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`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` AMERICAN NATIONAL MANUFACTURING INC.,
` Petitioner,
` vs.
` SLEEP NUMBER CORPORATION, f/k/a
` SELECT COMFORT CORPORATION,
` Patent Owner.
` CASE IPR2019-00514(Patent 5,904,172)
`__________________________________________________
`
`
`
` DEPOSITION OF ROBERT GIACHETTI, PhD, PE
` October 7, 2019
` Chicago, Illinois
`
`Reported by:
`Karen P. Burns, C.S.R.
`Job no.: 26063
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2067
`IPR2019-00514
`Page 1
`
`

`

`1
` I N D E X
`2 WITNESS EXAMINATION
`3
`ROBERT GIACHETTI
`4
` Cross-examination by Ms. Nath 5
`
` E X H I B I T S
`EXHIBIT NAME DESCRIPTION PAGE
`Giachetti Exhibit
` Exhibit 1 Exhibit 1005 6
` Exhibit 2 Exhibit 1006 7
` Exhibit 3 Document Bates numbered 29
` WA 11287419.5
`
` Exhibit 4 Exhibit 1001 74
`
` Exhibit 5 Exhibit 1004 75
`
` Exhibit 6 Exhibit 1007 147
`
` Exhibit 7 Exhibit 1011 194
`
` Exhibit 8 Exhibit 1014 214
`
` Exhibit 9 Exhibit 1008 224
`
` Exhibit 10 Exhibit 1012 255
`
` Exhibit 11 Exhibit 1009 269
`
` Exhibit 12 Exhibit 1010 277
`
` Exhibit 13 Majority Opinion, Chapco, Inc. 281
` vs. Woodway USA, Inc.
` Exhibit 14 Williams v. Tristar Products, 281
` Inc., Slip Copy (2019)
`
`Page 4
`
`Page 5
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`56
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`Page 2
` The deposition of ROBERT GIACHETTI, PhD, PE,
`taken pursuant to Notice, held at 321 North Clark
`Street, Suite 1600, Chicago, Illinois, on the
`7th day of October, 2019, at 9:02 a.m.,
`before Karen P. Burns, a Certified Shorthand
`Reporter and Notary Public within and for the
`County of DuPage and State of Illinois.
`
`Page 3
`
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`
`APPEARANCES:
` SPENCER FANE LLP
` BY: MR. JASPAL SINGH HARE, ESQ.
`
` 5700 Granite Parkway
` Suite 650
` Plano, Texas 75024-6622
` (317) 294-7132
` jhare@spencerfane.com,
`
` -and-
`
` SPENCER FANE LLP
` BY: MR. KEVIN S. TUTTLE, ESQ.
` 1000 Walnut Street
` Suite 1400
` Kansas City, Missouri 64106-2140
` (816) 474-8100
` ktuttle@spencerfane.com,
` On behalf of the petitioner;
` FOX ROTHSCHILD LLP
` BY: MS. ARCHANA NATH, ESQ.
` MR. LUKE D. TOFT, ESQ.
` 222 South Ninth Street
` Suite 2000
` Minneapolis, Minnesota 55402-3338
` (612) 607-7000
` anath@foxrothschild.com
` ltoft@foxrothschild.com,
`
` -and-
`
` PILLSBURY WINTHROP SHAW PITTMAN LLP
` BY: MS. KECIA J. REYNOLDS, ESQ. (by telephone)
` 1200 Seventh Street, NW
` Washington, D.C. 20036
` (202) 663-8000
` kecia.reynolds@pillsburylaw.com,
`
` On behalf of the patent owner.
`
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`
`1
` (Witness duly sworn.)
`2
` ROBERT GIACHETTI,
`3
`having been first duly sworn, was examined and
`4
`testified as follows:
`5
` CROSS-EXAMINATION
`6
`BY MS. NATH:
`7
` Q. Good morning, Mr. Giachetti. My name
`8
`is Archana Nath. We met before off the record.
`9 You've been retained as an expert in these
`10
`proceedings, is that correct?
`11
` A. That's correct.
`12
` Q. Have you been deposed before?
`13
` A. I have.
`14
` Q. So you know all the rules?
