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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GLOBALFOUNDRIES U.S., INC., )
`et al., )
` Petitioners, )
` ) IPR 2014-00861
`vs. ) IPR 2014-01088
` ) IPR 2014-01089
`ZOND, LLC, )
` Patent owner. )
`______________________________)
`
` VIDEOTAPED DEPOSITION OF LARRY D. HARSOUGH, Ph.D.
` Oakland, California
` Thursday, May 14, 2015
`
`BY: HEIDI BELTON, CSR, RPR, CRR, CCRR, CLR
`CSR LICENSE NO. 12885
`JOB NO. 93601
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`GlobalFoundries 1120
`IPR2014-00861
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GLOBALFOUNDRIES U.S., INC., )
`et al., )
` Petitioners, )
` ) IPR 2014-00861
`vs. ) IPR 2014-01088
` ) IPR 2014-01089
`ZOND, LLC, )
` Patent owner. )
`______________________________)
`
` VIDEOTAPED DEPOSITION OF LARRY D. HARSOUGH, Ph.D.
` Oakland, California
` Thursday, May 14, 2015
`
`BY: HEIDI BELTON, CSR, RPR, CRR, CCRR, CLR
`CSR LICENSE NO. 12885
`JOB NO. 93601
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`GlobalFoundries 1120
`IPR2014-00861
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` May 14, 2015
` 9:01 a.m.
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`Page 2
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` Videotaped deposition of LARRY D. HARSOUGH,
` Ph.D., held at the offices of Oakland Marriott
` City Center, 1001 Broadway, Oakland,
` California, before Heidi Belton, a Certified
` Shorthand Reporter No. 12885, Registered
` Professional Reporter, Certified Realtime
` Reporter, California Certified Realtime
` Reporter, Certified LiveNote Reporter, and NCRA
` Realtime Systems Administrator.
`
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`A P P E A R A N C E S:
`
`FOR PETITIONERS GLOBALFOUNDRIES U.S., INC.:
` WHITE & CASE
` 701 Thirteenth Street, NW
` Washington, DC 20005
` By: David Tennant, Esq.
`
` - and -
`
` WHITE & CASE
` 3000 El Camino Real
` 5 Palo Alto Square
` Palo Alto, California 94306
` By: Brett Rismiller, Esq. (phone)
`
`
`
`FOR PETITIONER TOSHIBA:
` BAKER BOTTS
` One Shell Plaza
` 910 Louisiana Street
` Houston, Texas 77002
` By: Robinson Vu, Esq. (phone)
`
`
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`APPEARANCES (Continued)
`
`FOR THE PATENT OWNER ZOND, LLC:
` ASCENDA LAW GROUP
` 333 West San Carlos Street
` San Jose, California 95110
` By: Tarek Fahmi, Esq.
`
`
`
`Also Present: Jim Espinas, Videographer
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` OAKLAND, CALIFORNIA
` THURSDAY, MAY 14, 2015
` 9:01 a.m.
` P R O C E E D I N G S
` THE VIDEOGRAPHER: This is the start of
`tape labeled number 1 of the videotaped deposition
`of Larry Harsough, in the matter of GLOBALFOUNDRIES
`U.S., Inc. et al. versus Zond, LLC in the United
`States Patent and Trademark Office, before the
`Patent Trial and Appeal Board. Case numbers
`IPR2014-00816, IPR- --
` MR. TENNANT: 861.
` THE VIDEOGRAPHER: Sorry. 861.
` -- IPR2014-01088, and IPR2014-01089.
` This deposition is being held at the
`Oakland Marriott City Center, located at 1001
`Broadway, Oakland, California on May 14, 2015 at
`approximately 9:01 a.m.
` My name is Jim Espinas, from TSG
`Reporting, Incorporated, and I am the legal video
`specialist. The court reporter is Heidi Belton, in
`association with TSG Reporting.
` Would counsel please introduce themselves,
`starting from my left.
` MR. TENNANT: My name is David Tennant.
`
`TSG Reporting - Worldwide
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`I'm with the law firm of White & Case. I'm counsel
`for GLOBALFOUNDRIES entities.
` MR. FAHMI: Tarek Fahmi, on behalf of the
`patent owner Zond.
` THE VIDEOGRAPHER: And on the phone?
` MR. VU: Robinson Vu, with Baker Botts, on
`behalf of Toshiba.
