Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ------------------------------
` AMERICAN NATIONAL MANUFACTURING, INC.
` Petitioner,
` v.
` SLEEP NUMBER CORPORATION, f/k/a
` SELECT COMFORT CORPORATION
` Patent Owner.
` ------------------------------
` Case IPR: IPR2019-00514
` U.S. Patent 5,904,172
` ------------------------------
` Case IPR: IPR2019-00497
` U.S. Patent 8,769,747
` ------------------------------
` Case IPR: IPR2019-00500
` U.S. Patent 9,737,154
`
` DEPOSITION OF MATTHEW R. LYNDE
` February 18, 2020
` Redwood Shores, California
`
`
`
`REPORTED BY:
`LYNNE M. LEDANOIS, CSR 6811
`Job No: 27003
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 1
`
`

`

`Page 2
`
`Page 4
`
` I N D E X O F E X A M I N A T I O N
`
`Examination by: Page
` Mr. Toft 7
` Mr. Elliott 180
`
`///
`
`1
`
`23
`
`4
`5
`
`6789
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 3
`
`Page 5
`
` A P P E A R A N C E S:
`
`For the Petitioner:
`
` SPENCER FANE LLP
` BY: KYLE L. ELLIOTT, ESQ.
` 1000 Walnut Street
` Suite 1400
` Kansas City, Missouri 64106-2140
` (816) 474-8100
` kelliott@spencerfane.com
`
`For the Patent Owner:
`
` FOX ROTHSCHILD LLP
` BY: LUKE D. TOFT, ESQ.
` 222 South Ninth Street
` Suite 2000
` Minneapolis, Minnesota 55402-3338
` (612) 607-7000
` ltoft@foxrothschild.com
`
`1
` I N D E X O F E X H I B I T S
`2 Deposition Description Page
`3
`Exhibit 1 Document headed, G1 Blower,
`4
` G1 Pump, etc., with years
`5
` 1998-2018,
`6
` ANM100133414-422; 27
`7
`Exhibit 2 Declaration of Matthew R.
`8
` Lynde, Ph.D., in Support
`9
` of Petitioner's Reply to
`10
` Patent Owner's Response
`11
` dated 1/22/20; 56
`12
`Exhibit 3 Document headed, ANM
`13
` Accused Controller Unit
`14
` Sales, Before and After
`15
` Correction; 90
`16
`Exhibit 4 Document headed, Dires'
`17
` Disapproval Suspension
`18
` Timeline - Private Search-
`19
` Engine Companies; 97
`20
`Exhibit 5 Declaration of Carl G.
`21
` Degen in Support of Owner's
`22
` Response; 108
`23
`24
`25
`
`///
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`2 (Pages 2 to 5)
`
`1
`
`23
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1 DEPOSITION OF MATTHEW R. LYNDE
`2 DATE: Tuesday, February 18, 2020
`3
`TIME: 8:17 a.m.
`4
`LOCATION: Lewis Roca Rothgerber Christie
` 203 Redwood Shores Parkway
`5
` Redwood Shores, California 94065
`
`6789
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 2
`
`

