UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TARGET CORPORATION
`
`Petitioner
`
`V.
`
`DESTINATION MATERNITY CORPORATION
`
`Patent Owner
`
`Patent RE43,531
`
`Case No. IPR 2013-00530
`
`Case No. IPR 2013-00531
`
`
`Patent RE43,653
`
`Case No. IPR 2013-00532
`
`Case No. IPR 2013-00533
`
`
`Date: May 5, 2014
`
`DECLARATION OF PHILIP GREEN
`
`REGARDING COMMERCIAL SUCCESS
`
`

`

`TABLE OF CONTENTS
`
`I. PRELIMINARY STATEMENT ......................................................................................................... 3
`
`II. PROFESSIONAL QUALIFICATIONS AND COMPENSATION ................................................ 5
`
`III. SUMMARY OF OPINIONS .............................................................................................................. 6
`
`IV. BACKGROUND ................................................................................................................................. 7
`
`A. DESTINATION MATERNITY CORPORATION ........................................................................................ 7
`
`B. THE PATENTS-IN—SUIT ......................................................................................................................... 8
`
`C. SECRET FIT BELLY BOTTOMS ........................................................................................................... 11
`
`D.
`
`FRAMEWORK OF RELEVANT CASE LAW .......................................................................................... 13
`
`V. OPINIONS AND RELATED SUPPORT ........................................................................................ 15
`
`OPINION I: DMC’S SECRET FIT BELLY BOTTOMS PRACTICING THE PATENTS-IN-SUIT
`
`ARE COMMERCIALLY SUCCESSFUL .............................................................................................. 15
`
`OPINION ll: DMC’S SECRET FIT BELLY BOTTOMS’ COMMERCIAL SUCCESS IS DUE TO THE PATENTED
`
`TECHNOLOGY AND NOT TO OTHER FACTORS. ......................................................................................... 19
`
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`1, Philip Green, declare as follows:
`
`1.
`
`Preliminary Statement
`
`1.
`
`I have been retained by DLA Piper LLP on behalf of Destination
`
`Maternity Corporation (“DMC”) to provide an independent and objective opinion
`
`regarding the commercial success of DMC’s fu11 belly covering bottoms that are
`
`claimed to practice certain US. patents held by DMC.
`
`2.
`
`I understand that DMC’s Secret Fit Belly bottoms practice one or
`
`more of the claims of US. Patent Nos. RE43,531 (“the ‘531 patent”) and
`
`RE43,5 63 (“the ‘563 patent”), (collectively, “the patents-in-suit”), including all of
`
`the claims instituted on obviousness grounds. The ‘5 31 patent is a reissue of US.
`
`Patent No. 7,814,575, issued on October 19, 2010.1 The ‘531 patent, entitled
`
`“Belly Covering Garment,” was reissued on July 24, 2012. I understand the ‘531
`
`patent describes a “garment worn during different stages of pregnancy and
`
`different stages of postpartum body changes.”2 The garment consists of a first
`
`torso-encircling circumference that recedes downward allowing expansion of the
`
`belly panel and a second torso-encircling circumference that holds the garment up
`
`over the torso.3 The ‘563 patent is a reissue of US. Patent No. 7,900,276, issued on
`
`1Us. Patent No. 7,814,575.
`2 US. Patent No. RE43,531.
`3 US. Patent No. RE43,531.
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`March 8, 201 l .4 The ‘563 patent was issued on August 7, 2012 and is also entitled
`
`“Belly Covering Garment.” It describes a garment worn throughout pregnancy and
`
`postpartum with an expansible belly panel and two torso encircling
`
`circumferences.5
`
`3.
`
`This report presents my analysis of financial, accounting, and
`
`economic factors that are related to the analysis of commercial success. Because of
`
`the nature of this action and my role in it, I have had to consider technical aspects
`
`related to the patents-in-suit and the products into which they may be incorporated.
`
`I have obtained my understanding of the technology from a variety of sources
`
`which are noted throughout this report. In addition, this analysis necessarily
`
`discusses various statutes and precedents. Other than to apply my analysis of the
`
`facts of this matter to these statutes and precedents, I have not been asked to
`
`provide legal opinions regarding the case law cited, nor is this report intended to do
`
`so.
