Case: 1:16-cv-04496 Document #: 180-16 Filed: 12/29/17 Page 78 of 112 PageID #:16484
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`Exhibit 94
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`Kranos IP Exhibit 2007, Page 1 of 20
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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`Riddell, Inc. v. Kranos Corporation d/b/a Schutt Sports
`United States District Court for the Northern District of Illinois
`Case No. 16-cv-4496
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`SUPPLEMENTAL EXPERT REPORT OF NICHOLAS SHEWCHENKO
`REGARDING ALLEGED NON-INFRINGING ALTERNATIVE DESIGNS
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`Kranos IP Exhibit 2007, Page 2 of 20
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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`Case: 1:16-cv-04496 Document #: 180-16 Filed: 12/29/17 Page 80 of 112 PageID #:16486
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`I have been asked by counsel for Plaintiff Riddell, Inc. (“Riddell”) to
`1.
`provide my expert opinions regarding alleged non-infringing alternative designs,
`and, in particular, regarding a newly-proffered hypothetical design disclosed in the
`Rebuttal Expert Report of Dr. Jonathan Posner (“Rebuttal Posner Report”) and the
`Rebuttal Expert Report of Michael M. Milani (“Rebuttal Milani Report”).
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`RELEVANT BACKGROUND AND EXPERIENCE
`My relevant background and experience are set forth in my expert
`2.
`reports regarding infringement and validity, which reports are incorporated by
`reference as if fully set forth herein.
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`MATERIALS REVIEWED
`In addition to the materials reviewed in connection with my prior
`3.
`expert reports, to prepare this report, I reviewed relevant portions of the Rebuttal
`Posner Report, the Rebuttal Milani Report, the transcript of the December 6, 2017
`deposition of Dr. Posner, the transcript of the December 6, 2017 deposition of Robert
`Erb, and the websites and materials discussed in this report, including the
`Appendices. In addition, I inspected a physical sample of the Vicis Zero1 helmet.
`COMPENSATION
`My billing rate for this project is $300 for each hour of work in
`4.
`connection with this matter. My compensation is not affected by the outcome of this
`case or the content of my testimony.
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`EXPERT OPINIONS
`In their Rebuttal Expert Reports, Dr. Posner and Mr. Milani discussed
`5.
`a previously undisclosed “potential noninfringing alternative” consisting of a
`hypothetical “modified Vengeance helmet shell.” I disagree that the proposed
`hypothetical design alternative is an acceptable non-infringing alternative, as
`discussed in detail below.
`In his Rebuttal Expert Report, Dr. Posner stated that he had “been
`6.
`asked to opine on whether a modified Vengeance helmet shell infringes any of the
`Asserted Claims,” depicting a proposed hypothetical alternative design. Rebuttal
`Posner Report ¶¶ 118-20. Specifically, Dr. Posner opined:
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`Kranos IP Exhibit 2007, Page 3 of 20
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`Id. ¶ 120.
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`Kranos IP Exhibit 2007, Page 4 of 20
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`Dr. Posner opined that a helmet shell in the form of the above sketches
`7.
`“is not likely to be appreciably different from the existing Vengeance helmet shell in
`terms of fit, impact resistance, rigidity, durability, and/or the appearance of comfort
`or heat management,” among other features. Id. ¶¶ 121-24. Dr. Posner did not
`provide any support or testing for his conclusions.
`I disagree that the proposed modifications would not appreciably affect
`8.
`key characteristics of the shell, and thus the acceptability of the design to
`consumers. The inclusion of vent openings outside (and aligned along) the raised
`central band, as claimed in the patents-in-suit, utilizes the local stiffening effect of
`the band to counter the weakening effect of the vent openings. The inclusion of vent
`openings within the raised central band, as shown in Dr. Posner’s hypothetical
`design above, would create areas of less structural rigidity, which could affect the
`durability and impact protection of the helmet if no other changes were made.
`In fact, in his Opening Expert Report, Dr. Posner opined that “vent
`9.
`openings are not ordinarily located in a raised central band. The raised central
`band is a common area of impact and high loading, and placing a vent opening in
`that region may decrease the strength and stiffness and could possibly lead to
`localized helmet shell failure. That said, for helmets having a raised central band,
`vent openings are sometimes positioned close to, but not within, the raised central
`band. In this way, there may be a diminished likelihood of a direct impact to the
`vent openings.” Opening Expert Report of Dr. Jonathan Posner ¶ 222 (emphasis
`added). Likewise, in his Rebuttal Expert Report, Dr. Posner notes that “By leaving
`the front set of vent openings outside of the saw-tooth offset feature in that [front]
`region, the front region will maintain its structural rigidity.” Rebuttal Posner
`Report ¶ 122. Thus, Dr. Posner and I agree that the placement of vent openings
`within the raised central band affects the band’s structural rigidity.
