`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ---oOo---
`
`LAM RESEARCH CORP.,
` Petitioner,
`vs. No. IPR2015-01767
`DANIEL L. FLAMM, Patent No. 6,017,221
` Patent Owner.
`_________________________/
`
` DEPOSITION OF DANIEL L. FLAMM, Sc.D.
` OAKLAND, CALIFORNIA
` TUESDAY, JULY 26, 2016
`
`BY: ANDREA M. IGNACIO, CSR, RPR, CRR, CCRR, CLR ~
`CSR LICENSE NO. 9830
`JOB NO. 110249
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ---oOo---
`
`LAM RESEARCH CORP.,
` Petitioner,
`vs. No. IPR2015-01767
`DANIEL L. FLAMM, Patent No. 6,017,221
` Patent Owner.
`_________________________/
`
` Deposition of Daniel L. Flamm, Sc.D, taken on
` behalf of the Petitioner, at Weaver Austin
` Villeneuve & Sampson, LLP, 555 12th Street,
` Oakland, California 94607, Pursuant to
` Notice, and before me, ANDREA M. IGNACIO, CSR, RPR,
` CRR, CLR ~ License No. 9830.
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`A P P E A R A N C E S:
`
` FOR THE PETITIONER:
` IRELL & MANELLA
` By: MICHAEL FLEMING, Esq.
` SAMUEL LU, Esq.
` 1800 Avenue of the Stars
` Los Angeles, California 90067
`
` FOR THE PATENT OWNER:
` STADHEIM & GREAR
` By: ROBERT SPALDING, Esq.
` 400 North Michigan Avenue
` Chicago, Illinois 60611
`
` ---oOo---
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` 10:44 A.M.
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` DANIEL L. FLAMM, Sc.D.,
` having been sworn as a witness
` by the Certified Shorthand Reporter,
` testified as follows:
`
` EXAMINATION
`BY MR. FLEMING:
` Q Can you please state your name and home
`address for the record.
` A Sure.
` Dan Flamm -- or Daniel, middle initial L,
`Flamm. And my address is 476 Green View Drive, Walnut
`Creek, California 94596-5459.
` Q And so, you understand you've taken an oath
`to tell the truth?
` A Yes. Always do.
` Q And you understand that this oath has the
`same force and effect as given in a court of law
`before a judge and jury?
` A I understand. I'm an attorney as well, as
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`you know.
` Q So, is there anything preventing you from
`making full and accurate answers today?
` A Not to my knowledge at this time.
` Q Is there any reason you cannot give your best
`testimony today?
` A I never know when you're going to do your
`best, but we will try to be responsive.
` Q So there's no medical reason or any --
` A Not known to me.
` Q If -- if you do not ask me to clarify a
`question, I will assume you understand the question;
`is that fair?
` A Well, I mean, I don't want to be picky. I
`mean, I'll do my best is the answer.
` Q Are you represented by counsel today?
` A Yes.
` Q Can you please identify him.
` A Sure.
` This is Rob Spalding and George.
` Q George --
` MR. SUMMERFIELD: Summerfield.
` THE WITNESS: Summerfield.
` MR. FLEMING: Q. This is important: Do you
`understand that you're under oath, even when we take a
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`break?
` A Sure.
` I am generally pretty careful to say things
`accurately, regardless.
` Q And you understand that, when you're under
`oath, your counsel cannot coach you, act as an
`intermediate, interpret questions, or help you answer
`the questions?
` A I'm not sure what your point is precisely.
`I -- I -- my counsel isn't coaching me, if that's what
`you're asking.
` Q And they're not going to help you answer the
`questions?
` A Not to my knowledge. I suppose if I request
`help, possibly, but...
` Q You also understand that it's inappropriate
`to have coaching between cross-examination and
`redirect?
` A (No audible response.)
` Q It's a little bit unique to IPR practice.
` A Yeah, I've never given a deposition in any
`IPR practice prior, even though I've had some exposure
`to IPRs from my professional work.
` Q You understand your counsel cannot instruct
`you not to answer a question unless it's necessary to
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`preserve privilege?
` That's also kind of unique to IPR practice.