`
`4.
`
`Exhibit A is a list of the documents and other information that I have
`
`considered in forming my opinions. Should additional information become
`
`4 Complaint of Destination Maternity Corporation v. Target Corporation, Cherokee
`Inc. and Elizabeth Lange LLC, Eastern District of Pennsylvania, dated October 4,
`20 12.
`5 US. Patent No. RE43,563.
`
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`available to me that affect the conclusions or opinions herein, I may supplement or
`
`amend this report as appropriate.
`
`11.
`
`Professional Qualifications and Compensation
`
`5.
`
`I am one of four founding principals in the consulting firm of
`
`Hoffman Alvary & Company LLC, located in Newton, Massachusetts. Prior to
`
`founding the firm in October 1996, I was a senior manager in the Dispute Analysis
`
`and Corporate Recovery Services practice of Price Waterhouse LLP, an
`
`international accounting and consulting firm. As part of my work, I am regularly
`
`involved in the valuation and licensing of intellectual properties including patents
`
`related to consumer products, electronics, software, and pharmaceuticals.
`
`6.
`
`For much of the past twenty years, my practice has focused on matters
`
`involving intellectual property. In connection with some of these matters, I have
`
`participated in license negotiations and have performed valuations of intellectual
`
`property assets. My work in these areas includes analyses related to consumer
`
`products, software and business methods, medical devices and coating
`
`technologies, among others. In addition, I have been retained on numerous
`
`occasions as an expert to address the appropriate measure of damages resulting
`
`from patent and other types of infringements. My resume and a list of cases in
`
`which I have given testimony either in deposition or at trial over the past four years
`
`are attached as Exhibit B.
`
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`7.
`
`I obtained my undergraduate degree in history from Rutgers College
`
`and received a master of business administration degree with a concentration in
`
`accounting from Rutgers Graduate School of Management. I am licensed as a
`
`Certified Public Accountant by the State of New York. I also am a Certified
`
`Management Accountant and have earned the AICPA’s Accredited in Business
`
`Valuation (“ABV”) designation.
`
`8.
`
`My firm, Hoffman Alvary & Company LLC, is being compensated at
`
`the rate of $550 per hour for my work on this engagement. My firm’s
`
`compensation is not affected by the outcome of this matter.
`
`111.
`
`Summary of Opinions
`
`9.
`
`Based on the documents and other information I have reViewed to
`
`date, and my professional background, training, and experience, I have concluded
`
`the following:
`
`0 Opinion 1: DMC’S Secret Fit Belly bottoms practicing the patents-in-
`suit are commercially successful.
`
`0 Opinion 11: DMC’s Secret Fit Belly bottoms’ commercial success is due
`to the patented technology and not to other factors.
`
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`IV.
`
`Background
`
`A.
`
`Destination Maternity Corporation
`
`10. Destination Maternity Corporation is the world’s largest maternity
`
`apparel retailer. It was founded in 1982 as a mail-order maternity apparel catalog.
`
`It began operating retail stores in 1985 and became a public corporation in 1993.6
`
`In fiscal year 2013, DMC had worldwide net sales of $540 million and earned net
`
`income of $24 million.7 Exhibit C shows the income statements for DMC over the
`
`past ten years. As of September 30, 2013, DMC operated 596 retail stores in the
`
`United States, Puerto Rico, and Canada, with an additional 1,311 leased
`
`departments in retailers in the United States and Puerto Rico. It is also the sole
`
`provider of maternity apparel in Kohl’s, which has 1,158 locations domestically.
`
`DMC also had 143 franchised international locations.8 Customers can also
`
`purchase products directly through DMC’s website.9
`
`11.
`
`In its retail stores, DMC has two primary apparel product lines:
`
`Motherhood Maternity, which offers value prices ($10-$45), and A Pea in the Pod,
`
`which offers apparel at luxury prices ($18-$395). In its relationships with large
`
`6 Destination Maternity Corporation 2013 10-K, p. 3—4.
`7 DMC’s fiscal year ends on September 30.
`8 Destination Maternity Corporation 2013 10-K, p. 3.
`9 Destination Maternity Website: http://www.destinationmaternity.com/.
