`
`Transcript of William Messner,
`Ph.D.
`
`Date: March 16, 2020
`Case: American National Manufacturing Inc. -v- Sleep Number Corporation, et al.
`(PTAB)
`
`Planet Depos
`Phone: 888.433.3767
`Email:: transcripts@planetdepos.com
`www.planetdepos.com
`
`WORLDWIDE COURT REPORTING | INTERPRETATION | TRIAL SERVICES
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 1
`
`

`

`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`
`1 (1 to 4)
`
`1
`
`3
`
` I N D E X
`
`WITNESS DIRECT CROSS REDIRECT RECROSS
`
`WILLIAN MESSNER, Ph.D.
`
`By Mr. Hare 5 186
`
`By Mr. Toft 166, 202
`
`
`
` E X H I B I T S
`
`Number Description Page
`
`Exhibit 1 Application WO 2009/123641 46
`
`0
`
`Exhibit 2 Declaration of Dr. William C.
`
`1 2 3 4 5 6 7 8 9 1
`
`11
`
` Messner In Support of Patent
`
`12
`
` Owner's Motions to Amend 52
`
`13
`
`Exhibit 3 Patent Owner's Revised Motion
`
`14
`
` to Amend 138
`
`15
`
`Exhibit 4 Reply in Support of Patent
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
` AMERICAN NATIONAL MANUFACTURING INC.
`
` Petitioners,
`
` v.
`
` SLEEP NUMBER CORPORATION
`
` f/k/a SELECT COMFORT CORPORATION
`
` Patent Owner
`
`0
`
` _______________
`
`1 2 3 4 5 6 7 8 9 1
`
`11
`
`12
`
`13
`
`14
`
`15
`
` Case No. IPR IPR2019-00497
` IPR2019-00500
`
`
` U.S. Patent Nos. 8,769,747
` 9,737,154
`
` _______________
`
`
`16
`
`VIDEOTAPED DEPOSITION OF WILLIAM MESSNER, Ph.D.
`
`16
`
` Owner's Motion to Amend 138
`
`17
`
` Monday, March 16, 2018 8:07 a.m.
`
`18
`
` Hyatt Regency Boston Harbor
`
`17
`
`Exhibit 5 U.S. Patent Application No.
`
`18
`
` US 2007/0000559 146
`
`19
`
` 101 Harborside Drive, Boston, MA 02128
`
`20
`
`Reported by:
`
`21
`
`Janet Sambataro, RMR, CRR, CLR
`
`22
`
`JOB NO. 292030
`
`19
`
`20
`
`21
`
`22
`
`
`
`
`
`
`
`
`
`2
`
`4
`
`P R O C E E D I N G S
` THE VIDEOGRAPHER: We are now on the
`record at 8:07 a.m. Here begins disk labeled
`No. 1 of the videotaped deposition of William
`Messner in the matter of American National
`Manufacturing, Inc. versus Sleep Number
`Corporation, et al., in the United States Patent
`and Trademark Office, Cause Nos. PR2019-00514,
`-00497, and -00500.
` Today's date is March 16, 2020, and the
`0
`time on the video monitor is 8:08 a.m. The
`11
`videographer today is Justin Murray, representing
`12
`Planet Depos. This video deposition is taking
`13
`place at 101 Harborside Drive in Boston,
`14
`Massachusetts.
`15
` At this time, would counsel please
`16
`voice identify themselves and state whom they
`17
`represent.
`18
` MR. HARE: This is Jaspal Hare for
`19
`petitioner, American National Manufacturing.
`20
` MR. TOFT: And Luke Toft of Fox
`21
`Rothschild for Sleep Number Corporation.
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1234567891
`
`APPEARANCES:
`
`
`
`REPRESENTING THE PETITIONER:
`
`SPENCER FANE LLP
`
`(By Jaspal Hare, Esquire)
`
`1000 Walnut Street, Suite 1400
`
`Kansas City, Missouri 64106-2140
`
`jhare@spencerfane.com
`
`
`
`
`
`0
`
`1 2 3 4 5 6 7 8 9 1
`
`11
`
`REPRESENTING THE PATENT OWNER:
`
`12
`
`FOX ROTHSCHILD LLP
`
`13
`
`(By Luke Toft, Esquire)
`
`14
`
`222 South 9th Street, Suite 2000
`
`15
`
`Minneapolis, Minnesota 55402
`
`16
`
`ltoft@foxrothschild.com
`
`17
`
`
`
`18
`
`ALSO PRESENT:
`
`19
`
`Justin Murray, Videographer
`
`20
`
`21
`
`22
`
`
`
`
`
`
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 2
`
`

