGEL:
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`Q. But did somebody at Clearlamp send you an e-mail?
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`A. To tell you the truth, I just said, I'm not sure. And I don't
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`remember who exactly sent it to me.
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`Q. So your knowledge of which sandpaper was used to sand down
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`part of the land surface comes entirely from outside of your own
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`personal knowledge from another party; right?
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`MR. ROBINSON: Objection; misstates testimony.
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`THE WITNESS: So my -- my knowledge of what was -- happened
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`here is based on the testing that -- in the description of the test.
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`BY MR. ENGEL:
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`Q. And how did you receive that description of the testing? Was it an
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`e-mail or a telephone call or --
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`A. It's an e-mail.
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`Q. Okay.
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`A. I don't remember who -- I told you, I didn't remember who sent me
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`the e-mail.
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`4
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`Q. And do you know if that e-mail was attached as an exhibit in your
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`declaration?
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`A. I -- I don't know that. I don't believe it was attached. I would
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`have to go back and look at every exhibit on the declaration.
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`This testimony is relevant because although Mr. Bell says he was emailed the
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`experiment results, neither the email nor the results document are in evidence. The
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`testimony is also relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a).
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`
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`6. In Exh. 1034, on page 16, lines 1 to 8, Mr. Bell testified that he did not inspect
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`the lamps before or after the experiments.
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`Q. So you did not inspect the lamp before it was tested; correct?
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`A. No, I didn't inspect the lamp before it was tested.
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`Q. And did you inspect the lamp after it was tested?
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`A. No, I did not inspect the lamp after it was tested.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
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`37 CFR § 42.65(b).
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`
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`5
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`7. In Exh. 1034, on page 16, lines 13 to 15, Mr. Bell testified that he did not know
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`if the lamps being sanded in these experiments were brand new or used.
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`Q. Do you know whether the lamp was brand new?
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`A. I do not know whether or not the lamp was brand new.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
`
`37 CFR § 42.65(b).
`
`
`
`8. In Exh. 1034, on page 16, lines 21 to 24, Mr. Bell testified that he does not know
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`whether the clear coat being removed in any of the experiments was the original
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`clear coat or a reapplication of clear coat.
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`Q. Do you know if it had ever had a clear coat removed from the
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`lamp and reapplied?
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`A. No. I do not know whether or not they removed a clear coat and
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`reapplied a clear coat.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
`
`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
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`37 CFR § 42.65(b).
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`6
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`9. In Exh. 1034, on page 17, lines 1 to 11, Mr. Bell testified that 320 grit sandpaper
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`removes all of the clear coat, including clear coat from the “limited access
`
`corners”, once the lamp is removed from the vehicle.
`
`Q. Now, in the experiment in Paragraph 54, it's your testimony that
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`the orbital standard using the 320 grit sandpaper was used for five
`
`minutes, it was able to remove the clear coat. Is that correct?
`
`A. Yes.
`
`Q. Okay. And it was also able to remove the clear coat in the corners
`
`of the lamp as well, right, the limited access corners where it was
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`applied.
`
`A. Yes. The lamp would have been removed from the vehicle.
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`This testimony is relevant to whether Kuta discloses fully removing the clear coat.
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`This testimony is also relevant to whether fully removing the clear coat is obvious.
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`
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`10. In Exh. 1034, on page 18, line 14 to page 19, line 3, Mr. Bell testified that he
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`does not know whether the same headlamp was used in the two experiments
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`described in paragraph 55 of his initial declaration.
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`Q. Okay. What I'm trying to establish is: Was the same headlamp
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`used for both experiments?
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`A. So you want to know whether or not the picture that has the 1500
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`7
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`grit paper, and then the lamp down below it, was it exactly the same
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`physical lamp?
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`Q. That's the first question I want to know, whether -- is the --
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`whether the lamp used -- the 1500 grit sandpaper was then used with
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`the 320 grit sandpaper?
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`A. Quite frankly, I do not know that answer in terms of whether or
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`not it was exactly the same lamp, but it doesn't look that -- like it was
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`the same lamp, given the -- where the edge of the housing is.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained how the experiments were performed and the data was generated under
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`37 CFR § 42.65(b).
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`
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`11. In Exh. 1034, on page 20, lines 5 to 24, Mr. Bell testified that the effectiveness
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`of the sandpaper for removing clear coat depends on the amount of pressure
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`applied by the tester, but that he does not know how much pressure was applied by
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`hand in the experiments.
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`Q. Do you know what amount of pressure he's applying manually to
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`the 1500 grit sandpaper as he sands the lens?
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`A. No, I don't know what kind of pressure he's using.
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`8
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`Q. Now, in my viewing of the video, the gentleman is holding the
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`lamp with his left hand underneath and standing with this right hand.
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`Do you have that understanding?
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`A. It's a foggy understanding, because it has been a while since I've
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`seen the video.
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`Q. Okay. Well, let's assume that's how it's being done. Wouldn't the
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`person doing the sanding have to apply pressure, upwards pressure
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`with their left hand and downward pressure with their right hand to
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`create enough friction to try and stay on the lens?
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`A. Yes.
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`Q. Do you know how much upward or downward pressure that
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`gentleman was applying?
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`A. No, I don't.
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`This testimony is relevant to whether Mr. Bell’s initial declaration disclosed the
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`underlying facts or data on which his opinion is based under 37 CFR § 42.65(a) or
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`explained why the experiments or data are being used and how the experiments are
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`regarded in the relevant art under 37 CFR § 42.65(b).
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`9
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`Respectfully submitted by
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`
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`
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`K&L Gates LLP,
`
` /Alan L. Barry/
`Reg. No. 30,819
`Alan L. Barry
`Customer No. 24573
`Date: November 19, 2013
`e-mail: alan.barry@klgates.com
`telephone number: 312-807-4438
`fax number: 312-827-8196
`70 W. Madison Street, Suite 3100
`Chicago, IL 60602
`
`By:
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`10
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`
`
`Matthew Cutler – mcutler@hdp.com
`Bryan Wheelock – bwheelock@hdp.com
`Douglas Robinson – drobinson@hdp.com
`Karen Bearley – kbearley@hdp.com
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`By:
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`IPR2013-00020; LKQ’s Observations on Mr. A. Harvey Bell IV Testimony
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`Certification of Service Under 37 C.F.R. § 42.6(e)(4)
`
`A copy of this document has been served to counsel for the Patent Owner at
`the following electronic mail addresses, pursuant to an agreement with the Patent
`Owner, on this 19th day of November, 2013:
`
`
`
`
`
`
` /Alan L. Barry/
`Reg. No. 30,819
`Alan L. Barry
`K&L Gates LLP
`e-mail: alan.barry@klgates.com
`telephone number: 312-807-4438
`fax number: 312-827-8196
`70 W. Madison Street, Suite 3100
`Chicago, IL 60602
`
`1
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