`

`Page 6
`
`1
` I N D E X O F E X H I B I T S
`2 Deposition Description Page
`3
`Exhibit 6 Document headed, Invoice
`4
` Date, Month, Qtrs, etc.; 154
`5
`Exhibit 7 Dires Advertising Spend
`6
` Periods 1-4;
`7
` (Designated Highly
`8
` Confidential and Bound
`9
` Separately.) 161
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`///
`
`Page 7
`
` Redwood Shores, California
` Tuesday, February 18, 2020
` 8:17 a.m.
`_______________________________________________
` MATTHEW R. LYNDE,
` having been duly sworn, testified as follows:
` EXAMINATION
`BY MR. LOFT:
` Q Will you please state your name for
` the record?
` A Matthew R. Lynde.
` Q And Lynde? Kyle told us that and
` we've been working under that assumption but
` it's -- Lynde is how I would normally pronounce
` it.
` A It's Lynde.
` Q You've been deposed before?
` A I have.
` Q So you're generally aware of the
` deposition rules?
` A I generally am, yes.
` Q You'll need to give verbal answers,
` not a nod of the head.
` Do you understand that?
` A I do.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 8
` Q And we can take a break at any time.
` But I would ask that you answer any pending
` question before we do so.
` A I understand.
` Q And if there's any questions that I
` ask that you don't understand, you'll ask for
` clarification?
` A I will.
` Q Is there any reason that you're unable
` to provide truthful testimony under oath today?
` A No.
` Q There's no -- you don't have any
` medications -- not on any medications that would
` alter --
` A No, I'm not.
` Q And do you have any devices on you
` that would allow you to communicate with others?
` A I've got my cell phone.
` Q Okay. And that's -- anything else?
` A No.
` Q What did you do to prepare for today's
` deposition?
` A I reviewed the declarations that have
` been filed by me and Mr. Miller and Mr. Degan,
` some of the supporting materials in those
`Page 9
` declaration and I met with counsel.
` Q What supporting materials did you
` review?
` A There were referred to, especially in
` my declaration, supporting data in terms of
` advertising costs, for example. So I looked at
` the supporting documents in my declaration.
` Q And those documents are specifically
` described in your declaration?
` A Yes, they are.
` Q Did you identify any documents not
` specifically described in your declaration?
` A No, I don't think so. I reviewed the
` declaration.
` Q Did you review any supplemental
` declarations submitted by yourself?
` A By "declarations" I mean both the
` original declarations and the supplemental
` declarations.
` Q Is that true of Mr. Lynde -- sorry, of
` Mr. Miller?
` A Of Mr. Miller, yes.
` Q And Mr. Degan?
` A Correct.
` Q Other than Mr. Elliott here today, did
`3 (Pages 6 to 9)
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 3
`
`

`

`Page 10
` you discuss your deposition with anyone?
` A Well, at the meeting with Mr. Elliott
` yesterday on the phone call was also two other
` counsel from Spencer Fane.
` Q And who were those counsel?
` A They were Mark Thornhill and Brian --
` I'm blanking on his name.
` Q Brian Bear?
` A Yes.
` Q Anyone else that you discussed your
` deposition -- did you discuss your deposition
` with anyone other than those three?
` A No. My staff were also in attendance
` at that meeting.
` Q And what were the names of the staff
` that were in attendance?
` A Ms. Liu and Mr. Rondeau.
` Q Anyone else?
` A No, that was it.
` Q Can you give me a quick overview of
` your education?
` A Yes. I have an undergraduate and
` Ph.D. doctorate in economics from the University
` of California at Berkeley.
` Q Okay. And when did you receive that?
`Page 11
` A The Ph.D. was in '88 and the
` undergraduate degree in '79.
` Q And then after you got your Ph.D. from
` Berkeley, what did you do?
` A I was a professor at the City
` University of New York for five or six years.
` Q And what were you a professor of?
` A Economics.
` Q Okay. And then after that, what did
` you do?
` A After that I joined PriceWaterhouse,
` the international consultancy, and worked as an
` economist in that firm.
` Q And how long did you do that?
` A That was about nine years.
` Q So until 2000?
` A Until about 2000. I think it was 2001
` that I joined Cornerstone Research.
` Q And what is your role at Cornerstone
` Research?
` A I was the founder of the San Francisco
` office. I'm on a number of management
` committees. I'm the head of the intellectual
` property practice, and so I have general duties
` tease like that at the firm.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 12
` Q And what are the general duties as
` head of the intellectual practice?
` A I'm responsible for developing experts
` and developing methods and techniques and
` supporting experts in usually litigation
` assignments.
` Q Is your primary role working with
` intellectual property litigation?
` A That's my primary role, yes.
` Q What other duties do you have?
` A I'm on some of the marketing
` committees and one of the compensation
` committees. So generally administrative duties.
` Q Okay. Have you given testimony in
` other cases prior to this?
` A Yes.
` Q And are you generally -- do you
` generally -- "represent" is the wrong word.
` But are you generally employed by the
` patent owner or the challenger?
` A I've been employed by both types of
` parties over the years.
` Q Are the cases that you have testified
` in generally intellectual property cases?
` A Generally, yes.
`
`Page 13
` Q What percentage of the cases that you
` worked on are IP?
` A Certainly the majority, but I don't
` know an exact percentage. I sometimes testify
` about other matters.
` Q More than 50 percent?
` A Yes, I'm sure that's true.
` Q More than 757 percent?
` A I really don't know.
` Q Okay. Has your testimony ever been
` subject to a motion to exclude?
` A I believe so, yes.
` Q Has any motion to exclude ever been
` granted?
` MR. ELLIOTT: Objection to form.
` THE WITNESS: Yes, I think there's a
` couple of occasions.
`BY MR. LOFT:
` Q On what occasions has your testimony
` been excluded?
` A Of what I'm aware, there was a case
` involving offshore production, offshore holding
` company for a patent. And there was a question
` as to whether the reason for the counterparty to
` change their sales practice was due to
`4 (Pages 10 to 13)
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 4
`
`

