VINCENT A. THOMAS
`
`August 22, 2014
`
`INDEX
`
`Appearances
`Index
`
`2
`
`3
`
`Examination by Mr. Stuart E. Pollack
`6, 267, 271
`Examination by Mr. Daniel M. Lechleiter
`262, 271, 272
`Thomas Deposition Exhibit 1
`Thomas Deposition Exhibit 2
`Thomas Deposition Exhibit 3
`Thomas Deposition Exhibit 4
`Thomas Deposition Exhibit 5
`Thomas Deposition Exhibit 6
`Court Reporter's Certificate
`
`12
`38
`58
`67
`76
`153
`
`STIPULATIONS
`
`The deposition of VINCENT A. THOMAS, was
`taken pursuant to Notice, in the law offices of
`Faegre Baker Daniels LLP, located at 300 N. Meridian
`Street, Suite 2700, Indianapolis, Indiana
`46204-1750. Said deposition was taken for the
`purposes of discovery, to be used in accordance with
`the Indiana Rules of Civil Procedure.
`
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`1 2 3 4 5 6 7 8
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TARGET CORPORATION
`Petitioner
`v.
`ESTINATION MATERNITY CORPORATION
`Patent Owner
`
`Case No. IPR20l3—00530
`
`(J.S. Patent No. RE43,563)
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY Administrative Patent Judges.
`
`DEPONENT:
`DA TE:
`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`REPOR"ER:
`
`ALLIE MCRAE
`
`VIDEOGRAPHER: JAMES DAVID
`
`Ix}Ix)[Ql\)[x] (fl
`
`APPEARANCES:
`
`COUNSEL FOR PETITIONER:
`
`Daniel M. Lcchlcitcr, Esq.
`FAEGRE BAKER DANIELS LLP
`300 N. Meridian Street, Suite 2700
`Indianapolis, Indiana 46204
`Telephone: 317.237.0300
`Facsimile: 317.237.1000
`
`COUNSEL FOR PATENT OWNER:
`
`Stuart E. Pollack (USPTO Reg. No. 43,862)
`DLA PIPER LLP (US)
`1251 Avenue of the Americas
`27th Floor
`New York, New York 10020
`Telephone: 212.335.4964
`Facsimile: 212.884.8464
`
`CENTEXT LEGAL SERVICES
`855.CENTEXT
`
`1 (Pages 1 to 4)
`
`DMC Exhibit 2100_001
`
`Target v. DMC
`|PR2013-00530, 531, 532, 533
`
`

`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`CO\lOWU'|nJ>(,«)k)l—'
`
`PROCEEDINGS
`
`THE VIDEOGRAPHER: Good morning.
`This begins Disc No.
`l of the deposition
`of Vincent A. Thomas, Volume I, in the matter of
`Target Corporation, Petitione‘ vs. Destination
`Matemity Corporation, Paten Owner, that's been
`heard in U.S. Patent and Trademark Offiee,Patent
`Trial and Appeal Board, case No. IPR20l3-00530 and
`others, regarding patent No. RE43, 563E and others.
`Today is August 22, 2014. Current local
`time is 9:39 a.m.
`
`This deposition is being held at the Law
`Offices of Faegre Baker Daniels in Indianapolis,
`Indiana.
`
`I am a
`My name is James David.
`certified legal video specialist, appearing on
`behalf of Centext Legal Services, located in Tustiii,
`California.
`
`Counselors, please state your appearance
`for the record beginning with counselor for
`Petitioner.
`MR. LECHLEITER: Good irioinirig. My riarrie
`is Dan Lechleiter.
`I'm here to represent Petitioner
`
`Target Corporation.
`MR. POLLACK: Stuart E. Pollack, DLA
`Piper LLP U. S., on behalf of the Patent Owner,
`destination Maternity.
`THE VIDEOGRAPHER: The court reporter is
`Allie McRae, appearing with Centext also, and she
`shall now administer the oath.
`
`>l<>l<>l<
`
`VINCENT A. THOMAS, called by the Patent Owner,
`Destination Maternity Corporation, having been first
`duly sworn, was examined and deposed as follows:
`
`5
`
`>l<>l<>l<
`
`EXAMINATION
`BY MR. POLLACK:
`
`Q. Good morning, Mr. Thomas.
