`
`Transcript of Lowell Malo
`
`Date: April 24, 2018
`Case: Kawasaki Rail Car, Inc. -v- Blair (PTAB)
`
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`WORLDWIDE COURT REPORTING | INTERPRETATION | TRIAL SERVICES
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`------------------------------------------------x
`KAWASAKI RAIL CAR, INC.,
` Petitioner,
` -against-
`SCOTT BLAIR,
` Patent Owner.
`Case IPR2017-01036
`Patent 6,700,602
`------------------------------------------------x
`
` 1 Broadway
` New York, New York
` April 24, 2018
` 10:30 a.m.
`
` Deposition of LOWELL MALO, before
`Shari Cohen, a Notary Public of the State of New
`York.
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`Conducted on April 24, 2018
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`2
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`A P P E A R A N C E S:
`
`HUNTON ANDREWS KURTH LLP
`Attorneys for Petitioner
` One Broadway
` New York, New York 10004
`BY: ZAED BILLAH, ESQ.
` ARMIN GHIAM, ESQ.
` PHONE 212-908-6207
` EMAIL zbillah@HuntonAK.com
`
`MEREDITH & KEYHANI PLLC
`Attorneys for Patent Owner
` 330 Madison Avenue
` New York, New York 10017
`BY: JENNIFER MEREDITH, ESQ.
` PHONE 212-750-0098
` EMAIL jmeredith@meredithkeyhani.com
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`3
`
`------------------- I N D E X -------------------
`WITNESS EXAMINATION BY PAGE
`LOWELL MALO MS. MEREDITH 4
`---------------- E X H I B I T S ----------------
`MALO DESCRIPTION FOR I.D.
`Exhibit 1 Document, Bates labeled 19
` Kawasaki 1005
`Exhibit 2 Document, Bates labeled 26
` Kawasaki 1021
`Exhibit 3 Document, Bates labeled 27
` Kawasaki 1009
`Exhibit 4 Document, Bates labeled 29
` Kawasaki 1007
`Exhibit 5 Document, Bates labeled 36
` Kawasaki 1024
`Exhibit 6 Document, Bates labeled 41
` Kawasaki 1011
`Exhibit 7 Document, Bates labeled 43
` Kawasaki 1028
`Exhibit 8 Document, Bates labeled 47
` Kawasaki 1025
` (EXHIBITS RETAINED BY COURT REPORTER)
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`4
`
`L O W E L L M A L O, called as a witness, having been
` duly sworn by a notary public, was examined and
` testified as follows:
`EXAMINATION BY
`MS. MEREDITH:
` Q. Would you please state your name for the
`record?
` A. My name is Lowell Malo, M-A-L-O.
` Q. What's your address?
` A. 9305 River Cove Drive in Riverview,
`Florida.
` Q. Who is your current employer?
` A. Rail Plan International.
` Q. What's your title at the company?
` A. Vice-president of engineering.
` Q. Have you ever been deposed before?
` A. Yes, I have.
` Q. How many times?
` A. I guess it was two depositions in one
`day.
` Q. For this matter?
` A. Yes, it was with Darius.
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`5
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` Q. Have you ever been deposed other than
`that for other matters?
` A. No.
` Q. So you have been deposed before, but I'll
`just go over the ground rules. It's important that we
`don't talk over one another. Your counsel may object
`to some of my questions, but you need to answer anyway
`unless your counsel instructs you not to answer. If
`you need a break, just let me know, but if there is a
`question pending, please answer the question and then
`take the break?
` A. Okay.
` Q. You can hear me okay?
` A. I can hear you just fine.
` Q. Okay, good. Is there any reason you
`cannot testify truthfully today?
` A. No.
` Q. Are you on any medications that would
`effect your ability to answer questions?
` A. No.
` Q. What did you do to prepare for today's
`deposition?
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
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`6
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` A. I re-read a lot of material and then we
`sat down yesterday and went over the material.
` Q. What material did you read specifically?
` A. Previous depositions, reviewed the
`patents.
` Q. Did you bring any documents with you
`today?
` A. No.