`10. At the very least, a helmet manufacturer would need to test the
`alleged design to determine its effect on structural rigidity. No such testing has
`been undertaken. And Mr. Erb confirmed that the hypothetical design shown above
`has “never actually been made,” and “doesn’t exist.” Erb Dep. Tr. (Rough) at 8, 17.
`Rather, as Mr. Erb further confirmed, this design was thought up by Schutt’s
`damages expert, Mr. Milani, who to my knowledge has no experience designing,
`testing, or manufacturing helmets. Id. at 8-9, 11. Schutt has never tested the
`performance of this hypothetical design, including whether the modifications to the
`placement of the vent openings would impact the rigidity of the shell. Id. at 14-15,
`17. Nor has Schutt tested whether the inclusion of vent openings within the raised
`central band would be acceptable to consumers. Id. at 17, 20.
`11. Mr. Erb testified that the design changes would simply require
`altering some tooling, would cost “not that much,” and that Schutt could have
`simply made the design changes at any time. Id. at 20-21. I disagree that a helmet
`designer would simply move vent holes and send a design to market without further
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`Kranos IP Exhibit 2007, Page 5 of 20
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`testing or consideration. As discussed above, vent holes require consideration of
`stress concentrations, as well as the attachment, layout, and selection of materials
`of the shock attenuating padding in the vicinity of the vent holes. Moreover, design
`changes may require additional testing by third parties to establish their safety
`certification or ranking in the market place (e.g., NOCSAE, Virginia Tech, NFL).
`Furthermore, Mr. Erb testified that ventilation holes are commonly used in Schutt’s
`other helmet products, inside or outside the central band area, but are typically
`reinforced from the bottom to prevent tearing or damage. Erb Dep. Tr. (Rough) at
`14-15, 50-51. This further emphasises the need for engineering considerations of
`the vent holes before bringing the product to market.
`In the Rebuttal Milani Report, Mr. Milani similarly opined that
`12.
`“altering the Vengeance shells such that the front ventilation opening remains in
`their current location and the remaining ventilation holes are moved within the
`raised center band would not impact the performance, safety, durability, comfort/fit,
`price, or distribution of the Accused Products.” Rebuttal Milani Report p.46. Mr.
`Milani thus “consider[s] such a re-design to represent an acceptable non-infringing
`alternative design available to Schutt at the time of the hypothetical negotiation.”
`For the same reasons discussed above, I disagree with Mr. Milani’s opinion that the
`hypothetical design would be an acceptable non-infringing alternative.
`In support of his opinion that the vent openings could simply be moved
`13.
`inside the raised central band, Mr. Milani notes that the “VICIS ZERO1 has
`ventilation openings located within the raised center band, and it ranked first in
`2017 Helmet Laboratory Testing Performance Results.” Id. As seen below, the
`ventilation openings in the Vicis Zero1 helmet are different in shape, configuration,
`and distance from the side walls of the raised central band than the hypothetical
`design alternative proposed by Schutt (depicted above):
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`https://shop.vicis.co/products/zero1. In addition, as Dr. Posner confirmed, the Vicis
`helmet relies on having a flexible (rather than rigid) shell. Posner Dep. (Rough) at
`52-53. The test results of the Vicis Zero1 are thus inapplicable to Schutt’s proposed
`hypothetical design since there are also other factors than just vent holes that
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`influence overall helmet performance. Rather, performance of the helmets is
`dependent on the whole system including the shell, liner, sizing system and
`attachments.
`14. To the extent that Schutt is now contending that the Vicis Zero1 is an
`available acceptable non-infringing alternative to the accused products, I further
`disagree. As Mr. Erb and Dr. Posner testified, the Vicis Zero1 helmet has already
`been recalled due to fit and comfort issues, has an MSRP of up to $1,500, and is only
`being used by a very small number of players. Erb Dep. Tr. (Rough) at 35, 37-38.
`Posner Dep. Tr. (Rough) at 31-32. Schutt and its experts have furthermore not
`provided any evidence to indicate that Vicis would allow Schutt to use its design
`(which it is my understanding is the subject of pending patent applications).