` MR. TENNANT: And also on the phone is my
`colleague Brett Rismiller, with White & Case on
`behalf of the GLOBALFOUNDRIES entities.
` THE VIDEOGRAPHER: Will the court reporter
`please swear in the witness.
` (Whereupon, the witness, LARRY HARSOUGH,
` having been duly sworn, testified as follows:)
` EXAMINATION
`BY MR. TENNANT:
` Q. Good morning.
` A. Good morning.
` Q. Would you please state your full name for
`the record.
` A. Larry Dowd Harsough.
` Q. And you understand I'll be asking you
`questions today?
` A. Yes.
` Q. And you understand that you have to answer
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`your questions -- these questions truthfully?
` A. Yes.
` Q. And you will answer my questions fully as
`well; correct?
` A. To my best -- to the best of my ability,
`yes.
` Q. Do you understand that you have to answer
`the questions asked of you even if your attorney
`makes some objection, unless your attorney instructs
`you not to answer on the basis of privileged
`communication?
` A. I understand.
` Q. And if you don't answer -- if you don't
`understand my question, just please let me know and
`I can rephrase it; is that fair?
` A. Yes.
` Q. And if you answer, I will assume that
`you've understood my question; is that fair?
` A. Yes.
` Q. Is there anything today that could impair
`your ability to answer fully and truthfully?
` A. No.
` Q. What did you do to prepare for today's
`deposition?
` A. I met with counsel for several hours and
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`looked at a number of the prior art references in
`this case, as well as of course the '652 patent.
` Q. What prior art references did you look at?
` A. And I also looked at one of the
`declarations by Dr. Kortshagen.
` Prior art references would have been the
`Mozgrin reference, and Chistyakov reference,
`Iwamura, and Fahey.
` Q. Anything else that you reviewed?
` A. I might have looked at some other things
`briefly. I can't recall. Well, I did take a quick
`look at the file history, but that was --
` Q. And is that the file history for the '652
`patent?
` A. Right.
` Q. And did you prepare a declaration for this
`case?
` A. I did.
` Q. Did you review your declaration?
` A. I did.
` Q. Did you prepare one declaration?
` A. I did.
` Q. So you're aware that three declarations
`were submitted because there are three different
`proceedings?
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` A. That was my understanding.
` Q. But they're the same declaration --
`they're the same declaration except for probably the
`cover page?
` A. As far as I know.
` Q. Okay. You only signed one declaration?
` A. I only signed one, that's correct.
` Q. And in your declaration you identified
`materials that you considered for forming your
`opinion; correct?
` A. As far as I recall, yes.
` Q. And when did you last review the '652
`patent?
` A. Over the last several days.
` Q. When did you first review it?
` A. That would have been prior to submitting
`my declaration. So that would have been -- I
`don't -- what was the date of my declaration?
` Q. I think it was March --
` A. March something.
` Q. -- of this year?
` A. So it would have been late February/early
`March, I guess.
` Q. And how much time have you spent to date
`reviewing the '652 patent? Approximate is fine.
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` A. 10 to 12 hours.
` Q. And how much time have you spent reviewing
`the other materials such as the prior art that you
`identified to me?
` A. Oh, I'm sorry. Could you repeat your
`first question? Because I think I misunderstood it.
` Q. Sure. How much time have you spent
`reviewing the '652 patent to date?
` A. Oh, the '652 patent?
` Q. Mm-hmm.
` A. To date? Including the original reviews
`that I did?
` Q. Yes.
` A. I have -- gee, I -- I don't have any idea.
`Probably 10 hours maybe. I -- I -- it's been
`awhile. And I can't remember --
` Q. And when you say "the original reviews,"
`what do you mean by that?
` A. Well, I was -- I did not review all of the
`patents in this case, the ones when I was first
`retained. I was working on the patents that were up
`for declaration preparation. So when I say first
`reviewed this one, it was in preparation for my
`declaration. And you said it was like early March.
`So that would -- just prior to that would have been
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`when I first reviewed the '652 patent.
` Q. And did you consider any materials that
`you did not identify in your declaration?
` A. Not that I recall.
` Q. Did you express any opinions that you did
`not put into your declaration?
` A. I think that would be a matter between --
`conversations I had -- would have had with counsel.
`That would have been not subject to discovery.
` Q. I disagree. And your attorney hasn't
`objected.
` Did you express any opinions that you did
`not include in your declaration?
` MR. FAHMI: Objection to the extent that
`it calls for attorney-client communication.