` Q. How long did you meet with your attorney
`I believe you said yesterday to prepare?
` A. Four or five hours.
` Q. You stated in your declaration that you
`worked on a rail car design project for Colorado Rail
`Car; is that correct?
` A. That's correct.
` Q. Do you know the exact date of that
`project?
` A. Mid nineties. I would have to --
` Q. Can you be more specific?
` A. I'd have to look at the deposition.
` Q. I'm not sure what you mean by that. You
`mean the declaration?
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
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`7
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` A. Yes, I would like to look at the document
`real quickly.
` Q. You don't recall?
` A. Not down to the month and maybe not down
`to the year. Just general time frames. Depends on
`where I was working and I worked for Colorado Rail Car
`on several occasions.
` Q. Do you know what the years were that you
`worked with them?
` A. Would have been '94, '95, '96 time frame
`and again in 2005.
` Q. Do you know when the specific project
`that you referred to this mock-up you built, do you
`know when that was built?
` A. That would have been on the earlier time
`frame.
` Q. So 1994?
` A. Back in that area, yes.
` Q. Could it have been '95?
` A. I can take a look -- am I allowed to take
`a look at the declaration?
` Q. I don't believe it says, but you can take
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`8
`
`a look.
` A. It just says mid 1990s so that would be
`the time frame.
` Q. So could it be 1997?
` A. I don't believe so because at that time
`the company was going broke.
` Q. Could be 1996?
` A. Could be.
` Q. Do you recall what kind of television it
`was?
` A. I don't recall the make. It was
`manufactured by a company that was also doing military
`equipment at the time.
` Q. Would it be a CRT type of television or
`an LCD type of television?
` A. LCD type.
` Q. Do you recall the depth of the
`television?
` A. I would be estimating it at about an
`inch-and-a-half thick.
` Q. Is that the typical thickness of an LCD
`television at that time?
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`9
`
` A. It could be. There were varying models
`at that time, but that was the one we used.
` Q. Can you give me the various thicknesses
`of the varying models?
` A. That I couldn't do, I'm sorry.
` Q. Approximately? You said the one that you
`used was an inch-and-a-half. What was the thickness of
`the other ones you used approximately?
` A. That's the one I referred to in my
`declaration. The others would vary from one to two
`inches generally.
` Q. The mock-up you built, was it a rail car?
` A. It simulated a room in a rail car.
` Q. Was the television within the rail car?
` A. Eventually it was when we did the mock-up
`it was in a separate mock-up area where we simulated
`the rail car.
` Q. Can you explain that; you said
`eventually?. Where was it before?
` A. Before it was in the mock-up. Later we
`installed it in the car.
` Q. Can you explain to me the difference
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`Conducted on April 24, 2018
`
`10
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`between the two?
` A. A mock-up is a simulation where you
`simulate the physical space around the rail car and you
`simulate external heat loads as well and at the end you
`are in the final car.
` Q. In the mock-up when you simulated it, was
`there a roof construction or was it just a wall?
` A. It was principally a wall.
` Q. Did it have an inner and outer shell?
` A. Yes.
` Q. But the mock-up didn't have a ceiling?
` A. Well, the interior of the mock-up it was
`principally inner and outer walls and then it closed
`off top so it was like a box.
` Q. Did the top have an inner and outer wall?
` A. No.
` Q. So it would have been a top that was at a
`right angle to the side wall?
` A. Yes.
` Q. Did it have two walls or one wall?
` A. It had two walls.
` Q. So basically you had like a box; a
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`11
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`bottom, a top, a left side and a right side?
` A. And the two ends as well, yes.
` Q. Meaning the two -- the inner wall and the
`outer wall?
` A. It had an inner wall, an outer wall, a
`left side, a right side, a bottom and a top. It was
`completely enclosed.
` Q. You said the television was within the
`car, correct?
` A. Later on, yes, we did install it in the
`car later.
` Q. By that I mean within the mock-up of the
`car?
` A. Yeah, that's correct, it was in the one
`wall of the mock-up.
` Q. If you put a television on the outside of
`the car, would that be within the car?
` A. I'm not clear if I put it on the outside
`of the car would it be within the car? I'm not clear.