`

`Page 14
` competition from my client.
` And so the evidence clearly showed
` that, but the president who did not have access
` to the information I had was of the view that
` that was the case.
` Since I never presumed, of course, to
` read his mind, I was not offering any testimony
` about his state of mind. But that was excluded.
` Q What was the basis for exclusion?
` A That I wouldn't -- well, it was
` excluding something that I was not going to
` testify and hadn't testified to. So it's kind
` of a moot point.
` Q Any other instances where your
` testimony has been excluded?
` A I think there may be one or two
` others. I don't have a list in mind.
` Q Do you remember the basis for the
` exclusion in the one or two other?
` A Well, these have never been about
` qualifications. The one other I can remember at
` the moment is a methodology question having to
` do with the application to FRAND licensing.
` Q So there was a question with the
` methodology that you employed?
`Page 15
`
` A Correct.
` Q And what case was that?
` A I'm going to have to refresh my memory
` from my C.V. It was several years ago. I think
` it was Metaswitch.
` Q Metaswitch?
` A Metaswitch, yes.
` Q Any other instances where your
` testimony has been excluded based upon the
` methodology that you used?
` A Not that I can recall.
` Q In your declaration you relied on
` discussions with Craig Miller; correct?
` A I do.
` Q How many discussions with Mr. Miller
` did you have?
` A Several. Maybe three or four.
` Q When did you talk to Mr. Miller? When
` were these conversations?
` A These were over the several weeks
` prior to my declarations.
` Q What did you and Mr. Miller discuss?
` A Well, we discussed his role, his
` business, the company's history, the RF
` technology, his history in the mattress aspect
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 16
`
` of applying his technology.
` The finances and sales, impacts on
` sales, things like that.
` Q And when you say RF technology, what
` do you mean by that?
` A I understand that one of the
` technologies that he has at ANM has to do with
` radio-frequency welding of thermoplastics, for
` example.
` Q Okay. Is it your understanding that
` that technology is at issue in this case?
` A It is not.
` Q Did Mr. Miller provide any documents
` to you during these conversations?
` A He did not. He did supply some
` documents to counsel.
` Q Okay. And are you aware as to whether
` or not those documents were produced?
` A I'm not personally aware. I
` understand the ones that were provided to me by
` counsel were produced because I referred to them
` in my declaration.
` Q And you also had -- is there anything
` else that you and Mr. Miller discussed?
` MR. ELLIOTT: Objection, could call
`Page 17
` into privilege areas about discussions with
` counsel. But you're certainly permitted to
` discuss anything you relied on as a basis
` and is not an attorney-client communication.
` THE WITNESS: No, those were the main
` things we talked about was the business and
` the sales.
`BY MR. LOFT:
` Q Okay. In discussing the impact -- you
` mentioned that you and Mr. Miller discussed
` sales and the impact on sales; correct?
` A Yes.
` Q When discussing that, did you rely on
` what Mr. Miller stated impacted sales?
` A In part, yes, I did. But I also
` looked at all of the objective data that was
` provided to me about sales and sales trends.
` Q And what was the objective data that
` was provided to you about sales and sales
` trends?
` A There were unit sales records that
` Mr. Degan also relied on. There were
` advertising expenditures. There were the
` specifics with respect to Google Ad words.
` So I looked at all of that data in
`5 (Pages 14 to 17)
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 5
`
`