`A. Good morning.
`Q.
`I know you've been deposed many times
`before‘, is that right?
`A.
`That is correct.
`
`Q. Okay. Do you have an estimate about how
`many times?
`A.
`It's more than a hundred.
`
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`
`Q. Okay. About how many of those were
`patent cases?
`A.
`I would estimate that it's -- it's
`
`certainly more than half of those cases. How much
`more -- I haven't -- I haven't actually tracked.
`I
`can go back and look.
`Q. And you have also testified at trial
`before?
`A. Yes.
`
`Q. About how many times?
`A. More than sixty times.
`Q. And about how many of those times were
`patent cases?
`A. Again, I would -- would estimate, as I
`sit here, I did more than half of those. And the
`specific number, I'd have to go back and look.
`Q. How many times have you testified at
`trial regarding commercial success?
`A. Well, I do a lot of work with regard to,
`and have testified on a number of, patent
`infringement cases. And in many of those cases, the
`issues related to the success of the product and the
`impact that a patent, or a claimed feature of a
`patent, would have on the product would be at issue.
`So, in many of those cases, I think, the success of
`
`the product is something that I would have addressed
`and testified about.
`
`Sure, sure. But -- let me ask you this.
`Q.
`In how many of those cases did you testify about at
`trial about commercial success in regard to the
`secondary coiisideiation of noii-obviousness?
`A.
`I don't believe that I -- I'd have to --
`
`to double check this, butl don't recall a trial
`where I have provided that testimony as it relates
`to secondary considerations.
`Q. What about in -- in deposition? How
`many times have you testified at a deposition
`concerning commercial success as it relates to the
`issue of non—obviousness?
`
`I recall one deposition.
`Do you recall what case that was?
`It involved a company by the name of
`
`All right. What company is that?
`It's a pharmaceutical company.
`. And is VIIV -- is that a generic
`pharmaceutical company or a brand name company?
`A.
`I -- you know, I'm -- I'm not certain as
`I sit here. I'd have to go back and look at that. I
`know there was an affiliation with GSK in that -- in
`
`8
`
`2 (Pages 5 to 8)
`
`CENTEXT LEGAL SERVICES
`855.CENTEXT
`
`DMC Exhibit 2100_0O2
`
`Target v. DMC
`|PR2013-00530, 531, 532, 533
`
`

`
`that matter. So...
`
`feature?
`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`OD\lO\U‘|»J>(.»Jk)l—‘
`
`By GSK -- that's GlaxoSmithKline?
`Q.
`That's correct.
`A.
`Q. Do you remember what the product was in
`that case?
`A.
`It was a treatment for HIV.
`
`Q. Was it a pharmaceutical for HIV?
`A. Yes.
`
`Q. Okay. Do you remember what drug?
`A.
`I don't remember -- I don't recall the
`
`specific name of the drug as I sit here. I'd have
`to go back and look at that.
`Q. Okay. Do you recall what kind of drug
`it was? Was it a protease inhibitor or...
`A.
`It sounds like you have some knowledge
`of that area.
`It was a protease inhibitor to the
`best of my recollection, yes.
`Q. And do you recall if you were on the
`side of the -- of the patent owner or the company
`that was challenging the patent?
`A.
`I believe I was representing the patent
`owner in that case, or was retained by counsel who
`was representing the patent owner.
`Q. Did you testify at trial in that case?
`
`Q.
`A.
`
`Q.
`A.
`
`Q.
`A.
`
`Q.
`A.
`
`Do you know why not?
`It settled.
`What court was that case i11?
`It was in Delaware.
`
`What counsel were you working with?
`The law firm was Mayer Brown.
`Is that Lisa Ferri, or who?
`That's correct.
`
`Q
`So, what was it you were saying about
`.
`the co mercial success of the drug in that case
`involving VIIV?
`It was VIIV.
`
`?>O?>O?>O?>
`
`Sorry?
`It's V --
`
`Okay.
`It's V --
`-- VIIV.
`
`Yes. To the best of my recollection, I
`was analyzing the success of the product, and what
`the success could be traced to.