` Q. When we say the television is within the
`car, if we put it on the roof, would it be within the
`car?
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`12
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` A. On the roof, no.
` Q. In the mock-up did you have a transparent
`cover?
` A. Yeah, it was just a television screen
`that had an intrical cover on it.
` Q. Meaning part of the television?
` A. Yes.
` Q. Okay so there was not a separate
`transparent cover?
` A. No.
` Q. Did it have any -- I may mispronounce
`this, did the mock-up of any protuberances?
` A. Could you define that, please.
` Q. Why don't you tell me your understanding
`of a protuberance?
` A. I don't exactly understand that, that's
`why I would like a clarification.
` Q. I believe a protrusion would be a similar
`word for protuberance. Did your mock-up have any
`protuberances?
` A. Okay, it was basically frontal mounted
`and it didn't really have anything like large knobs or
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
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`13
`
`controls sticking out of it. There were smaller
`controls that were probably within a quarter inch of
`the front of the screen.
` Q. So there was controls on the front. The
`monitor was substantially flush on all four sides with
`the wall?
` A. Yes.
` Q. So these buttons on the monitor, these
`would be the buttons that enable the monitor to work?
` A. Well, it was, yes, it had an on off and a
`volume control.
` Q. They would stick out slightly?
` A. Yes.
` Q. How far would they stick out?
` A. About a quarter of an inch.
` Q. Did your mock-up include lights?
` A. We had -- not as part of the mock-up. We
`had lights shining on the mock-up to represent solar
`and heat loads to warm the mock-up up.
` Q. Did the mock-up include structural
`members?
` A. Just what was formed by the box itself,
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`Conducted on April 24, 2018
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`14
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`in other words, the two sides of the box represented
`the structural members in the car.
` Q. When the television was put in the
`mock-up, did it include an enclosure or how was it
`attached into the wall?
` A. It was self enclosed and I believe there
`were four screws from the front holding it onto the
`wall.
` Q. What did the screws go into?
` A. Into the wall itself.
` Q. So the television was attached to the
`wall?
` A. Yes.
` Q. What supported it?
` A. The wall itself.
` Q. Would that be realistic in a subway car?
` A. It could be, yes. There are different
`types of construction so could you do it, yes. Would
`you normally try to do it, yes. A lot of times you
`have to have additional attachment back to the car
`structure through what we call secondary structure that
`ties back to the primary structure to support these
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
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`15
`
`things.
` Q. Is it a concern within a subway car to
`have the television mounted such that it would not come
`away from the wall?
` A. Not sure what you mean come away from the
`wall.
` Q. I guess I'm wondering if it would be
`sufficiently secure for screws into the wall without it
`being attached to a structural member or something?
` A. It depends on the wall itself.
`Fiberglass, for example, can be tied without structure.
`You make car bodies out of it. The early Corvettes
`were all made out of fiberglass and if it's a problem
`if the structure or the thing you are carrying is too
`heavy, it may require an additional structure so it
`depends on the size of what we're mounting.
` Q. In the mock-up, what was the material
`made of?
` A. The sides and the back I think it was all
`medium density fiber board on this particular car.
` Q. What would a subway car in the 1995 to
`'97 time frame, what would the side wall be made of?
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`16
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` A. It could be made of several different
`materials. It depends on what the customer requests.
` Q. Could it be made of this fiber board?
` A. It could be. More popular -- that
`particular fiber board is not very formable so
`generally speaking you would go back to FRP or
`fiberglass reinforced plastic.
` Q. That would be generally what the side
`wall of a subway car in the '95 to '97 time frame would
`be?
` A. Probably more than half, yes.
` Q. What did you say it was called, I'm
`sorry?
` A. Medium density fiber board.
` Q. Did the mock-up include sound deadening
`materials?
` A. It had insulation in it, yes.
` Q. Are those different? Is insulation
`different from sound deadening material?
` A. There's a lot of different types of sound
`deadening materials that you could use. There are some
`spray on types and then other types that are like
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`Transcript of Lowell Malo
`Conducted on April 24, 2018
`
`17
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`insulation, yes.