` A I guess, yeah. We can -- if some issue comes
`up, we can discuss it at the time, I suppose.
` Q You also understand that, unless your counsel
`instructs you not to answer in order to preserve
`privilege, you must answer the question?
` A Well, if there's something that's privileged,
`I probably would elect not to answer. But, you know,
`not knowing what the subject matter is, I can't
`forecast that.
` Q This is actually IPR practice.
` A Well, it depends on the subject matter,
`clearly. So, if you ask me something that doesn't
`concern the subject matter at issue, and it's a
`privileged conversation -- for example, if you ask me
`about my practice as an attorney, they're privileged.
`The information belongs to the client, not to me, and
`I would not be responsive for that reason.
` Q So you understand, though, that you would
`have to answer the question unless it's a question of
`privilege?
` A Oh, unless it's -- I didn't understand. I
`thought you said if it were privilege.
` Q No, no.
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` A I -- please excuse me.
` Q Okay. Did you do anything to prepare for the
`deposition?
` A Not particularly, no.
` Q Did you meet with your attorney?
` A I met with -- with -- with both George and
`Rob yesterday for a short period of time.
` Q How long was that?
` A Concerning the deposition, maybe a bit over
`an hour.
` Q Did you review the documents in preparation
`for the deposition?
` A I did a -- I reviewed some documents, kind of
`just skimmed over them. There were a lot of
`documents. And I had seen documents some time ago
`when responses and things like that were prepared.
` So, if the question is whether I read
`everything, the answer is no.
` Q So, what documents did you review?
` A Mostly, the -- I guess there were -- there
`was a response to the -- some -- some of the IPR
`motions, and I -- I skimmed some of your filings, you
`know, kind of like that, but nothing -- I didn't go
`over, for example, all of the art that you folks
`cited, even though I took a look at some.
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` Q Did you bring any documents with you today?
` A I brought one document, which was not part of
`the package that was filed, because I thought it might
`be of interest.
` Q Can I see the document?
` A Sure.
` MR. FLEMING: For the record, the document is
`Dible, U.S. Patent No. 5,824,606. And for the record,
`there are no markings on the -- on the document. I'm
`returning it back to the witness.
` Q Have you ever been deposed before?
` A I have; not in an IPR, as I said earlier, and
`not for a long time right now.
` Q Was it in a court case?
` A I have been in court cases in other
`situations. I've been deposed quite a number of times
`in the past. I -- you know, probably -- I don't
`really remember, you know, but it's probably on the
`order of half a dozen times. Could be more; probably
`not less.
` Q Did it have to do with a patent?
` A Yeah, yeah. I -- prior to my becoming a
`patent attorney, I was a consultant in patent
`litigation, quite a lot of it, actually, both in the
`U.S. and abroad. And I wasn't what you would call a
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`professional witness. But when I was doing other
`things, occasionally I had been asked to advise
`attorneys in -- in litigation cases.
` Q Approximately how many times were you an
`expert witness?
` A I didn't say an expert witness. I said a
`consultant. As far as being a witness, probably --
`you know, I don't remember, but less than five. I
`generally -- my role was to advise attorneys and --
`and hire other witness -- hire witnesses as
`appropriate to the subject matter.
` Q The --
` A I've done inspections, discovery, things like
`that; again, not as an attorney. I've been primarily
`a prosecuting attorney and contract attorney, but not
`so much in...
` Q Of the matters in which you were an expert
`witness, were these court cases that were of public
`record?
` A The short answer is, I don't know the extent
`of the public record because in some cases the
`documents were sealed, and it was not my position to
`investigate afterward. So, you know, I couldn't give
`you a detailed answer because I don't know the
`detailed answer.
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` Q Were these -- can you reveal who the client
`was on these cases?
` A I don't know. So, there were a series of --
`I mean, early on I worked on a case where then Hyundai
`was being sued by Micron, and it went on for a long
`time. I'm trying to -- so I think that -- I'm just
`trying to remember if I was ever in court. I'm not
`sure I was actually in court, although I may have
`given depositions in other cases.
` So, as I said, most of my -- most of my work
`was more attorney-like, even though I was not an
`attorney at the time, if that helps. So, because of
`that, also a lot of what I did is privileged because I
`was basically working under the employ of an attorney.
