·1· ·UNITED STATES PATENT AND TRADEMARK OFFICE
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`·1· · · · · · · · · ·I N D E X
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`·2· ·BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·2· ·WITNESS· · ·EXAMINATION· · · · PAGE
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`·3· ·JENNIFER FRANK RHODES
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`·4· ·FREDMAN BROS. FURNITURE) No. IPR2017-00350
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`·5· ·COMPANY, INC.· · · · · )· · ·8,887,332
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`·5· · · · · · · · By:· Mr. Walden· · · · ·5
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`·6· · · ·- vs -· · · · · · ·) No. IPR2017-00351
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`·7· · · · · · · · · · · · · )· · ·9,015,883
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`·8· ·BEDGEAR, LLC· · · · · ·) No. IPR2017-00352
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`·8· · · · · · · · · ·E X H I B I T S
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`·9· · · · · · · · · · · · · )· · ·8,646,134
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`·9· ·NO.· · · · · · ·DESCRIPTION· · · · ·PAGE
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`10· ·Rhodes A· · Table of Contents· · · · 20
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`11· ·Fredman· · ·Declaration· · · · · · · --
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`12· · · ·Oral deposition of JENNIFER FRANK RHODES, held
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`12· ·EX1060
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`13· ·at 1717 Arch Street, Philadelphia, Pennsylvania,
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`13· ·Fredman· · ·Patent· · · · · · · · · ·--
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`14· ·on September 21, 2017, at 9:30 a.m., before
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`14· ·EX1049
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`15· ·Dolores M. Horne, Professional Reporter and Notary
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`15· ·Fredman· · ·Patent· · · · · · · · · ·--
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`16· ·Public, in and for the Commonwealth of
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`16· ·EX1006
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`17· ·Pennsylvania.
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`19· · · · · ·ESQUIRE DEPOSITION SOLUTIONS
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`20· · · · · ·1835 Market Street, Suite 2600
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`21· · · · ·Philadelphia, Pennsylvania· 19103
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`22· · · · · · · · 215-988-9191
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`·1· ·APPEARANCES:
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`·3· · · · · · ERISE IP
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`·1· · · · · · DEPOSITION SUPPORT INDEX
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`·3· ·Direction to Witness Not to Answer
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`·4· · · · · · BY:· JASON R. MUDD, ESQUIRE
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`·4· ·Page· · ·Line· ·Page· · Line· · Page· · Line
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`·5· · · · · · · · ·ADAM M. SANDWELL, ESQUIRE
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`·6· · · · · · 6201 College Boulevard
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`·7· · · · · · Suite 300
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`·8· · · · · · Overland Park, Kansas· 66211
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`·8· ·Request for Production of Documents
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`·9· · · · · · (913) 777-5600
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`·9· ·Page· · ·Line· ·Page· · Line· · Page· · Line
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`10· · · · · · jason.mudd@eriseip.com
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`11· · · · · · adam.sandwell@eriseip.com
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`12· · · · · · Attorneys for the Petitioner
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`13· ·Stipulations
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`15· · · · · · BRYAN CAVE
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`16· · · · · · BY:· ALEXANDER WALDEN, ESQUIRE
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`17· · · · · · · · ·FRANK FABIANI, ESQUIRE
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`18· · · · · · 1290 Avenue of the Americas
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`19· · · · · · New York, New York· 10104
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`19· ·Question Marked
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`20· · · · · · (212) 541-3089
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`20· ·Page· · ·Line· ·Page· · Line· · Page· · Line
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`21· · · · · · alexander.walden@bryancave.com
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`22· · · · · · frank.fabiani@bryancave.com
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`23· · · · · · Attorneys for the Patent Owner
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`Bedgear 2016
`Fredman v. Bedgear
`IPR2017-00351
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`·1· · · · · · · · · ·JENNIFER FRANK RHODES, After
`·2· ·having been first duly sworn, was examined and
`·3· ·testified as follows:
`·4· · · · · · · · · ·* * *
`·5· · · · · · · ·EXAMINATION
`·6· · · · · · · · · ·* * *
`·7· ·BY MR. WALDEN:
`·8· ·Q.· · · ·Good morning.· Can I have you just state
`·9· ·your full name and address for the record?
`10· ·A.· · · ·Jennifer Frank Rhodes.· My address is
`11· ·127 Fourth Avenue, Haddon Heights, New Jersey
`12· ·08035.
`13· ·Q.· · · ·Ms. Rhodes, do you know why you're here
`14· ·to testify today?
`15· ·A.· · · ·Yes, I do.
`16· ·Q.· · · ·Why is that?
`17· ·A.· · · ·In the patent case between Bedgear and
`18· ·Fredman Brothers.
`19· ·Q.· · · ·And is it your understand today that
`20· ·specifically involves three different IPR
`21· ·proceedings?