`

`7
`
`8
`
`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`5
`
` Q. I'll try to ask questions in plain
`English, but if you don't understand my question,
`let me know, okay?
` A. I will do that.
` Q. If you ever answer a question and you
`think of a document that would help -- be
`helpful, also let me know, because we might have
`that document.
` A. Will do.
` Q. I usually like to take breaks every 45
`minutes to an hour and 15 minutes. If you need
`one, let me know --
` A. Okay.
` Q. -- okay?
` A. Yes.
` Q. And I wanted to ask you -- I'd ask that
`you just finish the question we're on -- finish
`answering the question that we're on.
` A. Sure.
` Q. Is there a reason you can't testify
`fully and accurately today?
` A. No reason.
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` And if I can just make a note for the
`record. You said that this deposition included
`IPR 2019-00514, but the notice is only for the
`-497 and -500 proceedings, so that is not part of
`this deposition.
` THE VIDEOGRAPHER: Okay. Thank you for
`that.
` At this time, will the court reporter
`please swear in the witness.
` WILLIAN MESSNER, PH.D.,
`having been duly sworn, after presenting
`identification in the form of a driver's license,
`deposes and says as follows:
` DIRECT EXAMINATION
`BY MR. HARE:
` Q. Good morning, Dr. Messner.
` A. Good morning.
` Q. Could you spell your full name for the
`record, please?
` A. Sure. It's William, W-I-L-L-I-A-M,
`Messner, M, as in Mary, -E-S-S-N, as in Nancy,
`-E-R.
`
`2 (5 to 8)
`
`1234567891
`
`6
`
` Q. And what's your current address?
` A. It's 8 West Winkley Street,
`W-I-N-K-L-E-Y, Amesbury, Massachusetts. Amesbury
`is spelled A-M-E-S-B-U-R-Y.
` Q. Okay. Do you understand that you need
`to speak up so that the court reporter can record
`your answers and also so that the mic can
`translate your audio to me?
` A. Yes. Am I not -- can you hear me okay?
` Q. Yes. I'll let you know if I can't.
` A. Okay.
` Q. And the same with me.
` Do you understand that you need to keep your
`answers clear and verbal, as nods, shakes, and
`such cannot be recorded by the court reporter?
` A. Yes.
` Q. Do you understand that you're under
`oath?
` A. I do.
` Q. Okay. Do you understand that oath
`requires you to answer my questions?
` A. Yes.
`
` Q. Are you on any drugs or alcohol that
`could affect your testimony?
` A. No.
` Q. Do you have any questions about the
`procedure we're going to follow today?
` A. No. I've been deposed many times, so
`hopefully it will be the same as before.
` Q. Okay. I just want to get a little bit
`of background at a high level of what's on your
`resume. So kind of the level of where did you go
`0
`to high school, where did you go to college, what
`11
`did you do next.
`12
` A. Okay.
`13
` Q. So let's just start, where did you grow
`14
`up? Where did you go to high school?
`15
` A. So I grew up in the town in which I
`16
`live right now, Amesbury, Massachusetts. I
`17
`attended Amesbury High School.
`18
` Following that, I attended the Massachusetts
`19
`Institute of Technology, graduated in 1985 with a
`20
`bachelor's degree in mathematics.
`21
` I worked for a couple of years in Newport,
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 3
`
`

