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`FRANCES HARDER
`
`April 24, 2014
`
` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TARGET CORPORATION, )
` )
` Petitioner, )
` )
`vs. ) Case No. IPR2013-00530
` ) U.S. Patent RE43,563
`DESTINATION MATERNITY )
`CORPORATION, )
` )
` Patent Owner. )
`____________________________)
`
`
`
` VIDEOTAPED DEPOSITION OF FRANCES HARDER
`
` THURSDAY, APRIL 24, 2014, 9:58 A.M.
`
` LOS ANGELES, CALIFORNIA
`
` Reported By: Lisa DiGiovanni, RPR, CSR 11969
` CLS Job No. 34579
`
`
` CENTEXTLEGAL.COM - 888.803.3443
`
`CENTEXT LEGAL SERVICES
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`FRANCES HARDER
`
`April 24, 2014
`
` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TARGET CORPORATION, )
` )
` Petitioner, )
` )
`vs. ) Case No. IPR2013-00530
` ) U.S. Patent RE43,563
`DESTINATION MATERNITY )
`CORPORATION, )
` )
` Patent Owner. )
`____________________________)
`
`
`
` VIDEOTAPED DEPOSITION OF FRANCES HARDER
`
` THURSDAY, APRIL 24, 2014, 9:58 A.M.
`
` LOS ANGELES, CALIFORNIA
`
` Reported By: Lisa DiGiovanni, RPR, CSR 11969
` CLS Job No. 34579
`
`
` CENTEXTLEGAL.COM - 888.803.3443
`
`CENTEXT LEGAL SERVICES
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`FRANCES HARDER
`
`April 24, 2014
`
` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` TARGET CORPORATION, )
` )
` Petitioner, )
` )
` vs. ) Case No. IPR2013-00530
` ) U.S. Patent RE43,563
` DESTINATION MATERNITY )
` CORPORATION, )
` )
` Patent Owner. )
`_____________________________)
`
`Videotaped Deposition of FRANCES HARDER, taken on
`
`behalf of the Patent Owner, Destination Maternity
`
`Corporation, before Lisa DiGiovanni, RPR, Certified
`
`Shorthand Reporter No. 11969, for the State of
`
`California, commencing at 9:58 a.m., Thursday,
`
`April 24, 2014, at 2000 Avenue of the Stars,
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`Suite 400, Los Angeles, California.
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`FRANCES HARDER
`
`April 24, 2014
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`APPEARANCE OF COUNSEL:
`
`FOR THE PATENT OWNER:
` DLA PIPER
` BY: STUART E. POLLACK
` Attorney at Law
` 1251 Avenue of the Americas
` New York, New York 10020
` 212.335.4964
` stuart.pollack@dlapiper.com
` DLA PIPER
` BY: MICHAEL L. BURNS IV
` Attorney at Law
` One Liberty Place
` 1650 Market Street
` Suite 4900
` Philadelphia, Pennsylvania 19103
` 215.656.2443
` michael.burns@dlapiper.com
`
`For Petitioner:
`
` FAEGRE BAKER DANIELS
` BY: DANIEL M. LECHLEITER
` Attorney at Law
` 300 N. Meridian Street
` Suite 2700
` Indianapolis, Indiana 46204
` 317.237.0300
` daniel.lechleiter@faegrebd.com
`
`ALSO PRESENT:
`
` John Azpilicueta, Videographer
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`FRANCES HARDER
`
`April 24, 2014
`
` I N D E X
`
`Examination By: Page
`Mr. Pollack ------------------------- 7
`
` E X H I B I T S
`Patent Owner's Page
`Exhibit 1 Patent US RE43,531 E 9
` Belly Covering Garment
` Target Corporation EX 1018
`Exhibit 2 Declaration of Frances 22
` Harder
` Target Corporation EX 1011
`Exhibit 3 3-page catalog 25
` Target Corporation EX 1002
`
`Exhibit 4 Patent US 6,276,175 B1 28
` Seamless Torso Controlling Garment
` and Method of Making Same
` Target Corporation EX 1004
`Exhibit 5 Lauren Sara catalog 29
` Target Corporation EX 1005
`
`Exhibit 6 The New York Times article 31
` PULSE: An Early Lesson in Prada
` Target Corporation EX 1010
`
`Exhibit 7 Patent US 6,669,064 B2 32
` Bonding Nurser
`Exhibit 8 Patent US 5,034,999 38
` Nursing Bib
`
`Exhibit 9 Patent US 7,089,597 B2 42
` Clothes for the Upper Half of
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`FRANCES HARDER
`
`April 24, 2014
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` E X H I B I T S
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`Patent Owner's Page
`
`Exhibit 10 Curriculum Vitae of 89
` Frances Harder
` Target Corporation EX 1012
`
`Exhibit 11 Patent US 2004/0049834 A1 119
` Target Corporation EX 1003
`
`Exhibit 12 Corrected Petition for 167
` Inter Partes Review
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`April 24, 2014
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` Thursday, April 24, 2014, 9:58 a.m.