`22· ·A.· · · ·Yes.
`23· ·Q.· · · ·Just to make the record clear, what
`24· ·we're referring to is IPR No. 2017-00352, which
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`·1· ·covers U.S. Patent No. 8,646,134, IPR No.
`·2· ·2017-00350, covering U.S. Patent No. 8,887,332,
`·3· ·and lastly, IPR No. 2017-00351, covering Patent
`·4· ·No. 9,015,993.· Is that correct?
`·5· ·A.· · · ·Yes.
`·6· ·Q.· · · ·And I may refer to the patents by
`·7· ·shorthand as the 332 patent, 134 patent.· Is that
`·8· ·okay?
`·9· ·A.· · · ·Yes.
`10· ·Q.· · · ·Have you been deposed before?
`11· ·A.· · · ·No, I have not.
`12· ·Q.· · · ·So, I'll go over a few ground rules.· If
`13· ·you have any questions, feel free to ask me.· As
`14· ·this is not being videotaped, it's being
`15· ·transcribed, and I'm going to ask a series of
`16· ·questions.· You're going to provide some
`17· ·responses.· If you could just try and make sure to
`18· ·give verbal responses and try to stay away from
`19· ·nods of the head and things like that because
`20· ·obviously they can't get recorded.
`21· · · · · · If you don't understand anything, any
`22· ·questions that I ask or you didn't hear it
`23· ·properly, please feel free to ask me to repeat the
`24· ·question or rephrase the question.· Does that
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`·1· ·sound fair?
`·2· ·A.· · · ·Yes.
`·3· ·Q.· · · ·Again, because it's being transcribed,
`·4· ·you know, I will try to let you finish speaking
`·5· ·and giving your full response before asking
`·6· ·another question.· You know, likewise, if you
`·7· ·could just let me finish my question before you
`·8· ·start responding.· It tends to go a little better
`·9· ·that way.· Is there any reason whatsoever that you
`10· ·are not able to give your full, complete, accurate
`11· ·testimony today?
`12· ·A.· · · ·No.
`13· ·Q.· · · ·Great.· I'm sorry.· Lastly, if at any
`14· ·time you need to take a break, just let me know.
`15· ·The only thing I ask is if we're going to do that,
`16· ·if you could just at least finish -- we could
`17· ·finish the question we're on before taking a break
`18· ·but otherwise, you know, please feel free to just
`19· ·let me know if you need a short break.· Otherwise,
`20· ·we'll try to take breaks every hour or so.
`21· · · · · · So, when were you first -- when did you
`22· ·first get involved in the case?
`23· ·A.· · · ·Late June of 2016.
`24· ·Q.· · · ·And have you had any prior relationship
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`·1· ·with Glideaway before that?
`·2· ·A.· · · ·No.
`·3· ·Q.· · · ·You never heard of Glideaway or Fredman
`·4· ·Brothers when I say Glideaway?
`·5· ·A.· · · ·No.
`·6· ·Q.· · · ·Have you ever heard of Bedgear before --
`·7· ·A.· · · ·No.
`·8· ·Q.· · · ·-- that time?· So, if you don't mind, if
`·9· ·you could just give me a general high level
`10· ·overview of your, you know, background from --
`11· ·obviously from college kind of onward.· I'm not
`12· ·expecting any detailed kind of thing but just --
`13· ·you know, it's not a memory test but an overview
`14· ·of kind of the different places you've been
`15· ·employed and the work that you've done and the
`16· ·experience that you've had, you know, leading up
`17· ·to now?
`18· ·A.· · · ·Sure.· I graduated in 1996 from
`19· ·Philadelphia College of Textiles and Science,
`20· ·which later became known as Philadelphia
`21· ·University, and as recently as July 1st is now --
`22· ·we've merged.· We're now Jefferson University.· My
`23· ·degree is in -- I have a batchelor of science in
`24· ·textile design with a concentration in wovens.
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`·1· · · · · · When I graduated, I went to work for
`·2· ·Collins & Aikman Corporation.· I went through
`·3· ·their new management training course and then went
`·4· ·to my assigned plant where I spent a few months
`·5· ·learning some specialty weaving defects and
`·6· ·things.· And I assumed the role of third shift
`·7· ·supervisor.· I had 150 machines and 30 employees
`·8· ·in the middle of the night.
`·9· · · · · · Then I was working in the dobby
`10· ·automotive velvet weave room.· After a year on
`11· ·shift, I went into a product development role as
`12· ·the flat woven technical designer for automotive,
`13· ·flat woven automotive upholstery.· And I was there
`14· ·for about a year and one-half or so when I moved
`15· ·back to the Northeast, which is where I'm from.
