213
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 1 of 254 PageID #: 10507
`
`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
`GREEN MOUNTAIN GLASS, LLC AND
`)
`CULCHROME, LLC,
`Plaintiffs,
`
`))
`
`Civil Action
`
`))
`
`))
`
`)
`
`))
`
`v.
`SAINT-GOBAIN CONTAINERS, INC.,
`DBA VERALLIA NORTH AMERICA,
`Defendants.
`
`No. 14-392-GMS
`
`)
`- - -
`Wilmington, Delaware
`Tuesday, April 18, 2017
`8:40 a.m.
`Trial Day 2
`- - -
`BEFORE: HONORABLE GREGORY M. SLEET, U.S.D.C.J.,
`and a Jury
`
`APPEARANCES:
`BRIAN E. FARNAN, ESQ.
`Farnan LLP
`-and-
`JUSTIN A. NELSON, ESQ. (Houston, TX),
`MATTHEW R. BERRY, ESQ. (Seattle, WA),
`JOHN E. SCHILTZ, ESQ. (Seattle WA), and
`STEVEN M. SHEPARD, ESQ. (New York, NY)
`Sussman Godfrey L.L.P.
`-and-
`ROBERT S. BRAMSON, ESQ.
`Bramson & Pressman
`(Conshohocken, PA)
`
`Counsel for Plaintiffs
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 001
`
`
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 1 of 254 PageID #: 10507
`
`IN THE UNITED STATES DISTRICT COURT
`IN AND FOR THE DISTRICT OF DELAWARE
`- - -
`GREEN MOUNTAIN GLASS, LLC AND
`)
`CULCHROME, LLC,
`Plaintiffs,
`
`))
`
`Civil Action
`
`))
`
`))
`
`)
`
`))
`
`v.
`SAINT-GOBAIN CONTAINERS, INC.,
`DBA VERALLIA NORTH AMERICA,
`Defendants.
`
`No. 14-392-GMS
`
`)
`- - -
`Wilmington, Delaware
`Tuesday, April 18, 2017
`8:40 a.m.
`Trial Day 2
`- - -
`BEFORE: HONORABLE GREGORY M. SLEET, U.S.D.C.J.,
`and a Jury
`
`APPEARANCES:
`BRIAN E. FARNAN, ESQ.
`Farnan LLP
`-and-
`JUSTIN A. NELSON, ESQ. (Houston, TX),
`MATTHEW R. BERRY, ESQ. (Seattle, WA),
`JOHN E. SCHILTZ, ESQ. (Seattle WA), and
`STEVEN M. SHEPARD, ESQ. (New York, NY)
`Sussman Godfrey L.L.P.
`-and-
`ROBERT S. BRAMSON, ESQ.
`Bramson & Pressman
`(Conshohocken, PA)
`
`Counsel for Plaintiffs
`
`1 2 3 4 5 6 7 8 9
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`O-I Glass, Inc.
`Exhibit 1054
`Page 001
`
`
`
`214
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 2 of 254 PageID #: 10508
`
`APPEARANCES CONTINUED:
`BRIAN A. BIGGS, ESQ.
`DLA Piper LLP (US)
`-and-
`JOHN ALLCOCK, ESQ. (San Diego, CA),
`PAUL STEADMAN, ESQ.,
`MATTHEW SATCHWELL, ESQ., and
`STUART E. POLLACK, ESQ. (New York, NY)
`DLA Piper LLP (US)
`(Chicago, IL)
`
`Counsel for Defendant
`- - -
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`O-I Glass, Inc.
`Exhibit 1054
`Page 002
`
`
`
`410
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 198 of 254 PageID #: 10704
`Martin - direct
`cullet as a whole as it came in, and they would analyze the
`color composition and plot out these numbers.
`We are walking through a Milford example through the
`Q.
`batch records. But do you rely on similar internal Ardagh
`documents and e-mails as to the other plants?
`Yes, there is extensive information, as you might
`A.
`imagine, on the cullets and the raw materials that they use.
`I used that information to indicate that everything was
`mixed-color cullet.
`Doctor, we discussed color specifications and internal
`Q.
`descriptions of that cullet. Are there other types of
`cullet that you relied on to determine in concluding that
`all of Ardagh's amber and green cullet is in fact mixed
`color cullet?
`Yes. Some of that included deposition testimony, like
`A.
`you have heard today. This comes from David Warrington,
`their former cullet quality manager. You might call him a
`color guy at Ardagh. He was asked during your time, working
`for defendant, the amber cullet purchases by the Milford
`plant was composed of broken pieces of glass of mixed
`cullet? And he said yes to that.
