throbber
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`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`No. 12-cv-11758
`
`JURY TRIAL
`EXCERPTS OF PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Friday, April 17, 2015
`
`APPEARANCES:
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and Stone
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
`
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`

`

`APPEARANCES:
`For the Defendants:
`
`2
`
`MR. STEVEN J. RIZZI
`MR. RAMY E. HANNA
`MR. RYAN SCHMID
`Foley and Lardner, LLP
`90 Park Avenue, 37th Floor
`New York, New York 10016
`(212) 682-7474
`MS. LISA S. MANKOFSKY
`MR. MICHAEL KAMINSKI
`Foley & Lardner, LLP
`3000 K Street N. W,
`Washington, DC
`20007
`(202) 672-5300
`MR. JOHN R. TRENTACOSTA
`Foley & Lardner
`500 Woodward Avenue
`Detroit, Michigan
`(313) 234-2800
`
`48226
`
`Suite 600
`
`Reported by:
`
`Rene L. Twedt, CRR, RMR, RDR
`Official Federal Court Reporter
`rene_twedt@mied.uscourts.gov
`
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`3
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`TABLE OF CONTENTS
`
`PLAINTIFF
`WITNESSES:
`E. FRED SCHUBERT
`Cross-Examination (Continued) by Mr. Nimrod
`Redirect Examination by Mr. Rizzi
`JOHN C. JAROSZ
`Direct Examination by Ms. Mankofsky
`
`EXHIBITS RECEIVED:
`Plaintiff's Exhibit Numbers P13, P43
`Defendant's Exhibit Numbers D60, D130, D137, D203,
`D204, D205, D206, D372, D1964, D2028, D2328
`Defendant's Exhibit Numbers D6127 through D6130
`
`PAGE
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`4
`
`Detroit, Michigan
`Friday, April 10, 2015
`8:15 a.m.
`
`*
`*
`*
`United States District
`All rise.
`THE CLERK:
`Court for the Eastern District of Michigan is now is session,
`Honorable Gershwin A. Drain presiding.
`Calling civil action Everlight Electronics Company
`versus Nichia Corporation, Number 12-cv-11758.
`You may be seated.
`Please place your appearance on the record.
`MR. NIMROD:
`Good morning, your Honor.
`Ray
`
`Nimrod.
`
`Good morning.
`THE COURT:
`From Quinn Emanuel for Everlight.
`MR. NIMROD:
`With me is Matt Traupman, Anastasia Fernands from Quinn
`Emanuel; Mike Palizzi and Mike Simoni from Miller Canfield;
`and our corporate representative, Bernd Kammerer.
`MR. RIZZI:
`Good morning, your Honor.
`THE COURT:
`Good morning.
`MR. RIZZI:
`Steven Rizzi, Foley & Lardner, for
`With me is Ramy Hanna, Lisa Mankofksy, John
`Nichia.
`Trentacosta, Mike Kaminski, and our corporate representative,
`Dr. Dan Doxsee.
`THE COURT:
`
`Okay.
`
`All right.
`
`I understand we
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`5
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`have an issue.
`You can be seated.
`I understand we have some issue about
`Dr. Schubert's testimony, is that --
`MR. RIZZI:
`The issue is with the exhibits, your
`Honor, that we had moved in two days ago with regard to
`Dr. Schubert's testimony.
`As you may recall, they made a motion to exclude
`those TAEUS reports which your Honor overruled.
`All of those
`reports are on our exhibit list.
`They were the subject of
`Professor Schubert's testimony.
`He did not -- while he was on the stand he did not
`list out each and every one, and we think it would be a waste
`of time for him to have to read these into the record while he
`is on the stand, but they are apparently objecting to the fact
`that he didn't explicitly reference them during his testimony,
`as well as some other documents that he used to formulate his
`opinions as summarized in the analysis chart, which is now --
`which they don't object to and which is part of the record.
`We submit, your Honor, there should not be any
`basis for them to maintain any objection to any of the
`documents on this list.
`Your Honor, we understand the
`MR. NIMROD:
`demonstrative -- the analysis chart you said could come in as a
`demonstrative and you would consider whether it could come in
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`6
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`So we're not agreeing that it can come in as
`
`as anything else.
`a regular exhibit.
`Okay.
`THE COURT:
`They only referred to one, two,
`MR. NIMROD:
`three, four, five, six, seven, eight documents on direct that
`they are trying to move in and then they have, it looks like,
`100-plus exhibits that they did not use with him.
`So you can't just go and say, we're going to dump
`all these in the record now, you have to use them with a
`witness.
`They have not been used at all by any witness in
`these proceedings so they should not come in as exhibits that
`are admitted before the jury.
`They didn't use them, they were not presented, and
`therefore, they shouldn't come in.
`It would be like if we just
`had 50 prior art references that were referred to in something
`that Dr. Bretschneider used and now we're going to admit them
`all and he didn't talk about any of them.
`They have not been
`used.
`They shouldn't come in.
`MR. RIZZI:
`Your Honor, this an issue we have
`already addressed.
`First of all, as to the analysis chart, they used
`it as part of their cross examination of Professor Schubert, so
`there is no basis for them to maintain any objection for it to
`actually be admitted, not just as a demonstrative.
`And as to all of the other documents, while he
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`7
`
`didn't explicitly mention the Bates numbers for them, they were
`all part of his analysis that he did.
`He walked through his
`whole chart.
`He explained how he did analysis on all the
`products.
`If they are forcing us to waste time and put him
`back on the stand to basically reference all those Bates
`numbers, we will go through that, but we just think that's not
`a good use of anyone's time.
`MR. NIMROD:
`Well, your Honor, on the analysis
`chart, if it's a demonstrative, I certainly agree to cross on
`it, just like any other demonstrative.
`That doesn't mean I
`agree to admit it, I concede it should come into evidence,
`pretty apparent.
`I can use his expert report and cross him on that,
`it doesn't come in, it's just to cross them.
`That's number
`one.
`
`And they didn't use any of these reports, so they
`shouldn't could in.
`The jury is going to wonder what they are.
`There is going to be a big stack of documents they haven't seen
`before.
`
`Professor Schubert made clear what
`MR. RIZZI:
`those documents are and how they could be referenced.
`THE COURT:
`He did talk about doing an examination
`of all of the products.
`MR. RIZZI:
`THE COURT:
`
`And with respect to the analysis --
`You know, I'm not sure that there is
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`8
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`So was
`
`about that.
`
`a -- I'm not sure that he has to go through each one and
`identify it.
`I just don't see that as being necessary.
`there anything else you had to say, Mr. Nimrod?
`MR. NIMROD:
`The analysis chart, your Honor, is
`that still coming in as a demonstrative?
`THE COURT:
`You know, I haven't made a decision
`Was that in the report?
`That was in his report?
`MR. RIZZI:
`Yes, your Honor.
`MR. NIMROD:
`The point there is, it's actually
`part of his report.
`His opinions are in it.
`If the expert
`reports don't come in, that shouldn't come in.
`I think you
`Honor said that you conceded the demonstrative, but you were
`going to withhold judgment on whether or not it comes in as an
`exhibit.
`
`THE COURT:
`MR. NIMROD:
`
`That's exactly what I said.
`Yeah.
`I suppose we could take that up
`
`later.
`
`Yes, let's do that.
`THE COURT:
`They