` You can answer to the extent that you do
`not reveal the substance of any communications that
`you and I have had.
` THE WITNESS: I probably did.
`BY MR. TENNANT:
` Q. So there were --
` A. I just can't recall specifically.
` Q. So to the best of your knowledge, your
`declaration contains all of your opinions concerning
`the '652 patent in this case?
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` A. Contains the opinions that I was willing
`to declare.
` Q. So were there any opinions that you were
`not willing to declare?
` MR. FAHMI: Objection to the extent that
`it calls for attorney-client communications or any
`attorney work product.
` You can answer to the extent that you do
`not reveal the substance of any communications
`between you and I.
` THE WITNESS: Um --
`BY MR. TENNANT:
` Q. Let me just be clear with that. I'm not
`asking for any opinions of the attorneys or any
`attorneys that you've worked with. I'm asking you
`for your opinions that you did not express in your
`declaration. So could you answer the question,
`please?
` MR. FAHMI: Subject to the same objection.
` THE WITNESS: I can't recall any specific
`opinions. I do know that I chose to concentrate on
`those aspects of the patent that I felt had -- that
`I could express my opinions very clearly on.
`BY MR. TENNANT:
` Q. So were there some areas for which you
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`could not express your opinion very clearly?
` A. There are some areas where the -- there
`might have been questions about claim construction
`that were not covered by the Board that I didn't
`feel it -- I wanted to -- to go there.
` Q. And what --
` A. There were some gray areas of claim
`construction.
` Q. Do you recall any of the claim terms at
`issue where you weren't comfortable expressing an
`opinion?
` A. Well, I can recall one. It's an area that
`we've gotten into in previous depositions. The word
`"proximate." I didn't wish to delve into that.
` Q. The word "proximate" you weren't
`comfortable providing an opinion?
` A. I just didn't wish to express an opinion.
`Because it hadn't -- it was not anything that had
`been brought up in petitioner's -- as far as I
`recall, in petitioner's expert's declarations and so
`I didn't -- I didn't feel the need to address it
`either/or chose to -- choose to address it.
` Q. So suffice it to say, all the opinions
`that you are comfortable expressing are contained in
`your declaration; is that fair?
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` A. That's a fair statement.
` Q. Are you familiar with the term "glow
`discharge"?
` A. I want to make sure I understood what you
`said. "Glow discharge"?
` Q. Correct.
` A. Because sometimes -- I thought you might
`have said "closed discharge."
` Q. I'll try to look at you when I ask my
`questions.
` A. My hearing is deteriorating and --
` Q. I understand.
` A. Yes, I am.
` Q. And glow discharge can contain ions;
`correct?
` A. A glow discharge typically will contain
`ions.
` Q. And a glow discharge typically will
`contain electrons; correct?
` A. That's correct.
` Q. And a glow discharge typically will
`contain neutral atoms; correct?
` A. Typically.
` Q. And neutral atoms include ground-state
`atoms; correct?
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` A. Neutral atoms include ground-state atoms.
` Q. And neutral atoms include excited atoms;
`correct?
` A. It can. Anything that does not have a net
`charge is a neutral atom.
` Q. So does a metastable atom have a net
`charge?
` A. Typically not.
` Q. So would one of ordinary skill in the art
`understand that a metastable atom is a neutral atom?
` A. Is a neutral atom; that's correct.
` Q. A glow discharge is a plasma; correct?
` A. There's --
` Q. There is some controversy about that. And
`we did discuss this --
` A. We discussed this before --
` Q. -- before; right?
` A. -- and that the plasma is a common term in
`the industry for a glow discharge. I mean, it's
`basically used interchangeably. But to a
`theoretical physicist the plasma and a glow
`discharge are not the same.
` Q. In the context of the '652 patent is a
`plasma synonymous with a glow discharge?
` A. It seems to be, yes. It's describing a
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`volume of gas in which there's a -- this mixture of
`ions, electrons, and neutral atoms of one sort or
`another.
` Q. So if we use glow discharge -- strike
`that.
` Would it be okay for today if we used
`"glow discharge" and the word term "plasma"
`synonymously? Is that okay?
` A. That's okay. As long as we don't switch
`back and forth between different definitions of
`plasma.
` Q. I'm just trying to get some terminology
`down just so we're both clear --
` A. Right.
` Q. -- as to what we're talking about.
` So -- but, you would agree for the purpose
`in the context of the '652 patent, a glow discharge
`and plasma are often used interchangeably?