`16· · · · · · I was working for a computer design
`17· ·company in Queens.· And my client base was a
`18· ·national base of the textile market.· And from
`19· ·there I went to work for one of my customers doing
`20· ·design and product development for a domestic mill
`21· ·that was headquartered -- we had facilities in
`22· ·Virginia and North Carolina but our sales and
`23· ·design office was in Manhattan.· I was doing work
`24· ·for primarily decorative fabrics for bedding,
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`·1· ·drapery, residential interior decorative fabrics.
`·2· ·I also did some work in the contract facet of the
`·3· ·industry.· And I was there for roughly seven
`·4· ·years.
`·5· · · · · · And then I went to work for FXI, which
`·6· ·is headquartered in Media, Pennsylvania.· And
`·7· ·there -- I was there for three and one-half years
`·8· ·doing product development and design.· I was
`·9· ·charged with all of the product design and
`10· ·creation from textile components, for memory foam
`11· ·sleep products.· I worked very closely with our
`12· ·engineering team, with our R&D team in the product
`13· ·development role.· So it wasn't just in textiles.
`14· ·It was also pairing foams and fabrics together.
`15· · · · · · I left that position at the end of June
`16· ·in 2012 and began doing some independent
`17· ·consulting in the -- in the sleep products
`18· ·industry, basically what I was doing at FXI.· And
`19· ·in August of 2015 I started teaching at
`20· ·Philadelphia University, now Jefferson.
`21· · · · · · And so I'm still teaching.· I'm an
`22· ·adjunct there.· I teach in the textile design
`23· ·department.· And I also continue to do some
`24· ·independent consulting in the industry.
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`·1· ·Q.· · · ·Is that for the company, I believe you
`·2· ·said -- called Twin Gingers?
`·3· ·A.· · · ·Yes, that's my LLC filing, yes.
`·4· ·Q.· · · ·So, what kind of consulting are you
`·5· ·doing at the moment through that?
`·6· ·A.· · · ·At the moment I'm not doing any active
`·7· ·development work.
`·8· ·Q.· · · ·You said you are currently teaching a
`·9· ·course.· I guess now it's Jefferson University?
`10· ·A.· · · ·Uh-huh, yes.
`11· ·Q.· · · ·What does that course cover?
`12· ·A.· · · ·The course that I teach is called survey
`13· ·of the textile industry.· It's an entry level
`14· ·textile course for all of our textile majors.· So,
`15· ·I teach mostly freshmen, textile design and
`16· ·fashion design majors.· The upper classmen that
`17· ·are in my class are typically fashion
`18· ·merchandising majors.· It's a broad overview of
`19· ·the industry at large.· It's a tremendous amount
`20· ·of content to cover in 15 weeks, but we spend a
`21· ·lot of time on all of the generic fiber classes
`22· ·commonly used in apparel and home furnishings.
`23· ·And we do an overview of all of the processes
`24· ·those fibers go through, from fiber to yarn,
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`·1· ·through fabric formation, dying, finishing,
`·2· ·printing.· We talk about laws.· We talk about
`·3· ·labeling.· We talk about testing, new
`·4· ·developments, new emerging technologies.· It is --
`·5· ·like I said, it's the prerequisite for all of the
`·6· ·additional textile course work that the textile
`·7· ·majors do.· And it's one of only two textile
`·8· ·courses that the fashion majors have to take. I
`·9· ·additionally do more recent development as I'm
`10· ·more involved in department roles there with
`11· ·branding and recruiting.
`12· ·Q.· · · ·So, when you say textile design, I
`13· ·apologize, I'm not -- obviously not as familiar
`14· ·with all of this stuff as you are.· When you say
`15· ·textile design, just so I understand the framework
`16· ·for that, what does textile design refer to, I
`17· ·mean, at a high level?
`18· ·A.· · · ·It's a very open-ended question.
`19· · · · · · · · · ·MR. MUDD:· Objection to form.
`20· ·BY MR. WALDEN:
`21· ·Q.· · · ·What is a textile?
`22· ·A.· · · ·What is a textile?
`23· ·Q.· · · ·Right.
`24· ·A.· · · ·A textile could be any number of things.
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`·1· ·Traditionally, categorically speaking, a textile
`·2· ·is something that is made from fiber, and it can
`·3· ·be -- the fabric can be formed in a number of
`·4· ·different fashions.
`·5· ·Q.· · · ·So, when you refer to fiber, what is --
`·6· ·again, what does that mean to you?