`One last point on that.
`MR. RIZZI:
`questioned him on other parts of the analysis chart that he
`didn't even talk about, so there's no possible basis for them
`to maintain any objection on that.
`MR. NIMROD:
`The whole chart, it was a
`demonstrative.
`I'm free to talk about any of that.
`THE COURT:
`That doesn't necessarily mean that
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`9
`
`We're
`
`it's going to come in as an exhibit, whether we talked about it
`or not.
`We can talk about a lot of things and they don't
`actually necessarily come into evidence.
`MR. RIZZI:
`Okay.
`Well, we have case law.
`prepared to file a motion if we need to.
`THE COURT:
`We can talk about that later.
`MR. RIZZI:
`Thank you, your Honor.
`THE COURT:
`All right.
`MR. RIZZI:
`In terms of getting the TAEUS reports
`into evidence and the other documents that are --
`THE COURT:
`I think he referenced them enough, and
`talked about doing the analysis, to receive them into evidence,
`so.
`
`Let's see.
`
`Are you ready
`
`So can we just provide a list to the
`MR. RIZZI:
`court reporter?
`Would that --
`I have got a list
`THE COURT:
`You can do that.
`here and we can talk about that again later.
`MR. RIZZI:
`We just want to make sure they get
`into the record, your Honor.
`THE COURT:
`Okay.
`MR. RIZZI:
`Thank you.
`THE COURT:
`All right.
`to continue, Mr. Nimrod?
`MR. NIMROD:
`THE COURT:
`
`I am, your Honor.
`Okay.
`All right.
`
`Then let's bring
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`10
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`the jury in.
`
`Gentlemen, did you -- is there any way that we can
`get to the jury by the end of Tuesday, is that possible?
`MR. RIZZI:
`I believe so, your Honor.
`The way the
`timing seems to work out, I think we only have two more days of
`testimony and then closing arguments on Tuesday.
`MR. NIMROD:
`We would expect so, your Honor.
`THE COURT:
`Okay.
`THE CLERK:
`All rise for the jury.
`(At 8:29 a.m. jury present)
`THE COURT:
`All right.
`You may be seated.
`All right.
`Good morning, ladies and gentlemen.
`JURORS:
`Good morning.
`THE COURT:
`I guess the Tigers really didn't play
`yesterday, so no comment there, but they will play today.
`One of the things, and I'm not sure if I clarified
`this or told you about this when I was selecting the jury, but
`once the case gets to you and you start deliberating, we
`typically go full days.
`For example -- well, I think the case is either
`going to get to you to deliberate on either Tuesday or
`Wednesday.
`And once you start deliberating we go full days
`until about 5:00 or somewhere around there.
`So just so you
`know, scheduling wise, that is what we're going to do, unless
`someone has a problem with that and has some other commitments.
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`11
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`And then the majority will rule, depending on how many want to
`stay or how many want to break at our usual time of 1:00.
`So I just wanted to give you a little bit of
`a heads up on that.
`So either Tuesday or Wednesday will be a
`full day, at least in terms of deliberations.
`So keep that in
`mind.
`
`Mr. Nimrod, are you ready to continue
`
`All right.
`with your examination?
`I am, your Honor.
`MR. NIMROD:
`All right.
`You may.
`THE COURT:
`Thank you.
`Good morning.
`MR. NIMROD:
`JURORS:
`Good morning.
`CROSS-EXAMINATION
`
`BY MR. NIMROD:
`Q.
`Good morning, Dr. Schubert.
`A.
`Good morning.
`Q.
`I would like to just pick up where I left off yesterday.
`Can we go back to slide PDX1213?
`We were talking about some -- what I thought were
`discrepancies in
`your analysis chart.
`Do you recall that?
`A.
`Yes.
`Q.
`Now, I showed the jury three examples and I believe you