`Did he also go on to testify about the other plants
`Q.
`that we have listed here?
`Yes. In brevity, I indicate that was affirmative for
`A.
`all of the other plants as well.
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 003
`
`
`
`411
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 199 of 254 PageID #: 10705
`Martin - direct
`In addition to Mr. Warrington, was there other
`Q.
`deposition testimony that similarly confirmed to you that
`Ardagh's cullet is mixed-color cullet?
`Yes, there was.
`A.
`Having considered all of the evidence in this case, in
`Q.
`your opinion, do all of Ardagh's accused amber and green
`batches meet this first obtaining of unsorted mixed color
`cullet step of the '737 patent?
`Yes, all of the cullet that Ardagh used, the external
`A.
`batches, was mixed color cullet, yes.
`Moving down from the chart then, returning to the
`Q.
`claim language, what is the second step of Claim 18?
`So in the second step, you have your unsorted mixed
`A.
`color cullet. And you add it to the other raw materials
`that you are going to use to make the glass batch.
`Did you conclude that all of Ardagh's accused methods
`Q.
`practice the second step of Claim 18?
`Yes, I did, very much so.
`A.
`From what evidence did you conclude that all of
`Q.
`Ardagh's accused methods also Step 2 of Claim 18?
`Again, I return back to their batch history records.
`A.
`Again, a very detailed record of all of the things that go
`into a batch that they melt. In this case, we looked to the
`top of that batch history record. You see the raw materials
`that are added here.
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 004
`
`
`
`412
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 200 of 254 PageID #: 10706
`Martin - direct
`We were looking at JTX-55. Is this the same excerpt
`Q.
`or batch history file we looked at when we were looking at
`the cullet?
`Yes, it is. This is Milford 16 from 12/16 of 2019,
`A.
`that is correct.
`What are the three common types of raw materials added
`Q.
`to the amber glass batch?
`So the amber glass batch has sand, soda ash, and
`A.
`limestone, so that is called soda limestone. These are the
`amounts of those complements added to this particular raw
`material batch.
`Although we are looking at the December 16th, 2009
`Q.
`batch recipe from Millville 16, did all of the batch records
`you reviewed similarly show Ardagh adding raw materials to
`their mixed color cullet?
`Yes, each and every one of the many thousands of
`A.
`documents I have looked at, the batches had actual the same
`form. The numbers were different. Slight differences in
`raw materials, but they all had the same form, all the
`batches that I looked at.
`Did you conclude that all of Ardagh's accused methods
`Q.
`practiced Step 2 of Claim 18?
`Yes, I did.
`A.
`Returning back to the claim language then, what was
`Q.
`the third thing that you need to find in Ardagh's batch
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 005
`
`
`
`413
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 201 of 254 PageID #: 10707
`Martin - direct
`
`records?
`So in this step, you are adding a decolorizing, at
`A.
`least one of a decolorizing agent for that off color and/or
`a colorizing agent to the unsorted mixed color cullet and
`the raw batch materials.
`What is a decolorizing agent as that term is used in
`Q.
`the '737 patent?
`You can think of it as an agent that goes in and
`A.
`absorbs or masks this unwanted color from the glass.
`What is a colorizing agent as that term is used in the
`Q.
`'737 patent?
`So that's the agent that is going to enhance the
`A.
`particular color you have chosen for your particular bottle.
`Does step three of Claim 18 require the glassmaker to
`Q.
`add both a colorizing agent and a decolorizing agent?
`No. A careful read of it means that just add at least
`A.
`one color. So you can add both if you want, but you need
`only add one.
`Did you conclude that all of Ardagh's use methods
`Q.
`practice Step 3 of Claim 18?
`Yes, I did, very much so.
`A.
`From what evidence did you conclude that all of
`Q.
`Ardagh's accused methods infringe Step 3 Claim 18?
`We go back to the batch history records again. We
`A.
`look now to the bill of the compositional list, raw
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 006
`
`
`
`414
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 202 of 254 PageID #: 10708
`Martin - direct
`materials list, you will see in this particular example,
`Milford, that we have been looking it, you see cuprous oxide
`and iron oxide have been added into that particular mix.
`How did cuprous oxide and iron oxide function as
`Q.
`decolorizing agents in an amber batch containing mixed color
`cullet?
`You see, this is the amber batch, and the amber is
`A.
