. \
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 1of12 PagelD #:
`13225
`
`SUMMARY JUDGMENT OF NON-INFRINGEMENT
`
`SJ-N.I.REPLY EXHIBIT 4
`
`SOLENIS EXHIBIT 2023
`Hydrite v. Solenis, IPR2015-01592
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 1of12 PagelD #:
`13225
`
`SUMMARY JUDGMENT OF NON-INFRINGEMENT
`
`SJ-N.I.REPLY EXHIBIT 4
`
`SOLENIS EXHIBIT 2023
`Hydrite v. Solenis, IPR2015-01592
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 2of12 PagelD #:
`
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`UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF INDIANA
`
`INDIANAPOLIS DIVISION
`
`IN RE: METHOD OF PROCESSING
`
`MASTER CASE NO.
`
`ETHANOL BYPRODUCTS AND
`
`1:10-ml-2181-LJM-DML
`
`RELATED SUBSYSTEMS ('858)
`
`PATENT LITIGATION
`
`* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
`
`VIDEO DEPOSITION OF
`
`DAVID ROCKSTRAW, PH.D.
`
`* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
`
`Date: June 12, 2013
`
`Reporter: Lisa Peterson
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 3 of 12 PagelD #:
`1':t??7
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`restricting the witness solely to the letter and
`
`excluding all other communications, correct?
`
`BY MR. RYE:
`
`Q.
`
`A.
`
`Yes.
`
`I guess the term inherently
`
`requires separation of corn oil. It suggests the
`
`separation of corn oil. It indicates that is what
`
`the purpose of the unit is for.
`
`Q.
`
`But is any method or way of
`
`separating the corn oil inherently required in this
`
`letter?
`
`A.
`
`If you are asking if the method is
`
`expressly stated, I don't see it in the letter
`
`itself.
`
`I'm not sure what you mean by inherently
`
`required.
`
`Q.
`
`Is there anything inherent -- Is
`
`there a method
`
`There's more than one way to
`
`extract corn oil, correct, back at the time of this
`
`letter, is that correct?
`
`A.
`
`Q.
`
`That's correct.
`
`If there isn't any specific method
`
`for separating the corn oil stated as in the letter,
`
`there isn't -- since there were a number of potential
`
`different ways of extracting corn oil, no particular
`
`method was inherently required, isn't that correct?
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 4 of 12 PagelD #:
`1~??R
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`A.
`
`I think the one word required is
`
`what's hanging me up.
`
`Q.
`
`There's no method that is inherent
`
`to extract corn oil through this letter?
`
`A.
`
`When the letter is taken by itself,
`
`it's not apparent there's a method that is described.
`
`Q.
`
`A.
`
`Or required?
`
`Some method is required because you
`
`are achieving a separation.
`
`Q.
`
`It's just some method though,
`
`correct?
`
`A.
`
`Q.
`
`Some method is required, yes.
`
`You have read the court's claim
`
`construction order in connection with this matter,
`
`haven't you?
`
`A.
`
`Q.
`
`I have.
`
`You understand that the court
`
`construed the meaning of the phrase substantially
`
`free of oil to mean mostly or largely free of oil?
`
`A.
`
`That is what I read in the claim
`
`construction, yes.
`
`Q.
`
`You understand that a process
`
`recovering 51 percent of the oil meets that claim
`
`construction?
`
`A.
`
`That is what I understand, yes.
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 5 of 12 PagelD #:
`1".l??Q
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`153
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`Q.
`
`Because 51 percent is mostly?
`
`MR. TEMPESTA: Objection. You can
`
`answer.
`
`A.
`
`I understand what the claim
`
`construction was. Whether I agree with it or not is
`
`a different subject, I guess.
`
`BY MR. RYE:
`
`Q.
`
`Paragraph 92 of your report on page
`
`40 you reference a letter from June 29 of 2003. Do
`
`you see that?
`
`A.
`
`Q.
`
`I do.
`
`I'm going to show you a letter
`
`Bates numbered AGRI 473 to 474 dated July 29, 2003
`
`from David Cantrell to Gerald Winter and Jay Sommers.
`
`Is this the letter you were referencing in paragraph
`
`92?
`
`A.
`
`Q.
`
`Yes.