`

`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`9
`
`3 (9 to 12)
`
`11
`
` Q. What makes you believe you're qualified
`to testify as an expert in this case --
` A. Well, my --
` Q. -- if you do believe so.
` A. Sure. Well, my understanding is that
`an expert is a person with specialized knowledge
`that can assist, well, the Court or, in this
`case, the Patent Trials and Appeals Board in
`rendering a correct decision.
` I have extensive experience in controls,
`extensive background in mechanical engineering,
`in design, in automatic control systems, all of
`which are relevant to this case.
` MR. HARE: I apologize. This is
`directed to the court reporter.
` Do we have a live feed of the
`transcript?
` COURT REPORTER: Can we go off for one
`moment?
` MR. HARE: Sure.
` THE VIDEOGRAPHER: We are now off the
`record at 8:17 a.m.
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Rhode Island, for a company called BBN
`Laboratories. That was a field office. It's
`based in Cambridge. They do a lot of business
`with the Navy. It's a -- there's a Navy facility
`down there in Middletown, Rhode Island.
` In 1987, I started attending the University
`of California at Berkeley, and I studied
`mechanical engineering. I received a master's
`degree in 1989 and my Ph.D. in 1992.
` Q. What did you do after that?
` A. Sure. After that, I joined Carnegie
`Mellon University as an assistant professor in
`January of 1993. I was promoted to associate and
`full professor. In 2001, I received tenure.
` And I remained there until August of 2012,
`when I moved to Tufts University. I was the
`chair there for three years. And I was at Tufts
`University until May of last year, when I stepped
`down after a two-year phaseout.
` Q. What have you been doing for the last
`two years, then -- or you said May of last year?
` A. Yeah, May of 19- -- sorry, May of 2019.
`10
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`12
`
`1234567891
`
` (A recess was taken.)
` Q. Okay. Gotcha.
` THE VIDEOGRAPHER: We're back on the
` A. Yeah. So -- well, I've been doing this
`record at 8:20 a.m.
`work, quite a bit of -- quite a bit of expert
` MR. HARE: All right. We're back on
`witness work.
`the record; correct?
` I care for my mother, who lives with me.
` COURT REPORTER: Yes.
`I've been still continuing to informally advise
`BY MR. HARE:
`some students at Tufts. Also trying to
` Q. Dr. Messner, have you heard of the
`commercialize some work on robotic assistance for
`phrase "Daubert" or "Daubert motion"?
`activities of daily living for people with spinal
` A. Yes, I've heard of those. I believe it
`0
`cord injury.
`has something to do with --
`11
` I've also started doing a number of science,
` Q. Okay.
`12
`technology, engineering, and mathematics
` A. Yeah. It has something to do with --
`13
`demonstrations. I've done that at various camps,
`how do I say it? -- basically, one side asserts
`14
`schools, and just any old person who happens to
`that the expert shouldn't be an expert, he's not
`15
`walk through my door.
`qualified to be an expert.
`16
` Q. Gotcha.
` Q. Gotcha.
`17
` I didn't hear that you have any kind of
` Do you also understand it can refer to just
`18
`experience with air mattresses in that discussion
`excluding certain testimony, as well?
`19
`that you just provided me.
` A. No, I didn't know that.
`20
` Is that correct?
` Q. Okay. With the understanding that I
`21
` A. Other than maybe using them. I was not
`just described, have you ever been subject to a
`22
`employed, I did not do research on them, no.
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 4
`
`

`

`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`13
`
`4 (13 to 16)
`
`15
`or seven hours with Mr. Toft, and then I think I
`spent another hour -- hour or two rereading some
`documents afterwards. So eight to -- no, seven
`to nine hours. No, that would be -- something
`like that. Eight to ten hours.
` Q. With respect to -- are you familiar
`with the motions to amend in this case? These
`cases, I should say.
` A. I read the motions to amend, so to that
`extent, I'm familiar. I've provided a
`declaration related to the motions to amend.
` Q. Just to summarize so we're all on the
`same page, there was an original round of motions
`to amend filed -- I'm going to give you a date.
`I believe that -- both of those were filed on
`October 23, 2019.
` Do you recall that being correct?
` A. I don't recall the dates. I recall
`that there was an initial set of motions to
`amend, and I understand that in at least one of
`them, there was a modified motion to amend -- I
`can't recall what they called it -- amended
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Daubert motion to exclude a portion of your
`opinions or the entirety?
` A. My understanding is that there was such
`a motion in one of the cases I was in maybe five
`years ago. I was unaware of it until this case,
`and somebody brought it up to me.
` Q. Gotcha.
` What's your understanding of those
`circumstances?
` A. My understanding is that in that
`instance, it wasn't that -- necessarily that my
`opinions were incorrect, but, rather, they were
`not included in a declaration I had made, and so
`the other side moved to exclude the testimony.
` Q. Do you recall any other Daubert motions
`or similar motions related to your opinions?
` A. You know, honestly, I don't.
` Q. Okay. Thank you.
` How much are you getting paid to be here
`today?
` A. My customary rate, which is $575 an
`hour.
`
`1234567891
`
`14
`
`motion to amend.
` Q. Did you do anything to prepare for your
` Q. If I represent to you October 23, 2019,
`deposition today?
` A. Yes.
`is the date those motions were filed and
`served -- and by that, I mean the original
` Q. Can you please describe your
`motions to amend -- do you have any reason not to
`preparation?
` A. I reviewed my declaration. I reviewed
`believe me?
` A. I have no reason one way or another.
`some of the patents. I met with Mr. Toft
`yesterday for a few hours.
` Q. Okay.
` A. As far as I know, that's correct.
` Q. Approximately how long did you meet
` Q. I represent to you that date is
`with Mr. Toft?
`0
` A. It was probably around six hours, maybe
`correct.
`11
`seven hours, something like that.
` MR. HARE: And, Counsel, if you want to
`12
`correct me, but I believe that is correct.
` Q. Was anybody else present, either --
`13
` Q. So just for -- to get the terminology
` COURT REPORTER: I'm sorry, the screen
`14
`straight, if we refer to that set as the original
`froze. Could you repeat the question? "Was
`15
`motion --
`anybody else present," and then the screen froze.
`16
` THE WITNESS: Could we just stop for a
` Q. Was anybody else present, either
`17
`second? There's a -- a screen came up on the --
`physically or via telephone or other means?
`18
` A. No.
`and it's going to be -- I think we need to touch
`19
`the touch pad.
` Q. Approximately how much would you say
`20
` Okay. There we go. Thank you. Okay.
`your total time spent preparing was?
`21
` A. For this deposition, there were the six
`We're all set now.
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`16
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 5
`
`