`And, you know, therefore, all the information belongs
`to the client and, you know, I can't differentiate.
` So, you know, they were generally in matters
`related to semiconductor, chemistry, things like that.
`I -- I've never actively sought to be employed as an
`expert witness. So generally, it was upon request.
` Q The opinion that you've given in this case,
`is your -- are they complete?
` A Complete?
` I don't know how to answer that.
` Q Were you relying on any source of information
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`for your declaration?
` A Well, certainly, there's information that's
`at issue. The information comprises the subject
`patents. It comprises art that you folks cited. It
`comprises other art. I don't have a list, if that's
`what you're asking.
` And I'm -- it happens -- this happens to be a
`field where -- where I generally worked quite a long
`time, and -- and, you know, probably it's fair to say
`I'm pretty knowledgeable. So, I don't necessarily
`need to rely on other sources.
` Q So, you didn't look beyond what was the
`documents of record?
` A I don't think so. You know, I can't -- I
`mean, I look at documents all the time, so I can't --
`I didn't -- actually, I've been time limited during
`the interval that's -- you know, we're talking about
`here. So, I've done much less than I might have liked
`to had I had more time.
` Q Did you write the declarations yourself -- or
`the declaration?
` A I -- I didn't -- I did write -- I did write
`probably the majority of the text in the declaration,
`as it turns out.
` Q So --
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` A I -- again, you know, this -- this was a
`collaborative -- putting together the declaration was
`done with the assistance of attorneys. So, I wrote
`things responsive to -- you know, that came out of
`discussion and, you know, reading your documents at
`the time, and it got -- clerical staff and attorneys
`put it into the proper format for a declaration.
` MR. FLEMING: Okay. I need Exhibit 2002 --
`I'm sorry -- 2001.
` MR. LU: Okay. Sorry.
` MR. FLEMING: Sorry.
` (Document marked Exhibit 2001
` for identification.)
` MR. FLEMING: For the record, I'm presenting
`Exhibit 2001. It's the --
` Q Dr. Flamm, do you recognize this document,
`Exhibit 2001?
` A It appears to be a copy of the declaration
`that I -- that I -- was submitted under my name.
` Q Is this the complete copy that I gave you?
` A Well, it appears to be. I haven't -- I
`haven't -- I don't have any reference to -- you know,
`to compare it, but it appears. I have no reason to
`think it isn't.
` Q So, this is the declaration you submitted?
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` A I -- I think so.
` Q For -- I should be clear on the record --
`IPR2015-01767.
` Is this --
` A That's what it says, certainly.
` Q Okay. You can feel free to refer to the
`document --
` A Okay.
` Q -- during the deposition.
` If we look at your Appendix A of
`Exhibit 2001.
` A (Witness complies.)
` Uh-huh. That appears to be a bio.
` Q I see that you went to law school?
` A I did.
` Q And is -- you're listed as you went to Golden
`Gate University School of Law --
` A Yes.
` Q -- in 2004?
` A No. It says that I graduated in 2004.
` Q Okay. And you received --
` A Oh, hang on. I'm not -- yeah, that's
`correct. Okay.
` Q You graduated -- that's showing 2004. It's
`showing that's when you graduated.
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` A Yeah, that would -- normally, when you put
`down a degree, which is what this says, juris
`doctorate --
` Q Right.
` A -- you would ordinarily put down the year in
`which you were granted that degree rather than the
`year in which you enrolled in school.
` So I -- I actually started at a different law
`school, which -- I didn't know much about law school.
`I'm an accidental attorney, actually. So I -- there
`was kind of a pep rally in our town, and I was walking
`down the street, and out of curiosity walked in.
` And this was the John F. Kennedy School of
`Law, which, as I later learned, is a Cal Bar school,
`not an ABA-approved school. And so I took some
`courses in the evening there. Effectively, I
`completed my first year of law school at JFK
`University.
` And by then, I understood that there was, you
`know, the drill and the accreditation, and there was
`actually a bar exam, which in California is pretty
`grueling, which I might not have walked in had I known
`about that in advance.
