UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
`AUTHORITY,
`Petitioner,
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`v.
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`TRANSPORT TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`Case IPR2016-01633
`Patent 6,980,101
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`
`Record of Oral Hearing
`Held: October 27, 2017
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`
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`Before DAVID C. McKONE, GEORGIANNA W. BRADEN, and
`MONICA S. ULLAGADDI, Administrative Patent Judges.
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION
`AUTHORITY,
`Petitioner,
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`v.
`
`TRANSPORT TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`Case IPR2016-01633
`Patent 6,980,101
`____________
`
`
`
`Record of Oral Hearing
`Held: October 27, 2017
`____________
`
`
`
`Before DAVID C. McKONE, GEORGIANNA W. BRADEN, and
`MONICA S. ULLAGADDI, Administrative Patent Judges.
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`Case IPR2016-01633
`Patent 6,980,101
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`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
`ROBERT A. AUCHTER, ESQUIRE
`McKool Smith, P.C.
`1999 K Street, N.W.
`Suite 600
`Washington, D.C. 20006
`
`ON BEHALF OF PATENT OWNER:
`JASON S. ANGELL, ESQUIRE
`Freitas, Angell & Weinberg, LLP
`350 Marine Parkway
`Suite 200
`Redwood Shores, California 94065
`
`
`
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`The above-entitled matter came on for hearing on Friday, October
`27, 2017, commencing at 2:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
`JUDGE ULLAGADDI: Good afternoon and welcome to the
`Patent Trial and Appeal Board. We are here today for oral arguments in
`inter partes review matter number 2016-01633, a case in which L.A.
`County Metropolitan Transit Authority is the petitioner and Transport
`Technologies is the patent owner.
`Your panel for this hearing today includes myself, Judge
`Braden joining us from Texas, and Judge McKone joining us from
`Michigan. Good afternoon, Judges Braden and McKone, are you able to
`see and hear us clearly?
`JUDGE McKONE: I can hear you just fine, thank you.
`JUDGE BRADEN: As can I. Thank you.
`JUDGE ULLAGADDI: I would like to start by getting the
`appearances of counsel. Who do we have for petitioner today?
`MR. AUCHTER: Your Honor, here for petitioner today is
`Robert Auchter with McKool Smith.
`JUDGE ULLAGADDI: Thank you. And who do we have for
`patent owner?
`MR. ANGELL: Your Honors, Jason Angell, Freitas, Angell &
`Weinberg for patent owner, Transport Technologies, LLC. With me
`today is Dr. Kalon Kelley, the principal of Transport Technologies and
`also the inventor on the '101 patent.
`JUDGE ULLAGADDI: Thank you all for joining us. I have
`got a few administrative details that I would like to go over before we can
`get started today. Each party will have 45 minutes to argue their case.
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`And we are going to hear first from petitioner. Petitioner, you will
`present your arguments in chief, and then patent owner, you will be then
`be permitted to present your arguments. Petitioner, would you like to
`reserve any time for rebuttal today?
`MR. AUCHTER: Your Honor, petitioner would like to reserve
`15 minutes for rebuttal today.
`JUDGE ULLAGADDI: Fifteen minutes for rebuttal. Thank
`you for that. One thing I would like to mention is that when you are
`working through your demonstratives, if you could please reference the
`slide number. Judges Braden and McKone might have trouble seeing the
`projector, so if you could make sure that you let them know what slide
`you are discussing, that would be great.
`Counsel, when you are ready, you may begin.
`MR. AUCHTER: Thank you, Your Honor. May it please the
`Court, Robert Auchter with McKool Smith here on behalf of the
`petitioner, Los Angeles Metropolitan Transportation Authority.
`Your Honor, we are here today because of the petition that was
`filed by the petitioner, who I will call Metro rather than repeating the full
`name of the L.A. County Metropolitan Transportation Authority. Their
`responsibilities are as large as their name. They are responsible for
`thousands, if not possibly millions, of commuters every day in the entire
`Los Angeles County area. Their responsibilities include the Metro, the
`train system, the highways and the HOV and HOT lanes that are part of
`the Los Angeles County system.