`

`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`17
`
`BY MR. HARE:
` Q. All right. The purpose of this is to
`get us on the same terminology so we're talking
`about the same documents.
` A. Sure.
` Q. There's an original set of motions to
`amend --
` A. Yes. Oh, the screen just froze.
` Q. -- filed on October 23, 2019.
` A. Okay. Yes, original motions to amend
`on the 23rd of October.
` Q. You did not submit a declaration to
`support those motions; correct?
` A. I don't recall submitting a declaration
`to support those motions. I submitted a
`declaration subsequently.
` Q. Okay.
` A. Yeah.
` Q. Okay. So subsequent to those
`motions -- as part of those motions, the patent
`owner had requested guidance from the Board on
`those motions. The Board provided guidance.
`
`5 (17 to 20)
`
`19
`
`with the parts that don't favor your client?
` MR. TOFT: Object to form and to the
`extent it mischaracterizes.
` A. It may work out that way, but they -- I
`believe the Board's guidance is correct in some
`instances and incorrect in another -- at least
`one other instance.
` Q. What is that other instance you're
`referring to where the Board is incorrect?
` A. Well, I'd like to have the document in
`front of me so I could point it out to you, but
`my understanding is that -- if I recall
`correctly, that the Board suggested that some of
`the new claims, the amended claims, would be
`obvious in light of Gifft, Mittal, and Pillsbury,
`and maybe Ebel, as well, and I disagree with
`that.
` Q. Okay. So that's the Board's
`obviousness analysis; correct?
` A. Correct.
` Q. I apologize. Sometimes the sound is
`breaking up, but I believe the transcript is
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`20
`
`18
`
` A. Yes.
` Q. I represent to you that the date of
`that guidance was February 7, 2020.
` Are you familiar with the Board's guidance
`in each of those cases?
` A. I'm familiar in the sense that I have
`read them, yes.
` Q. Okay. Do you generally agree or
`disagree with the Board's guidance?
` MR. TOFT: Object to the form.
` A. So the Board submitted -- provided its
`guidance without looking at Sleep Number's
`response, and so I think to the extent that the
`Board agrees with Sleep Number, I agree. To the
`extent that it doesn't agree, I don't agree.
` So I wouldn't say generally agree or
`disagree. In some instances --
` Q. Okay.
` A. -- I agree; in other instances, I
`disagree.
` Q. Would it be fair to say you agree with
`the parts that favor your client; you disagree
`
`coming through. So instead of having you repeat
`everything over and over again, I'll just read it
`on the transcript.
` A. Yeah. It's kind of the same coming
`this way, as well.
` Q. Okay. And if we can reconnect, maybe
`on the next break, we can maybe try that, see if
`that helps out.
` All right. So back to our timeline, the
`Board put out some guidance. I believe I
`0
`represented -- and I'm just looking at my
`11
`document -- that was February 7, 2020.
`12
` Okay. We're on the same page right now?
`13
` A. As far as I know, that date is correct.
`14
`I have no reason to disbelieve you.
`15
` Q. Okay. Yeah, I'm not trying to make
`16
`that a difficult thing --
`17
` A. Mm-hmm.
`18
` Q. -- memorizing dates, that is.
`19
` Okay. Subsequent to that, the patent owner
`20
`in the -500 case, which relates to the '154
`21
`patent, filed a reply brief on February 26, 2020.
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1234567891
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 6
`
`