` And I transferred anyway to Golden Gate,
`which is a 30-minute BART ride away, and finished up
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`there after two more years, again, essentially,
`part-time. I went to school during the summer, so it
`was --
` Q So, are you a patent attorney?
` A I am.
` Q And what is your USPTO patent registration
`number?
` A 52 or 541 -- here we go -- 54100.
` MR. FLEMING: Can I have Exhibit 1001.
` (Document marked Exhibit 1001
` for identification.)
` MR. FLEMING: For the record, I'm handing
`Dr. Flamm Exhibit 1001. It's U.S. Patent
`No. 6,017,221.
` Q Do you recognize this document, Dr. Flamm?
` A It appears to be the document you cited.
` Q Is the declaration you submitted in the IPR
`for the '221 patent, IPR2015-01767?
` A I'm sorry. You're asking me a question?
` Q Yes, I did.
` I'm asking you: Was the declaration that you
`submitted concerning about this --
` A It concerns this patent.
` Q Yes.
` A Yes. Or actually, more accurately, it
`
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`concerns the -- it concerns comprised patent.
` Q Who is the inventor on this?
` A I am.
` Q Okay. Are you the only inventor?
` A I am the sole inventor.
` Q Are you the owner of the patent?
` A I am.
` Q Did you write the spec?
` I should say specification.
` A So -- I'm sorry? Please.
` Q I was just clarifying the record.
` I asked you: Did you write the
`specification?
` A I did not draft the specification.
` Q Did you amend the specification?
` A No.
` This is a continuation. So, it was based on
`an original specification, which is not one I drafted.
` Q Did you write the claims?
` A I did draft the claims -- wait a moment. Let
`me be careful here. I may be confused.
` I -- no, I did not draft these claims. I'm
`sorry. Please correct that. I was confusing myself
`with a different patent at issue. So this -- for this
`patent, I did not draft the claims.
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` Let me make sure I'm correct, but I think
`that's the case. I do not believe I drafted the
`claims here, no.
` In fact, it says on the -- on the -- well, of
`course, that's not determinative, but the patent --
`this patent was filed by Townsend & Townsend. It says
`that on the cover page.
` Q So did --
` A And the attorney who did the -- drafted and
`filed this patent was Richard Ogawa.
` Q Did you review these claims when they were
`being drafted before they were filed?
` A Yes, of course.
` Q Did you offer amendments?
` A Not that I can recollect.
` Q You just accepted what --
` A Well, the drafting was -- in the first place
`was the result of conferring with my attorney and
`deciding on what to claim. Now, this was filed way --
`this was filed in 1997. So I -- I do not, at this
`time right now, crisply remember all of the
`interactions I had with my attorney at that time, but
`I remember generally what was done.
` Q So, this is a continuation-in-part; isn't
`that correct?
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` A Let me confirm.
` Yes.
` Q So, there was an amendment to -- adding new
`material to this?
` A Not necessarily, because the -- the way --
`the way a continuation-in-part works, if you change
`language within the patent, then often you just file
`it as a continuation-in-part, even though it -- it may
`not have materially new matter.
` So some -- sometimes a continuation-in-part
`does have new matter, as you say, and sometimes it
`does not. It just depends.
` So, in order to -- right off the bat, I do
`not think this has new matter in it.
` Q But it's listed as a continuation-in-part?
` A Correct, because some parts may have been
`truncated or some language may have been corrected,
`for example, if there were typographical errors or
`things that deserve clarification. I do not recall
`right offhand.
` Q So, you filed a continuation --
` A It's easy to tell, because you can simply
`compare it with the original filing and identify
`anything which you may think is different. I don't
`think there is anything here that wasn't part of the
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`original filing that's material.
` MR. FLEMING: I'd like to hand you another
`document I'd like to introduce into the record --
`well, it's already in the record -- no. I want to
`introduce this into the record as Exhibit 1018.
` (Document marked Exhibit 1018
` for identification.)
` MR. FLEMING: Oh.
` Q Do you recognize this document?
` A This is a different patent.
` Q And what -- what is this patent?
` A Multi-temperature processing.
` Q And it's Patent No. U.S. RE40,264E?
` A That's the way it's marked, yes.
` Q And are -- are you the inventor?
` A I am.