`·7· ·A.· · · ·To me it means a lot of things.· There
`·8· ·are numerous different types of fibers.· But a
`·9· ·fiber is something that is the primary component
`10· ·of building a textile.· It is something that can
`11· ·be as short as three-eights of an inch or
`12· ·something that is endless in length, which we
`13· ·refer to as a continuous filament fiber.· It can
`14· ·be a monofilament fiber, as coarse as a ten pound
`15· ·test fishing line.· It can be a micro fiber, which
`16· ·is something less than a -- a micron of less than
`17· ·one denier.· The measurement of the fiber diameter
`18· ·is less than one denier, which is a unit of
`19· ·measure in fiber and yarn manufacture.· So, a
`20· ·fiber could be any number of things by that
`21· ·definition.
`22· ·Q.· · · ·And that covers synthetic and --
`23· ·A.· · · ·Absolutely, natural fibers.· So, we
`24· ·have -- for natural fibers we have plant, animal,
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`·1· ·mineral fibers.· And then for manmade fibers we
`·2· ·have a tremendous category of both synthetic and
`·3· ·artificial fibers.
`·4· ·Q.· · · ·So, what is the difference between a --
`·5· ·what are some differences between a fiber and a
`·6· ·yarn?
`·7· ·A.· · · ·You make yarn from fiber.
`·8· ·Q.· · · ·So, is it fair to say you make textiles
`·9· ·from yarn or --
`10· ·A.· · · ·Not necessarily, a non-woven textile is
`11· ·not made from yarn.· A non-woven textile is made
`12· ·from fiber.
`13· ·Q.· · · ·What is a non-woven textile so I
`14· ·understand?
`15· ·A.· · · ·A non-woven is one of the three primary
`16· ·categories of fabric formation.· There are
`17· ·numerous ways to create a non-woven fabric.
`18· ·Q.· · · ·So, what are the three categories,
`19· ·non-woven is one and then what are the others?
`20· ·A.· · · ·The three primary categories of fabric
`21· ·formation are weaving, knitting and non-wovens.
`22· ·And there are additional fabric formations beyond
`23· ·that, such as braiding and tufting and things like
`24· ·that.· But that's -- in terms of the fabrics that
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`·1· ·we use for the consumer market in apparel and home
`·2· ·furnishings, the primary categories are wovens,
`·3· ·knits and non-wovens.
`·4· ·Q.· · · ·So, what is the typical way to create a
`·5· ·woven fabric?
`·6· · · · · · · · · ·MR. MUDD:· Object to form.
`·7· · · · · · · · · ·THE WITNESS:· A typical way --
`·8· ·well, the most basic definition of a woven fabric
`·9· ·is a fabric that is made from two sets of yarns
`10· ·that interlace at right angles.· You have a
`11· ·vertical set of yarns.· You have a horizontal set
`12· ·of yarns, the warp and the weft.· They interlace
`13· ·at right angles, 90 degree angles.· And it is the
`14· ·pattern of interlacement that defines the fabric
`15· ·structure.
`16· ·BY MR. WALDEN:
`17· ·Q.· · · ·And the same question for knitting, and
`18· ·I'm not trying to say it's the only way, again,
`19· ·just so we have a basis for --
`20· ·A.· · · ·For knitting, it's a knit fabric and
`21· ·most basic definition is a fabric constructed from
`22· ·a series of loops.
`23· ·Q.· · · ·And then finally for non-woven, I know
`24· ·you said there were lots of different ways, but is
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`·1· ·there any kind of basic way, just sort of a
`·2· ·framework of -- as compared to the other two?
`·3· ·A.· · · ·There's air jet entanglement, hydro
`·4· ·entanglement, needle punch, wet spun, lace spun,
`·5· ·there are a variety of different ways to create a
`·6· ·non-woven fabric.· Felting is probably the one
`·7· ·that most consumers are familiar with.
`·8· ·Q.· · · ·So, you said there were a couple of
`·9· ·others.· I believe you referred to braiding and
`10· ·tufting.· Am I correct you said those weren't as
`11· ·commonly used in furnishings?
`12· ·A.· · · ·Correct.
`13· ·Q.· · · ·Okay.
`14· ·A.· · · ·Tufting and braiding, while we do
`15· ·interact with them in the marketplace -- for
`16· ·instance, our shoe laces are usually braided.
`17· ·Carpets are often tufted.· But in terms of apparel
`18· ·and home furnishing fabrics, it's not something
`19· ·that we see as much of considering the others.
`20· ·Q.· · · ·You mentioned there were lots of
`21· ·different types of fabrics or fibers --
`22· ·A.· · · ·Uh-huh.
`23· ·Q.· · · ·-- not fabrics.· Can most or all of
`24· ·those fibers be used with weaving and knitting and
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`·1· ·non-woven techniques?
`·2· ·A.· · · ·That's a very broad question.· And I
`·3· ·would say not every fiber is suited for every
`·4· ·application.· There are some fibers that are very
`·5· ·difficult to knit based on their properties and
`·6· ·characteristics.· Some fabrics particularly, say,
`·7· ·a cotton fiber, is not something you would
`·8· ·typically see in a spun lace non-woven.· It just
`·9· ·depends upon -- fibers are always -- fiber content
`10· ·is always carefully chosen based upon the end use
`11· ·and application.