`

`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`21
`
`6 (21 to 24)
`
`23
`
` A. Right. Okay.
` Q. All right. Who drafted your
`declaration?
` A. Well, it was a collaborative process of
`conference -- sorry, discussions with the
`counsel. They provided some text. I revised.
`So I'd say it was a collaborative effort,
`although the opinions are my opinions.
` Q. Approximately how long did you spend
`drafting your declaration?
` A. Oh, a bunch of hours. I recall because
`it was on my birthday. The day before is my --
`February 25th is my birthday. So we spent a lot
`of time, at least on that day, going back and
`forth to finish up the declaration.
` I mean, to put a number of hours on it, I'm
`not sure. I recall one of the, you know, issues
`was, you know, okay, some formatting with respect
`to the tables and stuff like that, without
`getting into any work product. So there was a
`fair amount of back and forth between counsel and
`myself.
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` Does that sound right?
` A. I mean, again, I don't recall. It
`doesn't sound wrong.
` Q. If I represent to you that's the
`date --
` A. Yeah.
` Q. -- do you have any reason not to
`believe me?
` A. No reason not to believe you.
` Q. That reply brief was attached to your
`declaration.
` Do you recall that?
` A. Yes.
` Q. All right. On that same date,
`February 26, 2020, the patent owner also filed a
`reply -- sorry, revised motion to amend -- and
`for short, we'll call that RMTA -- in the '747
`patent case, which is -497.
` Does that sound correct?
` A. The -- with respect to the numbers, I
`don't know. But I recall that -- there being a
`revised motion to amend in the '747 case.
`
`1234567891
`
`22
`
` Q. I can represent to you that that was
`filed on 4/26/2020.
` With respect to the RMTA, you also filed a
`declaration in support of that motion; correct?
` A. I believe that's true, yes.
` Q. Okay. Both of those declarations of
`yours were identical in all material respects;
`correct?
` A. I believe that's correct.
` Q. Okay. So when I refer to "the
`declaration," I'm referring to your declaration
`that was attached to the February 26, 2020,
`filings.
` Is that fair?
` A. Could you repeat that? I'm sorry. I
`didn't hear that.
` Q. Okay. For -- just for brevity, when I
`refer to "your declaration" --
` A. Yes.
` Q. -- I'm referring to the declaration we
`just talked about that was the same in both the
`February 26, 2020, filings.
`
` Q. Okay. Would you say, you know, it was
`a week full-time or, you know, just -- like a
`month full-time?
` A. Oh, it definitely wasn't a month
`full-time.
` Q. Okay.
` A. It couldn't have been, because the
`Board's guidance was on the 7th, as you pointed
`out. It certainly wasn't a kind of a full-time
`thing, but it was a number of hours over a week
`0
`or so. I'd have to check my records --
`11
` Q. Gotcha.
`12
` A. -- to tell you the truth.
`13
` Q. So if we're just ballparking, 40 to 60
`14
`maybe?
`15
` A. Oh, geez. It might be that, yeah.
`16
` Q. Okay.
`17
` A. I'm trying to recall what my -- it
`18
`would be around -- based on what I recall billing
`19
`for for February, it would be around 40 hours all
`20
`together, around that. Maybe a little less.
`21
` Q. Okay. With respect to the original
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`24
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 7
`
`