`
`Q. What did you trace the success to of the
`protease inhibitor product?
`A.
`It was the -- the claimed feature in
`
`that case drove the success of the product.
`Q. And what -- what was the claimed
`
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`
`A. Well, again, it's been a while since
`I've dealt with that matter. But my -- my
`recollection is that the -- the pill burden
`associated with the protease inhibitor was something
`that impacted a patient's ability to actually use
`the product. The —— the claimed feature reduced the
`pill burden, among other things, or was responsible
`for that. A11d that resulted i11 increased sales a11d
`
`market share of the product.
`Q.
`So, was this a patent that concerned
`combining more than one drug into one dosage form?
`A.
`I -- I'd have to go back and -- I don't
`remember.
`I don't specifically recall as I sit
`here.
`
`In that case do you recall whether --
`Q.
`you're aware that there's a presumption of nexus
`when the product being sold embodies the claims of
`the patent, correct?
`MR. LECHLEITER: Objection to form.
`I'm not sure that I -- I don't -- I
`
`A.
`
`don't have that understanding, I guess.
`Q.
`I -- are you familiar with something
`called the presumption of nexus?
`A.
`I don't know that I am -- I don't know
`
`if tl1at's a legal issue or -- but I'111 not -- as I
`sit here, not aware of a presumption.
`Q. Okay. But you're not -- you're not an
`attorney, correct?
`A.
`That's correct.
`
`Q. Okay. You're not providing any legal
`expertise in this case.
`A.
`That's correct. I'm not here to provide
`legal opinions.
`I am going to mark as
`MR. POLLACK:
`Thomas Deposition Exhibit 1 the Declaration of
`Vincent A. Thomas.
`I11 this proceeding it's called
`Exhibit ll-10. And I've also included in one of the
`
`exhibits which are in this proceeding referred to as
`Exhibits I 1-1 I through ll-15. We'll mark that.
`
`(Thomas Deposition Exhibit 1, the Declaration of
`Vincent A. Thomas, was marked for identification.)
`
`(BY MR. POLLACK:) If you could just
`Q.
`confirm for me that Thomas Deposition Exhibit 1 is
`your declaration of exhibits.
`A.
`Is this -- I -- I paged through this,
`but -- and I have to look at this i11 absolute
`
`detail, but this appears to be my report.
`
`3 (Pages 9 to 12)
`
`CENTEXT LEGAL SERVICES
`855.CENTEXT
`
`DMC Exhibit 2100_0O3
`
`Target v. DMC
`|PR2013-00530, 531, 532, 533
`
`

`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`CO\lO‘\(.T|nJ>(,«.)K)l—‘
`
`Okay. As you sit here now, there is --
`Q.
`there is nothing that you —— as far as you can tell
`that's missing or deficient?
`A. Not as I sit here, no.
`Q.
`If you could turn to Paragraph 21 of
`your declaration, that's Exhibit 11-10 in this file.
`A.
`Okay.
`Q.
`So on Page 15, Paragraph 21, let me ask
`you first, who -- who drafted Paragraph 21?
`A. Well, it would have been my paragraph,
`and I would have asked -- I believe I asked
`
`Ms. Distler to draft this paragraph.
`Q. Who -- who is Ms. Distler?
`A.
`She is a managing or -- excuse me, now
`senior managing director with FTI Consulting.
`Q.
`Can you tell me the names of all the
`people who were involved in -- in drafting this
`report, including the attorneys?
`A. Well, this report and the related
`exhibits in my report, I -- I participated in the
`drafting of this report and was provided assistance
`from Ms. Distler.
`It's Carrie Distler and
`
`Mr. Jeffrey Ilmow. His last name is spelled
`I-H-N-O-W.
`
`Q. And who is Mr. Jeffrey lhnow?
`
`A.
`
`He is a senior director with FTI
`
`Consulting.
`Q. Again, what was Ms. Distler's title?
`Senior managing --
`A.
`Senior managing director.
`Q.
`Senior managing director.
`And for my knowledge, what's the
`difference between a senior managing director and a
`senior director at FTI?
`
`The —— the title of senior managing
`A.
`director is more senior to a senior director. If
`
`that -- probably rnuddies it a little bit, but...