`
` Los Angeles, California
`
` THE VIDEOGRAPHER: Good morning. Here begins
`
`Media No. 1, Volume I, to the videotaped deposition
`
`of Frances Harder in the matter of Target
`
`Corporation vs. Destination Maternity Corporation.
`
`This case is in the U.S. Patent and Trademark Office
`
`before the Patent Trial and Appeal Board with Case
`
`No. IPR2013-00530.
`
` Today's date is April 24th, 2014. The time
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`is 9:58 a.m. This deposition is taking place at
`
`2000 Avenue of the Stars, Suite 400, North Tower,
`
`Los Angeles, California 90067. The videographer is
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`John Azpilicueta appearing on behalf of Centext
`
`Legal Services located in Encino, California.
`
` Will counsel please identify yourselves and
`
`state whom you represent.
`
` MR. POLLACK: Stuart E. Pollack, DLA Piper, LLP,
`
`U.S., on behalf of the Destination Maternity patent
`
`owner, joined here from Michael Burns representing
`
`the same parties, also from the same firm.
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` MR. LECHLEITER: And Daniel Lechleiter for
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`Faegre Baker Daniels representing petitioner, Target
`
`Corporation.
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`FRANCES HARDER
`
`April 24, 2014
`
` THE VIDEOGRAPHER: Thank you.
`
` Today's reporter is Lisa Giovanni [sic]
`
`with Centext Legal Services.
`
` May the court reporter please swear in the
`
`witness.
`
` DEPOSITION OFFICER: Please raise your right
`
`hand to be sworn.
`
` [FRANCES HARDER,
`
`a Witness herein, having been first duly sworn by
`
`the Certified Shorthand Reporter, was examined and
`
`testified as follows:]
`
` DEPOSITION OFFICER: You do solemnly state that
`
`the evidence you will give in this matter will be
`
`the truth, the whole truth, and nothing but the
`
`truth, so help you God.
`
` MS. HARDER: I do.
`
` DEPOSITION OFFICER: Thank you.
`
` EXAMINATION
`
`BY MR. POLLACK:
`
` Q. Good morning, Ms. Harder.
`
` A. Good morning.
`
` Q. To start the deposition, if you could just
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`April 24, 2014
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`state your name and your current job position for
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`the record.
`
` A. My name is Frances Harder, and I am the
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`founder/president of Fashion Business, Incorporated.
`
` Q. Okay. And I believe you've been deposed
`
`before; is that correct?
`
` A. Correct.
`
` Q. Okay. How many times have you been deposed
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`before?
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` A. Over the last eight to 10 years, probably
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`around about six times. I -- you know, that's an
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`approximation.
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` Q. Were -- were all of those times as an
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`expert witness or were only some of them as an
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`expert witness?
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` A. They were all as expert witness.
`
` Q. Okay. What -- do you recall what the six
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`cases were?
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` A. For the most part, they were copyright
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`infringements.
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` Q. What kind of copyrights?
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` A. Prints, graphics.
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` Q. Were those prints and graphics for clothing
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`or for something else?
`
` A. Clothing.
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`April 24, 2014
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` Q. I assume you remember the rules of
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`deposition?
`
` A. Maybe you could repeat them.
`
` Q. Okay. You need to answer audibly because
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`the reporter is taking down your answers as a
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`written record. Is that okay?
`
` A. Correct. Okay.
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` Q. Is there any -- you understand you're under
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`oath?
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` A. Correct.