`
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`retailers, DMC offers two additional lines: Two Hearts Maternity and Oh Baby.
`
`Both of these lines cater to lower price points ($8-$36).10
`
`B.
`
`The Patents-In-Suit
`
`12. My general understanding of the technology of the patents-in-suit
`
`comes from the allegations presented in the Complaint in the DMC V. Target
`
`Corporation action, the IPR Petitions and Preliminary Responses, the patents
`
`themselves, the expert report of Dr. David Brookstein, and a conversation that I
`
`have had with Dr. Brookstein regarding his report.
`
`I understand that one of the
`
`most important features of the independent claims in the patents-in-suit is the full
`
`belly panel, which rises to just below the wearer’s breast area.
`
`I also understand
`
`that obviousness was instituted for dependent claims only, and that DMC’s Secret
`
`Fit Belly bottoms practice those instituted dependent claims.
`
`I.
`
`The ‘53] Patent
`
`13.
`
`The ‘531 patent was reissued on July 24, 2012.11 It is a reissuance of
`
`US. Patent No. 7,814,575 which was filed May 31, 2007 and issued on October
`
`19, 2010.12 The listed inventors are Lisa A. Hendrickson, James H. Gardner, III,
`
`and Richard Adelman. The listed assignee for the ‘531 patent is DMC. Claim 1 of
`
`the ‘531 patent claims:
`
`10 Destination Maternity Corporation 2013 10-K, p. 6.
`“ US. Patent No. RE43,531.
`12 US. Patent No. 7,814,575.
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`14. A garment, comprising: a garment upper portion having a belly panel
`
`that is expansible to cover and fit over a growing abdomen during different stages
`
`of pregnancy; a garment lower portion having a first torso encircling circumference
`
`that recedes downward to make way for expansion of the belly panel; and the
`
`garment upper portion having a second torso encircling circumference defining an
`
`upper edge of the belly panel that encircles a wearer’s torso just beneath the
`
`wearer’s breast area configured to hold the garment up and in place about the torso
`
`in a position of a location of maximum girth of the abdomen thereby substantially
`
`covering the wearer’s entire pregnant abdomen during all stages of pregnancy.
`
`15.
`
`I understand that the ‘531 patent generally claims a garment worn
`
`during different stages of pregnancy. Specifically, the garment claimed is a bottom
`
`having a panel that is expansible to cover a growing abdomen, which extends to
`
`just beneath the breast area. A first torso encircling circumference recedes
`
`downward to allow for expansion of the belly panel and a second torso encircling
`
`circumference is used to hold the garment up and in place over the torso. 13
`
`2.
`
`The ‘563 Patent
`
`16.
`
`The ‘563 patent was reissued on August 7, 2012.14 It is a reissuance of
`
`US. Patent No. 7,900,276, which was filed May 8, 2008, and issued on March 8,
`
`13 US. Patent No. RE43,531.
`1“ US. Patent No. RE43,563.
`
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`2011. The listed inventors are Lisa A. Hendrickson, James H. Gardner, III and
`
`Richard Adelman. The listed assignee of the ‘563 patent is DMC.15 This patent is
`
`a continuation of US. Patent No. 7,814,575, later reissued as the ‘531 patent. 16
`
`Claim 1 of the ‘563 claims:
`
`17. A garment portion having an attached belly panel portion comprising:
`
`an expansible belly panel adapted to substantially cover a wearer’s entire belly
`
`region, said belly region comprising an area beginning just beneath the wearer’s
`
`breast area and extending over the wearer’s abdomen to a lower abdomen region
`
`beneath the wearer’s belly, said belly panel comprising: an upper edge portion
`
`defining a first encircling circumference about a wearer’s torso that is at or above
`
`the wearer’s upper abdomen region, and a lower edge portion spaced from the
`
`upper edge portion and defining a second encircling circumference about the
`
`wearer’s lower abdomen region; and a garment lower portion, in communication
`
`with the lower edge portion, having a torso encircling circumference that recedes
`
`downward to make way for expansion of the belly panel.
`
`18.
`
`I understand that the ‘5 63 patent generally claims a garment having an
`
`expansible belly panel. Specifically, the garment claimed is a bottom having a
`
`panel that is expansible to cover a wearer’s entire belly region, which extends to
`
`15 US. Patent No. 7,900,276.