`Q. Okay. What -- what's your title now?
`A.
`Senior managing director.
`Q. Okay. Does Ms. Distler report to you in
`FTI?
`
`A. We don't have formal reporting in that
`regard.
`I -- I car1 guess, when you say "reporting,"
`can you be more specific in terms of what you are
`referring to?
`Q. Yeah. Are you her boss?
`A. You know, it —- it —— I guess that
`depends on, you know, what -- what particular
`situation you're referring to.
`I don't know if
`there's any formal lines of responsibility or -- or
`
`14
`
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`
`formal -- formal reporting in our organization.
`I do lead the intellectual property
`practice for FTI. Ms. Distler is part of that
`practice. Certainly, ir1 this case she assisted me
`and worked at my direction. But also, Ms. Distler
`works on other matters that I am not involved with
`and runs matters on her own as well.
`
`Okay. And what -- what about Mr. Ihnow?
`Q.
`Are you l\/Ir. Il1r1ow's boss?
`A.
`I guess, I would give the same type of
`response. There are certain engagements where
`Mr. Ihnow assists me and works at my direction. He
`is part of the intellectual property practice as
`well, but there are certainly situations where
`Mr. lhnow would work with other professionals within
`FTI also.
`
`Q. And just briefly, can you tell me what
`is Ms. Distler's and Mr. Ihnow's backgrounds?
`A. Ms. Distler graduated from the
`University of Missouri, has a degree in economics, I
`believe a master's in economics. She's been doing
`dispute in financial analysis type of work for, I
`believe, the better part of the last fifteen years.
`l\/Ir. Il1r1ow, he is a graduate of the
`University of Michigan, has a, I guess, a similar
`
`background to Ms. Distler. And he's been doing
`dispute analysis and financial analysis and data
`analysis work now for the better part of ten years.
`Q. Okay. Do you think he also has an M.S.
`in economics?
`A. Oh, I that -- thatl don't believe so.
`Q. Okay. What about bachelor's or CPA?
`A.
`I believe he is a CPA, but I'd have to
`-- I'd have to double-check that.
`
`Q. You have a bachelor's in economics, and
`you are a CPA, correct?
`A.
`That's correct.
`
`Q. Okay. You don't have any other degrees
`in economics, master's or Ph.D_?
`A.
`1 have a -- 1 am a master at business
`administration.
`
`Q. Okay. But no other degrees in
`economics, other than the bachelor's?
`A.
`I have bachelor of arts in economics,
`yes. And as I said, I have a master's in business
`administration. Within that curriculum, there would
`have been some economic courses and things of that
`nature.
`
`Q. Where's your MBA from?
`A.
`Indiana University,
`
`4 (Pages 13 to 16)
`
`CENTEXT LEGAL SERVICES
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`
`DMC Exhibit 2’lO0_0O4
`
`Target v. DMC
`|PR2013-00530, 531, 532, 533
`
`

`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`OD\lO\U‘|»J>(.»Jk)l—‘
`
`Is that down in Bloomington or...
`Q.
`A. Well, the —— the —— my diploma is from
`India11a University of Bloo1ningto11, although I -- I
`took many courses or most of my courses here in
`Indianapolis as I was getting my MBA while I was
`working.
`Q. Okay. Where were you working at the
`time?
`
`Coopers and Lybrand, which ultimately
`A.
`became Pricewaterhouse Coopers.
`Q. Okay.
`I remember them back when there
`used to be more firms.
`
`How long were you at Coopers a11d
`Lybrand?
`A. Well, I was at Coopers in total
`approximately six years, but that would include not
`only my time at Coopers but my time at
`Pricewaterhouse Coopers as well.
`Q. And what was it that you'd do at Coopers
`and at -- at Pricewaterhouse?
`
`I was a member of the financial advisory
`A.
`services practice.
`Q. Did you work at all with -- when you
`were at Coopers or Pricewaterhouse, with either of
`their IP analysis or litigation consulting groups?
`
`A. Well, within the financial advisory
`service practice, we performed analysis and services
`related to intellectual property.
`I was part of
`that group.
`Q. Wha —— what kind of services?