`actually the red wavelengths, on the far right, you want
`those to pass, so the cuprous oxide and the iron oxide act
`like a color specific sunshade. And it blocks the green
`color you see, to only allow the long wavelengths, the reds,
`to pass through the glass.
`You have highlighted up in the claim language there
`Q.
`the phrase selectively decolorize. What does it mean to
`selectively decolorize?
`In this case, as my diagram shows, it's just
`A.
`decolorizing a particular color. It's taking out a color
`from the spectrum of colors that could be transmitted from
`the glass.
`You were able to tell just from looking at Ardagh's
`Q.
`batch records that iron oxide and cuprous oxide were
`functioning as decolorizing agents in this batch?
`Yes, very much so.
`A.
`Was it necessary for you to calculate the total
`Q.
`chemistry of Ardagh's batches to confirm that these agents
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 007
`
`
`
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`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 203 of 254 PageID #: 10709
`Martin - direct
`acted in fact as decolorizing agents?
`No. Their role in glass batches is very well known
`A.
`and I know their behaviors, so, no, it was not necessary.
`Let me ask you this, Dr. Martin. Are you aware of
`Q.
`Ardagh's argument that in order for a decolorizing agent to
`selectively decolorize, that decolorizing agent must
`selective decolorize, that decolorizing agent must
`selectively act only on the cullet in the furnace?
`Yes, I am aware of that argument.
`A.
`In your expert opinion, is Ardagh's selectively
`Q.
`decolorizing argument a sound argument as a matter of glass
`science?
`No, it is not. We are not decolorizing the color as
`A.
`my sun shade shows here. We are decolorizing the color. It
`is true in some cases that off color is mostly coming from
`the cullet. But it is that particular color we are
`decolorizing all throughout the glass melt, once everything
`is melted. The glass cullet is gone. It's dissolved into
`the melt. We are decolorizing the particular region of the
`electromagnet spectrum. It has nothing to do with the
`cullet.
`When everything is melted together in the glass batch,
`Q.
`is it possible to separate the cullet from the other raw
`materials?
`No, it is not. It is like separating sugar molecules
`A.
`
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`Exhibit 1054
`Page 008
`
`
`
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`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 204 of 254 PageID #: 10710
`Martin - direct
`in dissolving water, they are gone.
`This particular batch included copper oxide and iron
`Q.
`oxide as decolorizing agents, did Ardagh ever add other
`decolorizing agents in its amber batches?
`There are others. And they are well known and they
`A.
`use some of those other ones.
`Which ones?
`Q.
`Manganese oxide, I believe.
`A.
`Manganese oxide, how does that function as a
`Q.
`decolorizing agent in an amber batch?
`It behaves almost identically the way cuprous oxide
`A.
`and iron oxide do. Slightly different, but essentially the
`same way in which cuprous oxide and iron oxide here. They
`block the green wavelengths of light so only the red light
`gets through the glass.
`Here again we are looking at JTX-55 and one particular
`Q.
`example in that. It is an amber batch. Did you also
`identify batches where Ardagh added green colorizing agents
`to its green glassmaking method?
`Here we are talking about amber glass. We also have
`A.
`green bottles. So there are decolorizers for green batches.
`Yes, I identified those.
`Which one?
`Q.
`In that case, it's cobalt oxide.
`A.
`And how does cobalt oxide function as a decolorizing
`Q.
`
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`Exhibit 1054
`Page 009
`
`
`
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`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 205 of 254 PageID #: 10711
`Martin - direct
`agent in a green batch?
`Kind of opposite. In a green batch, you want to green
`A.
`light to come through. You don't want the long wavelength
`red to go through. So cobalt comes down as a color sort of
`sunshade over the red part, the amber part allowing the
`green part to come through. So it's decolorizing the amber
`in the mixed color cullet.
`Moving on, Dr. Martin. You said that Claim 18 only
`Q.
`requires at least one of a decolorizing or colorizing agent.
`But this particular batch also include colorizing agents
`which function to enhance the amber color?
`Yes, it did. Moving up slightly in the batch, you see
`A.
`that salt cake and carbocite are part of this batch.
`And how do salt cake and carbocite function as
`Q.
`colorizing agents in this amber batch?
`It's a little complicated. But the short of the story
`A.
`is, they simply add to the amber, the red color, they are
`just red colorizers for the amber coloring glass.
`You were able to do just by looking at Ardagh's batch
`Q.
`records that salt cake and carbocite function as colorizing
`agents?
`Yes, I was. Their role in glass is very well known,
`A.
`in an amber bach, and it is easy to pick them out from their
`very detailed list of the exemplary batch.