`The claims that have been asserted in the '101 patent have been
`addressed in the petition and the declaration that was provided in support
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`Patent 6,980,101
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`thereof by Mr. Scott Andrews. In this particular case, the patent owner
`has not challenged either the claim construction that was reached in the
`institution decision nor the merits as to whether or not the claim elements
`are met by the disclosure of the Ontario report. As noted in the
`petitioner's reply, this is even given that the patent owner originally said
`that they would address the issues on the Ontario report if necessary.
`Having not done so, it is petitioner's position that the evidence
`presented by Mr. Andrews and through the report, at least with respect to
`whether or not each of the claim elements is satisfied, has been met and
`is not opposed. In view thereof, unless there are questions from the
`judges themselves, we believe it would be more efficient to move on to
`the issues regarding the availability of the reference rather than spending
`time reiterating the unopposed points of view with respect to whether or
`not the claim limitations are met by the disclosure of the Draft Ontario
`Report.
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`JUDGE ULLAGADDI: That's fine with me.
`MR. AUCHTER: Just in quick summary, again, it was the
`Andrews declaration and the petition which provided the evidence
`showing why there's both anticipation and a rendering obvious of the
`claims. Moreover, we note that there was no challenge to the Court's
`claim construction in this proceeding as well.
`So what is the Draft Ontario Report? The Draft Ontario Report
`is a report that was created by an engineering firm, McCormick Rankin
`Corporation, in Canada, as part of an Enterprise funded research project.
`The Enterprise is an organization that is a publicly-funded, pooled-fund
`research organization. By that it's meant that they take areas of interest to
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`Case IPR2016-01633
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`intelligent transportation systems, those very entities that run the
`transportation networks in this country, in this particular case, in Holland
`and in Canada. The members included such diverse organizations as the
`Kansas Department of Transportation, Minnesota Department of
`Transportation, Arizona, the Netherlands Department of Transportation,
`Ontario, the Federal Highway Administration and others.
`JUDGE McKONE: I assume you are looking at a slide. Please
`just let me know which one you are on.
`MR. AUCHTER: Your Honor, I was actually reciting from
`memory on that particular point.
`JUDGE ULLAGADDI: Before you continue, I would like to
`ask, is there any record evidence indicating that these are paid members
`of the Enterprise research program?
`MR. AUCHTER: That were who, Your Honor?
`JUDGE ULLAGADDI: That these departments of
`transportation are paid members of the research program.
`MR. AUCHTER: In terms of being paid, is Your Honor asking
`did they pay to be a part of Enterprise or did they receive money to be a
`part of Enterprise?
`JUDGE ULLAGADDI: That they paid money to join this
`pooled-fund research program.
`MR. AUCHTER: There's no evidence in the record that they
`actually paid money. But it would be consistent with the record to say
`that they did give contributions, and those contributions were used.
`Certainly Mr. Wong testified that in his view the moneys that were given
`were contributions and that the whole point of the pool to fund Enterprise
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`was that they would pool their funds together, and those funds would
`then be allocated to different research projects. Those research projects
`were for the benefit of the public as a whole.
`JUDGE ULLAGADDI: Thank you.
`MR. AUCHTER: In this particular case, the Enterprise
`research group was asked to and went forward with an investigation as to
`the availability of automated vehicle occupancy monitoring systems for
`HOV/HOT facilities. Specifically they conducted a nationwide --
`actually, a worldwide survey when they asked people as far away as
`Australia and certainly in Canada and in the United States and various
`police forces as well as various departments of transportation and vehicle
`manufacturers, et cetera, seeking input on the viability and the
`desirability of having HOV/HOT monitoring systems using things such
`as transponders and car monitoring in regulating HOV Lanes.