` Q. In the '95 to '97 time frame, was the
`insulation spray in?
` A. In that -- what you would basically do
`would be spray a thin layer of material to the inside
`of the car shell and that is a material that does sound
`deadening and then you would put insulation on top of
`it which would be additional thermal and acoustic
`insulation.
` Q. What form would that take, the
`insulation?
` A. It could be a -- what you look at are
`called fiberglass. There are several other different
`types of insulation that go in; silicones and other
`types.
` Q. Does it come in sheets that you lay down
`or is it sprayed in in the 1995 to '97 time frame?
` A. The initial stuff goes right up against
`the wall the spray in. Other than that, it generally
`comes in rolls or sheets.
` Q. Did the mock-up include fiberglass panels
`at the meeting of the side walls and the ceiling?
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`Conducted on April 24, 2018
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`18
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` A. Yes, at the simulated side walls and the
`ceiling, yes.
` Q. I thought we said it was a box?
` A. It is and the box you have the two side
`walls that are simulated and a ceiling and a floor that
`are simulated.
` Q. The two side walls and the ceiling, okay,
`and the ceiling, did it have -- was it just a single
`layer, the ceiling?
` A. Yes.
` Q. Was the television directed obliquely
`downward or was it flat against the wall?
` A. This one was flat.
` Q. Did you say -- I can't remember if you
`said did it have a transparent cover, we said no, it
`was part of the television, correct?
` A. The cover was part of the television.
` Q. Would it cause more heat build up if
`there had been a cover as opposed to not having one?
` A. I can't tell you that unless we actually
`looked at the spec sheets and we never looked at the
`spec sheets for a separate cover so we just determined
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`19
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`that the television was good as is.
` Q. Would you have to look at spec sheets to
`determine whether or not there would be heat build up?
` A. Well, that would be a starting point and
`then we would have to take a look at the effect of a
`separate cover on top of it if it did not come with it.
` MS. MEREDITH: I'm going to have you take
` a look at Exhibit 1005. We will mark it
` Exhibit 1.
` (Exhibit 1, Document, Bates labeled
` Kawasaki 1005, marked for Identification.)
` Q. Do you have it in front of you?
` A. Yes, I do.
` Q. Does Namikawa have specifications?
` A. As I remember from reading, I did not
`think there were specifications regarding it, no.
` Q. Are you a fire safety expert?
` A. I work with fire safety on a regular
`basis, yes.
` Q. What's your qualifications to be
`considered a fire safety expert?
` A. Working with car builders and working
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`20
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`with the FRA and APTA, the American Passenger Transit
`Authority, meeting the fire safety code requirements.
`I have had 40 years of it.
` Q. So taking a look at Namikawa, this
`Exhibit 1, does Namikawa depict an inner and outer wall
`along the side wall?
` A. Without reading the whole patent through,
`I don't recall it talking about both an inner and outer
`wall, but I would have to re-read it.
` Q. Take your time and re-read it and let me
`know if you can find it anywhere.
` A. I do not see a reference to an inner and
`outer wall.
` Q. Referring to I guess figure 1, page 11 of
`Namikawa.
` A. Okay.
` Q. What is item 10?
` A. Looks to be the ceiling. I would have to
`see if it's referred to in here. It says 10 is the
`inside of a car.
` Q. Below 10 there's a rounded line at the
`back of the subway car. What does that represent, a
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`21
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`curved line I guess you could say?
` A. Looks like the intersection between the
`end wall and the ceiling of the car.
` Q. On items 12, the televisions, what are
`the dotted lines coming off of them?
` A. The dotted line normally represents a
`break point or a change in direction of the interior of
`the car. I don't recall seeing any reference in the
`patent of what it would be.
` Q. Would the top dotted line, would that be
`along the ceiling?
` A. It would be the juncture of the ceiling
`and something, yes.
` Q. If we follow it to the end of the
`television, is the curved line the ceiling?
` A. You mean down at the end of the car, yes.
` Q. So wouldn't the top dotted line be along
`the ceiling?