` A. They are often used interchangeably. As I
`said, a -- there are specific definitions and
`descriptions of a -- what's called an abnormal glow
`discharge, for instance, that -- that are more
`specific than -- than we would likely be using
`today.
` Q. And those specific definitions, they're
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`not found in the '652 patent; correct?
` A. They are not.
` Q. Are you familiar with the term "plasma
`density"?
` A. Yes, as it's been used in these patents.
` Q. And actually we've discussed this before.
`And I just want to get -- make sure that we both
`understand the term "plasma density" when we use it
`today?
` Do you agree that plasma density can be
`expressed as either the relative or absolute number
`of density of charged particles?
` A. Yeah, subject to a little clarification, I
`think. Because typically it's expressed as either
`the number of electrons per unit volume or
`percentage or the number of ions per volume or
`percentage. But not as the sum of the two.
` Q. Right.
` A. It's either/or, typically.
` Q. And in the context of the '652 patent,
`would you agree that when it refers to plasma
`density, it is referring to the number of ions per
`unit volume?
` A. May I just refresh my memory on that?
` Q. Sure.
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` A. Because I -- I -- my recollection is that
`you're right.
` Q. You know, I --
` A. You can probably point me to it quicker
`than I can find it.
` Q. Well, I can expedite this. Is it fair
`that when I refer to "plasma density" today, I'm
`referring to the number of ions per unit volume
`unless I state otherwise? Is that fair?
` A. That's fine. Yes.
` Q. And you would understand typically that a
`plasma density may be expressed as the number of
`ions per centimeter cubed -- cubic centimeter;
`right?
` A. That's correct.
` Q. Now, do you understand that the Board
`construed the term "super-ionized"?
` A. Yes.
` Q. I've put before you Institution decisions
`in these cases. And I will identify them for the
`record.
` I believe the first Institution decision
`that I put before you is for the 861 IPR.
` A. Yes.
` Q. And that has a Paper 12.
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` Second Intuition that I -- excuse me. The
`second Institution decision that I put before you is
`for case number 1088 that has Paper 16. Do you see
`that?
` A. Yeah.
` Q. And the third Institution that I have
`put -- Institution decision that I put before you is
`for case number 1089 that has Paper 13 on it. Do
`you see that?
` A. Yes.
` Q. And have you -- have you seen these
`decisions before?
` A. I have seen them.
` Q. Have you reviewed them?
` A. I certainly have reviewed two of them.
`What I'm trying to remember is -- I've certainly
`reviewed the ones that were dealing with the
`independent claims. I'd have to --
` Q. Just for your information, the 861 deals
`with Claims 18 through 34.
` A. Yeah, and I have looked at that.
` Q. Claimed as independent.
` A. Yeah.
` Q. And the next one, which is Paper 16, deals
`with Claims 1 through 17.
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` A. I've reviewed that.
` Q. Okay. Claim 1 is independent. Okay?
` A. Yeah.
` Q. And the last one is, I believe, Paper 13.
`That deals with Claim 35, which is also independent.
` A. That's the means plus function.
` Q. Yes.
` A. Right.
` So I probably have -- have looked at this
`one. I have not reviewed it as much, I think.
` Q. And referring to the 861 decision, please
`turn to page 12. And you see the second paragraph?
` A. Yes.
` Q. Please read the last two sentences in that
`paragraph and let me know when you're done.
` A. (Witness reviews document.)
` Yes.
` Q. Now, you would agree that the Board
`construed the term "super-ionized" to mean
`converting at least 75 percent of the neutral atoms
`in the initial plasma into ions near the catheter
`assembly?
` A. That's what it says, yeah.
` Q. Keep that by your side and turn to the
`1088 decision, please, at page 11. And the second
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`full paragraph on that page, please read the last
`two sentences and let me know when you're done.
` A. (Witness reviews document.)
` Okay. I'm done.
` Q. And you would agree that the Board in this
`case construed "super-ionized" to mean converting at
`least 75 percent of the neutral atoms in the initial
`plasma into ions?
` A. Yes.
` Q. And comparing the constructions in each of
`the cases that we just reviewed, do you notice that
`they're slightly different?
` A. I do.
` Q. And what's the difference?
` A. Well, the one in the 861 includes the
`phrase "near the catheter assembly."
` Q. And 1088 does not include the phrase "near
`the catheter assembly" in the construction?
` A. It does not.