`Furthermore, the VICIS helmet is not commercially available for shipment until at
`least 2018/03/01, according to their web site (https://shop.vicis.com/products/zero1).
`15. Moreover, the Vicis Zero1 helmet infringes claims of the patents-in-
`suit, as shown in the claim charts attached as Appendices A and B to this report.1
`Thus, the Vicis Zero1 is not an acceptable non-infringing alternative.
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`RESERVATION OF RIGHTS
`I hereby submit this supplemental report in connection with my
`16.
`preparation to testify as an expert in this case. I offer this report based upon my
`personal knowledge, and, if called upon to testify, could and would testify
`competently to the matters set forth herein. All of the opinions stated herein are to
`a reasonable degree of scientific certainty and are based on information currently
`available to me.
`I reserve the right to continue my investigation and analysis, which
`17.
`may include review of documents and information that may be later produced, as
`well as deposition testimony later provided in this case. I reserve the right to
`further supplement or amend my opinions as my investigation continues and/or to
`account for any additional information that becomes available to me, any matters
`raised by Schutt (and/or opinions provided by Schutt’s experts), or in light of any
`relevant orders or other developments in this matter.
`18. At hearing and/or trial in this case, I reserve the right to rely on
`materials and documents that are publicly available or produced in this litigation,
`as well as documents the parties have exchanged, such as discovery responses and
`expert disclosures. I also reserve the right to rely on visual aids and demonstrative
`exhibits that I may prepare or have prepared for purposes of any hearing and/or
`trial in this case.
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`1 The claim charts compare the Vicis Zero1 helmet to one representative independent claim from
`each of the patents-in-suit. This analysis is intended to apply to similar elements in other claims as
`well.
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`Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the
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`laws of the United States of America that the foregoing is true and correct.
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`Dated: __________________
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`By:
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`Nicholas Shewchenko
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`15 December, 2017
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`Kranos IP Exhibit 2007, Page 8 of 20
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`APPENDIX A TO THE SUPPLEMENTAL EXPERT REPORT OF NICHOLAS SHEWCHENKO:
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`CLAIM CHART COMPARING THE VICIS ZERO1 HELMET TO
`CLAIM 41 OF U.S. PATENT NO. 8,938,818
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`Claim Language
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`Location in Vicis Zero1 Helmet
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`A football helmet comprising:
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`The Vicis Zero1 is a football helmet. See, e.g., https://vicis.com/.
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`a plastic shell configured to receive a
`head of a wearer of the helmet, the
`shell having:
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`The Vicis Zero1 has a plastic shell configured to receive a head of a wearer of the helmet:
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`See, e.g., https://vicis.com/; see also exemplar helmet (Initial Season 2017, Size 01A).
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`a front region,
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`The Vicis Zero1 shell has a front region:
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`front region
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`Kranos IP Exhibit 2007, Page 9 of 20
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`a crown region,
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`The Vicis Zero1 shell has a crown region:
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`crown region
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`a rear region,
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`The Vicis Zero1 shell has a rear region:
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`rear region
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`two side regions wherein each side
`region has an ear flap with an ear
`opening,
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`The Vicis Zero1 shell has two side regions wherein each side region has an ear flap with an ear
`opening:
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`A-2
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`Kranos IP Exhibit 2007, Page 10 of 20
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`side region
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`ear flap
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`ear opening
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`a raised central band integrally
`formed as part of the shell and
`extending across the crown region to
`the rear region,
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`a first plurality of elongated vent
`openings in the shell, wherein said
`first plurality of vent openings reside
`outside of the raised central band
`and are aligned along a first side of
`the raised central band;
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`The Vicis Zero1 shell has a raised central band integrally formed as part of the shell and
`extending across the crown region to the rear region:
`crown
`region
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`raised
`central band
`integrally
`formed as
`part of the
`shell
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`rear region
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`In his deposition, Dr. Posner confirmed that the Vicis Zero1 helmet has a raised central band.
`Posner Dep. Tr. (Rough) at 36.
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`The Vicis Zero1 shell has a first plurality of elongated vent openings in the shell, wherein said
`first plurality of vent openings reside outside of the raised central band and are aligned along a
`first side of the raised central band:
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`A-3
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`Kranos IP Exhibit 2007, Page 11 of 20
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`first side of
`raised
`central band
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`first plurality
`of vent
`openings
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` Front view Rear view
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`first side of
`raised
`central band
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`first plurality
`of vent
`openings
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` Front right side view Rear right side view
`Photos from exemplar helmet (Initial Season 2017, Size 01A).