`One of the things that they specifically identified, as it appears
`on slide number 13, is that one could encompass a system in which you
`had self-identifying transponders which the motorists would key in the
`number of occupants in the vehicle, similar to what we believe is
`disclosed in the Hassett '183 patent, one of the two references that's used
`in this particular IPR. And that's described on slide number 14.
`One of the issues that has been raised by the patent owner here
`is what was actually distributed at the meeting in Duluth, Minnesota. We
`know that there was a meeting in Duluth, Minnesota, because we have
`the meeting records of that, the minutes that were made there, the
`contemporaneous notes of Mr. Legg, the notes of subsequent meetings
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`and the minutes after that as well. And of course, we have the testimony
`of Mr. Legg and Mr. Wong, who both attended the meeting themselves.
`There's no question --
`JUDGE BRADEN: And these meeting minutes, correct me,
`they are Exhibit 1018?
`MR. AUCHTER: Let me confirm that, but I believe that is
`correct. Yes, Your Honor, Exhibit 1018.
`JUDGE BRADEN: Thank you.
`MR. AUCHTER: There is no question that a CD ROM was
`distributed at that meeting. The issue that has been raised by the patent
`owner is what exactly was on that CD ROM, was it the draft report?
`With respect, the draft report which was attached as Exhibit 1005 is what
`was on that CD ROM.
`In regards to that, we have the unchallenged testimony of
`Mr. Anthony Wing. Mr. Wing identified the document and pulled it
`from the files of what is now MMM. The reason it came from MMM
`instead of McCormick Rankin is because McCormick Rankin no longer
`exists as an independent entity. It merged with MMM. However,
`Mr. Wing, whose unchallenged testimony was in the declaration, was
`aware of the practices and procedures and was part of McCormick
`Rankin and is still part of MMM, and it was why he was able to identify
`the files and obtain a copy from their files of the business record of the
`Draft Ontario Report from August of 2004.
`Mr. Wing was not deposed in this case. He was not asked to be
`deposed. Mr. Wing did say that he would be willing to be deposed as
`part of his declaration and would have been available for deposition had
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`he been asked. As you can see on Slide 15, Mr. Wing unequivocally
`testified that he believed that Exhibit 1005 was the draft report that was
`distributed there.
`In addition to Mr. Wing, we have the testimony of Mr. Henry
`Wong. Mr. Wong was the gentleman, now retired, who worked at the
`Ontario Ministry of Transportation who was responsible for the entire,
`what we call the carpool project, which is in the Draft Ontario Report.
`He was overseeing Mr. Steven Schijns of McCormick Rankin, and it was
`he who brought the copies of the report with him to the meeting in
`Duluth, Minnesota where they were distributed in the United States.
`Mr. Wong was deposed extensively on whether or not he
`believed Exhibit 1005 was, in fact, the draft report. And Mr. Wong was
`unwavering in his belief that 1005 was the report that was handed out in
`Duluth, Minnesota and was convinced of that fact. Mr. Wong would
`have been extremely aware of the contents of the report and is a person
`who is in the best position to testify as to whether or not that was actually
`the contents of the report.
`I would note that this is a report that was handed out on CDs in
`2004. This is 2017. It's not surprising that it's been difficult to identify a
`copy of the CD that was handed out some 13-1/2 years ago to people,
`some of whom passed away, many of whom moved on to different jobs,
`and frankly, none of whom were too eager to get involved in a lawsuit
`involving something that they neither knew about nor particularly cared
`about.
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`JUDGE McKONE: Now, you mentioned that 13 years has
`passed since this document was distributed by CD. Why then should we
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`consider the testimony 13 years later about what was on that CD? Why
`should we consider that reliable?
`MR. AUCHTER: Because, Your Honor, these are the people
`who would have been most knowledgeable about it. Certainly,
`Mr. Wong was supervising the entire project. It was his baby, if you will.
`He's identified that both in the web pages, through his own testimony,
`et cetera.