`showed three in your direct testimony with Nichia's counsel.
`Do you recall that?
`A.
`Yes.
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`12
`
`Your Honor, sorry, we have to clear
`
`MR. RIZZI:
`the courtroom.
`Okay.
`THE COURT:
`(At 8:31 a.m. individuals left courtroom)
`THE COURT:
`All right.
`MR. NIMROD:
`Thank you.
`THE COURT:
`Okay.
`MR. NIMROD:
`Thank you.
`BY MR. NIMROD:
`Q.
`I have more examples, but as you know we have a clock that
`we have to have, so I'm going to move on, but just one point
`there is that you understand that Nichia, you have the burden
`of proof to show that something is -- a product is infringing,
`right, more than 50 percent likely?
`A.
`Yes.
`Q.
`And you accused Everlight of infringing, for example, this
`model that was shown on PDX1213, right?
`You put an X here.
`A.
`Yes.
`Q.
`And you didn't put "maybe" because there might be
`discrepancies, right?
`A.
`There is an X.
`Now, let's go on to the issue of your
`Q.
`Okay.
`All right.
`infringement analysis for controlled particle size
`distribution.
`Let's go to the '960 patent.
`Now, the '960 -- actually, let's go to PX4 at
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`13
`
`Claim 14, please.
`Claim 14 you accused -- I believe you stated
`that -- you gave an opinion that many, many, many Everlight
`products infringed Claim 14, right?
`A.
`Yes.
`Q.
`And that was regardless of whether they used YAG or TAG or
`nitrides or any other kind of phosphor, right?
`A.
`Yeah, Claim 14 does not specify YAG phosphor.
`Q.
`Right.
`So in other words, in your infringement analysis
`you said that Everlight was infringing, whether or not they
`used YAG or TAG or nitrides or any of these other types of
`phosphors, right?
`I mean, your infringement chart shows infringement
`checked off for things that don't have YAG or TAG, right?
`A.
`As long as the particle size control -- the controlled
`particle size distribution is met.
`And said
`Q.
`Okay.
`And that's that last limitation:
`fluorescent material has a controlled particle size
`distribution, right?
`A.
`Yes.
`Let's go to the parts of the patent where -- the
`Q.
`Okay.
`'960 patent where it talks about the particle size.
`First
`let's go to Column 18, Lines 8 to 12.
`It talks about the idea
`of distribution of the phosphor concentration can be achieved,
`and it talks down there about Line 11, particle size
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`14
`
`Do you see that?
`distribution, right?
`A.
`Yes.
`It talks here about the distribution of the
`phosphor.
`It does not talk about the control of the particle
`size distribution.
`So let's go to column -- the bottom of
`Q.
`Exactly.
`Okay.
`18 and top of 19, just the last few lines there.
`And then the top of 18, 19, the first four lines,
`
`five lines.
`
`And it says that the -- there is a description of
`material for making a phosphor.
`It says the mixture right here
`is mixed with an appropriate quantity of fluoride, and goes on,
`and then the last sentence says:
`Then the fired material is
`ground by a ball mill in water, washed, separated, dried, and
`sieved, thereby to obtain the desired material, right?
`A.
`Yes.
`Q.
`And you have stated in your expert reports that sieving is
`a way to control particle size distribution as taught by the
`patent, right?
`A.
`Sieving in conjunction with the ball mill and with the
`washing and the drying.
`Q.
`Which is, that's the steps you take to sieve, right?
`A.
`Yes, before the sieving.
`Q.
`And, in fact, if we go to Column 28, Lines 54 to 60, there
`is an example.
`Column 28, did I get the right column?
`
`Column 28,
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`15
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`I'm sorry, and it's 54 to 60, Example 10.
`And it talks about the fired material is ground by