`
`For the record, this has previously
`
`been marked Exhibit 212.
`
`It starts out, "We are very
`
`excited about potential to remove oil from your waste
`
`syrup."
`
`A.
`
`Q.
`
`Do you see that?
`
`I do.
`
`The second paragraph beginning with
`
`the second sentence it says, "With this a decanter
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 6 of 12 PagelD #:
`1~?~n
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`179
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`testimony.
`
`A.
`
`That was my understanding is that
`
`this letter went in conjunction with the
`
`communications around that time period.
`
`BY MR. AL:
`
`Q.
`
`Does the letter and the
`
`communications that went around that time period, do
`
`those reflect that the hardware that is at issue in
`
`the July 31, 2003 letter inherently practices the
`
`methods set forth in the patents at issue?
`
`MR. RYE: Objection. Assumes
`
`facts not in evidence. Vague. Misstates prior
`
`testimony.
`
`A.
`
`To me that was clear, yes.
`
`BY MR. AL:
`
`Q.
`
`Do you understand from the Jay
`
`Sommers testimony that Agri-Energy knew the
`
`centrifuge would be used?
`
`A.
`
`That is what I understand from his
`
`testimony, yes.
`
`Q.
`
`Do you understand from his
`
`testimony he knew the July 31, 2003 letter related to
`
`the sale of a centrifuge setup?
`
`A.
`
`That is what Jay states in his
`
`deposition, yes.
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 7of12 PagelD #:
`1~?~1
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`180
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`Q.
`
`I'd like to turn to your rebuttal
`
`expert report for just a moment, Exhibit 1551.
`
`Mr. Rye asked you a question about the text contained
`
`in paragraph four of your rebuttal report relating to
`
`the 51 percent number. Do you remember that?
`
`A.
`
`Q.
`
`I do.
`
`How many paragraphs are there in
`
`your rebuttal expert report Exhibit 1551?
`
`A.
`
`Up to the appendix there are 22
`
`numbered paragraphs.
`
`Q.
`
`Is your opinion with respect to
`
`your response to John McKenna contained only in
`
`paragraph 4 or in full 22 paragraphs of your rebuttal
`
`report?
`
`A.
`
`My opinion is contained in the
`
`entire report.
`
`Q.
`
`Do you have an opinion how much oil
`
`should be recovered to qualify the remaining syrup
`
`stream as substantially free of oil?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`I do have an opinion on that.
`
`What is your opinion?
`
`90 percent.
`
`Is that opinion set forth in your
`
`rebuttal report?
`
`A.
`
`It is.
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 8 of 12 PagelD #:
`1~?~?
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`Q.
`
`Can you tell us what paragraph that
`
`is set out in?
`
`A.
`
`Q.
`
`Paragraph 18.
`
`In your opinion do Al-Corn Clean
`
`Fuel and Ace Ethanol infringe Claim 8 of the '858
`
`patent?
`
`A.
`
`Q.
`
`They do not.
`
`In your opinion do Al-Corn Clean
`
`Fuel and Ace Ethanol infringe Claim 7 of the '516
`
`patent?
`
`not.
`
`A.
`
`As stated in paragraph 20 they do
`
`Q.
`
`If the court were to disagree with
`
`you with respect to your 90 percent number as set out
`
`in your rebuttal report, do you then maintain that
`
`the patent claims remain invalid as set forth in your
`
`March 22, 2013 report?
`
`A.
`
`That is the opinion I state in
`
`paragraph 21.
`
`Q.
`
`You were asked earlier this
`
`afternoon about the ten percent energy savings and
`
`you testified about energy savings of no more than
`
`0.2 percent. Do you recall that testimony?
`
`A.
`
`Q.
`
`I do.
`
`Did you include as part of the
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 9of12 PagelD #:
`1':l?':l':>
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`energy savings the cost of running and operating the
`
`corn oil recovery centrifuge?
`
`A.
`
`That was not included from my two
`
`percent savings calculation.
`
`Q.
`
`A.
`
`Q.
`
`Does the centrifuge consume energy?
`
`It does.
`
`Do you have any idea whether part
`
`of the 0.2 percent energy savings in the dryer would
`
`be offset by the operating cost of the centrifuge?
`
`A.
