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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` TAIWAN SEMICONDUCTOR Patent No. 7,808,184
` MANUFACTURING COMPANY, IPR 2014-00803
` LTD., et al., -- joined with --
` IPR 2014-00858
` Petitioners, IPR 2014-00996
` IPR 2014-01061
`
` vs.
` Patent No. 7,808,184
` ZOND, LLC,INC., IPR 2014-00799
` -- joined with --
` Patent Owner. IPR 2014-00855
` IPR 2014-00955
` IPR 2014-01042
`-----------------------------------------------------
`
` VIDEOTAPED DEPOSITION OF LARRY D. HARTSOUGH, Ph.D.
` Berkeley, California
` Wednesday, February 11, 2015
`
`REPORTED BY:
`TAVIA MANNING, CSR No. 13294, CLR, CCRR, RPR
`JOB NO. 90256
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`IPR2014-00578
`Gillette v. Zond
`Gillette 1032
`
`

`

` February 11, 2015
` 9:07 A.M.
`
`Page 2
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`Deposition of LARRY D. HARTSOUGH, Ph.D.,
`taken on behalf of Petitioners at 200
`Marina Boulevard, Berkeley, California,
`before Tavia Manning, Certified Shorthand
`Reporter No. 13294, Certified LiveNote
`Reporter, California Certified Realtime
`Reporter, Registered Professional Reporter.
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` APPEARANCES:
`
` FOR TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY,
` LIMITED and TSMC NORTH AMERICA:
` DUANE MORRIS
` BY: ANTHONY FITZPATRICK, ESQ.
` RICHARD KIM, ESQ.
` 100 High Street
` Boston, MA 02110
`
` -- and --
`
` FOR TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY,
` LIMITED and TSMC NORTH AMERICA and FUJITSU:
` HAYNES AND BOONE
` BY: GREGORY HUH, ESQ.
` DAVID McCOMBS, ESQ.
` 2505 North Plano Road
` Richardson, TX 75082
`
`///
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` APPEARANCES (CONTINUED):
`
` FOR THE GILLETTE COMPANY:
` WILMERHALE
` BY: COSMIN MAIER, ESQ.
` 7 World Trade Center
` 250 Greenwich Street
` New York, NY 10007
`
` FOR THE GLOBALFOUNDRIES PETITIONERS:
` WHITE & CASE
` BY: DAVID TENNANT, ESQ.
` BRETT RISMILLER, ESQ.
` 701 Thirteenth Street, N.W.
` Washington D.C. 20005
`
`///
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`APPEARANCES (CONTINUED):
`
`FOR TOSHIBA:
` BAKER BOTTS
` BY: ROBINSON VU, ESQ.
` One Shell Plaza
` 910 Louisiana Street
` Houston, TX 77002
`
`FOR THE RENESAS PETITIONERS:
` FOLEY & LARDNER
` BY: PAVAN AGARWAL, ESQ.
` 3000 K Street, N.W.
` Washington, D.C. 20007
`
`///
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`Page 6
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`APPEARANCES (CONTINUED):
`
`FOR THE PATENT OWNER ZOND, LLC:
` RADULESCU
` BY: DAVID RADULESCU, PH.D., ESQ.
` TIGRAN VARDANIAN, ESQ.
` The Empire State Building
` 350 Fifth Avenue
` New York, NY 10118
`
`Also present: Sean McGrath, Videographer
`
` ***
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` BERKELEY, CALIFORNIA;
` WEDNESDAY, FEBRUARY 11, 2015; 9:07 A.M.
`
`Page 7
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` THE VIDEOGRAPHER: Good morning.
` This is the beginning of Disk Number 1 of
`the videotaped deposition of Larry D. Hartsough,
`Ph.D., in the matter of Taiwan Semiconductor
`Manufacturing Company, LTD, et al., versus Zond,
`LLC, in the U.S. Patent and Trademark Office, before
`the Patent Trial and Appeal Board, Cases 2014-00799,
`joined with IPR 2014-00855, IPR 2014-00955, IPR
`2014-01042, and Case Numbers 2014-00803, joined with
`IPR 2014-00858, IPR 2014-00996, and IPR 2014-01061.
` This deposition is being held at 200 Marina
`Boulevard, Berkeley, California, on February 11th,
`2015 at approximately 9:08 a.m.
` My name is Sean McGrath from TSG Reporting,
`Incorporated, and I'm the legal video specialist.