`A. Damage analysis i11 matters involving
`son1e form of the intellectual property, the
`evaluation of intellectual property, and assistance
`with licensing analysis a11d negotiations, as well
`as —— as royalty audits also.
`Q. Did you ever work with Corky Hoffman
`when you were there?
`A. When I was at Pricewaterhouse Cooper?
`Q. Yes.
`A
`Not while I was -- not while I was
`there.
`
`Okay. Did you know him?
`I did know him, yes.
`A11d did you know Phil Green?
`I have not met Mr. Green.
`
`.
`
`. Okay. Just out of curiosity, did you
`know Al Hoffman by the way?
`A.
`I -- I did not know him -- I know --
`
`knew of him but did not know him personally.
`Q.
`Turning for just a second to
`
`OOD\lO\U‘|nJ>(.:.)l\)|—‘
`
`U1»J>(;JK)|—‘(DkOOO\lO'\U1>J>-u)[\)l—‘C)kOOO\lO'\U1nJ>(.uR)|—‘
`
`K)K)l\)K)k)R)l—‘|—‘l—‘|—‘l—‘l—‘|—‘l—‘|—‘l—‘
`
`Paragraph 2l again. So, at first sentence it says,
`"It was my understanding that a prima facie case of
`nexus is generally made out if the patent owner
`shows that the commercially valuable product in
`question embodies the features of the claims in
`question."
`Do you see that?
`A. Yes.
`
`Q. Okay. Do you agree with that statement?
`A.
`I agree that I have an understanding of
`that -- that's what I was asked to -- at least it's
`
`—— it's my understanding for this matter.
`Q.
`Before this -- before this case, were
`you aware of this -- of this principle?
`A. As a general matter, yes.
`Q. And earlier, I was referring to a
`presumption of nexus.
`Are you familiar with the term
`"presumption" generally?
`MR. LECHLEITER: Objection to form.
`A. Generally, you can presume something.
`guess, it doesn't necessarily mean that it's, in
`fact, the case, but you could perhaps assume or
`presume.
`Q. Okay. When you are using the term of
`
`I
`
`"prin1a facie case of nexus," what -- what did you
`mean by that?
`A. Meaning that there is -- as I go on to
`say that -- that there's some sufficient amount of
`information in a relationship between the claimed
`features, and that those claimed features -- the
`relationship between the claimed features and the --
`the success, if any, of a particular product.
`Q. Did -- did you understand that the --
`the law says that, if a patent owner can show that
`the claims embody or that -- I'm sorry, that their
`products embody the claims, that the law then says
`that the patent owner has at least initially
`satisfied its burden of proof that there is a nexus
`between the claims and the invention with nothing --
`sorry, the claims and the product with nothing
`further needing to be done?
`MR. LECHLEITER: Objection to fom1.
`A. Again, I think you're -- you're probably
`treading into legal areas, and I'm not here to give
`legal opinions. That may or may not be the case,
`but again, I'1n not here to provide legal analysis or
`opinions.
`Q. Okay. Well, when you -- when you gave
`your analysis of commercial success, did you
`
`20
`
`5 (Pages 17 to 20)
`
`CENTEXT LEGAL SERVICES
`855.CENTEXT
`
`DMC Exhibit 2100_0O5
`
`Target v. DMC
`|PR2013-00530, 531, 532, 533
`
`

`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`OD\lO'\U'|»J>(.»Jl\)|—‘
`
`consider whether or not the products at issue here
`embody the claims?
`MR. LECHLEITER: Objection to fonn.
`A. Well, I -- I guess I would answer that a
`couple of ways. One is that I'm responding to what
`Mr. Green -- in the analysis he set forth. And I
`also understand from Mr. Green's analysis that he is
`relying on what Mr. Brookstein has done from a
`technical perspective. And I also understand that
`Mr. Brookstein has only analyzed four pairs of
`pants. And I understand there's more than
`SKUs that are at issue and included in the sales
`information that Mr. Green has analyzed. So in that
`regard I think that, certainly, was something I took
`into consideration in responding to what Mr. Green
`has set forth.