`12· ·Q.· · · ·And many of those end use and
`13· ·applications may involve multiple different
`14· ·fibers, right?
`15· ·A.· · · ·Absolutely.
`16· ·Q.· · · ·So, is that part of what you did at some
`17· ·of the places that you worked at, I believe one of
`18· ·them was FXI, was some of what you did coming up
`19· ·with the actual fabric composition and the fibers
`20· ·being used?
`21· ·A.· · · ·Absolutely, that's what a textile
`22· ·designer does.
`23· ·Q.· · · ·So when you talk about creating custom
`24· ·fabrics, that's what that -- part of what that
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`·1· ·involves, at least, is deciding on the fiber
`·2· ·contents and that kind of thing?
`·3· ·A.· · · ·Yes.
`·4· ·Q.· · · ·Are you able to hazard a guess, even
`·5· ·rough estimate of the number of different fibers
`·6· ·that exist?
`·7· ·A.· · · ·The number of different fibers?
`·8· ·Q.· · · ·Right, different types of fibers?
`·9· ·A.· · · ·Well, different types of fibers.· You
`10· ·have two, you have natural and manmade.· Generic
`11· ·fiber classes recognized by the FTC, if you give
`12· ·me a moment -- in terms of broad categories, for
`13· ·instance, just what I cover in my classroom alone,
`14· ·we have in terms of broad category, broad -- and
`15· ·by broad I mean broad.· There are roughly 15
`16· ·different fiber types that I cover in my class.
`17· ·Now, under the broad category of wool, I can give
`18· ·you eight different fiber names that are accepted
`19· ·on a tag by the FTC.· Under the broad category of
`20· ·alternative plant fibers, there are probably
`21· ·another eight.· When it comes to manmade fibers,
`22· ·the list is a bit more concise.· Because generic
`23· ·fiber class is one thing and then there are
`24· ·variations beyond that when we get into branded
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`·1· ·fibers.
`·2· ·Q.· · · ·A few minutes ago you mentioned -- you
`·3· ·were talking about weaving and you were saying
`·4· ·that there were two, weft and a warp, interlace --
`·5· ·what do you mean when you say interlace?
`·6· ·A.· · · ·Interlace?
`·7· ·Q.· · · ·Yes.
`·8· · · · · · · · · MR. MUDD:· Objection to the form.
`·9· · · · · · · · · THE WITNESS:· I mean that when
`10· ·you're weaving the yarns go over and under.· They
`11· ·overlap each other.· They interlace.
`12· ·BY MR. WALDEN:
`13· ·Q.· · · ·Is every woven fabric interlaced?
`14· · · · · · · · · ·MR. MUDD:· Objection to the form.
`15· · · · · · · · · ·THE WITNESS:· Yes.
`16· ·BY MR. WALDEN:
`17· ·Q.· · · ·In other words, that's your opinion
`18· ·that's a requirement of a woven fabric --
`19· ·A.· · · ·It's the definition of a woven fabric,
`20· ·two yarns that interlace at right angles, two sets
`21· ·of yarns.
`22· ·Q.· · · ·Is it fair to say at least two sets of
`23· ·yarns?
`24· ·A.· · · ·Excuse me?
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`·1· ·Q.· · · ·Is it fair to say at least two sets of
`·2· ·yarns?
`·3· ·A.· · · ·Absolutely.
`·4· · · · · · · · · MR. WALDEN:· At this time I'm
`·5· ·going to mark -- it's already been marked as
`·6· ·Exhibit Fredman Exhibit 1060, Declaration of
`·7· ·Jennifer Frank Rhodes, in IPR 2017-00352.
`·8· · · · · · · · · ·MR. MUDD:· Counsel, we've
`·9· ·generated a table of contents for Ms. Rhodes'
`10· ·declaration since the declaration didn't have a
`11· ·table of contents just to speed things up and ease
`12· ·in finding materials.· Is that all right?
`13· · · · · · · · · ·MR. WALDEN:· I have no problem
`14· ·with that.
`15· · · · · · · · · ·MR. MUDD:· So I'll just
`16· ·introduce -- we can call this Rhodes Deposition A.
`17· ·This is a table of contents for the 134
`18· ·declaration.
`19· · · · · · · · · ·(Document marked Exhibit Rhodes A
`20· ·for identification.)
`21· ·BY MR. WALDEN:
`22· ·Q.· · · ·Have you seen this document before?
`23· ·A.· · · ·Yes, I have.
`24· ·Q.· · · ·What is it?
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`·1· ·A.· · · ·Excuse me?