`

`Page 18
` addition to having a discussion with Mr. Miller
` about his views about what factors might be
` affecting sales trends.
` Q Okay. Any other objective evidence
` that you considered?
` A I think that was it.
` Q Did you perform any independent
` investigations?
` A I've checked the internal validity of
` the data that was provided to me. And I looked
` at what was publicly available, especially from
` Sleep Number being a public company.
` I refer to that in my declaration.
` Q Did you look at any publicly available
` information related to ANM?
` A My understanding is it's a private
` company, so there's not a great deal of public
` information. Certainly not financials.
` Q Did you look at anything publicly
` available related to ANM?
` A Mainly I looked at the Dires website
` and advertising with respect to online sales of
` ANM beds.
` Q Anything else?
` A That was principally it.
`
`Page 19
` Q You also mentioned that you had
` discussions with a Mr. Ric Jansen?
` A Yes.
` Q When did those discussions -- how many
` discussions did you have with Mr. Jansen?
` A He was on the phone at the same time
` as Mr. Miller. One or two times as I recall.
` Q Okay. So you never talked to
` Mr. Jansen outside of conversations with
` Mr. Miller; is that correct?
` A That's correct.
` Q And then would it be fair to say that
` you discussed the same subject matter with
` Mr. Jansen as you discussed with Mr. Miller?
` MR. ELLIOTT: Object to form.
` THE WITNESS: Yes, I think that would
` be fair to say. Mr. Jansen was providing
` assistance to -- as I understand, as
` director of operations to Mr. Miller as
` president, including putting together some
` summary schedules.
`BY MR. LOFT:
` Q Was there any information you learned
` from Mr. Jansen that you did not learn from
` Mr. Miller?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 20
` A I don't think so. He was providing
` support to Mr. Miller in terms of data that was
` provided.
` Q Did you have conversations with anyone
` else at ANM?
` A No, I did not.
` Q Anyone else at Dires?
` A No, I did not.
` Q Throughout your report you refer to
` your reliance on the, quote, Miller
` declarations.
` What are you referring to?
` A Mr. Miller's first declaration and
` then his supplemental declaration.
` Q Those are the declarations that were
` filed in January of 2020?
` A Yes, I think that's -- I think they
` both were, yes.
` Q And the proceedings at issue here,
` IPR2019-00497500 and 514?
` MR. ELLIOTT: Objection to form.
` THE WITNESS: I'm sorry, I don't know
` the exact legal designation of the
` proceedings. But yes, in these proceedings
` that I've been retained to work on.
`Page 21
`
`BY MR. LOFT:
` Q You're not relying on any declaration
` that wasn't file in these proceedings?
` A I don't believe so, no.
` Q The original declaration of Mr. Miller
` filed in these proceedings, are you aware if
` there are any differences between them?
` MR. ELLIOTT: Objection to form.
` THE WITNESS: I'm sorry, let me make
` sure I understand the question. Between his
` initial declaration --
`BY MR. LOFT:
` Q So let me rephrase.
` Do you understand there are three
` proceedings at issue?
` A I only have a vague understanding of
` that. I know I had signed essentially the same
` declaration twice.
` Q There is a proceeding 2019-00497 that
` deals with the '747 patent and a proceeding
` 2019-00500 that deals with '154 patent and a
` proceeding -00514 that deals with the
` '172 patent.
` Is that -- do you have an
` understanding of that?
`6 (Pages 18 to 21)
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 6
`
`