`15
` A. Yes. Most of the rules, I should say.
`16
` Q. And you'll remember that the court
`17
`reporter is writing everything down, so I think
`18
`the biggest thing is let's try to not talk over
`19
`each other, okay?
`20
` A. Okay.
`21
` MS. NATH: I'm going to mark a document
`22
`as Exhibit 1. This is Exhibit 1005 in the
`23
`proceedings.
`24
`25
`
`TransPerfect Legal Solutions
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`2 (Pages 2 to 5)
`
`Sleep Number Corp.
`EXHIBIT 2067
`IPR2019-00514
`Page 2
`
`

`

`Page 6
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` (Whereupon, Giachetti Deposition
` Exhibit No. 1 was marked for
` identification.)
`BY MS. NATH:
` Q. I just handed you a copy of your expert
`report in this case, is that right?
` A. Without going through it, it looks like
`it.
` Q. Okay. And this report includes all of
`your opinions relating to this matter to date?
` A. Regarding the patents, yes.
` Q. The patents. And what patents are you
`talking about?
` A. The '172 patent in particular and all
`the things that went into this report.
` Q. Okay. And when you say the '172
`patent, are you talking about patent number
`5,904,172?
` A. That's right. By Gifft.
` Q. So if we say '172 or Gifft, you'll know
`that we are talking about the patent at issue in
`this proceeding?
` A. Yes.
` Q. And you agree with everything that
`you've set forth in your declaration -- or in
`
`Page 7
`
`1
`your report, excuse me?
`2
` A. Yes. It's mine.
`3
` Q. And actually, you signed it here on --
`4
` A. Should be the 29th of December.
`5
` Q. You signed it here on page 187?
`6
` A. Yes.
`7
` Q. And you have a conclusion here in
`8
`paragraph 356 and you have an opinion that the
`9
`'172 patent is invalid, is that correct?
`10
` A. That's correct.
`11
` MS. NATH: I would like to hand you
`12 what we are going to mark as Exhibit 2, which is
`13
`1006 in the proceeding.
`14
` (Whereupon, Giachetti Deposition
`15
` Exhibit No. 2 was marked for
`16
` identification.)
`17
`BY MS. NATH:
`18
` Q. Is Exhibit 2 the CV that you attached
`19
`to your report?
`20
` A. This looks like it.
`21
` Q. So let's talk a little bit about your
`22
`background, then. You are a licensed
`23
`professional engineer?
`24
` A. That's correct.
`25
` Q. Do you have any experience with
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`1
`adjustable air mattresses?
`2
` A. I have experience personally with
`3
`inflatable air mattresses. I do work in an area
`4
`that is analogous to that.
`5
` Q. Okay. So what's your experience
`6
`personally with an adjustable air mattress?
`7
` A. Well, I have them. I own one, I've
`8
`used one.
`9
` Q. Which one do you have?
`10
` A. I don't remember actually.
`11
` Q. You don't know the brand?
`12
` A. I don't.
`13
` Q. And then you said you work in an
`14
`analogous area. So what is that area?
`15
` A. So I do some work in fluids and fluid
`16
`power, so as part of that work I've had a number
`17
`of cases where I've built equipment or
`18
`investigated equipment that involves pumps,
`19
`computer control and filling bladders.
`20
` Q. What types of bladders or for what
`21
`application?
`22
` A. Well, I've worked on -- I've done
`23
`hydraulics and pneumatics so I've done
`24
`cylinders, I've done -- let's see. I've done
`25 water balloons, I've done expandable -- well,
`Page 9
`
`1
`this project is ongoing so I can't really
`2
`discuss it, but it's basically an expandable
`3
`innertube that is filled cyclically and I built
`4
`a test apparatus using both pneumatics and
`5
`hydraulics to fill it to a set pressure and then
`6
`that pressure is relieved and the cycle
`7
`continues, and it uses manifolds and pressure
`8
`sensors.
`9
` Q. What area is that in? So it's not air
`10
`adjustable mattresses, right?
`11
` A. The product itself is not an air
`12 mattress, but it uses all of the same technology
`13
`that is in an air mattress.
`14
` Q. Can you tell me what the product is or
`15
`at least the area?