` The court reporter is Tavia Manning, in
`association with TSG Reporting.
` Will counsel please introduce yourselves,
`starting with the questioning attorney.
` MR. FITZPATRICK: Anthony Fitzpatrick, from
`Duane Morris, LLP, on behalf of petitioners, Taiwan
`Semiconductor Manufacturing Company, Limited, and
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`TSMC North America.
` MR. HUH: Gregory Huh from Haynes and
`Boone, LLP, on behalf of TSMC and Fujitsu.
` MR. McCOMBS: David McCombs, with Haynes
`and Boone on behalf of TSMC, TSMC North America, and
`Fujitsu.
` MR. MAIER: Cosmin Maier, of WilmerHale, on
`behalf of The Gillette Company.
` MR. TENNANT: David Tennant, from White &
`Case, on behalf of GLOBALFOUNDRIES.
` MR. RISMILLER: Brett Rismiller, with White
`& Case, on behalf of GLOBALFOUNDRIES.
` MR. VARDANIAN: Tigran Vardanian, with
`Radulescu, LLP, on behalf of the patent owners, Zond
`LLC.
` And with me is my partner, David Radulescu,
`also with Radulescu, LLP, on behalf of Zond LLC.
` MR. FITZPATRICK: Can counsel on the phone
`please state their names.
` MR. VU: Yes. This is Robinson Vu, with
`Baker Botts, for Toshiba.
` MR. FITZPATRICK: Go ahead.
` MR. AGARWAL: Okay. This is Pavan Agarwal,
`at Foley & Lardner, for the Renesas, petitioners.
` MR. KIM: And this is Rich Kim, with Duane
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`Morris, on behalf of the Taiwan Semiconductor
`defendants -- or petitioners, rather.
` THE VIDEOGRAPHER: That's it?
` Will the court reporter please swear in the
`witness, and we can proceed.
`
` LARRY HARTSOUGH, Ph.D,
` having been first duly sworn by the reporter,
` testified as follows:
`
` THE WITNESS: Could you please restate your
`name?
` MR. FITZPATRICK: Sure. My name is Tony
`Fitzpatrick.
` THE WITNESS: Fitzpatrick.
` MR. FITZPATRICK: Good morning.
` THE WITNESS: I do have hearing problems
`you've been made aware of, and so it would help me
`if you speak up.
` MR. FITZPATRICK: Sure. Certainly.
` THE WITNESS: I'll let you know.
` MR. FITZPATRICK: Yes, please. If at any
`point you don't fully hear any of my questions,
`please let me know.
` THE WITNESS: I will.
`
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` EXAMINATION
`BY MR. FITZPATRICK:
` Q. Do you understand that you've taken an oath
`to tell the truth today?
` A. Yes.
` Q. And your answers to my questions will be
`truthful?
` A. Yes.
` Q. They will be complete?
` A. I will strive to make them complete.
` Q. If at any point you don't understand any of
`my questions, will you please let me know?
` A. I will.
` Q. If you answer my question, I will assume
`that you've understood it; is that fair?
` A. Yes.
` Q. And you understand that if counsel for Zond
`makes an objection to any question, that you still
`are required to answer the question, unless they
`instruct you not to answer it?
` A. I understand that.
` Q. Have you ingested any medication or
`anything else that could impair your ability to
`testify truthfully and completely today?
` A. No.
`
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` Q. Have you been deposed previously?
` A. I have.
` Q. On how many occasions?
` A. I don't recall the exact number, but it is
`in my -- it's not on my CV, because I only go back
`five years in my -- what I provided to you. But,
`you know, on a number of occasions, probably five or
`six.
` Q. Have you testified in court or before an
`arbitrator previously?
` A. I have testified before an arbitration
`panel.
` Q. On how many occasions?
` A. On one.
` Q. The occasions on which you were deposed
`previously, did those all involve expert testimony?
` A. In the depositions that I made, I was
`always testifying as an expert.
` Q. And did any of those instances involve
`technology relating to plasma generation?
` A. Yes.
` Q. All of them or some of them?
` A. Most of them.
` I would have to look at the details to
`recall my earlier ones, but in one form or another
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`it all dealt with plasma generation.
` Q. And did they -- did they -- did any of them
`relate to magnetron sputtering technology?
` A. Well, actually, I have to correct myself,
`because one of the --
` Probably I should look at my CV to remind
`myself.