`a ball mill and water, washed, separated, dried, and sieved,
`thereby to obtain the first and second fluorescent materials of
`the specified particle size distribution.
`Do you see that?
`
`You said there's
`
`Yes.
`A.
`And I believe that's the only places that it talks about
`Q.
`particle size distribution in the '960 patent.
`Do you agree?
`A.
`Some of these may be mentioned multiple times in the
`patents.
`Q.
`You said there's other disclosures?
`other disclosures?
`A.
`Well, as I said, sometimes the patent is a little bit
`redundant, so that the ball mill in water, and the washing, and
`the drying, and the sieving, may be mentioned multiple times.
`Q.
`Okay.
`I did a word search on a -- I didn't see any other
`references.
`Are you aware of any other references to the
`particle size distribution or are you saying that the sieving
`might be mentioned again?
`A.
`Multiple times, yes.
`Q.
`Okay.
`Let's go to your slide, infringement slide 266.
`And the way that you -- this is one of your claim
`charts, and it was for Claim 14 that we were just talking about
`of the '960 patent, right?
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`16
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`Yes.
`A.
`And you have highlighted the controlled particle size
`Q.
`distribution limitation, yes?
`A.
`Yes.
`And then you have an arrow pointing to the --
`Q.
`Okay.
`what's called the D50 value, right?
`A.
`It's the D50 value and it's also the range that is given
`here, yes.
`The D50 value is the 14.5 micrometer, and the range
`is 13.5 micrometer to 15.5 micrometer.
`Q.
`Which indicates, you're saying that 50 percent of the
`material -- what does the plus or minus indicate to you?
`A.
`According to the testimony of an Everlight witness,
`Guangmau Lu, 50 percent of the particles are within this range.
`50 percent of the particles are within the range of 13.5
`micrometer to 15.5 micrometer; that is, 14.5 plus/minus
`1 micrometer.
`Q.
`And there is no specification about where the other
`50 percent is, right, on that?
`From that number, the number you presented to the
`jury, you're relying on for infringement, it just says,
`according to your testimony, it's 50 percent.
`It's between
`13.5 and 15.5 and no indication what the rest is, true?
`A.
`No.
`It would be clear that 25 percent, approximately
`25 percent of the particles have a diameter less than
`13.5 micrometer and about 25 percent of the particles have a
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`17
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`diameter greater than 15.5 micrometer.
`Q.
`They are outside the range of 13.5 to 15.5?
`A.
`Correct.
`Now, you would agree that the '960
`Q.
`Okay.
`All right.
`patent does not discuss D50 values anywhere in it, does it?
`There is no discussion of D50 values, right?
`Is
`that correct?
`A.
`No.
`Q.
`It's incorrect?
`A.
`There --
`Q.
`Is there a reference to D50 in the '960 patent?
`A.
`Its particle size is mentioned.
`Particle size means,
`means the size of the particles.
`So -- and so the diameter of
`the particle, we can specify the diameter, which is D50.
`We
`can specify the radius, but, you know, twice the radius is the
`diameter, and so particle size means the particles have a
`certain size, they have a certain diameter.
`Q.
`Is D50, D-5-0, mentioned anywhere in the '960 patent?
`you know?
`A.
`The D50, these three, D50 is literally not mentioned, but
`particle size is mentioned.
`And particle size means, D50 is
`just the symbol, the mathematical symbol for the particle size.
`So if we say the whole name or if we give the mathematical
`symbol, it's basically equivalent.
`Q.
`Okay.
`All phosphors that have particles have a D50, then,
`
`Do
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`
`