`16
` A. It's a consumer product for household
`17
`use.
`18
` Q. Does it have anything to do with sleep?
`19
` A. No.
`20
` Q. When did the project start?
`21
` A. That one started in about 2011.
`22
` Q. You said it related to an expandable
`23
`innertube?
`24
` A. That's right.
`25
` Q. How is that the same or different than
`3 (Pages 6 to 9)
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`Sleep Number Corp.
`EXHIBIT 2067
`IPR2019-00514
`Page 3
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`

`

`Page 10
`
`1
`a bladder?
`2
` A. So sometimes bladders have a little
`3
`flexibility to them, sometimes they don't. This
`4
`particular product has two layers. You could
`5
`consider one a jacket, which is more rigid in
`6
`comparison to the innertube inside, which would
`7
`be considered the bladder. So it's a closed
`8
`system and when you fill it, the innertube
`9
`expands until it hits the jacket and then it
`10
`becomes more rigid as a whole.
`11
` Q. Once you expand it to where you want it
`12
`to be, do you maintain, then, that level?
`13
` A. Yes.
`14
` Q. Any other analogous work?
`15
` A. I've done some work that involves pilot
`16
`valves. In particular it's the gas line going
`17
`into residences. So I gained familiarity with
`18
`some pilot valves, pneumatic pilot valves that
`19 way. I've worked on -- are you familiar with
`20
`SodaStream?
`21
` Q. Sounds familiar.
`22
` A. So I didn't work on SodaStream, but a
`23
`similar product where there is a nozzle that
`24
`clicks in and it fills with gas to carbonate
`25
`liquid.
`
`Page 11
`
`1
` Then I also worked on a valve case,
`2 which is a quick connect poppet valve for a
`3
`fracking tanker that's pressurized. With that
`4
`one there was a poppet in there. In the end,
`5
`the valve was taken apart and our analysis
`6
`showed that it was not the appropriate poppet
`7
`inside.
`8
` Q. Did that involve a valve enclosure
`9
`assembly at all?
`10
` MR. HARE: Objection, form.
`11
` THE WITNESS: That particular valve was
`12
`a quick connect valve.
`13
`BY MS. NATH:
`14
` Q. So it wasn't enclosed in anything?
`15
` A. No. It was itself.
`16
` Q. What about the pneumatic pilot valves,
`17
`did they relate to valves that were enclosed in
`18
`anything?
`19
` A. No. Those valves are on outsides of
`20
`houses.
`21
` Q. Are there valves in relation to this
`22
`expandable innertube?
`23
` A. Yes.
`24
` Q. Are those enclosed in anything?
`25
` A. That system -- so the product itself
`
`Page 12
`1
`does not have computer controlled valves in it,
`2
`but the setup that I constructed and designed
`3
`uses solenoid valves and manifolds and pressure
`4
`transducers.
`5
` Q. So the actual product doesn't use them
`6
`but the test apparatus that you used does use
`7
`them?
`8
` A. That's right. I was retained to test
`9
`these products.
`10
` Q. When did your work on the pneumatic
`11
`pilot valves take place?
`12
` A. That was probably in 2010.
`13
` Q. And how about the SodaStream type
`14
`product?
`15
` A. Probably 2013 or 2014.
`16
` Q. And then the quick connect valve case
`17 with the fracking?
`18
` A. That was more recent. Maybe 2016 or
`19
`2017.
`20
` Q. So you have an understanding that the
`21
`patent -- excuse me. Luke likes to tell me what
`22
`to say.
`23
` Is there any other analogous work that
`24 we haven't talked about?
`25
` A. I know that I've worked in some other
`Page 13
`1
`projects that involved pneumatics. Oh, I did
`2
`assist a client with a tire inflater.
`3
` Q. A tire inflater like something that I
`4
`could have in my house, like the one you can own
`5
`yourself to inflate a car tire?
`6
` A. Yeah. It was basically like the size
`7
`of like a power drill and you could plug it into
`8
`your cigarette lighter and pull the trigger, and
`9
`the display shows the pressure that you're
`10
`trying to reach and it automatically shuts off
`11 when you're finished.