`16 US. Patent No. RE43,563.
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`just beneath the breast area. The garments include a lower edge portion that
`
`recedes downward to allow for expansion of the belly panel and an upper edge
`
`portion at or above a wearer’s upper abdomen region.
`
`C.
`
`Secret Fit Belly Bottoms
`
`l9. DMC offers bottoms using the patented technology under the
`
`trademark “Secret Fit Belly.” These bottoms were first sold in 2007 and are
`
`currently offered in all of DMC’s product lines.
`
`20.
`
`Secret Fit Belly bottoms are available in various sizes, cuts, and
`
`colors, including jeans, trousers, capris, skirts, and shorts. DMC’s Secret Fit Belly
`
`bottoms are similar in style to all other bottoms offerings: generally the only
`
`difference is the expandable panel that is the subject of the patents at issue in this
`
`matter. 17
`
`21.
`
`The patented full belly design offers a number of benefits to the user
`
`including increased comfort and duration of use for expecting mothers. For
`
`example:
`
`0 Secret Fit Belly bottoms contour to a woman’s belly with a seamless panel,18
`offering a design that smoothes the lines from the panel. Other maternity
`bottoms have a visible crease from the edge of the panel.19
`
`17 Destination Maternity Website,
`http://www.destinationmaternity.com/maternity/secret-fit-belly.asp.
`18 US. Patent No. RE43,563, Claim 9.
`19 Destination Maternity Website,
`
`(continued. . .)
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`0 The panel is able to be folded so it can be worn as a lower-to-mid or full
`panel style, allowing the woman to wear throughout all stages of the
`pregnancy and postpartum body changes.20
`
`0 Tubular elastic around the waist is not too tight, allowing for a comfortable
`fit, while holding its position above the belly.21
`
`are more comfortable in the full panel,
`0 Customers
`unintentionally descend below the belly.22
`
`as
`
`it does not
`
`22.
`
`Figure 1 shows one product offering of the Secret Fit Belly jeans. 23
`
`The full belly panel, shown in nude, is the patented technology which differentiates
`
`the Secret Fit Belly bottoms from other bottoms sold by DMC, which do not have
`
`the patented panel.
`
`Figure 1: Image of Secret Fit Belly Jeans
`
`m
`
`http://www.destinationmaternity.com/maternity/secret-fit-belly.asp.
`20 Destination Maternity Website,
`http://www.destinationmaternity.com/maternity/secret-fit-belly.asp.
`21 Destination Maternity Website, http://www.motherhood.com/Shop_Motherhood
`Matemity/SecretFitBelly-Testimonials.asp.
`22 Destination Maternity Website,
`http://www.destinationmaternity.com/maternity/secret-fit-belly.asp.
`23 DMCOO31917.
`
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`........................................
`
`......................................
`
`sales. Exhibit D shows a summary of Secret Fit Belly bottoms sales and gross
`
`margins from 3Q 2008 through 4Q 2013.
`
`24.
`
`I understand from Dr. Brookstein that Secret Fit Belly bottoms
`
`embody the independent claim, Claim 1 of the patents-in-suit24 in that they
`
`comprise a “garment upper portion having a belly panel that is expansible to cover
`
`and fit over a growing abdomen during different stages of pregnancy.”25 I further
`
`understand from Dr. Brookstein that Secret Fit Belly bottoms likewise embody
`
`many of the dependent claims of the patents-in-suit, including all that are subject to
`
`these proceedings.
`
`I also understand that only dependent claims are being
`
`reviewed for obviousness.
`
`D.
`
`Framework of Relevant Case Law
`
`25.
`
`I understand that in connection with evaluating challenges to a
`
`patent’s validity, Courts will consider whether an invention is “obvious” in light of
`
`the prior art. I understand that “obviousness is a question of law based on
`
`underlying factual findings: 1) the scope and content of prior art, 2) the difference
`
`2:Expert Report of Dr. David Brookstein
`U. S. Patent Nos. RE43,531 and RE43 5.63
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`between the claims and the prior art; 3) the level of ordinary skill in the art; and 4)
`
`, 26
`.
`.
`.
`.
`.