`
`I think also I was asked, and I think,
`understand to be appropriate, is to assess the
`features associated with the dependent claims and
`whether those have an impact on the sales or success
`of any of -- of the products that are at issue. And
`that, certainly, would be something that I would
`take a look at as well.
`
`Q. Have -- have you dealt with analyzing
`the non-obviousness of or obviousness of dependent
`
`claims ir1 any other cases you worked or1?
`MR. LECHLEITER: Objection to form.
`I -- I'd have to go back and -- and take
`A.
`a look. That perhaps could be the case. I've
`worked on a number of cases. So, therefore, that
`may well be the case.
`Q.
`Right. Well, earlier we talked about
`the only case where you gave a deposition at least
`regarding commercial success. It was this case
`where I get the company name wrong, VIIV?
`A. Uh-huh.
`
`I11 that case were you dealing with the
`Q.
`dependent claims or independent claims?
`A
`I' h
`k -- I'm 11
`
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`Okay. Prior to this case, did you have
`Q.
`an understanding of that analysis?
`A.
`Understanding of what analysis‘?
`Q. Of how to look at a dependent claim?
`A. Well, I -- I guess I -- I had an -- I
`have an understanding that, typically, in performing
`economic analysis, you're looking at features of a
`
`product and which features are covered by certain
`claims of a patent. That's an analysis thatl
`performed in the past, and that's how I understand
`such analysis is to be performed. The legal
`ramifications is not something that I -- I would get
`involved with.
`I'111 not a legal expert.
`I'111 11ot an
`attorney. So...
`Q.
`Okay. You used the term "features"
`several times. In -- in patent law we often use the
`word "elements."
`
`Are you familiar with the word
`elements ir1 patent law?
`A.
`Just -- just generally. Again, I'm not
`an attorney. So...
`Q. What's your general understanding of
`elements?
`
`Certain aspects, I guess.
`A.
`Okay.
`Is -- when you are using the word
`Q.
`"features," is that the same thing as elements?
`A.
`I don't -- again, I'm not an attomey.
`I'1n not giving legal opinions. So, I don't know
`that it would ncccssarily bc the same.
`Q.
`Okay. What -- what do you mean by a
`feature of a claim?
`
`A. Well, I -- I guess, to be clear, I'm --
`
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`VINCENT A. THOMAS
`
`August 22, 2014
`
`Q. Have you applied those benchmarks to
`this case?
`
`A. Well, what I can say is that Mr. Green
`has failed to apply, I think, those benchmarks. And
`so, in that regard I've concluded that he doesn't
`have the reasonable basis upon which to conclude
`that it's a commercial success. That's what I was
`
`asked to do, and that would be my opinion in this
`particular matter.
`Q. Am I correct in that your opinion in
`this case is simply that Mr. Green hasn't met his
`burden of proof in your view of commercial success?
`A. Well, I guess, you're -- you're giving
`-- you're asking a very general question.
`I think
`that certainly I don't believe Mr. Green has done
`the appropriate analysis in support of his opinions.
`I also believe that, in addition to that, there's
`evidence that would support findings contrary to Mr.
`Green's opinions.
`Q. What evidence -- what evidence shows
`that Secret Fit Belly is not a commercial success?
`A. Well, I --
`MR. LECHLEITER: Objection to form.
`-- I think that in response to what
`A.
`Mr. Green has set forth, and I think that I've
`
`identified i11 my report he's looked at -- as far as
`I can tell what he's looked at is that there were
`roughly- in sales and -- and profits on
`those —— gross pro its on those sales. And that
`there was a price differential and others have -- he
`clai111s that others have used the patent and
`technology. And that leads him to conclude that the
`Secret Fit Belly pants are commercial success.
`And he's also compared those sales in
`relation to non-Secret Fit Belly pants. I think
`that that analysis is deficient in being able to
`arrive to the conclusions that he has arrived at.
`
`I think that in your statement you may
`Q.
`have confused two different issues in the case.
`
`I
`
`want to make sure we're on the same page. There are
`two issues, I think, that are involved ir1 your
`report and Mr. Green's report. One is whether the
`products are commercial success, and the other is
`whether there is a nexus between that commercial
`success and the claims.
`Is tha -- is that fair?
`
`A. Well, I think that's -- those are the
`two opinions that Mr. Green has arrived at. And I
`believe I responded to those opinions.