`

`18
`
`right, that you can measure?
`A.
`Could you say that again?
`Q.
`I said, all phosphor powders would have a particle size,
`and therefore, a D50 value you could measure?
`A.
`Yes, all of them have, however, I would like to say
`sometimes they are -- if we have a phosphor blend with having
`two phosphors, one of the phosphors may have a D50 of 20
`microns and the other phosphor may have a D50 value of 10
`microns, but if we just look at one particular distribution or
`not a blend, but just one type of phosphor, there is a D50
`value.
`Q.
`And then there is always some plus or minus where you
`could calculate where 50 percent is between one number and
`another number around the D50.
`You could just do the
`measurement and figure out what it is, what the plus or minus
`is, right?
`A.
`You mean all distributions have a range?
`Q.
`No.
`I'm saying you could always calculate the range for a
`single phosphor; somebody gives you a sample of a phosphor, you
`can calculate the D50 and figure out what the plus or minus
`would be to get where the 50 percent is?
`A.
`One could measure it.
`Q.
`Right.
`In other words, it's an inherent property of a
`phosphor to have a measurable D50 value and a plus or minus
`where the 50 percent lies, right?
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`TCL 1035, Page 18
`
`

`

`19
`
`Yes.
`A.
`Now let's go to PDX1401 and this is another
`All right.
`Q.
`part of your analysis chart.
`And in your analysis chart, this
`is for a particular part number.
`And you have, the phosphor is
`ELIEX311, and then later in your chart you have the phosphor
`part number, the phosphor, and then you give the D50 particle
`size, right?
`A.
`The D50 and the range.
`Q.
`Right.
`And you have checked this particular one as
`infringing Claims 14 and 19 which require controlled particle
`size distribution, right?
`A.
`Yes.
`Q.
`And let's remind ourselves as to what you -- how you
`describe controlled particle size.
`Can you put the next part on?
`And you
`This is your infringement demonstrative.
`recall you told the jury that the one on the top would be no
`controlled particle size distribution, and that the one on the
`bottom is one that shows controlled particle size distribution
`after sieving or whatever, right?
`A.
`That's a schematic illustration.
`Q.
`And it was from your demonstrative, infringement
`demonstrative 48, okay?
`A.
`Yes.
`Q.
`Okay.
`
`Now, you actually had some SEM images made of these
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`TCL 1035, Page 19
`
`

`

`20
`
`various LED, LEDs of Everlight, right?
`A.
`Yes.
`Q.
`And some of them, you relied on some of them to show
`the -- what you were calling the concentration limitation of
`Claims 1 and 2 of the '960, right?
`Do you recall that?
`A.
`Claim 1 of the '925 was not asserted.
`Q.
`On the '960, I'm sorry.
`The '960, you assert Claim 2,
`which is dependent on Claim 1.
`So just saying to prove the
`increasing concentration limitation of Claim 2 relied on some
`electron microscope photos you showed the jury yesterday.
`Do
`you recall that?
`A.
`Yes.
`And you had some -- even though this one has no
`Q.
`Okay.
`check here for Claim 2, you actually had an electron image done
`of this model, as well.
`Do you recall that?
`You had it done
`by Dr. Happek and TAEUS?
`A.
`So Claim 2 is not -- does not have a check mark.
`Q.
`Right.
`A.
`And you're saying that we took SEMs, scanning electron
`micrographs, of this particular product?
`Q.
`Yes.
`Did you or didn't you, do you know?
`A.
`There were about 600 reports, 600 measurements out of
`800 products, so it is certainly likely that we measured this
`one, but I can't say for sure, because there were approximately
`200 products that were not investigated by SEM.
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`TCL 1035, Page 20
`
`

`

`21
`
`Well, this one you did, and let me show you what
`Okay.
`Q.
`the image looks like, if we can put on --
`A.
`Sometimes there was no sample received.
`Q.
`This one is for -- D1964 is one of these TAEUS reports
`that you received and this shows the LED chip is down here?
`A.
`Yes.
`Q.
`And the phosphors, I have put yellow on them, but they're
`right here.
`Do you see that?
`This is a -- this is an
`A.
`This is not the original image.
`image that has been colorized and I would need to see the
`original image.
`Q.
`Okay.
`Let's go to the next slide, PDX1402.
`Okay.
`There it is.
`Okay?
`Is that better for
`
`you?
`Yes.
`A.
`And you see there are these big chunks of phosphor
`Okay.
`Q.
`here, right?
`A.
`It is not clear if this is a phosphor or if this is a
`diffuser.
`The devices have two types of material.
`One type
`of material is the phosphor.
`There is also another type of material, which are
`so-called diffusers, and they fulfill only the scattering
`function.
`
`So the phosphor has two functions, wavelength
`conversion and scattering.
`If the scattering afforded by
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`TCL 1035, Page 21
`
`