`12
` Q. Are there valves in that product?
`13
` A. There is a stem check valve in the
`14
`chuck.
`15
` Q. Does the check valve relate at all to
`16 whether air is flowing into the tire or not?
`17
` A. Yeah. So the chuck has the stem in it,
`18
`and that stem has to push on the stem of your
`19
`tire to open it.
`20
` Q. Anything else that's analogous?
`21
` A. Yes. I also did a case examining the
`22
`failures of collets. A collet is basically --
`23
`if you're familiar with a finger trap that the
`24
`kids play with. So imagine instead of fingers
`25
`getting caught together, it's a quick way of
`4 (Pages 10 to 13)
`
`TransPerfect Legal Solutions
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`Sleep Number Corp.
`EXHIBIT 2067
`IPR2019-00514
`Page 4
`
`

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`connecting pipes and things.
` So suppose you want to put a hot water
`thing in line for like a coffee maker or
`something but you don't want to braze it
`together or whatever. You just take this thing
`and you shove one pipe in this side and one pipe
`in that side and it's got little fingers in it
`that keep everything together.
` Q. So how is that analogous to adjustable
`air mattresses?
` A. Well, the system that I developed to
`test that involved computer control of solenoid
`valves and pressurizing one part instead of the
`other and taking a pressurized source using a
`pump and filling it. It didn't have a bladder,
`but it goes to my experience with pneumatics and
`hydraulics.
` Q. Did it involve measuring the pressure?
` A. Yes. Yes, I had a pressure measurement
`on that.
` Q. Your test did?
` A. Yes.
` Q. Why were you measuring pressure for
`this finger-like trap object?
` MR. HARE: Objection, form.
`
`Page 15
`1
` THE WITNESS: So I was measuring
`2
`pressure in the system. This wasn't
`3
`particularly to measure the exact pressure in
`4
`each of these collets, but as part of the
`5
`project in terms of where they were situated in
`6
`the field when they failed, I needed to have an
`7
`idea of what we were pressurizing them to.
`8
`BY MS. NATH:
`9
` Q. Anything else that you believe is
`10
`analogous to adjustable air mattresses?
`11
` A. Well, I'm just giving you my
`12
`experiences in pneumatics and things like that.
`13
`I've worked on a number of other product cases
`14 where I used air power and pressure and valves
`15
`to do it. There is just a smattering of things
`16
`all over the place.
`17
` Q. When we were talking about the
`18
`innertube project, what did you mean when you
`19
`said closed systems?
`20
` A. So the innertube and the jacket, it was
`21
`like -- if you want to think of it as a
`22
`cul-de-sac. The fluid comes in from one side
`23
`and hits a dead end and then the whole thing
`24
`starts to fill.
`25
` Q. So the fluid comes in from one end of
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`the tube?
` A. That's right.
` Q. And then it hits an end of the tube and
`then does what?
` A. And then it begins pressurizing. So
`it's not an open channel all the way through and
`it doesn't continue on going somewhere else.
` Q. So the pressurized fluid remains in the
`innertube?
` A. That's right.
` Q. For what purpose?
` A. To pressurize it.
` Q. Is there something that's done with the
`pressurized fluid once it's pressurized?
` A. Yes. It's held there for a time and
`then after that time is up, then it's drained.
` Q. Do you have an understanding that the
`'172 patent was filed in July of 1997?
` A. That sounds right, to my recollection.
` Q. You can look on page 6 of your report
`if you want to confirm.
` A. Yes, that's what it says on page 6.
` Q. So at the time that this patent was
`filed, you had just graduated from Marquette,
`correct?
`
`Page 17
`
`1
` A. Yes, that's right.
`2
` Q. You would have graduated in May
`3
`of 1997, approximately?
`4
` A. Yeah, approximately.
`5
` Q. And you had a Bachelor of Science in
`6 mechanical engineering?
`7
` A. That's right.
`8
` Q. Did you have any experience at the
`9
`time?
`10
` A. I did, actually.
`11
` MR. HARE: Objection to form.
`12
`BY MS. NATH:
`13
` Q. And what was the experience at the
`14
`time?