` Q. And turn to the last decision in the 1089
`case and turn to page 17, please. Please read the
`last two sentences in the first full paragraph on
`that page.
` A. (Witness reviews document.)
` Q. And let me know when you're done.
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` A. I'm done.
` Q. And in the 1089 case, you would agree that
`the Board construed "super-ionized" to mean
`"converting at least 75 percent of the neutral atoms
`in the initial plasma into ions near the catheter
`assembly"?
` A. That's correct.
` Q. And do you agree there's a slight
`difference between that construction and the other
`two constructions such that you've just reviewed?
` A. I don't see a difference between 861 and
`1089.
` Q. I said "slight." I think -- no, I'm
`sorry. It -- it appears there's no difference.
` A. There's no difference between --
` Q. Between 1089 and 861 cases; right?
` A. It doesn't look like there is.
` Q. But there is a difference between the 1089
`case and the 1088 case; right?
` A. But there's similarity as well in terms
`of --
` Q. But there is a difference?
` A. There is a difference.
` Q. And what is that difference?
` A. (No response.)
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` Q. I'm sorry. Sir, what is that difference?
` A. Well, the phrase "near the catheter
`assembly."
` Q. I'm going to hand you a copy of your
`declaration.
` Now, this is -- has a cover page that
`references the 861 case. Do you see that?
` A. That would have also been declarations for
`the other two as well; right?
` Q. Right. And I think earlier we established
`that this is the same declaration except for the
`cover page that might be different.
` A. Well, that was -- that was my
`understanding.
` Q. And could you turn to the very last page
`of the declaration. I'm sorry. Turn to page --
`strike that.
` Turn to page 55 of your declaration,
`please.
` And that's your signature?
` A. Yes.
` Q. Do you recognize this document?
` A. Well, perhaps other than the cover page,
`yes.
` Q. And so this is the declaration that you
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`submitted in the three cases that we're discussing
`today; correct?
` A. That's correct.
` Q. Turn to -- strike that.
` Turn to paragraph 18, please.
` A. Paragraph -- did you say?
` Q. 18.
` A. Okay.
` Q. Go ahead and read that paragraph and let
`me know when you're done.
` A. (Witness reviews document.)
` I'm done.
` Q. And the paragraph indicates that -- do you
`understand the Board has construed -- the term
`"super-ionizing the initial plasma so as to generate
`a high density plasma" requires any provided
`construction; correct?
` A. That was my understanding.
` Q. Now, the Board doesn't construe
`"super-ionizing the initial plasma so as to generate
`a high-density plasma"; correct?
` MR. FAHMI: Objection; form.
` THE WITNESS: As I said, that was my
`understanding.
`BY MR. TENNANT:
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` Q. It is correct that the Board only
`construed the term "super-ionizing"?
` MR. FAHMI: Objection; form.
`BY MR. TENNANT:
` Q. Would you agree with that statement?
` A. Well, the 1089 says, "The excited function
`of the claim element at issue requires
`super-ionizing the initial plasma."
` Q. Where are you reading?
` A. So -- at the top of page 17 in 1089.
` The way I read it, it says, "All claims at
`issue requires super-ionizing the initial plasma
`proximate to the catheter assembly by generating a
`high-density plasma."
` Q. Where -- what are you reading from?
` A. So -- I'm reading this case, the 861.
` So I guess I don't understand your
`question -- because --
` Q. Let me rephrase it. You were --
` A. It seems that -- that there is a --
`there's a misunderstanding of -- between the two of
`us, perhaps, on what -- what the Board was
`construing. It looks like the discussion always is
`talking about the -- this converting of neutral ions
`into -- I mean, neutral atoms into ions. But please
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`ask your question again.
` Q. You do agree that for the 861 case,
`construction of "super-ionized" by the Board
`includes the phrase "near the catheter assembly";
`correct?
` A. No, I don't -- I don't agree with that
`because the -- they're constructing super-ionizing
`the initial plasma, not just a super-ionized plasma.
` Q. So on page 12 of the initial --
`Institution decision for the 861 case, do you agree
`that the Board construed "super-ionized" to mean
`converting at least 75 percent of the neutral atoms
`in the initial plasma into ions near the catheter
`assembly?
` A. I don't necessarily agree with the way
`you've worded the question. The -- the Board is
`construing an entire claim limitation or a recited
`function. And the word -- just "super-ionized" is
`only a tiny part of that -- of that limitation.