`

`Page 22
` A No. I do recognize those three patent
` numbers as the patents at issue.
` Q Okay. Are you aware that Mr. Miller
` has filed a declaration in each of those three
` proceedings?
` A I do not know. I know that he and I
` each filed two declarations -- at least I filed
` two declarations for my initial declaration and
` then for the supplemental declaration. The only
` difference being a cover page.
` Q So are you aware when you filed your
` original declaration, you had reviewed
` Mr. Miller's declarations; correct?
` Did you review one declaration or more
` than one declaration of Mr. Miller's?
` A I think I reviewed two, but they were
` essentially the same thing except for the cover
` pages, if I recall it correctly.
` Q You're not aware of any other
` differences between the declarations that you
` reviewed?
` A I'm not as I sit here, that's correct.
` Q How did you rely on the Miller
` declarations or conversations with Mr. Miller
` that you had?
`
`Page 23
` A Well, the substance of the
` conversations were about sales and sales trends
` and the nature of ANM's business and the Dires
` retailing. And the substance of those
` conversations ended up being put essentially
` into Mr. Miller's declaration. So that was a
` part of the basis of my opinion.
` Q And did you assume that Miller's
` statements made to you were true?
` A I did. But I also made a check
` against all of the data that was available to me
` to make sure that it was supported by the
` objective data.
` Q But only of -- you only checked his
` statements against the exhibits that were
` provided with Miller's declaration?
` A Yes. That's correct.
` Q And did you review Miller's
` supplemental declaration?
` A I did.
` Q And are you aware of any changes in
` the supplemental declaration versus the
` original?
` A Well, yes. There are modifications in
` terms -- as I understand it, as I read the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Page 24
` supplemental declaration, with respect to his
` reasons and basis of support for his -- I
` believe sometimes he calls them his lay opinions
` and his knowledge of the facts of the case.
` Q Did any of the changes in the
` supplemental declaration affect your analysis?
` A No, I don't believe so.
` Q You relied on the three exhibits to
` Miller's original declaration; correct?
` A I did.
` Q What is sometimes referred to as
` Miller Exhibit 1 was filed as Exhibit 1058 in
` the IPR2019-00497 and -00500. I apologize, I'm
` doing that so the record is clear so that we
` know what we're talking about later.
` That is a single-page printout of the
` raw data. Do you remember that?
` MR. ELLIOTT: Objection, form.
` THE WITNESS: Yes, I think I do.
`BY MR. LOFT:
` Q And how did you rely upon that
` exhibit?
` A Well, my team and I verified the
` figures and -- against the sales trends in
` Mr. Degan's declaration as well and then
`Page 25
` proceeded with our analysis.
` Q And so that you're relating to the raw
` data itself; correct?
` A Yes, the raw data.
` Q How did you rely upon the single-page
` printout that's filed -- that was filed as
` Miller Exhibit 1?
` MR. ELLIOTT: Objection to form.
` THE WITNESS: It was my understanding
` that that was the way the data had been
` provided, so that's what I relied on.
`BY MR. LOFT:
` Q So when conducting your analysis, did
` you rely upon Miller Exhibit 1 or did you rely
` upon other information?
` MR. ELLIOTT: Objection, form.
` THE WITNESS: Well, I relied on that
` and subsequently I understood from
` Mr. Miller that the raw data for the
` earliest time period did not have a separate
` line item for controllers to be shipped with
` each mattress.
` He went back and looked at the
` invoices to verify that that indeed was
` reflected in the raw data, that is, there
`7 (Pages 22 to 25)
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 7
`
`