`You said the exemplary batch we are looking at here
`Q.
`
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`Exhibit 1054
`Page 010
`
`
`
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`Martin - direct
`included salt cake and carbocite as colorizing agents. Did
`Ardagh ever add other colorizing agents to its amber
`batches?
`Yes, they did.
`A.
`Which ones?
`Q.
`They added iron pyrite. They added slag. And they
`A.
`added -- I am missing a couple of them. There are so many
`of them. Those are two I can remember.
`What is another name for carbocite within the
`Q.
`industry?
`In this case they have also added carbon, carbon as
`A.
`well.
`Do you ever find any evidence of EP dust being added?
`Q.
`Yes. Electrostatic precipitate or dust is collected
`A.
`and that's fed back into the batch. It is also a colorizer.
`How do those compounds function as colorizing agents
`Q.
`which enhance the amber color?
`Yes, they are also known to colorize the red, the
`A.
`amber color in a glass bottle.
`Did you also find, identify instances where Ardagh
`Q.
`added colorizing agents to its green batches?
`Yes, in a case about green batches, you want to add a
`A.
`green colorizing agent in, yes, I observed that.
`Which green colorizing did Ardagh add to its batch?
`Q.
`There were two. There was chromium trioxide and iron
`A.
`
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`Exhibit 1054
`Page 011
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`
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`Martin - direct
`
`chromite.
`And how did chromium trioxide and iron chromite
`Q.
`function as colorizing agents which enhance the green color?
`They go in to act so that the glass passes just the
`A.
`green color, so that the glass bottle passes the color and
`it looks green to us.
`Stepping back, Dr. Martin. Did you identify at least
`Q.
`one colorizing and/or decolorizing agent in all of Ardagh's
`batch records?
`Yes, I did.
`A.
`Did you summarize your findings for the jury in this
`Q.
`case?
`Yes, I did. This is in this particular exhibit.
`A.
`Is this PX-379 that we are looking at here?
`Q.
`Yes, it is.
`A.
`Can you briefly explain what you did in PX-379 with
`Q.
`respect to Ardagh's batch records?
`Yes, remember, there is thousands and thousands of
`A.
`batch records. I needed a way to summarize that information
`in an informative way but not overly burdensome way. This
`simply tells the plant, the color, the time period the batch
`was used, then the cullets they used, and also the selecting
`components that were added to each and every batch.
`On the far left-hand side here, what is reported in
`Q.
`the color produced column?
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`O-I Glass, Inc.
`Exhibit 1054
`Page 012
`
`
`
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`Martin - direct
`That is a particular color the were making in that
`A.
`particular plant in that particular tank for that particular
`time period.
`Pull up PX-279 so we can look at Page 2.
`Q.
`379, I apologize.
`So you were just talking about the plant and
`tank here. Moving to the right, what is reported in the
`color produced column of your batch records?
`That is the color that that particular plant is making
`A.
`at that particular time at that particular furnace and tank.
`So we would expect to see there amber and green?
`Q.
`Amber and green for the batches I looked at.
`A.
`Moving to the right, what is being recorded in the
`Q.
`begin date and end date column?
`That is the start and stop dates for when that
`A.
`particular batch record was used in that particular tank to
`make that particular color.
`What is being reported moving to the right in the
`Q.
`selected cullets column?
`So each batch lists the raw materials but also the
`A.
`cullet. So this is a summary of all of the cullets that
`were used for that particular furnace, at that particular
`time frame. And here I bolded, in this case amber 4, you
`see, I bolded what are the mixed color cullets that were
`used for that particular time period.
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 013
`
`
`
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`Martin - direct
`So if the jury wanted to determine if there was mixed
`Q.
`color cullet being added to the batch they could look at the
`selected components and look for the bold?
`They look for the selected cullets. They would look
`A.
`for the selected cullets. They would look for the bold
`ones. And so amber 4, as we talked about, is a mixed color
`cullet they bought outside. It is a mixture of the three
`colors.
`Finally, you have a column called selected components.
`Q.
`What is being reported there?
`That is a shorthand notation for the colorants that
`A.
`decolorizes the colorizers that were added in each batch.
`If it has an asterisk besides it, that means it was coming
`in as a part of another raw material.
`Why would Ardagh add such agents as a par part of
`Q.
`another raw material rather than just adding it as a
`stand-alone raw material?
`Some of these colorizers and decolorizers are just
`A.