`In addition, the indicia, if you will, on the document or
`consistent with it being the August 19, 2004, document, the August 22nd
`document, specifically it has the August 2004 date on it. It has "draft
`final report" which is what was distributed by the people typically at
`these meetings.
`Moreover, it actually looks substantively, and I believe patent
`owner would say it is, in fact, identical, generally speaking, in terms of
`what's disclosed between the final report which is what was posted on the
`website and the draft final report. The only differences, frankly, being
`the addition of the cover letter that Mr. Schijns added when he was
`sending around the copies or at least we believe he was sending around
`the copies and also changing the date and eliminating the "draft final
`report." That would have been consistent with what is my understanding
`of what the testimony showed was the practice of the Enterprise group,
`which is to say when they had a draft final report which was handed
`around for comments, it was typically a final report and little or no
`changes were made. Mr. Legg was very clear on his testimony on that
`point and so was Mr. Wong.
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`JUDGE ULLAGADDI: I would like to focus a little bit more
`about the distribution of this CD and the draft. Can you point to any
`evidence in the record that would indicate that the Draft Ontario Report
`was made available to members outside of the board members, the 12
`board members indicated in Exhibit 1018, or was made available upon
`request by any member of the public, et cetera.
`MR. AUCHTER: Your Honor, the evidence we have is that
`there were members of the public who were not members of the
`Enterprise board present at the meeting that Mr. Wong specifically
`testified would have been able and would have had access to the copies
`of the report. And that would specifically be the ITS engineers,
`Mr. Wendtland. And if we may, I'll just switch to the slide because I
`don't have the second gentleman's name memorized here. Mr. Pearson
`and Mr. Wendtland.
`JUDGE McKONE: Which slide?
`MR. AUCHTER: This would be slide 27, Your Honor.
`JUDGE McKONE: Thank you.
`MR. AUCHTER: I was just looking at the names to make sure
`I got them. Randall Pearson and Michael Wendtland, who were
`professional engineers with ITS Engineers and Contractors.
`JUDGE McKONE: This is the meeting minutes?
`MR. AUCHTER: The 27th slide is from the meeting minutes,
`yes. It's Exhibit 1018 at pages 1 and 10, because there were two -- the
`gentlemen of Mr. Pearson and Mr. Wendtland along with a gentleman
`from the Federal Highway Administration came in for the second day of
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`the meeting on Sunday, which is also the day in which the CD ROM was
`distributed.
`JUDGE McKONE: So everybody at that meeting would have
`received a CD ROM?
`MR. AUCHTER: That is the unequivocal testimony of
`Mr. Wong, that he brought a stack of CD ROMs and they were available
`for anyone. And when asked, he specifically said, yes, if they were there,
`they could have had a copy of the CD ROM.
`JUDGE McKONE: Do we know how many people or who
`actually took the CD ROM?
`MR. AUCHTER: No, Your Honor, we do not.
`JUDGE McKONE: Do you know that anybody took a CD
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`ROM?
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`MR. AUCHTER: Well, we know for sure that at least
`Mr. Legg took a CD ROM because he testified that he took it back with
`him and he reviewed the report when he was back in Washington State.
`JUDGE McKONE: Was there anybody else that we know for
`sure took a CD ROM?
`MR. AUCHTER: Not that we have been able to identify and
`locate. The testimony of Mr. Legg that he had a copy of the CD ROM is
`slide number 24.
`JUDGE McKONE: Thank you.
`MR. AUCHTER: Both Mr. Wong and Mr. Legg are somewhat
`unusual in that they were completely independent witnesses. Neither one
`of them received any compensation for his time or for his efforts in either
`looking for documents, finding documents, testifying in this matter or
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`preparing his declaration. Neither of them has any interest in the
`proceedings. Mr. Wong is retired, long since retired from the Ontario
`Ministry of Transportation, and Mr. Legg was, at the time of his
`declaration, with the Department of Transportation of Washington State.