`·2· ·Q.· · · ·What is it?
`·3· ·A.· · · ·It's my declaration.
`·4· ·Q.· · · ·As we discussed a little bit earlier
`·5· ·today, so there are three different proceedings,
`·6· ·right, IPR proceedings covering three different
`·7· ·patents that you're testifying about today; is
`·8· ·that correct?
`·9· ·A.· · · ·Yes.
`10· ·Q.· · · ·And you've -- in connection with those
`11· ·you've submitted a declaration in each of the
`12· ·three proceedings; is that correct?
`13· ·A.· · · ·Yes.
`14· ·Q.· · · ·And is it fair to say that there are --
`15· ·that there is some degree of overlap between this
`16· ·declaration and the other two?
`17· ·A.· · · ·In what regard?
`18· ·Q.· · · ·Let me rephrase that.· So, while there
`19· ·are clearly some sections that are different, is
`20· ·it fair to say that some of the contents of this
`21· ·declaration, for example, some of the
`22· ·qualifications, some of the background of
`23· ·technology, that a lot of that may be very similar
`24· ·to what is in the other two declarations?
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`·1· ·A.· · · ·Portions of the declaration would be
`·2· ·similar.
`·3· ·Q.· · · ·So, at least with respect to those
`·4· ·portions I'm going to focus on this one
`·5· ·declaration rather than going through all three.
`·6· ·Does that sound okay?
`·7· ·A.· · · ·Yes.
`·8· ·Q.· · · ·About how much time would you say you
`·9· ·spent on the three -- these three declarations,
`10· ·roughly?
`11· ·A.· · · ·Over the course of the last 14 months, I
`12· ·don't recall exactly what a number would be.
`13· ·There were times that I spent -- at certain times
`14· ·in the process I invested more time than others.
`15· ·It just depends on the nature of the work being
`16· ·done.· I couldn't give you a specific number of
`17· ·hours off the top of my head.
`18· ·Q.· · · ·Let's break it down a little bit.· So,
`19· ·these declarations -- and I appreciate you've
`20· ·submitted these quite a while back now, November
`21· ·of 2016; does that sound right?
`22· ·A.· · · ·Yes.
`23· ·Q.· · · ·Can you recall, and it can be, you know,
`24· ·roughly, a rough estimate of how much time you
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`·1· ·spent just leading up to filing these, in other
`·2· ·words, preparing these declarations and writing
`·3· ·them?
`·4· ·A.· · · ·I honestly don't recall the number of
`·5· ·hours.
`·6· ·Q.· · · ·Can you say if it's 100, less than 100,
`·7· ·more than a 100, 50?
`·8· ·A.· · · ·I would imagine -- I would imagine it's
`·9· ·under 100.
`10· ·Q.· · · ·And when you say under 100, you mean
`11· ·total for these three -- we're referring to these
`12· ·three total or are you encompassing all of the
`13· ·other stuff, you know, in the cases?
`14· ·A.· · · ·I didn't keep track of my time sheets in
`15· ·that regard.
`16· ·Q.· · · ·Understood.· So, since submitting these,
`17· ·what have you done specifically relating to these
`18· ·three declarations or these three proceedings?
`19· ·A.· · · ·In what relevance?
`20· ·Q.· · · ·Over the course of the last, I guess
`21· ·it's eight, nine months now, have you done any
`22· ·work specifically on these three IPR proceedings
`23· ·related to these declarations?
`24· ·A.· · · ·I'm sorry.· I don't understand the
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`·1· ·question.
`·2· ·Q.· · · ·So, I realize there are other parts of
`·3· ·the case.· So there's the litigation and you may
`·4· ·have done some work on, right.· There's another
`·5· ·IPR proceeding as well, a fourth one.· What I'm
`·6· ·trying to understand is, so these were filed in
`·7· ·November of 2016.· Have you done anything on these
`·8· ·cases, just these three cases since that time?
`·9· ·A.· · · ·As asked to, yes.
`10· ·Q.· · · ·Let's try and work backwards.· Did you
`11· ·look at these declarations again in preparation
`12· ·for today's deposition?
`13· ·A.· · · ·Yes.
`14· ·Q.· · · ·Did you meet with counsel to go over the
`15· ·declarations and prepare?
`16· ·A.· · · ·Yes.
`17· ·Q.· · · ·When was that?
`18· ·A.· · · ·Recently.
`19· ·Q.· · · ·So, that -- before that -- before you
`20· ·did any of that preparation for today's
`21· ·deposition, had you looked at these declarations
`22· ·or anything in these proceedings before that,
`23· ·after they had been filed?
`24· ·A.· · · ·After they were filed, I did not spend
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`·1· ·time working with them other than to prepare for
`·2· ·today's deposition.