`Q.
`Okay. Am I correct that the price
`
`7 (Pages 25 to 28)
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`I'm looki11g at -- for a particular product. You
`know, there are features to a product.
`I11 many
`cases you're assessing the impact of those features
`to the success or sales or the economic benefits of
`
`the product, whether that's in assessing the
`commercial success, assessing the reasonable
`royalty, or things of that nature. And so, that's
`what, as an economic expert, you typically do, or
`what I've typically do11e.
`Q.
`By the way, would you agree with me that
`the Secret Fit Belly product is a commercial
`success?
`
`MR. LECHLEITER: Objection. Form.
`A. Well, I -- I don't know that.
`I haven't
`arrived at that opinion, and I am not sure that you
`can ultimately conclude from Mr. Green's analysis
`that it is, in fact, commercial success.
`Q. Well, let me ask you this. You're not
`giving an opinion that's not -- I know -- I am
`asking too many dangerous...
`
`Q. Well, how do you -- how do you determine
`if a product is a commercial success i11 patent law?
`A. Well, you could -- I mean, it depends on
`the facts and circtunstances.
`I guess, there are
`certain ways that you can address the success.
`Again, it would depend on the situation.
`Q. Well, hasn't the Federal Circuit said
`that it determined whether a product is a commercial
`success based on its market share and sales revenue?
`MR. LECHLEITER: Objection. Form.
`A. Again, I don't -- I haven't memorized
`the case law.
`I just want to be clear I'm not
`giving legal opinions. There may be cases out there
`that discuss those issues, and those may be
`benchmarks that could apply to a particular case.
`
`26
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`Target v. DMC
`|PR2013-00530, 531, 532, 533
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`

`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`(1)\lO\U'|»-lb-(;JK)|—‘
`
`premium and -- well, let's start witli the price
`premium. The price premium —— that actually connect
`-- that's actually associated with this issue about
`whether there's a nexus, correct?
`A.
`I -- I'd have to go back and look at
`Mr. Green's report. He may be attempting to use
`that as a reason to suggest that there's —— somehow
`there's a nexus.
`
`Q. Well, what did you think he was doing
`when you responded to him?
`A. Well, 1 -- I would say that, in certain
`respects of his report, it was unclear as to what he
`was doing, and he was deficient in describing what
`he was doing on many fronts. So, but in - in terms
`of what he did set forth, I -- I certainly concluded
`that it was not sufficient to support his findings
`or his opimons in this case.
`Q. Well, let me -- let me ask you this. In
`the economic analysis of connnercial success, is it
`the -- the case that price premium is used to show
`that there's a nexus between the invention and the
`claims?
`
`MR. LECHLEITER: Objection. Form.
`Are you talking about Mr. Green's
`
`A.
`
`Q. No, ir1 general.
`A. Again, it depends on whether -- that --
`that depends on the facts and circumstances whether
`that's appropriate or it isn't, whether you look at
`a difference in price. And that somehow relates to
`the nexus of the -- the patents at issue in that
`case.
`
`Q. Well, what's your understanding?
`A.
`That's -- my understanding is that that
`could be something you take a look at. But whether
`that's relevant or not depends on the facts and
`circumstances of the case.
`
`Q. Well, what -- why do you look at the
`price premium in your economic analysis of
`commercial success?
`
`A. Again, it would depend on the situation,
`the facts and circumstances as to whether that would
`be sor11etl1ir1g that would be relevant to assess ir1
`support of -- or in assessing whether there is a
`nexus or connection between the patents and the
`success of a product. It may or may not be the
`case. It depends on the situation.
`Q. Have you looked at a price premium in
`the past to examine whether there was a nexus
`between the claims and the products at issue in any
`
`30
`
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`-- not in obviousness analysis that you've done in
`the past?
`MR. LECHLEITER: Objection. Form.
`I -- I don't recall if that's something
`A.
`we did. I'd have to go back and look. That may
`have been, that may not have been.
`Q. Well, what —— what things have —— have
`you looked at in the past to show that there was a
`nexus between the claimed invention and the product
`in any analyses you did of non-obviousness or
`obviousness in the past?