`15
` A. So I had a year-long design project
`16 with a team of people and we built a computer
`17
`controlled vacuum cleaner that ran on a 286
`18 motherboard and had sensors that would control
`19
`the vacuum cleaner.
`20
` Q. It's something that you worked on while
`21
`you were in school, is that right?
`22
` A. That's right. And while we worked on
`23
`it, we reached out to a number of vacuum cleaner
`24
`companies and we ended up making a contact with
`25 Hoover, who gave us a number of -- they gave us
`5 (Pages 14 to 17)
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`EXHIBIT 2067
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`Page 18
`1
`a number of parts and pieces for our product and
`2 we ended up building a functional one.
`3
` Q. How many people did you work on this
`4
`project with?
`5
` A. There were three others.
`6
` Q. How much time would you say you spent
`7
`on a weekly basis on this design project over
`8
`the course of the year?
`9
` A. So this was in 1994, '93. We
`10
`probably -- at the beginning we probably put on
`11
`average, you know, four to eight hours a week
`12
`into it and then I think near the culmination of
`13
`it, the second semester when we had to build it
`14
`and paint it and test its operation, how the
`15
`sensors worked, I think then we probably spent
`16
`probably 20 hours each per week.
`17
` Q. So in July 1997 you didn't have any
`18
`experience with adjustable air mattresses by
`19
`that time, correct?
`20
` A. Not with adjustable air mattresses, but
`21
`I had familiarity with computer control and
`22
`pneumatic principles.
`23
` Q. And is that based on this one-year
`24
`design project?
`25
` A. Well, that and, you know, as an
`
`Page 19
`1
`undergraduate you're exposed to fluid dynamics
`2
`courses and things like that.
`3
` Q. Courses, but your actual work
`4
`experience or internships, did you have anything
`5
`relating to what you just said, which was --
`6
`excuse me, sorry.
`7
` MS. NATH: Can you tell me what his
`8
`last answer was?
`9
` (Record read as requested.)
`10
`BY MS. NATH:
`11
` Q. So I'll ask the question again. So
`12
`other than your coursework, did you have any
`13
`experience with pneumatic principles at the time
`14
`in July 1997?
`15
` MR. HARE: Objection to form.
`16
` THE WITNESS: So in terms of college,
`17
`no. It was just the vacuum cleaner project and
`18 my coursework.
`19
`BY MS. NATH:
`20
` Q. Did you have any experience with pumps
`21
`in July 1997?
`22
` MR. HARE: Objection to form.
`23
` THE WITNESS: Yeah. Growing up I was a
`24
`hobby -- model-making hobbyist and I had an air
`25
`compressor that I used to paint with.
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`1
`BY MS. NATH:
`2
` Q. So you used an air compressor?
`3
` A. That's right.
`4
` Q. Did you have any experience working
`5 with valves in July 1997?
`6
` MR. HARE: Objection to form.
`7
` THE WITNESS: I'm trying to recall.
`8
`It's a long time ago. I'm not sure.
`9
`BY MS. NATH:
`10
` Q. Let me ask it this way. So other than
`11
`your one-year design project and the use of an
`12
`air compressor, did you have any other
`13
`experience, work experience relating to
`14
`engineering at the time?
`15
` A. So I was hired by the physics
`16
`department to teach physics to undergrads as a
`17
`junior, so from junior to senior year I taught
`18
`between one and four sections a week of
`19
`undergraduate physics. Those are lab courses,
`20
`and I don't remember off the top of my head what
`21 we did in those courses with fluids. I can't
`22
`think of anything right now.
`23
` Q. Had you done any work with solenoids by
`24
`July 1997?
`25
` A. I don't remember.
`
`Page 21
`
`1
` Q. What about pressure sensors?
`2
` MR. HARE: Objection, form.
`3
`BY MS. NATH:
`4
` Q. In July 1997?
`5
` A. I'm pretty sure that we used those in
`6
`coursework, but it was a long time ago.
`7
` Q. Do you know of the problems facing the
`8
`adjustable air mattress industry in July 1997?
`9
` MR. HARE: Objection, foundation.
`10
` THE WITNESS: I understand what the
`11
`problems were based on what Gifft explained and
`12
`Shafer explained in their introductions.