`

`22
`
`the phosphor is not sufficient, then there are additional
`particles that are added to the resin, and those are so-called
`diffusers.
`And so we may say here, what I believe we see here
`is diffusers as well as phosphors.
`Q.
`You know, in fact, the diffusers are small, aren't they,
`Dr. Schubert?
`You know that to be the case.
`You're an expert
`in LEDs, right?
`A.
`Relative to phosphors or what do you mean with small?
`Q.
`Relative to the sizes we're saying here, the diffusers are
`small.
`They are not like this, are they?
`You know that.
`A.
`It depends on the application.
`Q.
`One thing you did say, though, is that these could be
`phosphors, they could be diffusers.
`You said you didn't know,
`right?
`That was your testimony just two minutes ago, is that
`right?
`A.
`From this image, it looks like to me that we have more
`than one type of particle in there, and that is diffusers --
`it could be diffusers, as well as phosphors.
`Q.
`You showed the jury images yesterday that were just like
`this and you had no trouble saying that the stuff that was down
`here was just the phosphor.
`You had no trouble saying that's
`the phosphor.
`You didn't talk about diffusers, did you?
`A.
`Some devices contain only phosphors.
`Some devices also
`contain diffusers.
`If we want to have a reliable information
`on the phosphor particle size, we go to the technical
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`TCL 1035, Page 22
`
`

`

`23
`
`information spreadsheet.
`The Everlight technical information spreadsheet
`specifies the phosphor, the D50 value, and the range.
`And I
`don't see any reason to doubt the information that is given by
`the Everlight technical information spreadsheet.
`Q.
`Actually, that's why I asked you the question before we
`got here, to let the jury know that 25 percent of the particles
`you said are bigger than the amount in the range.
`That's what
`you told me right?
`Is that right?
`A.
`They are bigger, but they are still close to the D50
`value. Any reasonable distribution will have --
`Q.
`You have --
`A.
`Any reason --
`Q.
`You have no -- you have submitted no evidence to the jury
`other than -- let's go back to the slide.
`All you showed to the jury was 6.5 plus or minus 1
`and you told me that means 50 percent is between the 5.5 and
`7.5, 25 percent smaller, 25 percent larger, wasn't that your
`testimony?
`A.
`That is --
`Q.
`Was that --
`A.
`That is based on Everlight witness testimony.
`Q.
`Right.
`And if these big chunks here are, in fact,
`phosphors, then this sample looks a lot more like the one that
`you called having no controlled particle size distribution,
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`TCL 1035, Page 23
`
`

`

`24
`
`Isn't that correct?
`right?
`A.
`I think that assumption is not -- I cannot follow that
`assumption, because the Everlight data says -- Everlight
`technical information spreadsheet says 6.5 plus/minus
`1 micrometer.
`It is clear that the 25 percent that I talked
`about earlier are relatively close to the D50 value.
`Q.
`It doesn't say that here, does it?
`You testified -- that is exactly why I asked this
`question before we got to this.
`I asked you if this meant 50 percent was within
`that range of plus or minus 1, and you said yes.
`This data sheet doesn't tell you anything about
`the other 25 percent, and you gave no testimony to the jury
`about that, did you?
`A.
`If you look at the phosphor distributions, and there are
`a number of phosphor distributions that are disclosed in
`Everlight's document, you can see that the 25 percent that we
`are just being -- that we just talked about are relatively
`close to the D50 value.
`It is not that the distribution has
`here a relatively narrow distribution and then we have
`particles that are outliers.
`We don't have those outliers in
`the distributions that I saw from Everlight.
`It's a relatively
`narrow distribution.
`If these yellow things we
`Q.
`Let me ask you this question:
`put in yellow are, in fact, phosphors, I want you to assume
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`TCL 1035, Page 24
`
`

`

`25
`
`that, would you agree that this device that's shown on PDX1401,
`Everlight's LED, looks like no controlled particle size
`distribution?
`Would you agree with that, if I asked you to
`assume that these big yellow chunks are phosphors?
`A.
`No.
`And I can give you the reason.
`It is not clear if
`the big particles are the phosphor or if the small particles
`are the phosphor.
`Q.
`Okay.
`So you're saying also now that these, this -- if
`you're saying -- how about if I tell you, I'll ask you to
`assume everything I put in yellow is a phosphor.
`Would you
`agree then that this image for the Everlight LED shows no
`controlled particle size distribution?
`A.
`I couldn't follow that assumption.
`Q.
`No, just -- you're an expert.
`I'm free to ask you to make
`assumptions and ask you questions.
`You understand that, right?
`You have testified many times before, right?
`A.
`Yes.
`Q.
`And if I ask you to assume that the things I have
`colorized in yellow are phosphors and not diffusers, then the
`Everlight device shows no controlled particle size
`distribution, right?
`A.
`I have difficulty with that assumption, because it's in
`contrast to what Everlight says about the particle size
`distribution, 6.5 plus/minus 1 micrometer, and the assumption
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`TCL 1035, Page 25
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`