`

`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`25
`
`MTAs, were you ever asked to provide a
`declaration?
` A. I don't --
` Q. And I'm going back to the -- I believe
`I said those were the October ones.
` A. Right. If I didn't submit a
`declaration in support, then I wasn't asked to
`make one.
` Q. I believe you nodded. The answer is
`no, you did not --
` A. Yeah. So --
` Q. -- you were not asked?
` A. Sorry. The -- I was speaking, and I
`said that if I did not submit a declaration, then
`I was not asked to provide one.
` Q. Okay. Thank you, sir.
` In the declaration you provided, it
`discusses certain prior art; correct?
` A. I believe it makes some reference to
`some prior art. I mean, I'd have to have my
`declaration in front of me to refer to specific
`pieces of prior art to answer, you know,
`
`7 (25 to 28)
`
`27
`
`"Ebel" to describe one of the pieces of prior
`art.
` A. Okay.
` MR. TOFT: I'm just going to --
`Counsel, can I have you direct me to what in his
`declaration this line of questioning is
`responsive to?
` MR. HARE: I believe Ebel and the
`nature of the patents.
` MR. TOFT: Just referencing Ebel?
` MR. HARE: That's correct.
` MR. TOFT: Does he use the word
`"conduit effect" in his declaration?
` (Simultaneous speaking.)
` MR. HARE: -- his declaration.
` THE WITNESS: You two were talking over
`each other, so I missed something.
` MR. TOFT: Does he use the word
`"conduit effect" in his declaration that you can
`point me to?
` MR. HARE: Not off the top of my head,
`but I believe he discusses the concept.
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`26
`
`completely. But, yes, of course there's some
` MR. TOFT: Okay. Then I'm going to
`reference to some prior art.
`object to scope. I'll allow a little bit more
` Q. Yeah. Okay. Did you consider any
`questioning, but I'd like you to stay in the
`prior art that's not referenced in your
`parameters of his direct testimony.
`declaration?
` MR. HARE: Well, I'm going to disagree.
` A. I don't think so.
`That's an improper objection. I'm also going to
` Q. All right. We'll do a couple more
`note that that's leading the witness and a
`questions and then we'll try to take a break here
`speaking objection.
` A. Is there a question pending? I want to
`in the next five or ten minutes. We're moving
`make sure I'm being responsive.
`fairly quickly.
`0
` A. Okay.
`BY MR. HARE:
`11
` Q. Are you familiar with the phrase
` Q. Well, there is, but let me just reask
`12
`"conduit effect"?
`it.
`13
` A. "Conduit effect." I've certainly heard
` Are you familiar with the phrase "conduit
`14
`that phrase. You'd have to give me more details
`effect" in the context of the patents that are at
`15
`about what aspects of conduits you're talking
`issue in these IPR proceedings?
`16
`about.
` A. So --
`17
` Q. Do you have an understanding of the
` MR. TOFT: Same objections.
`18
` A. -- the term "conduit effect" is a term
`phrase "conduit effect" as it relates to the
`19
`of art. It's used in engineering with respect to
`patents that are the subject of these IPRs and
`20
`systems that transport fluids, which include
`the prior art?
`21
`gases and liquids, through structures which are
` By way of example, I'm going to use the word
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`28
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 8
`
`