`MR. LECHLEITER: Objection. Form.
`A. Well, understanding the differences
`between the products and what -- in those
`differences what -- what is -- what those
`
`differences are, and whether those are covered by
`the patents or claims that are at issue. That would
`be part of the analysis.
`Q. You said "understanding the
`differences." What -- what differences are you
`referring to ‘.7
`A. Meaning you could look at a —— one
`product as a comparison to another product and see
`if the -- the differences between those products
`would be what's covered by the patent or would
`
`include things other than what's covered by tl1e
`patent.
`Q. And what would that tell you?
`A. Well, I would -- it would give you an
`indication as to whether making any other
`comparisons of those products would be relevant to
`the issue at hand. Or could be relevant.
`
`Q. You're aware that Mr. -- Mr. Brookstein
`did an analysis -- a comparison of Secret Fit Belly
`products to all the claims in this case. You're
`aware of that, correct?
`A. Well, I -- again I -- I'111 not a
`technical expert. So, what all the details and
`things that he went through, I don't know that I
`could recite that verbatim.
`I understand that he
`
`has arrived at opinions that the four pants, pairs
`of pants, that he analyzed, that certain of those --
`certain of the clair11s are embodied -- at least it's
`
`his opinion -- are embodied in certain of those --
`those pants.
`Q.
`Uh-huh. And you're aware that Target
`has a technical expert i11 this case, Ms. Harder?
`A. Yes.
`
`Q. Did Ms. Harder give an opinion saying
`that Mr. Brookstein was incorrect or wrong in his
`
`32
`
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`Target v. DMC
`|PR2013-00530, 531, 532, 533
`
`

`
`VINCENT A. THOMAS
`
`August 22, 2014
`
`OD\lO'\U'|»J>(.»Jl\)l—‘
`
`analysis?
`A. Well --
`
`MR. LECHLEITER: Objection to fonn.
`A. My understanding of Ms. Harder is that
`she was claiming that what is covered by the claims
`was -- was -- existed i11 the prior art. That's an
`understanding that I have. Now, whether that's in
`contrast to what Mr. Brookstein has come up with, I
`would -- I would defer it to the attorneys and those
`individuals on that front.
`
`Q. Okay. That's a different question. You
`don't have —— you're not aware of anyone saying that
`Mr. Brookstein was wrong in his comparison of
`comparing the claims to the Secret Fit Belly
`product?
`A. Well, I think that -- that counsel for
`Target would disagree with that. And I believe
`Target would disagree with that as well. That's my
`understanding.
`Q. What do you base that understanding on?
`A. Discussions with counsel.
`
`Q. What's —— what's counsel's basis for
`saying that the claims of the Secret Fit Belly
`product don't match -- the -- the claims of the
`patents in this case don't match the Secret Fit
`
`Belly product?
`MR. LECHLEITER: I'm just going to
`object and caution not to reveal any attorney work
`product communication.
`A. Yeah, I can only say that as a general
`matter I have an understanding that it's the
`position of Target and counsel for Target that they
`would dispute the findings of Mr. Brookstein. That
`-- that's just a general understanding.
`I haven't
`gotten into the details. I'm not dealing with
`technical issues. So, that's all I know.
`Q.
`Okay. You're -- you're not giving an
`opinion in this case that the claims of the patent
`don't match or are not embodied by the Secret Fit
`Belly products?
`A. Well, I'r11 not giving a clai111 from a
`technical perspective, but I will say that I am
`responding to Mr. Green's assumption that he can use
`Mr. Brookstein's analysis and extrapolate it to the
`entire population.
`I would disagree with that, that
`that's appropriate.
`Q. Well, do you have any -- I know in your
`report you said, well, you only looked at certain --
`a certain number of pairs of pants. Do you have any
`reason to believe that a significant number of
`
`34
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`Destination Maternity SKUs under the Secret Fit
`Belly designation do not match any of the claims in
`the patents in this case?
`MR. LECHLEITER: Objection. Form.
`A. Well, again, just to be clear, I'm not
`providing technical opinions. I'm not analyzing
`Secret Fit Belly and non-Secret Fit Belly pants from
`a technical perspective. WhatI can say i