` Q Are you the sole inventor?
` A I am.
` Q Are you the owner?
` A I am.
` Q Were you the patent attorney for this?
` A Well, yes and no, because this is a reissue.
`So the original -- in this case, the original patent
`was drafted and filed again by Richard Ogawa. And I
`filed a reissue, as you can see, and I drafted claims
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`Page 21
`on the reissue. So, this was a broadening reissue, so
`these claims were broader than the original claims.
`But the -- it's -- it's -- as with the continuation,
`it has the original specification.
` Q So you're the -- a patent attorney. And when
`you file a reissue --
` A Actually, I was not an attorney at the time
`that this was filed.
` Q You were an agent?
` A No. I was --
` Q You were a pro se?
` A Pro se. That's correct.
` And, in fact, I did not have the skills that
`I learned in law school. And subsequently, I -- I had
`some exposure to patent prosecution through my work,
`which you asked me about earlier, but I had not -- I
`really had no identifiable drafting skills. It just
`was kind of a do-as-you-go kind of thing.
` Q So, you did write these claims that are in --
` A That's what I said, yes.
` Q As well as the -- the additions into the
`spec?
` A What additions are you making reference to?
` Q I believe there are some bracketed parts of
`the spec.
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` A There may have just been typos. I -- I --
`I'm not prepared to speak to that without looking at
`the file history.
` The brackets that I see -- oh, there were
`some errors in the figures. These are just
`typographical corrections.
` So there -- there was no -- I don't think
`there was anything material added to the
`specification. These were just corrections.
` Q Can we turn -- turn back to Exhibit 1001.
` A I'm sorry. Which is?
` Q I'm going to refer to this as the
`'221 patent.
` A Okay. Perfect.
` Q Makes it easier --
` A That makes it easier for both of us.
` Q Yeah.
` Can we look at Figure 4.
` A (Witness complies.) Okay.
` Q And can we also look at claim 1 at the same
`time.
` A It's difficult to do at the same time.
` Q Yeah, flip back and forth, or you can use
`your copy, if you want.
` A (Witness complies.) Okay.
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` Q Reviewing claim 1, is the embodiment shown in
`Figure 4 encompassed in the scope of independent
`claim 1?
` A I think so.
` Q Do you agree that the element labeled 400 in
`Figure 4 is a wave adjustment circuit?
` A I'd have to check and see what the legend
`says, because it refers to an outline, and --
` Q Maybe I can help you.
` If you look at column 16, lines 4 through 6,
`I believe there, it says --
` A 16, lines 4 through 6. I don't -- I must be
`looking at the wrong pages. I don't see a 400 there.
` Oh, here we go. 400. Yeah. Okay. So, it
`evidently refers to the contents of the -- what's
`enveloped by 400.
` Q So, if we read that sentence that starts on
`line 4. Could you read that for me, the first --
` A It starts on line 4?
` Q The sentence.
` A Oh.
` "The helical resonator 126 includes a
`coil 132, an outer shield 133, a wave adjustment
`circuit 400, and other elements."
` Q Could you also look at Figure 2A.
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` A (Witness complies.) Yep.
` Q And, looking at claim 1 as well, is the
`embodiment shown in Figure 2A also encompassed in the
`scope of independent claim 1?
` A I think so.
` Q Could you read column 10, lines 14 through
`28.
` A Line 14 through what?
` Q 28.
` A That's a lot of text.
` Q Yeah, I want to -- if you wouldn't mind,
`please.
` A "In this embodiment, the wave adjustment
`circuits are adjusted to provide substantially zero AC
`voltage at one point on the inductive coil (refer to
`point 00 in FIG. 2A). This embodiment also provides
`substantially equal phase 70 and anti-phase 71 voltage
`distributions in directions about this point (refer to
`00-A and 00-C in FIG. 2A) and provides substantially
`equal capacitance coupling" -- which I presume is a
`typo, because it probably should say capacitive -- "to
`the plasma from physical inductor elements (00-C) and
`(00-A), carrying the phase and anti-phase potentials.