` But the testimony before the arbitration
`panel was actually about wafer -- a wafer heating
`methodology. Although, it was in a sputtering
`system, it was really a wafer heating and cooling
`technology, not the sputtering part.
` THE VIDEOGRAPHER: Mr. Hartsough, could you
`move your microphone to your tie or your other
`lapel?
` (Pause in the proceedings.)
` THE WITNESS: Do you have a copy of my CV?
`BY MR. FITZPATRICK
` Q. Well, I'll show you what I do have, which
`is your declaration.
` A. My declaration has a summary of my work
`experience, but -- yeah.
` Q. Why don't I show you what's previously been
`marked as Zond Exhibit 2015 in IPR proceedings
`2014-799 and 2014-803.
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` Do you recognize this document?
` A. I do.
` Q. What is it?
` A. It is -- excuse me -- my declaration in
`regard to the U.S. Patent 7,808,184.
` Q. And beginning on page 89 of the document,
`in Appendix A, is that a copy of your CV?
` A. Yes.
` Q. There's not a listing in this CV --
` A. There is not a listing, yeah.
` Q. -- of your prior experience testifying in
`depositions or before an arbitrator; correct?
` A. Yes. That's correct.
` I had submitted to counsel a qualification,
`a five-year history of cases and so on, which I
`presume was made available to your side.
` So I don't have the list or the
`recollection of every single deposition that I made
`at this time. I just don't recall it all.
` Specific cases -- I can -- I can remember
`that the -- well, actually, I wasn't deposed in the
`most recent case I had. I have to go back further
`than that. So it's been a while. I haven't had
`much depositions in the last five years.
` Q. And the testimony that you provided before
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`an arbitral panel related to wafer heating
`methodology, you said; right?
` A. In a sputtering system, right.
` Q. And -- sorry.
` Did you have more to say on that?
` A. Another case had to do with processing
`of -- well, it wasn't -- it wasn't magnetron
`sputtering. It was a plasma processing system.
` Q. And you have not testified in court; isn't
`that correct?
` A. I have not testified in court.
` Q. What did you do to prepare for today's
`deposition?
` MR. VARDANIAN: Objection to form.
` And caution the witness not to reveal any
`privileged information.
` To the extent that you can answer without
`doing so, please go ahead and do so.
` THE WITNESS: I reviewed pertinent
`documents to this particular case, and I met with
`counsel for about a day and a half.
`BY MR. FITZPATRICK:
` Q. When was that?
` A. Just in this last week.
` Q. And which counsel did you meet with?
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` A. Mr. Vardanian and Mr. Radulescu.
` Q. And which documents did you review?
` A. I reviewed all of the pertinent documents
`that I list in paragraph 3 of my declaration, except
`at this recent review I did not review the file
`history, as I had not found it pertinent to the
`formation of my opinions during my preparation of my
`declaration.
` Q. Did you review anything else in preparation
`for your deposition?
` A. Other than the items that are listed here?
` Q. Correct.
` A. No.
` Q. Now, while we're on paragraph 3 of your
`declaration, it lists materials that you considered
`in forming the opinions set forth in your
`declaration, and it says those materials include the
`'184 patent, the file history, the IPR petitions and
`exhibits, the board's institution decisions, and the
`prior art references discussed below; is that
`correct?
` MR. VARDANIAN: Objection to form.
` THE WITNESS: Sorry.
` MR. VARDANIAN: You can answer it, if you
`can.
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` THE WITNESS: Yes.
`BY MR. FITZPATRICK:
` Q. Did you review any other materials in
`forming the opinions set forth in your declaration?
` A. What do you mean by "materials"?
` Q. Well, you've used here, in paragraph 3, the
`word "materials."
` Do you see that?
` A. Yes.
` Q. What did you have in mind when you used
`that word in your declaration?
` A. Documents.
` Q. Did you review any other documents, other
`than those listed here, in paragraph 3, in
`connection with forming the opinions set forth in
`your declaration?
` A. In the -- in forming the opinions set forth
`in the declaration, I did review some other
`background material regarding various
`technologies --
` Q. What were those?
` A. -- just from -- to refresh my memory.
` Textbooks that I had, articles regarding
`some basic technologies that were, you know, short
`articles online.
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` But mainly for background, just to
`refresh -- bring myself -- to refresh my
`understanding of the technologies in effect at that
`time. So just pretty basic stuff.
` Q. When you say -- when you refer to the
`"technologies in effect at this time," what time are
`you referring to?