`As he testified, he wasn't aware of the litigation. He wasn't aware of the
`subject matter of the litigation. And in fact, he wasn't particularly aware
`of transponders or anything having to do with transponders. They were
`happily unknowledgeable about this litigation.
`JUDGE McKONE: Now, is there any evidence that Mr. Legg
`showed the contents of the CD ROM to anyone else?
`MR. AUCHTER: No, Your Honor.
`JUDGE McKONE: Is there any evidence that anyone who may
`have received a CD ROM showed the contents of the CD ROM to
`anyone else?
`MR. AUCHTER: The only evidence we have is that Mr. Wong
`testified that anybody he would have shared it with anybody at the
`Ministry of Transportation in Ontario.
`JUDGE McKONE: But Mr. Wong -- did Mr. Wong testify that
`he received a CD ROM?
`MR. AUCHTER: Well, Mr. Wong had the CD ROM. So he
`necessarily would have received it because he was the one who brought
`them with him from Ontario to Duluth, Minnesota.
`JUDGE McKONE: And he testified that he did show the
`contents to others or may have?
`MR. AUCHTER: That he would have. He didn't testify that he
`did or did not.
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`JUDGE McKONE: He did not have a specific recollection?
`MR. AUCHTER: No, Your Honor.
`JUDGE McKONE: Okay. So the only evidence we have of
`people outside of this meeting that may have seen the contents of this CD
`ROM are Mr. Legg and people that Mr. Wong would have given it to?
`MR. AUCHTER: Respectfully, Your Honor, we also have the
`availability of the contents of the draft report and that they were there,
`that it was handed out without restriction and there would have been no
`restrictions whatsoever on there being able to have the draft report.
`JUDGE McKONE: I'm just looking for evidence of those who
`actually saw it. Right now we only have Mr. Legg and the people that
`Mr. Wong may have shown it to?
`MR. AUCHTER: And the attendees at the meeting, Your
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`Honor.
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`JUDGE McKONE: Was the document shown at the meeting or
`simply handed out on the CD ROM?
`MR. AUCHTER: The document was handed out on the CD
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`ROM.
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`JUDGE McKONE: Okay. So it wasn't actually displayed at
`the meeting?
`MR. AUCHTER: As far as we can tell, no. The testimony that
`Mr. Wong provided was that he had just discussed it.
`JUDGE McKONE: So the only people that would have seen
`the document were those who took a CD ROM and anyone that those
`who took the CD ROM would have shown the document to; is that
`correct?
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`MR. AUCHTER: That's correct, Your Honor. Anybody within
`that organization. Now, who else might have seen it in McCormick
`Rankin, et cetera, I don't know.
`JUDGE McKONE: But right now the only ones that we know
`saw the document would be Mr. Legg and Mr. Wong and those at
`Mr. Wong's organization that he may have shown; is that correct?
`MR. AUCHTER: And anybody attending the meeting, Your
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`Honor.
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`JUDGE McKONE: But you just told me that we don't have any
`evidence that anyone other than Mr. Legg took a CD ROM from the
`meeting.
`MR. AUCHTER: That's correct, Your Honor. It's only
`Mr. Legg who testified that, yes, I actually had the CD ROM, I took it
`home and I looked at it when I got back to Washington State.
`JUDGE McKONE: So as to whether anyone else saw this
`document, it would be speculation?
`MR. AUCHTER: Your Honor, it would be more than
`speculation because the document was available. It's my understanding
`that the law is that they would have had to have it available and that they
`don't necessarily have to be evidence that they actually received it. I
`believe there's a specific case on point to that very issue, that if it was
`available for distribution, it's not necessary to show that it was actually
`distributed to them. As long as there was a stack there, they could have
`had it, and there was no restriction on their having it.
`JUDGE BRADEN: So looking at Exhibit 1018 on page 11, it
`states, Henry handed out a CD with the draft report on it. It was hoped
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`that members could read the report and give comments back to Ontario
`within a month.
`Is there any evidence or any indication that other members read
`the report and sent comments back indicating, therefore, that they had
`read it?