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`a second plurality of elongated vent
`openings in the shell, wherein said
`second plurality of vent openings
`reside outside of the raised central
`band and are aligned along a second
`side of the raised central band;
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`The Vicis Zero1 shell has a second plurality of elongated vent openings in the shell, wherein
`said second plurality of vent openings reside outside of the raised central band and are aligned
`along a second side of the raised central band:
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`A-4
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`Kranos IP Exhibit 2007, Page 12 of 20
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`second side
`of raised
`central band
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`second
`plurality of
`vent openings
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`a face guard secured to the shell by a
`plurality of connectors; and
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`The accused products have a face guard secured to the shell by a plurality of connectors:
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`face guard
`connectors
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`face guard
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`a chin strap assembly that releasably
`secures the helmet to the wearer.
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`The Vicis Zero1 has a chin strap assembly that releasably secures the helmet to the wearer:
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`A-5
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`Kranos IP Exhibit 2007, Page 13 of 20
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`chin strap
`assembly
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`A-6
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`Kranos IP Exhibit 2007, Page 14 of 20
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`APPENDIX B TO THE SUPPLEMENTAL EXPERT REPORT OF NICHOLAS SHEWCHENKO:
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`CLAIM CHART COMPARING THE VICIS ZERO1 HELMET TO
`CLAIM 1 OF U.S. PATENT NO. 8,528,118
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`Claim Language
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`Location in Vicis Zero1 Helmet
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`A football helmet, comprising:
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`The Vicis Zero1 is a football helmet. See, e.g., https://vicis.com/.
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`a plastic shell configured to receive
`a head of a wearer of the helmet,
`the shell having:
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`The Vicis Zero1 has a plastic shell configured to receive a head of a wearer of the helmet:
`
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`See, e.g., https://vicis.com/; see also exemplar helmet (Initial Season 2017, Size 01A).
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`a front region,
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`The Vicis Zero1 shell has a front region:
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`front region
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`Kranos IP Exhibit 2007, Page 15 of 20
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`a crown region,
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`The Vicis Zero1 shell has a crown region:
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`crown region
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`a rear region,
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`The Vicis Zero1 shell has a rear region:
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`rear region
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`two side regions wherein each side
`region has an ear flap with an ear
`opening,
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`The Vicis Zero1 shell has two side regions wherein each side region has an ear flap with an ear
`opening:
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`B-2
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`Kranos IP Exhibit 2007, Page 16 of 20
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`side region
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`ear flap
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`ear opening
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`a raised central band integrally
`formed as part of the shell and
`extending across the crown region
`to the rear region,
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`a first plurality of vent openings
`formed in the shell outside of the
`raised central band, wherein the
`first plurality of vent openings are
`aligned, and positioned along a first
`side of the raised central band; and
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`The Vicis Zero1 shell has a raised central band integrally formed as part of the shell and
`extending across the crown region to the rear region:
`crown
`region
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`raised
`central band
`integrally
`formed as
`part of the
`shell
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`rear region
`
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`In his deposition, Dr. Posner confirmed that the Vicis Zero1 helmet has a raised central band.
`Posner Dep. Tr. (Rough) at 36.
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`The Vicis Zero1 shell has a first plurality of vent openings formed in the shell outside of the
`raised central band, wherein the first plurality of vent openings are aligned, and positioned along
`a first side of the raised central band.
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`B-3
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`Kranos IP Exhibit 2007, Page 17 of 20
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`first side of
`raised
`central band
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`first plurality
`of vent
`openings
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`
` Front view Rear view
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`first side of
`raised
`central band
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`first plurality
`of vent
`openings
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` Front right side view Rear right side view
`Photos from exemplar helmet (Initial Season 2017, Size 01A).
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`
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`a chin strap assembly that
`releasably secures the helmet to the
`wearer.
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`The Vicis Zero1 has a chin strap assembly that releasably secures the helmet to the wearer:
`
`B-4
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`Kranos IP Exhibit 2007, Page 18 of 20
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`chin strap
`assembly
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`B-5
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`Kranos IP Exhibit 2007, Page 19 of 20
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`Kranos IP Exhibit 2007, Page 20 of 20
`Riddell, Inc. v. Kranos IP II Corp., IPR2018-01164
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