` A. At the time -- you know, the patent --
`before the issuance of the patent.
` Q. And what textbooks did you review?
` A. Well, there are textbooks that I have in my
`possession, like one that's called "Plasma
`Processing for Semiconductor Processing" -- or
`"Plasma Processes for Semiconductor," something like
`that -- I don't remember exactly the name of it --
`to see if there were pertinent materials in there.
` And there really wasn't much.
` Q. Who is the author of that work?
` A. I don't recall.
` Q. Any other textbooks that you reviewed?
` A. Not really.
` I had a textbook called "Thin Film
`Processes" by Chopra, but it didn't really provide
`any information that was relevant to this patent,
`so...
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` Q. Any others?
` A. I took a look at it.
` I did -- I did look at the -- an article by
`John Thornton, and I did -- well, of course, that's
`the Rossnagel and Hopwood article, which I referred
`to, but that's part of the background material.
` No. I don't recall of any other ones at
`this point in time.
` Q. What was the article that you reviewed by
`John Thornton?
` A. Actually, I don't think I referred to it.
` I think it was referred to elsewhere.
` Q. Where was it referred to?
` A. In the patent itself, it's one of the --
` So if I could look at the '184 patent.
` Q. That article is referred to in the patent?
` A. No. It's in the lists of technologies on
`the front page of the patent.
` But I would like to verify that.
` Q. We can do that.
` I am handing you what has previously been
`marked as TSMC Exhibit 1001.
` A. (Witness reviewing document.)
` There's no column number on page 2. The
`right-hand column, about a third of the way down, it
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`says "Thornton, Magnetron Sputtering: Basic Physics
`and Application to Cylindrical Magnetrons."
` Q. That's the Thornton article that you just
`referred to?
` A. That's the Thornton article that I have on
`my computer, because I downloaded it a long time ago
`as a very good general reference.
` Q. Why did you look at that article in
`particular?
` A. The patent talks about instabilities in the
`plasma, so I just looked at that because Thornton
`had -- also mentions plasma instabilities.
` So it's just, again, part of the
`background.
` Q. Was there anything in that article that
`informed the opinions that you have laid out in your
`declaration?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: Only -- not really. It
`could -- not that would have provided any additional
`information to inform me to help me make -- come to
`my opinions.
`BY MR. FITZPATRICK:
` Q. Other than the Thornton article and the
`Rossnagel and Hopwood article, did you review any
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`other articles in connection with your opinions in
`your declaration?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: Not that I recall.
`BY MR. FITZPATRICK:
` Q. Why did you --
` In paragraph 3 of your declaration --
` A. Yes.
` Q. -- which is Exhibit 2015, why did you not
`list all of the materials that you reviewed?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: Well, they -- they did not --
`decided that I didn't need to consider them in
`forming my opinions, so I didn't list them.
`BY MR. FITZPATRICK:
` Q. So none of those references that you've
`referred to -- the two textbooks and the two
`articles -- assisted you in forming the opinions
`that are in your declaration; is that your
`testimony?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: As I mentioned, I looked at
`these various -- I did mention the Hopwood article
`in my paper, but it was just as a matter -- part of
`background, not in forming my opinions. And I
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`didn't list that. But as I said, those were things
`that had no influence on my opinions.
`BY MR. FITZPATRICK:
` Q. The materials that you did list in
`paragraph 3, how did you obtain those?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: I downloaded them all from
`counsel's website.
`BY MR. FITZPATRICK:
` Q. And were there any other documents that
`were provided by counsel that you didn't download
`from their website?
` MR. VARDANIAN: Objection; form.
` And caution the witness not to reveal any
`privileged information.
` To the extent you can answer without doing
`so, you can go ahead and do so.
` THE WITNESS: So are you asking if they
`sent me hard-copies of any materials?
`BY MR. FITZPATRICK:
` Q. Let me try to ask the question a different
`way.
` So counsel provided certain materials to
`you; is that correct?
` A. Counsel made the materials available on
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`their website, and I downloaded them.
` Q. Did you download everything that they made
`available on the website?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: I downloaded but did not
`necessarily save to my computer everything if it
`wasn't what I was using to consider in forming the
`opinions.
` So if I read it, I might not have saved it.
`BY MR. FITZPATRICK:
` Q. Was everything that's listed in paragraph 3
`of your declaration provided through counsel's
`website?
` MR. VARDANIAN: Objection; form.