`
`I did not quantify that number but
`
`I would not expect the two percent savings to off set
`
`the energy used in running the centrifuge.
`
`Q.
`
`You said two percent. Did you mean
`
`0.2 percent?
`
`A.
`
`Q.
`
`0.2 percent, yes.
`
`In my next series of questions I
`
`would like you to assume we are in 2003, that we are
`
`in a dry grind ethanol facility, that we want to keep
`
`some oil in the DDGS and that we want to keep plant
`
`operations as much as possible the same. Okay?
`
`A.
`
`Q.
`
`Okay.
`
`Given those four assumptions, could
`
`you in 2003 recover nonedible oil?
`
`A.
`
`Q.
`
`I could.
`
`What methods could you use to
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 10of12 PagelD #:
`1-::t?':l.A
`
`183
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`recover nonedible oil?
`
`A.
`
`I could use a number of methods.
`
`The one I would select would be a centrifuge.
`
`Q.
`
`Where would you place that
`
`centrifuge?
`
`A.
`
`I would place the centrifuge -- I
`
`would make the centrifuge operate on the concentrated
`
`stillage.
`
`Q.
`
`What would lead you to place it in
`
`the concentrated thin stillage stream?
`
`A.
`
`The spin tests I have seen show
`
`that that separation happens readily. The flow rate
`
`of that stream is significantly reduced as compared
`
`to the thin stillage, thereby reducing the capital
`
`investment in the number of centrifuges or the size
`
`of the centrifuges you are going to need to perform
`
`the separation at that location. So initial
`
`heuristics suggest that is the lowest cost place of
`
`putting it.
`
`BY MR. RYE:
`
`MR. AL: No further questions.
`
`RE-EXAMINATION
`
`Q.
`
`A couple followup. You said there
`
`were a number of different methods you would
`
`consider?
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`..
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 11of12 PagelD #:
`1~?~t;:
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`184
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`A.
`
`Q.
`
`A.
`
`Right.
`
`What are the other methods?
`
`I would have considered solvent
`
`extraction.
`
`Q.
`
`A.
`
`What else?
`
`I would have looked at all the
`
`sedimentation methods, and the spin test would have
`
`told me which one I would have had to have gone with.
`
`Obviously if you can simply decant something, the
`
`capital footprint for putting a decanter in is much
`
`smaller.
`
`Q.
`
`A.
`
`Where could you have decanted?
`
`According to the spin test
`
`decanting probably was not an option because of the
`
`rate at which separation occurred, but if you could
`
`decant, you would decant the concentrated stillage
`
`also.
`
`Q.
`
`You said that to you substantially
`
`free of oil means greater than 90 percent oil?
`
`A.
`
`Q.
`
`A.
`
`That's correct.
`
`What is that based upon?
`
`In my rebuttal report I provide an
`
`explanation, actually set forth a calculation. Most
`
`of our training as chemical engineers is to express
`
`numbers in factors of ten, and a factor of ten or an
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
`
`
`
`Case 1:10-cv-08011-LJM-DML Document 351-3 Filed 01/17/14 Page 12of12 PagelD #:
`1':l?':lR
`
`'9
`
`'
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`"
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`185
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`order of magnitude is the step change in a quantity
`
`that we look before we assume something significant
`
`has happened.
`
`So through an order of magnitude
`
`analysis one factor of ten represents a 90 percent
`
`separation.
`
`Q.
`
`Do you know whether the patents in
`
`suit said how much oil they remove on a
`
`percentage-wise basis?
`
`A.
`
`Q.
`
`I don't recall.
`
`You didn't factor whatever they may
`
`or may not have said in the patent into your analysis
`
`of what substantially free of oil meant?
`
`A.
`
`From my rebuttal report I'm
`
`providing my opinion of what it means.
`
`Q.
`
`Just based on one of skill in the
`
`art as opposed to what they discussed in the patent?
`
`A.
`
`It was posed to me what would you
`
`interpret substantially to mean.
`
`Q.
`
`A.
`
`Q.
`
`Just to one of skilled in the art?
`
`Correct.
`
`You said before that your
`
`understanding of the amount of moisture present in
`
`DDGS is about ten to 12 percent?
`
`A.
`
`That is my understanding.
`
`Rockstraw, David (Vol. 01)
`
`- 06/12/2013
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