`

`Page 26
` should have been a controller with each
` mattress.
`BY MR. LOFT:
` Q Did you see those invoices?
` A I saw some of the invoices, yes.
` Q And when did you see those invoices?
` A It was around the time of my -- just
` after my first declaration, I think. Around
` that time. I can't remember an exact date.
` Q And did you rely upon those invoices?
` A No. I relied on Mr. Miller's
` representation that he had looked at the
` invoices and that it must be the case through
` Dires retail channel that there is a controller
` that is shipped with each mattress. It just
` wasn't separately invoiced in the earliest time
` period.
` Q When you reviewed the data -- sorry,
` let me back up.
` When did you learn about there being
` the possibility of more than one mattress --
` sorry, how do I want to phrase this?
` When did you learn that there should
` be a controller for each mattress in Period 1?
` MR. ELLIOTT: Objection to form.
`Page 27
` THE WITNESS: That was in a discussion
` with Mr. Miller sometime prior to my first
` declaration.
`BY MR. LOFT:
` Q And you said you reviewed invoices
` during Period 1?
` A I believe so, yes.
` Q And did those invoices mention a
` controller sold with a mattress?
` MR. ELLIOTT: Objection, form.
`BY MR. LOFT:
` Q Indicate that a controller was sold
` with a mattress?
` MR. ELLIOTT: Objection, form.
` THE WITNESS: I don't recall. It was
` just a small number, a sample. I was
` relying principally on Mr. Miller's
` representation.
` MR. LOFT: We might circle back to
` that. Let's mark an exhibit.
` (Exhibit 1 was marked.)
`BY MR. LOFT:
` Q Mr. Lynde, I've handed you what's been
` marked as Exhibit 1 to your deposition.
` Do you recognize this document?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Page 28
`
` A Yes.
` Q I believe this was filed as
` Exhibit 2058. I can confirm that a little
` later.
` You understand that the four periods
` of time that Mr. Degan chose to analyze the
` sales data comes from this exhibit; correct?
` A That was my understanding from his
` declaration, yes.
` Q And you understand that this is the
` timeline that ANM prepared for this litigation;
` correct?
` MR. ELLIOTT: Objection to form.
` THE WITNESS: I did understand that it
` was prepared by ANM, yes.
`BY MR. LOFT:
` Q And it provides the names of ANM's
` controllers?
` A It does.
` Q And it indicates when they were sold?
` MR. ELLIOTT: Objection to form.
` THE WITNESS: In a general sense, yes.
`BY MR. LOFT:
` Q What do you mean "in a general sense"?
` A Well, I mean that this would be a
`Page 29
` timeline describing the period of sales when
` each of these controllers was sold as ANM has
` put this summary together.
` Q Did you discuss this exhibit with
` Mr. Miller?
` A I don't recall discussing this. We
` did talk about the controllers and the
` generation of the controllers and the software
` versions and things like that.
` Q What did he tell you about the
` histories of the controllers?
` A He described the history, first of
` all, involving some supply difficulties with the
` initial controller supplier, mostly in Period 1.
` And that was replaced by a new supplier that was
` more reliable with a higher quality controller
` by the time of Period 2.
` And then he discussed the fact that
` the software versions was not something that
` was -- ANM had visibility into. So that's why
` it was represented as a range of software
` versions from, for example, 1.5 to 1.8.
` That was generally what we discussed.
` Q So you understand that ANM sold
` products that utilized Version 1.8 source code;
`8 (Pages 26 to 29)
`
`Sleep Number Corp.
`EXHIBIT 2098
`IPR2019-00514
`Page 8
`
`

`

`Page 30
`
` correct?
` A I do. But the exact timing of that is
` not recoverable from the data, as I understand
` from Mr. Miller.
` Q If we look at the second-to-last page
` of this document and it's the one that ends in
` Bates stamped number 133421.
` This page indicates that it is the
` Gen. 3 pump Version 1; correct?
` A Yes. That's correct.
` Q It indicates that it was sold from
` 2014 to 2016?
` A Yes, that's correct.
` Q And that the software versions include
` 1.5 to 1.8; correct?
` A That's correct, that range.
` Q Other than version 1.8, are you aware
` of any other versions of source code that were
` sold with the Gen. 3, V1?
` MR. ELLIOTT: Objection to form.
` THE WITNESS: I'm not sure I
` understand your question. If there was a
` range of software versions that were sold
` with the Gen. 3 --
`
`Page 31
`
`BY MR. LOFT:
` Q 1.5 to 1.8?
` A That's my understanding, yes.
` Q Do you know how many versions of
` source code exist within the range of 1.5 to one
` point --
` A I do not.
` Q Do you know if it was more than one?
` A I believe it is.
` Q Do you know if it was more than two?
` A I do not know.
` Q And your belief that it's more than
` one comes from Mr. Miller?
` A What I understood from Mr. Miller was
` that there was not enough visibility into the
` actual software versions that was embedded in
` the controller to know for which controller,
` which software version was in there. So that's
` why this is referred to as with this range.
` Q Are you aware of any differences
` between Vers