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` Q. Okay. And is there any reason that you
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`would have any difficulty giving your best testimony
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`today?
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` A. None at the moment.
`
` Q. Okay. Good.
`
` MR. POLLACK: Let's begin, if you could pass me
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`the '531 patent. I'm going to mark as Harder
`
`Deposition Exhibit 1, U.S. Patent Reissue 43,531E
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`issued July 24th, 2012.
`
` (Patent Owner's Exhibit 1 was marked
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` for identification and attached hereto.)
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` THE WITNESS: Thank you.
`
` Q. BY MR. POLLACK: I assume you've reviewed
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`this patent in detail?
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` A. I have reviewed it.
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`FRANCES HARDER
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`April 24, 2014
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` Q. Okay. About how long did you spend
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`reviewing this patent?
`
` A. Well, given that I'm not an attorney, I
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`definitely read through it. How much I retained as
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`far as the legalese is to be questioned.
`
` Q. Okay. You understand that this is the
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`patent that's -- one of the two patents that's
`
`involved in the procedures that this deposition is
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`called for?
`
` A. Correct.
`
` Q. Okay. Can you turn to Column 5 of the
`
`patent? It's page 13. Do you see that there are
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`claims there?
`
` A. Uh-huh.
`
` Q. "Yes"?
`
` A. Yes.
`
` Q. Okay. Did you review the claims?
`
` A. I did.
`
` Q. Okay. How long did you spend reviewing the
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`claims?
`
` A. It's hard to give it a number. I have
`
`reviewed them, and I can't give you a definite time.
`
`I mean, I have reviewed them.
`
` Q. Okay. Is it hours? Minutes?
`
` A. I have reviewed -- reviewed them at
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`April 24, 2014
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`different stages, so I would review them when I was
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`first retained --
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` Q. Okay.
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` A. -- and during conversations. And to give
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`you an estimate of time, it's hard to say.
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` Q. Okay. When were you first retained?
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` A. I think that was last year in -- around
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`about August last year. Must have been earlier,
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`actually. To give you the exact date, I --
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` Q. Okay.
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` A. Unless you've got the document in front of
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`you, I have -- I don't have -- I can't remember.
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` Q. Well, if I represent to you that you signed
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`your declaration in August 2013, kind of --
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` A. Uh-huh.
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` Q. -- kind of give you an estimate of when.
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` A. Okay. So it would probably have been, I
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`would think, around about May of '13.
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` Q. About how many times did you review the
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` A. I can't give you a definite number of times
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`I reviewed it. I mean, there are certain portions
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`when we were having our discussions on the -- about
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`the patent.
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`FRANCES HARDER
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`April 24, 2014
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` Q. When you say "directed to look at," that
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`was by your attorneys?
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` A. Well, not directed. It was just a part of
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`the discussions. There was no official direction.
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` Q. Okay. But it was discussions with your
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`attorneys?
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` A. Yes, discussions.
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` Q. Which portions were those that you were
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`directed to look at?
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` A. Well, most -- most portions, really. I got
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`a really overall view of what the patent was about.
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` Q. Okay. Including the claims?
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` A. Including claims.
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` Q. Okay. Let's take a look at Claim 1 on page
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`13.
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` A. Correct.
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` Q. Do you see the last paragraph around line
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`30? Do you see where I'm referring to in Claim 1?
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` A. In the second column?
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` Q. In Column 5, the first column.
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` A. Okay. I'm sorry. I don't see where 30 is.
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`I'm just looking at the one --
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` Q. Oh, I'm sorry. There are -- there are line
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`numbers --
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` A. Right.
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`FRANCES HARDER
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`April 24, 2014
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` Q. -- in the middle of the page.
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` A. Right.
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` Q. And if you look at Column 5, do you see
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`around where line 30 is?
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` A. Column 5? Is it -- are you -- is this the
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`one? Are you looking at the -- telling me directly
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`to look at --
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` Q. I'm looking at Claim 1.
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` A. I'm looking --
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` Q. If you could look at the --
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` A. I'm looking at Claim 1.
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` Q. Okay. Very good.
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` A. Right.
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` Q. If you could look at the last full
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`paragraph in Claim 1.
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` A. Okay. So then...