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`MR. AUCHTER: There were no comments received,
`according to Mr. Legg. And he said that was typical that there weren't
`comments received. The process by which this particular report was
`prepared involved eliciting the input from numerous stakeholders. And
`that's in appendix, I believe, B and C of the draft report and the final
`report as well.
`JUDGE BRADEN: Thank you very much.
`MR. AUCHTER: The Draft Ontario Report that I'm looking
`now at slide 21 was not maintained as a secret. It was publicized
`extensively on the Internet throughout the 2004 time period. In fact, it
`was even on the front page of the Enterprise website. I believe that's
`shown in Exhibit 2016, if you see the occupancy there. So it wasn't as if
`someone of ordinary skill in the art would have had to search very hard to
`find out about its availability in 2004. And of course, all the stakeholders
`were contacted and asked about their input throughout the process. And
`as part of their being contacted, they were told about the ongoing
`investigation.
`JUDGE McKONE: Now, you say the existence of this
`document was not a secret. If somebody had wanted to obtain a copy of
`the draft document, is there any evidence that they could have called
`someone and received it?
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`MR. AUCHTER: Other than the actual distribution of the
`CD ROM, no, Your Honor.
`JUDGE McKONE: Thank you.
`JUDGE ULLAGADDI: And I have a question about obtaining
`the comments from the stakeholders. Is that part of Mr. Wong's
`testimony or is that in another exhibit?
`MR. AUCHTER: It's both, Your Honor. The stakeholder
`commentary, as shown on demonstrative slide number 22, I think they
`were asked to provide comments to the project. And then appendix B has
`the contact details identifying the various stakeholders who were
`contacted. Appendix A of Exhibit 1005 has the letter which describes
`what was going on and how they went about contacting the various
`stakeholders to seek their input. And of course the stakeholders'
`comments are then in appendix, I believe it's C, where they talk about the
`various things, information they received regarding enforcement, public
`accessibility and other factors which went into the draft report.
`JUDGE ULLAGADDI: Okay. So somewhere in the Draft
`Ontario Report it does say that the stakeholders identified in appendix B
`were actually contacted and a subset responded with their comments in
`appendix C; is that correct?
`MR. AUCHTER: Yes. The stakeholder input is in appendix C
`starting on page 78 of Exhibit 1005.
`I think we've lost one of our judges, Your Honor.
`JUDGE BRADEN: I'm still here.
`THE CLERK: We can't see you, Judge Braden.
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`JUDGE BRADEN: Please continue. I can hear and see you
`just fine and hopefully my video feed will come back up shortly.
`JUDGE ULLAGADDI: Can you repeat the page number of the
`Draft Ontario Report?
`MR. AUCHTER: Yes, Your Honor. It was page 78, which is
`the beginning of appendix C for the stakeholder input.
`JUDGE ULLAGADDI: Is there any identification of which
`stakeholders provided the -- yes, there is. Please continue.
`JUDGE McKONE: If you just tell me what slide you are on, I
`will be able to see it on my own copy.
`MR. AUCHTER: Yes, Your Honor, it was slide 22. Going
`back to the question of distribution, slide number 23 extracted the
`deposition testimony of Mr. Henry Wong. Mr. Henry Wong testified that
`there were many copies available, meaning if they were there, that's when
`they distributed it to everybody at the meeting. That is his unequivocal
`testimony as to how it was distributed and everybody there.
`When asked would there have been any restrictions on either
`Mr. Wendtland or Mr. Pearson obtaining a copy of the CD that was
`handed around in the Duluth meeting, he said if they were there, they
`would be able to see it. There were no restrictions.
`And moreover, Mr. Legg testified unequivocally that were there
`any restrictions -- and this is slide number 25, Your Honors. Were there
`any restrictions on the distribution of the CD outside of the Enterprise
`group, that there were none, that there were no confidentiality
`designations on the draft report as well.