`objective cons1derations of non-obv10usness. ’
`
`26.
`
`The courts have considered a number of factors in evaluating
`
`objective considerations of non-obviousness. These include, but are not limited to:
`
`Evidence of the failure of others to make the patented invention;
`
`Long-felt; but unsolved needs fulfilled by the patented invention;
`
`Commercial success of the patented invention; and
`Unexpected results produced by the patented invention.27
`
`27.
`
`I understand that a “prima facie case of nexus (that the patented
`
`product is commercially successful due to the patented technology as opposed to
`
`other features) is made when the patentee shows both that there is commercial
`
`success and the product that is commercially successful is the invention disclosed
`
`and claimed in the patent.”28 My report focuses on the commercial success of the
`
`patented inventions.
`
`26 In re CyClobenzaprlne Hya’roclzlorla’e Extended—Release Capsule Patent
`L71tlgatlon; 676 F3d 1063; 1068 (Fed Cir. 2012)
`27In re Cyclobenzaprlne Hydrochlorla’e Extended—Release Capsule Patent
`thlgatlon; 676 F.3d 1063; 1075 (Fed. Cir. 2012).
`28 Crocs, Inc. v. International Trade Commission; 598 F.3d 1294; 1310-11. (Fed.
`Cir. 2010).
`
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`V.
`
`Opinions and Related Support
`
`Opinion 1: DMC’s Secret Fit Belly bottoms practicing the patents-in-
`suit are commercially successful.
`
`28.
`
`I understand that commercial success supports a conclusion that a
`
`patented invention was not obvious because it suggests that an economic incentive
`
`existed to produce the invention. If the invention was obvious, it would have been
`
`brought to market sooner by some other party in response to that incentive.
`
`29. As described below, commercial success for the design claimed in the
`
`patents-in-suit is evidenced by economic factors such as the sales and profits of
`
`products embodying the patents-in-suit, as well as by other qualitative factors.
`
`30.
`
`Based on its sales and profits, DMC’S products practicing the ‘5 31
`
`and ‘563 patents are commercially successful. The economic evidence of this
`
`success is demonstrated by the following:
`
`I.
`
`There are sales andprofits for the patentedproducts.
`
`.........................................
`
`29 The Secret Fit Belly bottoms were first introduced in 2007, however complete
`sales data for Secret Fit and all other bottoms was provided starting in 3Q 2008,
`with complete Kohl’s data starting in 1Q 2009.
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`technology. The commercial success of the product is shown by the revenues and
`
`profits generated.
`
`2.
`
`Secret Fit Belly bottom sales have increased as non-patented
`product sales have decreased.
`
`32. As outlined in Exhibits D and D-l , sales of Secret Fit Belly bottoms
`
`have been increasing since their introduction. Over the same time, DMC’s sales of
`
`other bottoms sales have decreased.
`
`33.
`
`Figures 2 and 330 below compare the net sales of the Secret Fit Belly
`
`and DMC’s sales of other bottoms from 3Q 2008 through 4Q 2013 in dollars and
`
`30 Belly not Secret Fit 2009_2013 Kohl’sxls, Belly not Secret Fit HE,MH,Out.Xls, Belly Secret
`Fit Kohl’s 10-18-13.Xls, and Secret Fit Belly Historical Sales & GM.Xls.
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`.......................................................................................................................................................................................
`
`................................
`
`........................................
`
`commercial success of products practicing the patented technology is that sales of
`
`other bottoms that do not practice the patented technology have declined in
`
`comparison to the Secret Fit Belly bottoms.
`
`3.
`
`Secret Fit Belly bottoms result in a price premium over non-
`patented bottoms.
`
`35.
`
`From 3Q 2008 through 2013, the average per unit price of Secret Fit
`
`31 See Exhibit D.
`
`32 See Exhibit D-l. Further, this price premium is apparent in comparing the
`
`(continued. . .)
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`patented technology provides value to the wearer that is not available in products
`
`that do not incorporate the patented designs.
`
`36.
`
`For example, I have compared identical products with the Secret Fit
`
`Belly panel design, to others that do not practice the patent. Specifically
`
`“LEGGING CPRI SFB C/ S BLK,” a black legging capri with Secret Fit Belly had
`
`brand. This comparison also suggests that other factors are not driving demand for
`
`the products practicing the patents.