`13
`BY MS. NATH:
`14
` Q. Can you tell me what those problems
`15 were?
`16
` A. As I recall, I believe heating and
`17
`seals were an issue. I think that that's
`18
`something that Gifft discussed.
`19
` Q. Anything else?
`20
` A. Yeah, I don't recall without seeing it
`21
`in front of me.
`22
` Q. And there is no other source of your
`23
`knowledge of problems for the air mattress
`24
`industry in 1997 other than Gifft and Shafer?
`25
` A. No. For the air mattress industry, no,
`6 (Pages 18 to 21)
`
`Sleep Number Corp.
`EXHIBIT 2067
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`Page 24
`1 with the computer. That allows you to monitor
`2 what's happening in the test. So usually these
`3
`systems -- like I mentioned the collet one. We
`4 were monitoring pressure which had a computer
`5
`there with the readout. Same thing for these
`6
`flexible innertube tests.
`7
` Q. You've served as an expert in other
`8
`proceedings, correct?
`9
` A. That's right.
`10
` Q. And have you ever served as an expert
`11
`relating to adjustable air mattresses or bed
`12
`systems?
`13
` A. No.
`14
` Q. Any expert experience relating to
`15
`inflatable devices?
`16
` A. Yes. So I've been retained to work in
`17
`these product cases that we have talked about
`18
`already.
`19
` Q. So when you were talking to me about
`20
`the innertube, for example, the innertube
`21
`product, that was as an expert?
`22
` A. Well, do you mean like in a legal
`23
`proceeding?
`24
` Q. Correct.
`25
` A. I was a consulting expert.
`
`Page 25
`
`Page 22
`1
`but for valves as a whole you can look to the
`2
`Power Transmission Handbook and see what sorts
`3
`of valves they had in there, and if you look at
`4
`the one from a year or two ago, that section has
`5
`largely remained completely identical to what it
`6 was in 1993.
`7
` Q. 1993 or 1997?
`8
` A. 1993 is when the Power Transmission
`9 Handbook that I used as an exhibit for my
`10
`report, that's when that was published.
`11
` Q. And you went back and looked at the
`12
`1993 version of the book?
`13
` A. That's right. That's the exhibits that
`14 we attached to my report.
`15
` Q. So do you know of the problems facing
`16
`pneumatic systems in July 1997?
`17
` MR. HARE: Objection to form.
`18
` THE WITNESS: As I just discussed, the
`19
`primary ones that I believe Gifft was trying to
`20
`overcome were solenoids overheating and leaks
`21
`developing in the valves. And also Shafer
`22
`addressed noisy air pumps.
`23
`BY MS. NATH:
`24
` Q. If you look at paragraph 3 of your
`25
`report, it starts on page 4, the second to last
`Page 23
`1
`line talks about development of a hydraulic test
`2
`bed.
`3
` Can you tell me what that is?
`4
` A. Yeah. So that's the flexible innertube
`5 with the jacket. That's what I'm talking about
`6
`there. And that also describes the test setup
`7
`that I made for the collet.
`8
` Q. So what is a hydraulic test bed?
`9
` A. So that's just -- a test setup, test
`10
`bed, I would use those interchangeably.
`11 Hydraulic, because I was forcing water into the
`12
`innertubes.
`13
` Q. So when you use the word "bed" in
`14
`paragraph 3, it's not actually a bed that you
`15 would sleep on; it's the term that you were
`16
`using to describe your test setup system?
`17
` A. That's correct.
`18
` Q. And what is the next item that you've
`19
`listed, computer control system that was used to
`20
`fill and relieve flexible/expandable client
`21
`devices?
`22
` A. Yeah. So that goes along with that
`23
`same thing. Also more generically, I do a lot
`24
`of work where I use sensors to monitor
`25
`computer -- you know, you interface the sensor
`
`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
`
` Q. In a legal proceeding?
` A. I think that there was an offshoot
`eventually that was litigation, but I was not
`involved in that. I only consulted with them.
`The other one that I mentioned with the collets,
`that was litigation.
` Q. Did you testify in the collets matter?
` A. No.
` Q. Did you submit an expert report?
` MR. HARE: Objection to form.