`·3· ·Q.· · · ·Got it.· Did you write the whole
`·4· ·declaration, these three declarations?
`·5· ·A.· · · ·It was a collaborative effort.
`·6· ·Q.· · · ·Does that apply to every section?
`·7· ·A.· · · ·Yes, in varying degrees.
`·8· ·Q.· · · ·When you say collaborative effort, can
`·9· ·you give me a little bit of an explanation as to
`10· ·what that involved?
`11· ·A.· · · ·Absolutely.· It's the collaborative
`12· ·effort in terms of taking the content -- I'm not
`13· ·an attorney by trade, so the jargon and the
`14· ·language and the technical -- the technical way in
`15· ·which the document needs to be written is not
`16· ·something that is in my area of expertise and, so,
`17· ·it was, therefore, a collaborative effort.
`18· ·Q.· · · ·So, is it fair to say there are sections
`19· ·you drafted, did the first draft on and sections
`20· ·you may not have and reviewed -- and -- I'm trying
`21· ·to understand the process a little bit?
`22· ·A.· · · ·Can you restate the question?
`23· ·Q.· · · ·I'm just trying to understand, does that
`24· ·mean there are parts that you may have done the
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`·1· ·first draft and there are parts that someone else
`·2· ·may have done the first draft but then you
`·3· ·reviewed and edited, is that basically what you're
`·4· ·saying?
`·5· ·A.· · · ·No, that's not what I'm saying.
`·6· ·Q.· · · ·I'm just trying to understand what
`·7· ·you're saying.· This is not intended to be
`·8· ·argumentative.· I'm just trying to understand.
`·9· ·Have you -- are you saying you did the first draft
`10· ·of everything and then it was back and forth or
`11· ·I'm just trying to understand the process a little
`12· ·bit?
`13· ·A.· · · ·I didn't say that at all.· I said that
`14· ·it was a collaborative effort in which I provided
`15· ·the content.· None of the drafts were written
`16· ·without prior review and discussion of the group,
`17· ·through the group, in the group.
`18· ·Q.· · · ·There are a number of places, both in
`19· ·the declaration, as well as just throughout the
`20· ·proceeding when it comes up, the term memory foam.
`21· ·Have you heard that of?
`22· ·A.· · · ·Yes.
`23· ·Q.· · · ·So what is a memory foam?
`24· ·A.· · · ·What is a memory foam?
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`·1· ·Q.· · · ·What does that mean to you?
`·2· ·A.· · · ·Memory foam is -- it's a visco-elastic
`·3· ·polyurethane foam.
`·4· ·Q.· · · ·Is foam in general a textile?
`·5· ·A.· · · ·No, foam is not a textile.
`·6· ·Q.· · · ·So then just to followup.· A memory foam
`·7· ·obviously is not a textile, either?
`·8· ·A.· · · ·A memory foam is not a textile.
`·9· ·Q.· · · ·Another term that comes up a lot is
`10· ·fabric.· What does the term fabric -- how would
`11· ·you describe that?
`12· ·A.· · · ·A fabric in its most generic description
`13· ·would be a textile.
`14· ·Q.· · · ·I was going to ask, is there any
`15· ·difference -- are there differences between a
`16· ·fabric and a textile or are those interchangeable
`17· ·terms?
`18· ·A.· · · ·I would say that the terms are largely
`19· ·synonymous.
`20· ·Q.· · · ·So, if you can turn to paragraph 62,
`21· ·which is on page 41 of the declaration.· Let me
`22· ·know when you're there.· Do you see this first
`23· ·sentence where it says, further, as demonstrated
`24· ·by the Rasmussen reference, it was known before
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`·1· ·the alleged invention of the 134 patent to use a,
`·2· ·quote, highly porous 3D textile material, end
`·3· ·quote, in the gusset of a pillow to, quote,
`·4· ·provide a significant degree of ventilation for
`·5· ·the pillow, allowing air to enter and exit the
`·6· ·pillow, open bracket, close bracket, readily
`·7· ·through the sides of the pillow, end quote.
`·8· ·A.· · · ·Yes.
`·9· ·Q.· · · ·When you say highly porous 3D textile
`10· ·material there in the middle of that sentence,
`11· ·what are you referring to?
`12· · · · · · · · · ·MR. MUDD:· Object to the form.
`13· · · · · · · · · ·THE WITNESS:· Excuse me?
`14· ·BY MR. WALDEN:
`15· ·Q.· · · ·So you use the term there in that
`16· ·sentence, quote, highly porous 3D textile
`17· ·material, end quote.· I'm just asking what are you
`18· ·referring to in that term?
`19· · · · · · · · · ·MR. MUDD:· Object to the form.
`20· ·BY MR. WALDEN:
`21· ·Q.· · · ·You use that term.· I'm just trying to
`22· ·understand what you meant by that term?· What does
`23· ·that mean?