`
`4.
`
`Patented product has been used by competitors.
`
`37.
`
`I understand that competitors in the maternity apparel market, such as
`
`Target, have used DMC’s patented Secret Fit Belly bottoms by offering full panel
`
`bottoms with similar features. This replication shows that competitors are aware of
`
`the demand for the patented features.
`
`patented and non-patented bottoms’ sales in each year independently, 2008 through
`20 l 3 .
`
`33 Secret Fit Belly Historical Sales & GM.Xls
`34 Belly not Secret Fit HE, MH, Outxls
`
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`Opinion 11: DMC’s Secret Fit Belly bottoms’ commercial success is due
`to the patented technology and not to other factors.
`
`38.
`
`The data provided to me to date, clearly evidence that the commercial
`
`success of the Secret Fit Belly bottoms is due primarily to the above-referenced
`
`patented features. This is exhibited by the sales trends described above, in which
`
`sales of the patented products have experienced an increase in sales, while sales of
`
`non-patented bottoms have decreased over the same time period. Further, the
`
`popularity has attracted the attention of competitors who have tried to replicate the
`
`patented design.
`
`39.
`
`I have also considered other factors that can contribute to the
`
`commercial success of a product to see if the success of the Secret Fit Belly
`
`bottoms can be attributed to these other factors. These are described below:
`
`I.
`
`Success is not due to marketing or other promotional activities.
`
`Redacted
`
`Rad acted
`
`The commerCIal successmofthe Secret ---
`
`Fit Belly bottoms is not due to extensive marketing or advertising efforts.
`
`35 DMC0002838.
`
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`2.
`
`Success is not due 1‘0 availability.
`
`41. DMC offers both Secret Fit Belly and non-patented bottoms in all of
`
`their stores and collections, from the highest priced Pea in the Pod Collection to the
`
`lowest priced department store lines. Both types of bottoms are available in various
`
`colors, styles and cuts.36 The reason for the commercial success is not due to
`
`limited availability of alternative, non-patented products.
`
`3.
`
`Success is not due to the non—patentedfeatures oft/16 bottoms.
`
`42. As discussed previously, the Secret Fit Belly bottoms are identical to
`
`the non-patented bottoms as they are available in a variety of colors, cuts,
`
`materials, and styles. The only difference between the Secret Fit Belly and all other
`
`bottoms is the patented full belly panel. Since there is no other variation in the
`
`product other than the panel, the commercial success cannot be attributed to any
`
`other factor.
`
`I declare that the foregoing is true and correct to the best of my
`43.
`knowledge. Executed on May 5, 2014, in Newton, Massachusetts.
`
`,/f
`
`w am-
`
`36 DestinatiOn Maternity Website, http://www.destinationmaternity.com.
`
`HIGHLY CONFIDENTIAL 7 ATTORNEYS ’ EYES ONLY
`
`20
`
`

`

`Documents Considered
`
`Production Documents
`
`Exhibit A
`
`DMC0002838
`
`DMC0003635
`
`DMC003 1917
`
`DMC0031997
`
`DMC0037084
`
`DMC0066466
`
`DMC01 19452
`
`Complaint of Destination Maternity Corporation V. Target Corporation, Cherokee Inc. and Elizabeth Lange LLC, October 4, 2012
`
`Patent Owner‘s Preliminary Response to Corrected Petition for Inter Partes Review of U. S. Patent No. RE43,531, December 4, 2013
`
`Patent Owner's Preliminary Response to Corrected Petition for Inter Partes Review of U. S. Patent No. RE43,563, December 4, 2013
`
`Petition for Inter Partes Review RE43,531- Target Corporation v. Destination Maternity Corporation, August 27, 2013