` Caution the witness not to reveal any
`privileged information. To the extent you can
`answer without doing so, you should do so.
` THE WITNESS: No.
` Some of the exhibits that are -- were cited
`in -- for instance, in a deposition -- some of the
`references in the deposition, I don't know if they
`were entered as what's called exhibits.
` But some of the references that would have
`been part --Oh, it's the inter partes review
`exhibits that this exhibit is referring to. And
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`that would have been --I would like to look at the
`inter partes review to see if I downloaded all the
`exhibits those -- the exhibits that are listed
`there.
`BY MR. FITZPATRICK:
` Q. Well, I think I am asking you a different
`question, Doctor.
` The items that you have listed here in
`paragraph 3 of your declaration --
` A. I listed --
` Q. -- did you receive all of those through
`this download from counsel's website?
` A. The '184 patent, yes.
` The file history, that was sent to me, but
`again, as an attachment or an e-mail, and I -- so
`it's a download.
` The petitions were available for download.
` The exhibits I am not -- I don't think
`they -- depending on what -- the exhibits that are
`listed. I would have to look at that.
` The PTAB's -- oh, I'm sorry. The
`petitions -- I am misreading this?
` The petitions are referring mainly to the
`depositions, and those were available for download.
`The PTAB institution's decisions were available for
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`download, and the prior art references pertaining to
`the specific grounds that the decision was based on
`were available for download.
` Q. You referred to some depositions.
` A. I'm sorry. Depositions and declarations.
`I misspoke.
` Q. Okay. So let's start with depositions.
` What depositions are you referring to?
` A. For this case -- well, they wouldn't have
`been available at the time that I considered in
`the -- that I was writing the declaration. So --
` Well, they would have been, because they
`were in November.
` So the DeVito depositions in regard to --
`deposition in regard to this patent.
` He also had a deposition at that time
`regarding the '155 patent that I would have
`downloaded -- had that downloaded at the time I was
`doing the declaration for that.
` Q. So you downloaded Mr. DeVito's depositions
`concerning the '184 and the '155 patents?
` A. Correct. And declarations.
` Q. And his declarations concerning those
`patents also?
` A. Declaration.
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` Q. Any other declarations or depositions that
`you downloaded in connection with the '184 patent?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: I don't think there were any
`other ones. No.
`BY MR. FITZPATRICK:
` Q. Did you review Mr. DeVito's deposition
`transcripts when you were considering the opinions
`that you've set forth in your declaration?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: I considered his declaration.
` And that's not the question you asked, but
`I considered his declaration primarily in terms of
`when I was writing my declaration.
`BY MR. FITZPATRICK:
` Q. And what about his deposition transcript?
` A. At that time, I don't recall, but --
`because the timing, I just don't recall.
` Q. So you don't recall whether you --
` MR. FITZPATRICK: I think the witness is
`not done.
`BY MR. FITZPATRICK:
` Q. Are you done with your answer?
` MR. VARDANIAN: I'm not sure the question
`was done.
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` Are you done with your question?
` MR. FITZPATRICK: Well, no. I thought the
`witness was done first. I thought the witness was
`still speaking.
` THE WITNESS: I am trying to recall. I am
`trying to recall. That's the problem. There's a
`lot of materials.
` In terms of what I -- where -- and if I
`refer to it in my declaration, it is regarding -- it
`would have regarded his declaration.
` So I don't recall that the deposition
`itself was thoroughly reviewed at the time of making
`my declaration.
`BY MR. FITZPATRICK:
` Q. But at some point you thoroughly reviewed
`his deposition testimony?
` A. I did review his deposition in preparation
`for this deposition.
` Q. Did Mr. DeVito's deposition testimony cause
`you to reconsider or change any of the opinions that
`you've set forth in your declaration?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: It did not.
`BY MR. FITZPATRICK:
` Q. On the website that counsel made available
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`with these documents, were there any other documents
`that you haven't identified so far?
` MR. VARDANIAN: Objection; form.
` Caution the witness not to reveal any
`privileged information.
` To the extent you can answer without
`revealing privileged information, you can go ahead
`and do so.
` THE WITNESS: I would have to pull up the
`website and take a look.
`BY MR. FITZPATRICK:
` Q. Is there anything that you can remember
`right now that was on that website that you haven't
`identified?
` MR. VARDANIAN: Objection; form.
` Same caution.
` THE WITNESS: Not that I recall, but I
`would have to pull it up and look at it.