`24· · · · · · · · · MR. MUDD:· Same objection.
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`·1· · · · · · · · · THE WITNESS:· It's quoted from the
`·2· ·patent.
`·3· ·BY MR. WALDEN:
`·4· ·Q.· · · ·Sorry.· Which paten?
`·5· ·A.· · · ·The Rasmussen reference.
`·6· ·Q.· · · ·So, do you have any understanding of
`·7· ·what he meant or she meant by that term?
`·8· · · · · · · · · ·MR. MUDD: Object to the form.
`·9· ·BY MR. WALDEN:
`10· ·Q.· · · ·Rasmussen, I just don't know --
`11· · · · · · · · · MR. MUDD:· She, I believe.
`12· · · · · · · · · THE WITNESS:· It's Kristina
`13· ·Rasmussen, with a K.
`14· ·BY MR. WALDEN:
`15· ·Q.· · · ·What she meant by the phrase or term
`16· ·highly porous material?
`17· · · · · · · · · MR. MUDD:· Same objection.
`18· · · · · · · · · THE WITNESS:· Do I know -- are you
`19· ·asking me do I know what a highly porous textile
`20· ·material could be?
`21· ·BY MR. WALDEN:
`22· ·Q.· · · ·We can start there, definitely.· That
`23· ·would be helpful.
`24· ·A.· · · ·Yes, I know what a highly porous three
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`·1· ·dimensional textile could be.
`·2· ·Q.· · · ·And what is that?
`·3· ·A.· · · ·Any number of things.· In this space, in
`·4· ·this market, depending upon the end use and
`·5· ·application, a 3D textile could be any number of
`·6· ·things.
`·7· ·Q.· · · ·So, let's back up a little bit because
`·8· ·that is helpful.· So, there are 2D textiles and 3D
`·9· ·textiles; is that correct?
`10· ·A.· · · ·Yes.
`11· ·Q.· · · ·So, what is a 2D textile, basically
`12· ·speaking, what does that refer to?
`13· ·A.· · · ·An example I could give you.· All of the
`14· ·fabrics sewn into the garments that you're wearing
`15· ·today would be considered examples of two
`16· ·dimensional textiles.
`17· ·Q.· · · ·So then a 3D textile, what is that --
`18· ·how does that differ from a 2D textile?
`19· ·A.· · · ·An example, the carpet beneath our feet
`20· ·is a three dimensional textile.
`21· ·Q.· · · ·Is there a way that people typically --
`22· ·strike that.
`23· · · · · · Is there -- is there a common definition
`24· ·or something that people refer to -- you know,
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`·1· ·when they say this is a 3D textile?
`·2· ·A.· · · ·Not necessarily.· In its essence a three
`·3· ·dimensional textile is something that has both
`·4· ·length, width and height.
`·5· ·Q.· · · ·Right.· So in other words, the fibers of
`·6· ·the fabric extends in -- along all three axis or
`·7· ·three different planes, something along those
`·8· ·lines?
`·9· ·A.· · · ·In some configuration, yes.
`10· ·Q.· · · ·Do you remember earlier when we were
`11· ·discussing, I believe you referred to them as the
`12· ·primary categories of -- I'm not going to get this
`13· ·quite right but the primary categories of forming
`14· ·fabrics or textiles, I think you referred to three
`15· ·main ones, weaving, knitting, non-woven?
`16· · · · · · · · · MR. MUDD:· Objection to form.
`17· ·BY MR. WALDEN:
`18· ·Q.· · · ·Do you recall we talked about that
`19· ·earlier today?
`20· ·A.· · · ·Yes.
`21· ·Q.· · · ·Can you use each of those three
`22· ·categories to form a 2D textile?
`23· ·A.· · · ·Can you use each of those three
`24· ·categories to form a two dimensional textile,
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`·1· ·yes.
`·2· ·Q.· · · ·And could you use -- can you also use
`·3· ·those three techniques or categories to form a
`·4· ·three dimensional textile?
`·5· ·A.· · · ·You could use a number of different
`·6· ·techniques to form a three dimensional textile.
`·7· ·Q.· · · ·Different techniques beyond weaving,
`·8· ·knitting and non-woven, braiding, tufting?
`·9· ·A.· · · ·Technically, yes.· For the end use and
`10· ·application, no.
`11· ·Q.· · · ·So somewhat similarly to 2D textiles,
`12· ·these would be the main approaches to creating a
`13· ·3D textile that are actually used?
`14· ·A.· · · ·In a consumer comfort product, you're
`15· ·typically working within the category of knits and
`16· ·wovens.
`17· ·Q.· · · ·What about non-woven 3D textiles?
`18· ·A.· · · ·That's not something that I personally
`19· ·have