`
`Petition for Inter Partes Review RE43,563- Target Corporation v. Destination Maternity Corporation, August 27, 2013
`
`Pleadings
`
`Other
`
`Belly not Secret Fit 2009_2013 Kohl'sxls
`
`Belly not Secret Fit HE, MH, Out.Xls
`
`Belly Secret Fit Kohl‘s 10-18—13.Xls
`
`Destination Maternity Corporation 2006 10K
`
`Destination Maternity Corporation 2008 10K
`
`Destination Maternity Corporation 2009 10K
`
`Destination Maternity Corporation 2012 10K
`
`Destination Maternity Corporation 2013 10K
`
`Expert Report of Dr. David Brookstein
`
`http : //www. destinationmaternity . corn/
`
`http : //www. destinationmaternity . com/maternity/secret-fit-belly . asp
`
`http : //www. motherhood. com/Shop_MotherhoodM aternity/SecretFitB elly-Testimonials. asp
`
`Secret Fit Belly Historical Sales & GM.Xls
`U. S. Patent Number 7,814,575
`
`U. S. Patent Number 7,900,276
`
`U. S. Patent Number RE43,531
`
`U. S. Patent Number RE43,563
`
`HIGHLY CONFIDENTIAL - ATTORNEYS’EYES ONLY
`
`

`

`Exhibit B
`
`PHILIP GREEN
`
`POSITION
`
`EDUCATION
`
`Principal of Hoffman Alvary & Company LLC
`
`B.A., History, 1984 - Rutgers College
`M.B.A., Accounting, 1987 - Rutgers Graduate School of
`Management
`
`PROFESSIONAL AND
`BUSINESS HISTORY
`
`1996 — Present: Principal Hoffman Alvary & Company LLC,
`Newton, MA
`
`1994 - 1996: Price Waterhouse LLP, Manager/Senior Manager,
`Dispute Analysis and Corporate Recovery Services, New York
`
`1988 - 1994: Executive Consultant, Peterson Consulting Limited
`Partnership, New York
`
`1987 - 1988: Staff Accountant, Ernst & Whinney, New York
`
`1984 - 1985: Paralegal, Anderson, Russell, Kill & Olick,
`Washington, DC. and New York
`
`Dispute Analysis Consulting - Accounting and financial analysis
`assistance in connection with litigation matters focusing on
`intellectual property infringements, contract breaches, business
`interruption and construction delay claims. Work has included the
`calculation of lost profits and other economic damages, forensic
`and investigative accounting and evaluation of royalties. This
`assistance has been provided to a broad range of industries
`including: computer software, banking, insurance, pharmaceutical,
`steel and other manufacturers as well as service organizations.
`Served as expert witness on damages and accounting related
`issues.
`
`Other Consulting — Engagements related to intangibles have
`included preparation of valuations in connection with purchases,
`sales and donations, royalty auditing and development of patent
`and intellectual property licensing strategies. Other consulting
`assistance has included business valuations, evaluations of real
`
`estate appraisals, and implementation of accounting systems and
`assistance with the operation and management of bankrupt or
`troubled companies.
`
`Certified Public Accountant - Registered to Practice by the State
`of New York
`
`Certified Management Accountant
`Accredited in Business Valuation by the AICPA
`Accredited Senior Appraiser — Business Valuation
`Member, American Institute of Certified Public Accountants
`
`Member, New York State Society of Certified Public Accountants
`Member, Institute of Certified Management Accountants
`Member, American Society of Appraisers
`Member, Licensing Executive Society
`
`PROFESSIONAL AND
`BUSINESS
`AFFILIATIONS
`
`HIGHLY CONFIDENTIAL 7 A TTORNEYS ’ EYES ONLY
`
`

`

`Exhibit B
`
`Philip Green
`
`Testimony — January 2010 — Present
`
`>“Lightlab Imaging Inc. V. Axsun Technologies Inc. and Volcano Corporation — Superior Court, Suffolk
`County Massachusetts — Deposition
`
`>“Certain Digital Television and Certain Products Containing Same and Methods of Using Same. InV. No.