`

`26
`
`is in contrast to that, to that firm data.
`Q.
`Well, just as a matter of math, I could have 6.5 -- well,
`let me get my -- an answer to my question first.
`Please assume everything in yellow is a phosphor.
`With that assumption you would agree that that device shown on
`1401 of Everlight would be no controlled particle size
`distribution, right?
`Just answer that question, if you could, and I'll
`follow up with another one.
`Do you agree?
`A.
`So just to clarify, you want me to assume this, make this
`assumption, even though it contradicts the data that is given
`in the Everlight technical information sheet?
`Q.
`I just want you to assume it.
`A.
`Okay.
`Q.
`I don't think it contradicts it.
`A.
`So if -- if I make that assumption, and I believe it
`contradicts the information in the Everlight technical
`information spreadsheet, then it would look like an
`uncontrolled particle size distribution.
`Q.
`And just to be clear, by the way, if I had a sample that
`had 50 percent of the particles between 5.5 and 7.5 and I had
`some big chunks left over that were large, that would still
`have a D50 value of 6.5 plus or minus 1, right?
`Just as a
`matter of math, because the 25 percent have larger numbers,
`right?
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`TCL 1035, Page 26
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`

`

`27
`
`Mathematically, yes, but in practice, we are producing
`A.
`those particles by sieving.
`And sieving means there are two
`sieves, sieves in a series, and they filter out the large
`particles and the very small particles.
`So in practice, it
`wouldn't look like this.
`Q.
`You didn't present any evidence to the jury yesterday that
`this sample or any of the samples were sieved, did you?
`You didn't say a word about any of the commercial
`products that Everlight used being sieved, did you?
`Yes or no?
`A.
`I don't recall if we explicitly talked about sieving, but
`I heard the word, sieving.
`I heard it being discussed several
`times.
`Q.
`But when you were talking about your infringement proofs,
`you relied on the D50 value and you didn't say a word about
`sieving for any of Everlight's commercial products.
`Is that
`true?
`Yes or no?
`It was your direct testimony.
`careful notes.
`Isn't that correct?
`You did not present to the jury any evidence or
`any testimony that the Everlight phosphors were sieved; you
`simply relied on the D50 value right here?
`Is that true?
`what you did during direct testimony?
`A.
`I said controlled particle size and the control implies --
`Q.
`Dr. Schubert, I asked you what you said to the jury.
`This
`is a simple question.
`
`I took a lot of
`
`Is
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`TCL 1035, Page 27
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`

`28
`
`When you talked to the jury yesterday and you said
`the D50 value, you did not mention sieving in connection with
`the Everlight phosphors; yes or no?
`Is that correct?
`A.
`It is correct.
`I may not have mentioned --
`Q.
`Thank you.
`Thank you.
`A.
`-- the word sieving, but I --
`MR. RIZZI:
`Your Honor, can he be allowed to
`answer the question?
`He can finish his answer, yes.
`Yes.
`THE COURT:
`I may not have mentioned the word,
`THE WITNESS:
`sieving, but I mentioned controlled particle size.
`And the
`patent teaches that controlled particle size can be achieved by
`the sieving process.
`Q.
`(By Mr. Nimrod, continuing) but you didn't mention it for
`any of the Everlight products, you're just referring to the
`patent now, right?
`Is that correct?
`Did I get your testimony
`right?
`
`That's what you just said, it's -- let me withdraw
`that, as a matter of fact.
`You had all these images when you gave your
`infringement, did your infringement analysis, right?
`TAEUS, Dr. Happek gave them to you, right?
`Corre

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