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` Q. I'm sorry. Let me make sure you understand
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`what the claims are.
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` Do you understand what claims are?
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` A. Okay. Yes.
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` Q. Okay.
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` A. Okay. All right. I'm looking at Claim 1,
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`but then I saw Claim 8. But anyway, okay. So
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`Claim 1.
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` Q. Claim 1 is the one that has the --
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`April 24, 2014
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` A. Right.
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` Q. -- bold No. 1 at the beginning of it.
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` A. Right.
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` Q. And it ends just before the bold No. 2.
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` Do you see that?
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` A. I'm looking at Claim 1. And then it's up
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`to 22, so I'm not sure where I'm looking, actually.
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` Q. Okay. Is this your first time looking at
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`claims?
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` A. I've looked at claims, but I've never had
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`to be direct to a specific number, so I'm not quite
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`sure --
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` Q. Okay.
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` A. -- what you're referring to. I would say
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`maybe you could help me.
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` Q. Okay. Yes.
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` A claim is a numbered sentence.
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` A. Right.
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` Q. Claim 1 is the first numbered sentence.
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` A. Right.
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` Q. And it goes from about line 20 to line 35.
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` Do you see that?
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` A. Yes. But, you know, like, it's coming here
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`Claim 1, Claim -- all the way down to 55, so...
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` Q. Okay. Sure.
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`FRANCES HARDER
`
`April 24, 2014
`
` A. Sorry. Sorry.
`
` Q. If you look, there's a -- in Column 5 --
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` A. Yup.
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` Q. -- do you see there's a language that says,
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`"What is claimed is"?
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` A. Yes. "What is claimed is." At the top are
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`we looking?
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` Q. Just about a third of the way down.
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` A. "What is claimed is." Got it.
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` Q. Okay. Do you see under that, there's a
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`number one?
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` A. Yes.
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` Q. Okay. Do you understand that that's what's
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`called Claim -- Claim 1?
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` A. Correct.
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` Q. Okay. And if you --
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` A. Okay.
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` Q. -- would go down to the fourth paragraph,
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`the one that begins, "the garment upper portion."
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` Do you see where I'm --
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` A. With you.
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` Q. Okay. Very good.
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` A. Okay. Sorry.
`
` Q. No problem.
`
` All right. Let's keep reading in -- in
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`April 24, 2014
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`that section. It says here, "the garment upper
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`portion having a second torso encircling
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`circumference defining an upper edge of the belly
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`panel that encircles a wearer's torso just beneath
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`the wearer's breast area..."
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` Do you see where I'm reading?
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` A. Yes.
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` Q. Okay. Did I read that correctly?
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` A. Yes.
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` Q. What's your understanding of the word
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`"breast area"?
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` MR. LECHLEITER: Objection. Form.
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` THE WITNESS: Breast area is -- can be defined
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`in many different ways depending on the size of the
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`body.
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` Q. BY MR. POLLACK: Uh-huh.
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` A. You have people who have larger breasts and
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`smaller breasts, shorter waists. Some of them tend
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`to be bigger around their circumference. So the
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`breast area could be anywhere within what you would
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`consider -- what a normal person would be considered
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`as a breast area. So it's hard to define depending
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`on the person. Everybody's different.
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` Q. It depends on someone's size?
`
` A. Sizing.
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`April 24, 2014
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` Q. Okay. And that's something that's
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`understood in the fashion industry?
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` A. Sizing? Sizing is, of course.
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` Q. Yes.
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` It's understood that the breast areas on
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`different people are -- are different?
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` A. Yes.
`
` Q. Okay. Before you were involved in this
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`case, what was your understanding of where the
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`breast area is -- is located on a person?
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` A. Well, the breast area could -- could, in
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`theory, talk about the bra, talk about the actual
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`breast. So it depends on, you know, what -- what
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`in -- in what context we're talking about. Or it
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`could be area -- it could be, what is the area? I
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`mean, what is the area of L.A.? You're talking
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`about miles or are you talking about 5 -- 5 feet?
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` Q. Sure.
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` A. So it depends on what you define as what
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`the area is. Every -- every -- every definition of
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`area could -- could be different.
`
` Q. Sure. Sure.
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` But when you're working with clothing to
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`cover the breast area, what's your understanding of
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`breast area in that context?