`337 -TA-6 17 Enforcement Proceeding — International Trade Commission — Deposition and Trial before
`Judge Charneski
`
`
`>“Zamora LLC V. CBS Radio Inc Pandora Inc. Real Networks Inc. et a1. — Federal Court — District of
`
`Florida — Deposition
`
`McNamee V. McNamee — Probate and Family Court, Suffolk County Massachusetts — Deposition and Trial
`before Judge Moriarity
`
`>“Certain Video Display. Components Thereof and Products Containing Same InV. 337 -TA-687 -
`International Trade Commission — Deposition
`
`>“Liguidnet Holdings Inc. V. Pulse Trading Inc. et a1. — Federal Court, Southern District of New York -
`Deposition
`
`
`>“ePlus Inc. V. Lawson Software Inc. — Federal Court, Eastern District of Virginia — Deposition
`
`Transched Systems Limited V. Versyss Transit Systems et a1. — Superior Court, New Castle County
`Delaware — Deposition and Trial before Judge Carpenter
`
`Wayne Spiegel V. Fort Point Commercial Company. Inc. — Superior Court, Suffolk County Massachusetts —
`Deposition
`
`>“Certain Large Scale Integrated Circuit Semiconductor Chips and Products Containing the Same. InV. No.
`337 -TA-7 16, International Trade Commission — Deposition
`
`>“Hon Hai Precision Industg Company Ltd. V. TPV Technology Ltd. et a1. — Federal Court — Eastern
`District of Texas — Deposition
`
`>“Mondis Technology Limited V. TPV Technology Ltd. et al. Federal Court — Eastern District of Texas —
`Deposition
`
`*Atlantic Research Marketing Systems. Inc. V. LaRue Tactical. Inc. — Federal Court — District of
`Massachusetts — Deposition
`
`SMH Fine Foods V. Boston Baking, Inc. et al — Superior Court, Suffolk County Massachusetts —
`Deposition
`
`>“comScore V. The Nielsen Companies — Federal Court — Eastern District of Virginia — Deposition
`
`>“Cooper Notification. Inc. V. Federal Signal Corp. et. a1. — District of Delaware — Deposition
`
`INC Research Holdings Inc. V Shareholder Representative Services. LLC — Court of Chancery of the State
`of Delaware — Deposition
`
`>“Uniloc USA. Inc. V. Microsoft Corporation — Federal Court — District of Rhode Island — Deposition and
`Trial Before Judge Young
`HIGHLY CONFIDENTIAL 7 A TTORNEYS ’ EYES ONLY
`
`

`

`Exhibit B
`
`>“Lee Valley Tools. et. al. V. Industrial Blade Company. et. al. — Federal Court — Western District of New
`York — Deposition
`
`>“Certain Universal Serial Bus Portable Storage DEVICES: Including USB Flash Drives and Components
`
`Thereof InV. No. 337 -TA-7 88 — International Trade Commission - Deposition
`
`*Atlantic Research Marketing Systems. Inc. V. Troy Industries. Inc. et. al. — Federal Court — District of
`Massachusetts — Deposition
`
`
`>“Ambato Media LLC V. Garmin International Inc. et al. — Federal Court — Eastern District of Texas —
`
`Deposition and Trial before Judge Gilstrap
`
`>“Certain Digital TeleVisions and Components Thereof .—InV. No. 337 -TA—7 89 — International Trade
`Commission — Deposition
`
`*Pacific Coast Marine Windshields Incorporated V. Malibu Boats. Inc. — Federal Court — Middle District of
`Florida — Deposition
`
`>*‘AIA Engineering Limited. V. Magotteaux Intc. et al. — Federal Court — Middle District of Tennessee —
`Trial before Judge Haynes
`
`>“Certain Digital Photo Frames and Image Display DeVices and Components Thereof — InV. No. 337 -TA-
`807 — International Trade Commission — Deposition
`
`>“Certain Silicon Microphone Packages And Products Containing Same — InV. No. 337 -TA-825 —
`International Trade Commission — Deposition and Trial Before Judge Pender
`
`Thomas Bochnowski and Edward Muhlner V. Global Rescue Cogp. — JAMS Arbitration — Hearing before
`Judge Van Gestel
`
`>“Realtime Data LLC d/b/a IXO V. Bloomberg LLP et al. — Federal Court — Southern District of New York
`- Deposition
`
`>“Certain Consumer Electronics and Display DeVices and Products Containing Same — InV. No. 337 -TA-836
`— International Trade Commission — Deposition
`
`
`ECi Inc. et al V. MWAi Inc. — Chancery Court of the State of Delaware — Deposition and Trial before
`Judge Parsons
`
`>“EdiSync Systems. LLC V. Saba Software. Inc., — Federal Court — District of Colorado — De