` THE WITNESS: No, I did not.
`BY MS. NATH:
` Q. Do you know how many times you've
`served as an expert in relation to legal
`proceedings?
` A. I could only speculate.
` Q. Do you know if it's more than ten?
` A. I've been retained more than ten times,
`yes.
` Q. Is it more than 30?
` A. Probably.
` Q. More than 50?
` A. Probably. I've been doing consulting
`for about 11 and a half years now.
` Q. What percentage of your work is expert
`7 (Pages 22 to 25)
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2067
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`Page 26
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`Page 28
`
`1 work in these legal proceedings?
`2
` A. Being retained for litigation matters
`3
`versus consulting work for product development
`4
`or product failures where there is not
`5
`litigation, I don't keep track of it, but if I
`6
`had to guess I would probably say it varies year
`7
`to year. So some years I could be doing
`8
`litigation 40 percent, some years it could be
`9
`60 percent, but it's usually somewhere around
`10
`there.
`11
` Q. Have you served as an expert on other
`12
`patent cases before?
`13
` A. I have.
`14
` Q. Do you know about how many?
`15
` A. I've worked in a number. I've been
`16
`deposed in one.
`17
` Q. Any testimony in any patent cases?
`18
` A. Yeah, just that one.
`19
` Q. So in the one you were deposed, did you
`20
`give any trial testimony or hearing testimony?
`21
` A. It was just deposition.
`22
` Q. But you have given live hearing or
`23
`trial testimony as an expert?
`24
` A. Yes. I was a fact witness.
`25
` Q. You were a fact witness in a legal
`
`Page 27
`
`1
`Commission. I don't believe that I've had
`2
`communication with any experts in that.
`3
` Q. Have you had communications with any
`4
`other experts in these proceedings?
`5
` A. So Josh Phinney is a colleague of mine,
`6
`but I have not discussed the substance of
`7
`this --
`8
` MR. HARE: Objection, form.
`9
` THE WITNESS: -- with him. He is part
`10
`of the technical review process that Exponent
`11
`has, and so in that regard he has reviewed what
`12
`I've written, but I've not reviewed his work.
`13
`BY MS. NATH:
`14
` Q. When were you hired in this case to
`15
`serve as an expert?
`16
` A. Sometime in 2018.
`17
` Q. Do you know if it was the early or
`18
`later part of the year?
`19
` A. I don't recall. The original contact
`20 was made with Joe Rakow, I believe, and then I
`21
`became involved.
`22
` Q. You don't remember if you were on the
`23
`beach or if it was snowing?
`24
` A. No idea. No idea.
`25
` Q. Do you know how much time you spent on
`Page 29
`
`1
`proceeding?
`2
` A. Yes.
`3
` Q. Is that the only time that you gave
`4
`live testimony in a hearing or a trial?
`5
` A. That's right.
`6
` Q. So you've never given live testimony as
`7
`an expert outside of a deposition?
`8
` A. Except for that, when I was a fact
`9 witness. That was a bench trial.
`10
` Q. So you were a fact witness. What did
`11
`that case relate to?
`12
` A. Modifications to a golf cart.
`13
` Q. But you weren't retained as an expert?
`14
` A. That's right. I assisted the person
`15 who was retained as an expert.
`16
` Q. Were you asked to be an expert for the
`17
`Sleep Number versus ANM International Trade
`18
`Commission case?
`19
` MR. HARE: Objection, foundation.
`20
` THE WITNESS: No.
`21
`BY MS. NATH:
`22
` Q. Have you had any communications with
`23
`any experts in the ITC case? Do you know what I
`24 mean when I say ITC?
`25
` A. That's the International Trade
`
`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
`
`the case to date, approximately?
` A. To date, I would say -- I would have to
`guess. It's over 100 hours, but I believe less
`than 150. I'm not counting the deposition prep
`from the last week, though.
` Q. Do you know about how much you've been
`paid to date?
` A. I have no idea. I don't know how much
`Exponent has been paid. I should clarify that.
` (Whereupon, Giachetti Deposition
` Exhibit No. 3 was marked for
` identification.)
`BY MS. NATH:
` Q. Have you had any communications with
`someone named Dr. Friis?