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` A. To cover the breast area?
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` Q. Yes.
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` A. Then I would think we're talking about a
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`bra.
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` Q. Okay. Are there other definitions of --
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`well, what do you mean by "bra" when you said we're
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`talking about the bra?
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` A. Well, the bra is holding the actual breast
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`of the woman. And that would be considered, as you
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`were talking about, something covering the breast
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`area.
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` Q. Okay. Hate to ask you to do this, but
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`you're the only woman here. Could you give us, just
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`sort of drawing on your -- on your chest for the
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`camera, about where the breast area would be in --
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` A. Well, we've all got breasts.
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` Q. Sure.
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` A. You've got breasts, too.
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` MR. LECHLEITER: Objection. Form.
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` Q. BY MR. POLLACK: Sure.
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` A. So I -- I don't feel comfortable doing
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`that. I think that if you wanted to define it, you
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`could define the breast as being across your own
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`chest, and that's where the breast part is. I mean,
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`you've got a nipple. Everybody's got a nipple.
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` Q. Sure.
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` A. That's your breast area.
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` Q. Sure.
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` On a woman, can you show us, in your
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`understanding, where the breast area is.
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` A. Well, the breast area would be --
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` MR. LECHLEITER: Objection.
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` THE WITNESS: -- where the breast is. That's
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`quite clear. I don't think I feel comfortable
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`having to define my own body. Maybe you've got a
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`model you could bring in or a form.
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` Q. BY MR. POLLACK: Okay. So a form is
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`something you would use to understand where the
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`breast area is?
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` A. If you were working in a studio or -- and
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`you were making clothing, you would have a dress
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`form --
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` Q. Uh-huh.
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` A. -- that usually you use for fitting.
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` Q. Okay.
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` A. And it's usually -- we call it a standard
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`size. It could be a Size 6. And then you use that
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`to do the fitting. However, as you pointed out
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`earlier, everybody is different.
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` Q. Right.
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`FRANCES HARDER
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`April 24, 2014
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` A. So they would have to then consider
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`different sizes and, you know, is this going to fit
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`somebody with different characteristics than, say,
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`on the form?
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` Q. Now, for -- for this case, have you looked
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`into how the term "a breast area" is defined in --
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`in the fashion art?
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` A. When I read and obviously when you take it
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`into context of the way it's written, they're
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`talking about the breast area.
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` Q. Uh-huh.
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` A. I -- I had an idea of what they were
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`talking about.
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` Q. What was that idea?
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` A. Well, it's really the upper abdomen, so...
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` Q. Where do you get that from?
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` A. Well, I would say that, assuming it's not
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`intended to go over the breast --
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` Q. Uh-huh.
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` A. -- and I haven't seen any evidence of
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`that -- then it would be finishing on the upper
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`abdomen, depending on, obviously, the size of the
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`person.
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` Q. Okay. But what's your basis for that?
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`Where in the patent does it indicate that?
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`FRANCES HARDER
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`April 24, 2014
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` A. Well, it says -- on some of them, they talk
`
`about the breast area. So maybe --
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` Q. Right.
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` A. -- you can show me documents.
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` Q. Have you looked at any art -- do you know
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`what prior art is?
`
` A. Yes.
`
` Q. Okay. Have you looked at any prior art
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`that defines -- that uses the term "breast area"?
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` A. I think there was some other patents in
`
`there that did discuss breast areas.
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` Q. Okay. And what -- what did those patents
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`indicate?
`
` A. You know, I can't tell you off the --
`
`verbatim, but they had similar wording in defining
`
`where the -- where the breast area was, the upper
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`part of --
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` Q. Uh-huh.
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` A. -- the tubular or the piece that's going on
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`top of the pants.
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` Q. What patents are you referring to?
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`Those -- those patents cited on the front of the
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`patent?
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` A. We're talking about the patent that other
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`people applied for in the different cases.
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`FRANCES HARDER
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`April 24, 2014
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` Q. Whose patents were they?
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` A. I think you have the documents there. You
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`can probably pull them up and we can look at them.
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` Q. You are referring to the prior art you
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`refer to in your declaration?
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` A. Right.
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` Q. Okay.
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` MR. POLLACK: Why don't we take a -- can we have
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`her declaration? Thanks.