` Q. So refer to the 861 decision, please. And
`on page 12, the very last sentence, do you see the
`sentence beginning with "therefore"?
` A. Yes.
` Q. Do you see the word "we"?
` A. Yes.
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` Q. And do you understand that to mean the
`Board?
` A. Yes.
` Q. And do you see "we" -- the Board --
`"construe the claim limitation as" and then there's
`a quote that follows --
` A. Yes.
` Q. -- do you see that?
` A. I see that.
` Q. Do you have any reason to disagree with
`the way the board has construed the term?
` A. Well, I have -- I can agree with and I
`have used one of the claim limitations, the key part
`of it -- converting at least 75 percent of the
`neutral atoms in the initial plasma -- in my --
`forming my opinions in this case.
` Q. That's what I'm actually trying to get to.
`I'm trying to determine what construction you used
`in forming the opinions. Okay? And you would agree
`that the Board in the 861 case and also in the 1089
`case included the terms "near the catheter assembly"
`in the construction --
` A. I agree with that and it does not change
`my opinion.
` Q. So -- in paragraph 18 of your declaration
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`you did not include "near the catheter assembly" in
`the instruction; correct?
` A. It wasn't included in that.
` Q. So you didn't apply the construction
`included "near the catheter assembly" in forming
`your opinion in your declaration [as said]?
` A. I've just told you, it wouldn't have
`changed my opinion one way or the other.
` Q. But you're not answering my question. You
`didn't apply the construction included in the terms
`"near the catheter assembly" in forming your opinion
`in your declaration, did you?
` A. The specification in the patent and the
`description of the patent all deals with formation
`of the super-ionized plasma near the catheter
`assembly. That was just an understanding of the way
`that -- that the patent works. So in terms of that,
`it was just -- it would have been -- it would have
`been part of the understanding of a person of
`ordinary skill in the art. It wouldn't have made
`any difference to my opinions whether it was -- that
`phrase was in there or not because it was
`implicitly -- it would have been implicitly in there
`anyway, so -- whether I stated it in my declaration
`or not.
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` Q. Turn to the '6- -- I've put before you the
`'652 patent.
` A. You have.
` Q. Would you put that before you, please.
` And just for the record, this is U.S.
`Patent No. 6,806,652.
` Do you recognize this document?
` A. Yes.
` Q. And also for the record, the exhibit
`number on the patent that I gave you is TSMC-1101.
` Please turn to the claims in this patent.
`And I can point to you column 34.
` A. I'm there.
` Q. Okay. Please read Claim 18?
` A. (Witness reviews document.)
` Okay.
` Q. And please read Claim 1.
` A. Claim 1?
` Q. Yes. It's in column 33.
` Do you see -- in element D in Claim 1, do
`you see the term "super-ionizing"?
` A. Yes.
` Q. And you would agree that the -- part of
`element D recites "the electric field super-ionized
`in the initial plasma so as to generate a
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`high-density plasma." You would agree?
` A. That's what it says, yes.
` Q. And in comparing that with Claim 18,
`element C, do you see the term that reads,
`"super-ionized in the initial plasma proximate to
`the catheter assembly thereby generating a
`high-density plasma"?
` A. Yes.
` Q. And you would agree that in element D of
`Claim 1, super-ionizing the initial plasma so as to
`generate the high density of plasma,doesn't
`expressly require that it be ionized proximate to
`the catheter assembly; correct?
` A. Well, that's -- that's in limitation C the
`initial -- where it says the initial plasma and
`excited atoms being proximate to the catheter
`assembly. So it's in the claim.
` Q. But isn't it -- it certainly is possible
`that the initial plasma in the excited atoms don't
`have to stay proximate to the catheter assembly for
`super-ionization; correct?
` MR. FAHMI: Objection; form.
` THE WITNESS: That would be a claim
`interpretation that I hadn't thought about. I can't
`really express an opinion on that off the cuff.
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`BY MR. TENNANT:
` Q. And you do understand that Claim 1 was
`construed -- or at least -- strike that.
` You do understand that the
`"super-ionizing" term from Claim 1 was construed in
`the Institution decision for the 1088 case; correct?
` A. That -- you said 1088?
` Q. 88. Yeah.
` A. Yes.
` Q. And you also agree that in the 1088 case,
`the Board didn't require that the super-ionization
`of the initial plasma occur near the catheter
`assembly?
` A. They didn't include that phrase.
` Q. S
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