` A. Not that I recall.
` MR. HARE: Objection, foundation.
`BY MS. NATH:
` Q. Have you reviewed any reports written
`by an expert named Dr. Friis?
` A. No.
` Q. I've given you what has been marked as
`Exhibit 3.
` Do you recognize this document?
` A. It looks like the -- well, based on the
`8 (Pages 26 to 29)
`
`TransPerfect Legal Solutions
`212-400-8845 - Depo@TransPerfect.com
`
`Sleep Number Corp.
`EXHIBIT 2067
`IPR2019-00514
`Page 8
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`Page 30
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`Page 32
`
`1
`title page it looks like the petition for the
`2
`IPR.
`3
` Q. And have you reviewed this IPR petition
`4
`in this case?
`5
` A. Yeah, I've seen it before.
`6
` Q. Were you involved in drafting it?
`7
` A. No.
`8
` Q. Do you understand your declaration is
`9
`attached as an exhibit to this petition?
`10
` A. I do.
`11
` Q. And your declaration is cited in the
`12
`petition for support?
`13
` A. Yes, I understand that.
`14
` Q. Did you review the petition in
`15
`preparation for the deposition?
`16
` A. I did.
`17
` Q. Do you agree with its contents?
`18
` A. I only reviewed it to make sure that I
`19
`saw what it said. I didn't really assign
`20
`agreement or disagreement.
`21
` Q. So while you were reading it, you
`22
`didn't -- if you saw something that you didn't
`23
`agree with, you wouldn't have noticed that?
`24
` A. I was just really looking for parts
`25 where my report was called out because I wanted
`Page 31
`
`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
`
`has an expert named Dr. Messner?
` A. Yes.
` Q. And have you reviewed his declaration
`in this matter?
` A. I have.
` Q. Have you reviewed the patent owner's
`preliminary response in this matter?
` A. I believe I did. I believe I did.
` Q. Sometime before this deposition?
` A. Yes.
` Q. In preparation for the deposition?
` A. I believe I reviewed that document and
`then issued -- if it's the document that I'm
`thinking of, I reviewed that and then issued a
`supplementary response.
` Q. You had mentioned Dr. Phinney
`previously. Are you aware that there are
`related inter partes review proceedings in
`relation to two different patents, the '747
`patent and the '154 patent?
` A. I'm aware that those exist, but I don't
`know the topics that he's working on outside
`that it's related to control in some way.
` Q. So have you reviewed any materials
`relating to those proceedings?
`
`Page 33
`
`1
`to make sure that -- I'm here to discuss my
`2
`report, which is where all my science is. So
`3
`the way I understand it, it works, is I provide
`4
`the attorneys the science through my report and
`5
`how they choose to use it with their expert
`6
`knowledge of the legal system, which I do not
`7
`have, that's their area.
`8
` Q. So when you were looking for parts
`9 where your report was called out, did you do any
`10
`review of whether the petition accurately
`11
`characterized your opinions?
`12
` A. Yeah, I didn't read it terribly
`13
`closely. I just wanted to have a real flavor
`14
`for what was there and I would refer all my
`15
`opinions to be contained in that report.
`16
` Q. You would refer all your opinions to be
`17
`contained in your report, is that what you said?
`18
` A. Yeah.
`19
` Q. And you understand that the board in
`20
`this matter issued a decision in the case
`21
`instituting the proceedings, correct?
`22
` A. Yes.
`23
` Q. Did you review that document?
`24
` A. I did.
`25
` Q. And do you understand that Sleep Number
`
`1
` A. I skimmed through his deposition
`2
`transcript, but as far as trying to comprehend
`3
`or dig into the technical material, I didn't do
`4
`any of that.
`5
` Q. So you didn't read his report, but you
`6
`did review his deposition transcript from those
`7
`proceedings?
`8
` A. I think "review" is more in depth than
`9 what I did. I literally just skimmed through in
`10
`less than a half hour or something. It was
`11
`pretty lengthy.
`12
` Q. Have you had communications with any
`13
`other individuals in relation to those
`14
`proceedings?
`15
` A. The attorneys and I briefly touched
`16
`upon it during