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`JUDGE McKONE: My understanding is there was a practice,
`though, with the group that they did not ordinarily distribute drafts.
`Rather, they waited until they had a final version to distribute the
`document to the public. Is that incorrect?
`MR. AUCHTER: Yes, Your Honor, that is, in fact, correct.
`The questions that were asked, and this is on slide number 26, was, “So it
`was the policy to not distribute draft reports beyond the membership?”
`And Mr. Wong testified that, “Well, I wouldn't say that it's the
`policy. I would say it's the practice.”
`And then he went on to explain later on in a different portion of
`his testimony that it was before they went and posted it on the web that it
`would become final.
`And in terms of whether the policy was strictly enforced, as
`Mr. Legg, who was chairman of the Enterprise board group, program
`chairman said that these were processes and procedures were guidelines,
`if you will. So in his words, he didn't think it was appropriate to say
`whether it could be violated or not. They were simply guidelines.
`JUDGE McKONE: And as the party that bears the burden of
`proof on this issue, do you have any evidence that the guidelines were not
`followed?
`MR. AUCHTER: Well, yes, Your Honor, because the two
`members of the public -- four members of the public, Castle Rock, but
`let's focus on the ITS engineers, were at the meeting. As Mr. Wong
`testified, they could have received copies of the draft report. They were
`there. If they were there, they would have had them. And they were not
`members of the Board.
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`JUDGE McKONE: Now, getting to that, was this a meeting
`that was publicized, that notice was given to the public of the existence of
`this meeting?
`MR. AUCHTER: Not that I'm aware of, Your Honor.
`JUDGE McKONE: Is there any evidence as to how one would
`have gotten invited to this meeting?
`MR. AUCHTER: One would have been on the Enterprise
`board or been invited to make a presentation or somehow been involved
`in the Duluth presentation.
`JUDGE McKONE: As to the people who attended the meeting
`that were not on the Board, is there any indication as to how they became
`invited?
`MR. AUCHTER: There was deposition testimony that I
`believe showed that they were there in connection with Mr. Manny Agah
`and a project involving Arizona.
`JUDGE McKONE: Okay.
`MR. AUCHTER: In conclusion, because I'm moving into my
`rebuttal time, unless there are additional questions at this point in time, I
`would say that we believe that the evidence unequivocally demonstrates
`that there was a draft copy of the report, that the draft report is
`Exhibit 1005, and that it was handed out without restriction at the
`meeting in Duluth, Minnesota, which is in the United States of America,
`which is particularly relevant since the report was prepared in Canada
`and was handed out to people from Netherlands, from Canada, from
`throughout the United States without any restriction on further
`dissemination, including commercial participants who would not have
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`been aware of the Enterprise practices, policies of any kind, generally
`speaking, and wouldn't have been under any obligation to not disclose it
`further had they wanted to. And given that it was a PDF and a CD ROM,
`it would have been easily copied and distributed to anybody had they so
`chosen to do so.
`Thank you, Your Honors.
`JUDGE ULLAGADDI: I have one question. The stakeholder
`comments in appendix C, these were part of the Draft Ontario Report that
`was handed out on the CD?
`MR. AUCHTER: Yes, Your Honor. Those were comments
`that were received as part and parcel of generating the report in and of
`itself. The comments that -- the portion that never generated or elicited
`any comments and that was later reflected in the December meeting
`minutes at a later time was when it was asked does anybody at the
`Enterprise have any comments regarding this draft final report before we
`post it on our website.
`JUDGE ULLAGADDI: So please correct me if I'm wrong, the
`stakeholders had comments; the board members did not have comments?
`MR. AUCHTER: No comments were received from board
`members regarding the -- converting the draft final report into the final,
`final report, if you will.
`JUDGE ULLAGADDI: Thank you. You have about
`13 minutes remaining for rebuttal.
`MR. ANGELL: Good afternoon, Your Honors. Jason Angell,
`Freitas, Angell & Weinberg for patent owner, Transport Technologies. I
`would like to -- I was
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