` A. It would be along the ceiling and the
`juncture of something else. They don't extend the
`dotted lines to the end.
` Q. Below the bottom dotted line there is
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`another line, what is that, a solid line, excuse me, so
`the bottom dotted line and then there is a solid line
`below that. What is that?
` A. That appears to be the juncture of the
`side wall and not the ceiling, but whatever that space
`is between the two dotted lines.
` Q. So that solid line is the juncture, okay.
`Is Namikawa mounted on top of the wall, the television
`in this figure 1?
` A. Did you say mounted on top of the wall?
` Q. Correct.
` A. It looks like it's mounted on the
`transition between the wall and the ceiling.
` Q. Is it within the wall?
` A. That I can't tell you from the picture.
` Q. What's the thickness of the television in
`Namikawa?
` A. I don't believe it's specified.
` Q. Do you know why it has a rounded back?
` A. Probably to match the contour of the
`transition.
` Q. You don't know how deep this television
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`is of Namikawa?
` A. Not from this patent, no.
` Q. Does Namikawa disclose any structural
`members?
` A. Not that I recall.
` Q. How many structural members are there
`typically in a subway car in the 1995 to '97 time
`frame?
` A. Depends on the length of the car, but
`probably in the wall with primary and secondary
`structure -- you're talking about total number of
`members or different types?
` Q. Let's go through both?
` A. Total number it would be a guess, but
`probably 150, 200.
` Q. In a single car?
` A. In a single car.
` Q. Let's start with the side wall, how far
`apart would they be typically?
` A. Vertical members it varies probably from
`16 to 20 inches.
` Q. Sixteen to 20 inches meaning they are
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`spaced apart 16 to 20 inches?
` A. Generally yes unless there's a special
`need to space them differently.
` Q. Are there horizontal members also?
` A. Yes.
` Q. How many members are there?
` A. They come in pieces. They are put in
`pieces in between the vertical members so down the
`length of the car, depends on how many windows there
`are, for example, so again, it would be -- it varies
`depending on the car, the construction, the length of
`the car, but there are many of them, yes.
` Q. So when you say -- you said there was I
`believe 100 structural members?
` A. That's an estimate. Again, it would vary
`based on the car type and the car length.
` Q. Are these in the side wall only?
` A. No, they are also in the roof. They are
`in the side wall, the under frame of the car, the roof
`and the ends of the car you have structural members.
` Q. The ends of the car meaning like in this
`figure it would be like where figure 13 is?
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` A. Yes.
` Q. That end wall?
` A. Yes, 13 is mounted on to the end wall.
` Q. How do you have a structural member in
`this curved roof of Namikawa?
` A. Yes.
` Q. How would you have a structural member
`that's in a curved roof?
` A. You form a structural member in a curved
`fashion.
` Q. You would have curve structural members?
` A. Yes.
` Q. These would meet presumably the non
`curved structural members in the side wall?
` A. If the car is built with a flat side.
`Many cars are built with curved sides as well.
` Q. When they meet, are they attached
`together?
` A. Generally they are attached to a
`longitudinal member at the top and bottom of the wall
`and the sides of the ceiling. That way you can make
`them as sub-assemblies away from the car and bring the
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`whole assembly and put it together when you put the car
`together.
` Q. So the ceiling member if I'm getting this
`correct you would have a longitudinal member that runs
`from the front of the car to the back of the car where
`the side wall and the ceiling meet?
` A. Yes.
` Q. Would that be within the -- between the
`inner and the outer wall?
` A. Yes or the inner and outer ceiling.
` Q. Would it be complicated to move
`structural members?
` A. No.
` Q. It's required that they would be joined,
`correct, meaning the ceiling would have to be supported
`-- you would have to have the ceiling meet the side
`wall and they would have to be joined?
` A. Yes, they have to be attached together.
` MS. MEREDITH: Let's go to Exhibit 1021,
` Amano, I'm sorry, so this is Exhibit 2.
` (Exhibit 2, Document, Bates labeled
` Kawasaki 1021, marked for Identification.)
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` Q. Does Amano show space between the inner
`and the outer wall?
` MR. BILLAH: Objection, outside scope.