`BY MR. FITZPATRICK:
` Q. Were there any documents that were provided
`on counsel's website that you did not consider in
`forming your opinions?
` MR. VARDANIAN: Objection; form.
` Caution the witness not to reveal any
`privileged information.
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` To the extent you can answer without doing
`so, go ahead and answer.
` THE WITNESS: Not to my recollection.
` I considered everything.
`BY MR. FITZPATRICK:
` Q. When were you first retained by Zond in
`connection with these inter partes review
`procedures?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: I was first retained in late
`2013.
`BY MR. FITZPATRICK:
` Q. And how did that come about?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: Mr. Radulescu called me and
`asked if I had any of -- the usual questions about
`availability and conflicts, and I submitted to him
`information, other than what's on my website, for
`qualification.
`BY MR. FITZPATRICK:
` Q. Do you know how it was that he came to
`contact you?
` MR. VARDANIAN: Objection; form.
` Caution the witness not to reveal
`privileged information.
`
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` To the extent you can answer without
`revealing privileged information, you can go ahead
`and do so.
` THE WITNESS: As far as I remember, it
`would have resulted from Googling something and my
`website popping up.
` So there was no -- no broker or anything
`like that. I was directly contacted by
`Mr. Radulescu.
`BY MR. FITZPATRICK:
` Q. Prior to being contacted by Mr. Radulescu,
`did you have any prior connection with Zond?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: No.
`BY MR. FITZPATRICK:
` Q. Did you have any connection prior to that
`time with Dr. Chistyakov?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: No.
`BY MR. FITZPATRICK:
` Q. Did you know him?
` A. No.
` MR. VARDANIAN: Same objection.
` THE WITNESS: I'd never heard of him.
` Am I speaking loud enough for you to hear?
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`Because I tend to --
` COURT REPORTER: Yes. I'll let you know.
` MR. VARDANIAN: Can you hear my objections?
` THE WITNESS: Sometimes. It's a little
`hard to --
` MR. FITZPATRICK: That's a first. That's
`got to be a first.
` THE WITNESS: Well, to me, unfortunately,
`I'm getting to the point where everybody is
`soft-spoken. I don't know why everybody speaks so
`quietly.
`BY MR. FITZPATRICK:
` Q. Have you subsequently met Dr. Chistyakov?
` MR. VARDANIAN: Objection; form.
` THE WITNESS: I have not.
`BY MR. FITZPATRICK:
` Q. Have you ever spoken with him?
` A. I have not.
` Q. When you were first retained, what was your
`assignment?
` MR. VARDANIAN: Objection; form.
` Caution the witness not to reveal
`privileged information.
` To the extent you can answer without
`revealing such information, you can go ahead and do
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` THE WITNESS: I was asked to review a
`patent, not this one, and --
` MR. VARDANIAN: I'm actually going to go
`ahead and instruct the witness --
` THE WITNESS: -- answer some technical --
` MR. VARDANIAN: One second.
` I'm going to go ahead and instruct the
`witness not to answer on the basis of
`attorney-client privilege and work product.
` MR. FITZPATRICK: Why is that?
` MR. VARDANIAN: So I am instructing the
`witness not to answer.
` MR. FITZPATRICK: Why?
` MR. VARDANIAN: We don't have to do it
`here. So I made an instruction to do it. So you
`can move on.
` MR. FITZPATRICK: You're not going to
`explain the basis for your instruction?
` I'm not trying to get in a battle.
` MR. VARDANIAN: You're asking --
` MR. FITZPATRICK: I'm just trying to
`understand.
` MR. VARDANIAN: Okay. Well, there's
`several reasons.
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` Number one, I think he told you that he was
`retained before the IPRs were even filed. So this
`is a different context, and this is the context of
`litigation. So all of this is relating to work
`that's done in preparation for -- in the context of
`litigation. So it's not even relevant to the IPRs.
` Your question is supposed to be within the
`scope of the IPRs.
` So I am going to instruct the witness not
`to answer.
` MR. FITZPATRICK: So you're instructing him
`not to answer on the basis of relevance?
` MR. VARDANIAN: I am instructing him not to
`answer on the basis of attorney-client
`privilege/work product.
` MR. FITZPATRICK: Are you going to follow
`counsel's instruction, Doctor?
` THE WITNESS: I just will verify that I was
`retained for a litigation at that time.
`BY MR. FITZPATRICK:
` Q. At some point in time, did the scope of
`

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