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` Ready?
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` DEPOSITION OFFICER: Uh-huh.
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` MR. POLLACK: I'm going to mark as Harder
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`Deposition Exhibit 2 the first Declaration of
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`Frances Harder. It's also referred to as
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`Exhibit 1011 in the IPR proceeding.
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` (Patent Owner's Exhibit 2 was marked
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` for identification and attached hereto.)
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` DEPOSITION OFFICER: Thank you.
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` Q. BY MR. POLLACK: Is this -- is Harder 2 the
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`declaration you were referring to -- or the
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`documents you were referring to?
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` A. This is my first declaration.
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` Q. Okay. Using your first declaration, can
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`you let me know which references helped you
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`understand what the word "breast area" means?
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`FRANCES HARDER
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`April 24, 2014
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` MR. LECHLEITER: Objection. Form.
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` THE WITNESS: I think that would be hard for me
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`to find among all the documents as to how I came to
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`that conclusion. Reading many documents. And I --
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`I assumed that -- maybe that the breast area can --
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`well, not -- not really assumed. I think the breast
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`area can encompass many different parts on different
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`people.
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` Q. BY MR. POLLACK: Okay. Well, what
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`does it -- what does it mean in -- in -- which parts
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`does it refer to in the patent, Harder Deposition
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`Exhibit 1?
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` A. Well, I think that most of them, they were
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`talking about the upper portion of the tubular panel
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`ending above the abdomen near the breast area. But
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`it doesn't --
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` Q. Sure.
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` A. -- define how many inches below or above or
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`where exactly it sits because obviously it's going
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`to be different on everybody.
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` Q. Sure. Sure.
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` I think you said near the breast area. But
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`what I'm -- what I'm trying to figure out is not
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`where does the -- the panel end, but what is the
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`breast area?
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`FRANCES HARDER
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`April 24, 2014
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` MR. LECHLEITER: Objection. Form. Asked and
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`answered.
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` THE WITNESS: I think we discussed what the
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`breast area is, depending on what kind of clothing
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`you're talking about or what kind of application
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`you're using it for, whether it's directly over the
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`breast, which normally would be what you were
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`talking about. It would be over the breast.
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` Q. BY MR. POLLACK: Normally, breast area
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`would refer to over the breast?
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` A. Over the breast.
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` Q. Okay.
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` A. So that's what I would define normally as
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`being the breast area.
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` Q. Okay. I just wanted to take a look through
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`your declaration. You refer in there to something
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`called -- let me step back a second.
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` I'm correct in -- in this declaration, you
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`don't give any definition of breast area?
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` A. I don't recall whether I did or not.
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` Q. Okay. I'll represent -- represent to you I
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`didn't -- I didn't see one.
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` A. Okay.
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` Q. Do you know why that is?
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` A. I didn't think it was necessary. I wasn't
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`FRANCES HARDER
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`April 24, 2014
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`asked to define that.
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` Q. Okay. Were you asked at any time to define
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`the term "breast area"?
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` A. No.
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` Q. Turn to page 10 of your declaration. You
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`refer there to a piece of prior art called JCP-B.
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` Do you see that?
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` A. On 19?
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` Q. Yes. Yes, in paragraph 19.
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` A. Okay. Uh-huh.
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` Q. Okay. Was JCP-B a prior art reference that
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`helped you -- that defined the word "breast area"?
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` A. I -- unless I see the document, I can't
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`tell you whether it did or not. I know this -- I
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`know which pair of pants these are -- jeans are.
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` Q. Okay. You don't recall if that document
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`had the term "breast area"?
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` A. No.
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` Q. All right. My trusty assistant will get
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`that document for us.
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` MR. POLLACK: I'm going to mark as Harder
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`Deposition Exhibit 3 a -- an excerpt from a
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`J.C. Penney catalog. It's also referred to as
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`Exhibit 1002 in the IPR proceeding.
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` (Patent Owner's Exhibit 3 was marked
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`FRANCES HARDER
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`April 24, 2014
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` for identification and attached hereto.)
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` THE WITNESS: Thank you.
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` DEPOSITION OFFICER: You're welcome.
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` Q. BY MR. POLLACK: My first question is --
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`is, Harder Deposition Exhibit 3, is
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