` Q. Does Amano show the availability of space
`between the inner and outer wall?
` MR. BILLAH: Same objection.
` A. I do not see a reference to an inner or
`outer wall in this.
` MS. MEREDITH: So I will have you take a
` look next at Exhibit 1009 which will be Exhibit
` 3.
` (Exhibit 3, Document, Bates labeled
` Kawasaki 1009, marked for Identification.)
` Q. Does Exhibit 3 depict an inner and outer
`wall with a cavity between?
` MR. BILLAH: Objection, outside the
` scope.
` A. There is a reference to a door pocket and
`a door pocket is formed by the outer part of the car
`shell and the inner wall on the inside of the car so it
`refers to a door pocket which tells me there is an
`outer and inner wall.
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` Q. How thick is -- you said it was a door
`pocket?
` A. Yes.
` Q. Where is that referred to?
` MR. BILLAH: Objection, outside the
` scope.
` Q. It's referred to on page 2 and it says
`door pockets item 11 so I'm going to take a look at the
`picture at 11. I don't see it on the picture here.
`What it states is that its television receiver is 101,
`102, 103 through 124 are installed above the left and
`right door pockets for each of the doors.
` Q. Do you know what the thickness of a
`subway car door is?
` A. Generally about an inch-and-a-half.
` Q. Turning to figure 2 of Exhibit 3,
`Maekawa, what is item 30A to 30D?
` A. Let me check the text here. This refers
`to antennas 30A through 30D.
` Q. Looking at figure 2, is the antenna on
`top of the roof of the car?
` A. It's on top of the air conditioning of
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`the car. Excuse me, maybe it's not an air
`conditioning. It says ventilator.
` Q. Is that within the car?
` A. No.
` MS. MEREDITH: Let's go to Exhibit 1007,
` Miyajima.
` (Exhibit 4, Document, Bates labeled
` Kawasaki 1007, marked for Identification.)
` Q. Take a look at Exhibit 4, Miyajima. Does
`this show an availability of space between the inner
`and outer wall?
` MR. BILLAH: Objection, outside the
` scope.
` A. Let me do a quick scan here. I'm
`correlating a figure with some text. This refers to
`item 03 as vehicle carriage and 03A as the curved part
`of the inner walls of the carriage.
` Q. Can you tell me where you are looking at?
` A. I am looking at looks like page 6 under
`explanation of the symbols.
` Q. In that description it lists item 1 as
`display and then there are a bunch of items after that
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`A through Q so 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H, no 1I,
`but 1J, 1K, 1L, 1M, 1N, 1P, 1Q. Are these all part of
`the display?
` A. That's what it looks like, yes.
` Q. Let's go to figure 2.
` A. Okay.
` Q. Where it describes 1P the back light.
`Isn't this part of the display?
` A. It generally should be, yes.
` Q. Isn't that how LCDs work, they have a
`back light that produces images?
` A. Most of them, yes.
` Q. So next to that there is this cooling
`air, item 8 in figure 2?
` A. Yes.
` Q. What is the purpose of that?
` A. It looks like it is trying to cool the
`unit off somehow.
` Q. When you say the unit, what does that
`refer to?
` A. The display.
` Q. Let me go back to Namikawa. Sorry, it's
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`Exhibit 1. In this reference would you expect that
`there would be -- let me rephrase.
` In the Namikawa reference, would you
`expect there would be insulation between the inner and
`outer wall?
` A. Yes.
` Q. Would it be less expensive to mount the
`television on top of the wall or to accommodate the
`engineering to move the insulation, the structural
`materials and put it into the wall?
` A. I think that depends on the situation. I
`couldn't give you a blanket answer on that, but as long
`as you know that that's what you want to do at the
`beginning, it's a lot easier. If somebody changes their
`mind in the middle of the design, it becomes more
`complex.
` Q. As a rail car designer, would you be more
`likely to implement a design that's simple or try to
`make one that's more complex?
` A. Simple.
` Q. When we look at televisions even today at
`home, in home applications, why are they mounted on top
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`of the wall?
` MR. BILLAH: Objection, calls for
` specula
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