`

`8 (29 to 32)
`
`31
`
`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`29
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`hollow which, generally speaking, have a very
`large length-to-diameter or width issue -- ratio.
` So conduit effects are those effects that
`appear -- phenomena that are relevant to the
`movement of fluids through such structures that
`include a number of different aspects: Friction,
`wall effects, inertia effects, capacitive
`effects. And there may be others, as well, but
`those are some of the phenomena that are present
`or often relevant to the transport of fluids
`through these structures.
` Q. So you have an understanding of what
`the conduit effect is; correct?
` A. So just to be clear, Counselor, conduit
`effect, as I understand it, is more than one
`single phenomena -- phenomenon. There are
`multiple phenomena that are associated with
`transport of fluid through conduits.
` So you'd have to be more specific to -- with
`me about what aspect of "conduit effect" you're
`referring to.
` Q. Is there at least one aspect of
`
`question.
` What is one aspect of "conduit effect" that
`comes to mind related to an air bed, as I
`described?
` A. So the fact that -- first of all, there
`was -- the -- I'd like to clarify something
`about -- or get clarification in your answer --
`sorry, your question. I do apologize. This is
`going back maybe one or two questions.
` You said something about an aspect of
`measuring a pressure in a conduit attached to an
`air bed, or maybe -- did you say "hose"?
` Q. I don't recall, but I think -- I think
`they probably mean the same. But you tell me if
`there's a difference.
` A. Yeah, I just wanted to make sure I used
`the term that you had used.
` In any case, the -- with respect to the
`systems at issue here, the pressure measurement
`is not in the hose; it's either at very -- one
`very end of it, closest to a valve enclosure
`assembly or actually inside the valve enclosure
`32
`
`1234567891
`
`30
`
`assembly.
`"conduit effect" that relates to measuring
` So the aspect that I was thinking of is
`pressures in a hose connected to an air bed?
`that, well, there will be some resistance to the
` MR. TOFT: Object to form.
` A. Is there one aspect? I mean, I would
`flow of air from the valves into the air bed if
`say the answer is no, there's not just one
`you're -- on inflation, and there would certainly
`aspect.
`be some resistance to flow of air from the air
` I mean, Ebel, in particular, has a --
`bed, the bladder, into the valve enclosure
`assembly on deflation. So resistance is one
` Q. I believe -- sorry. I believe I said
`aspect that's relevant.
`at least one.
` A. Oh, at least one? Yeah. Sure, there's
` Q. Are you familiar with the phrase
`0
`at least one.
`"pneumatic impedance"?
`11
` MR. HARE: Okay. Could I just have my
` MR. TOFT: Object to form. Object to
`12
`question read back and get a clean answer.
`scope.
`13
` A. So I'm familiar with it because
` (The question was read by the
`14
`Dr. Phinney has used it repeatedly. It's a term
` reporter, as requested.)
`15
`that's not commonly -- that commonly used, but
` MR. TOFT: Object to form.
`16
` A. Yes, there's at least one aspect. I
`given how Dr. Phinney has employed that term, I
`17
`don't know what else you want me to say at this
`believe I am now familiar with it.
`18
`point. What -- that's my answer to that
` Q. You were never familiar with that term
`19
`question, so I need more detail about what you're
`prior to reviewing Dr. Phinney's work in these
`20
`getting at.
`two IPR proceedings?
`21
` Q. Thank you. I believe you answered my
` MR. TOFT: Object to form. Object to
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00500
`Page 9
`
`

`

`9 (33 to 36)
`
`35
`
`Transcript of William Messner, Ph.D.
`Conducted on March 16, 2020
`33
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`the extent it mischaracterizes.
` A. I don't think that's what I said, but
`Dr. Phinney has a number of different opinions in
`which he states that pneumatic impedance was
`something a person of ordinary skill in the art
`would understand at the time of the invention,
`and my understanding is that's maybe not the case
`or likely not to be the case. None of the
`patents mention pneumatic impedance, for example.
` Q. When was the first time you heard the
`phrase "pneumatic impedance"?
` A. Honestly, Counselor, I'm not -- I'm not
`sure. I might have heard it years and years ago
`or I might have heard it just in the last -- in
`connection with these proceedings.
` Q. So you're under oath right now. You
`can't tell me under oath that you heard this
`phrase prior to these IPR proceedings, the phrase
`"pneumatic impedance" referred to?
` MR. TOFT: Same objections.
` A. I can't, you know, for certain tell you
`when I heard that phrase, that's right. I have
`
` And, Jaspal, can you please get back to
`Cross-Examination of his direct testimony. None
`of these terms are referenced in his declaration,
`or at least you can point me to where it is that
`you're discussing. This is clearly outside the
`scope and improper --
` MR. HARE: -- try to limit the Cross --
` COURT REPORTER: I'm sorry. Could you
`repeat? You were talking at the same time.
`Could you start over? I'm sorry.
` MR. TOFT: Jaspal, she's talking to
`you.
` MR. HARE: So I believe your
`understanding or use of the scope objection is
`far too narrow. Things that underlie his
`opinions are subject to Cross-Examination.
` Counsel, again, I'd appreciate you
`keeping your objections to nonspeaking objections
`and also not interrupting the deposition more.
` Thank you.
` MR. TOFT: You have not shown that any
`of these concepts underlie his opinions, Counsel.
`36
`
`1234567891
`
`34
`
`certainly heard the term "impedance"; I've
`certainly heard the term "electrical impedance";
`I've heard the term "fluidic resistance"; I've
`heard the term "pneumatic resistance." These are
`related to the term "pneumatic impedance," but
`there's more to it than simply resistance.
` Q. What's the difference between fluid
`resistance and pneumatic resistance?
` MR. TOFT: Object to form. Object to
`scope.
` A. So fluid can include both liquids and
`gases. "Pneumatics" refers simply -- usually
`just to just air, but also could potentially be
`other gases.
` Q. So to the extent -- w