`Voltage distributions 00-A and 00-C are combined with
`C-D and A-B (shown by the phantom lines) would
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`substantially comprise a full-wave voltage
`distribution in this embodiment, where the desired
`configuration is a selected phase/antiphase portion of
`a full-wave inductor (or helical resonator)
`surrounding the plasma source discharge tube."
` Q Thank you.
` MR. FLEMING: Can we just take a break here.
`My computer is about to go out because it says I have
`no power.
` (Recess taken.)
` MR. FLEMING: Q. Before the break, you had
`read a passage from column 10, lines 14 through 28.
`And -- and I believe it's referring to Figure 2A; is
`that not correct?
` A It says Figure 2A, so --
` Q So let's look at Figure 2A.
` A (Witness complies.)
` Q And the waveform that's shown to the right of
`the figure, this is the voltage distribution of the
`points on coil 55; is that not correct?
` A Well, it is a complex waveform, some of it in
`solid and some of it in dotted line. So the -- you
`know, to be precise, we'd have to say more about it, I
`think.
` Q So, to be precise then, if we looked at
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`point A, for instance --
` A Okay.
` Q -- that's the voltage at the output of the
`lower adjustment circuit 59; is that not correct?
` A Output?
` Q The point on --
` A No. The -- the point A refers to a point on
`the coil that suspends the discharge tube.
` Q And what element are you referring to as
`discharge tube?
` A Well, there's -- there's a dash-dotted line,
`which I'm looking for the label here. It may be 52.
`I am not -- you know, the problem with these things
`is, depending on the drafter -- figure drafter, the --
`the lead lines can be a little different. But I think
`it's 52.
` And that 52 appears -- again, I haven't
`looked at this for a while, but it appears to
`illustrate a tube which, in use in a -- for its
`intended purpose, would ordinarily be evacuated and
`filled with a gas, and the elements that surround it
`would ignite and sustain an electrical discharge
`within that tube.
` Q So, to be clear then, point A then is the
`voltage on the lead line on element 52 shown on the
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`lower part of --
` A No.
` I said that the point -- well, point A
`appears to be the voltage on the portion of the coil
`or the element of the inductive coil that
`circumscribes helically the discharge tube, which we
`said was 52.
` Q So then, point A does not rep- -- it
`represents a point on that coil that's shown at 55?
` A I think that's accurate, yes.
` Q And then, where is point A referring to as
`far as that point on the coil at 55?
` Is it not the lower part of that coil?
` A Yes. That's what I -- so "lower" meaning
`lower vertically, yes, I think.
` Q Okay. Yeah.
` So, to be clear on my nomenclature, what I
`was referring to is, looking at the figure, it's the
`bottom of the coil shown in the figure?
` A Yeah, it's, generally speaking, the
`bottommost portion of the coil that seems to be the --
`the wavy line isn't necessarily what -- the way you
`and I might draw a coil, but --
` Q Right, right.
` A -- that's the way the drafter --
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` Q Right.
` A -- chose to do it.
` Q And then point C is the point on that coil 55
`that's on the upper portion?
` A Uppermost portion, I think.
` Q And then 00 is the middle point of the coil?
` A Again, generally, yes.
` Q So, looking at that waveform -- actually, I'm
`going to be clear. It's a -- it's a voltage
`distribution, not a waveform.
` A Well, no. I think -- I think both of those
`terms could be used through this situation.
` Q Okay.
` A It's a standing wave, which is a waveform.
`It's not constant in time, but it's still a waveform.
` Q So then, what's important is that point A is
`opposite in voltage than point C?
` A Well, you said "what's important." I'm --
` Q Well --
` A -- not sure where we're going with that.
` Q Yeah.
` Well, it does show, though, that it is the
`opposite --
` A Those are -- those are depicted as being
`equal and opposite, for sure.
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` Q Okay. And that also, its phase is different,
`180-degree difference?
` A Well, sure. That's what equal and opposite
`means; right?
` Definition.
` Q It's referring to both the time domain, as
`well as the frequency domain?
` A Well, the figure is not. The figure is
`illustrative of a -- of a snapshot in time. But, in
`the context of the entire discussion, it goes to the
`time domain in a certain manner as well.
` Q So, in the time domain, the way to describe
`it would be opposite polarity, opposite voltage?
` A There's an instantane