`intrinsically powerful. It doesn't take a lot. If you are
`weighing out 4000 pounds of something but you only need one
`pound of something, it is hard on an industrial scale to
`weight those small amounts accurately. So they mix it in
`with other materials to get the weights up so that it's
`easier to weigh that larger amount up. Also, when it is a
`part of another material, we call it fluxed. It's already a
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 014
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`
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`Martin - direct
`part of that raw material, so it melts faster and dissolves
`more uniformly throughout the batch so your color is more
`uniform.
`
`THE COURT: Let's take a break.
`(Jury leaves courtroom at 3:15 p.m.)
`(Recess taken.)
`THE COURT: Let's bring in the jury.
`(Jury enters courtroom at 3:33 p.m.)
`THE COURT: Ladies and gentlemen, we can't get
`the temperature right.
`Does anybody need to get a sweater or anything?
`Please, take your seats.
`BY MR. SCHILTZ:
`Dr. Martin, when we left off we were discussing
`Q.
`PX-379. You had just walked us through what you had
`reported in this summary exhibit. If the jury wanted to
`know what cullet, colorizing agents and/or decolorizing
`agents that Ardagh used in a particular batch at a
`particular plant on a given date during a particular time
`period, could they identify all of that information from
`DX-379?
`Yes, they could. It summarizes all of the information
`A.
`about the cullets and decolorizers and colorizers, yes.
`We have been talking in depth about colorizing
`Q.
`decolorizing agent for a while.
`
`1 2 3 4 5 6 7 8 9
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`15:34:06
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`15:34:07
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`15:34:10
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`15:34:16
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`15:34:18
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`O-I Glass, Inc.
`Exhibit 1054
`Page 015
`
`
`
`423
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 211 of 254 PageID #: 10717
`Martin - direct
`Stepping back, Dr. Martin, in your opinion, do
`all of the accused batches practice the colorizing and/or
`decolorizing step of Claim 18?
`Yes, they very much do.
`A.
`Returning then to the claim language, what is the
`Q.
`fourth step of Claim 18, Dr. Martin?
`In this case you have your finalized batch. It has
`A.
`all the ingredients in it that we talked about. Now, Ardagh
`melts that batch according to Claim 18.
`Did you conclude that all of Ardagh's accused batches
`Q.
`practice the melting step of Claim 18?
`Yes, of course, that is the entire purpose of having a
`A.
`glass melting furnace and a glass melting plant, is to melt
`the batch, yes.
`Returning to the claim language again, what is the
`Q.
`final step then of Claim 18, Dr. Martin?
`Of course, the final step is to make a glass article,
`A.
`make a glass bottle from that molten glass.
`Did you conclude that all of Ardagh's accused batches
`Q.
`practice the creating step of Claim 18?
`Yes, they did. Ardagh, as I said, has the 19
`A.
`different plants and they make billions and billions of
`glass bottles each and every year.
`In summary, did you determine that all of Ardagh's
`Q.
`accused batches practice each and every one of the steps of
`
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`15:35:03
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`15:35:04
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`15:35:06
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`15:35:09
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`15:35:21
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`15:35:23
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`15:35:27
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`15:35:29
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`15:35:31
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`15:35:34
`
`O-I Glass, Inc.
`Exhibit 1054
`Page 016
`
`
`
`424
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 212 of 254 PageID #: 10718
`Martin - direct
`Claim 18 and therefore infringe Claim 18 of the '737 patent.
`Yes, as you can see here, all of the steps have been
`A.
`practiced by Ardagh's accuse methods.
`Dr. Martin, did you also determine that all of
`Q.
`Ardagh's accused batches infringe independent Claim 1 of the
`'737 patent?
`Yes, I did.
`A.
`Is this the claim language of independent Claim 1?
`Q.
`Yes, of the '737 patent, this is Claim 1.
`A.
`What is required in Claim 1 of the '737 patent?
`Q.
`It is similar to the claim we just talked about, Claim
`A.
`18. But in this case, if you look very carefully, you only
`are melting and working with mixed color cullet. There is
`no raw material present.
`Is it okay, though, if you add raw materials?
`Q.
`Yes. So long as you conduct all of the steps you find
`A.
`in the claim, you can add additional steps, but you must
`conduct all of the steps as defined in this claim. Claim 18
`has more. So when practicing Claim 18 you actually practice
`Claim 1 in the process.
`Did you conclude that all of Ardagh's accused methods
`Q.
`practice Claim 1, Dr. Martin?
`Yes, I did.
`A.
`Let me ask you this, Dr. Martin: The last step of
`Q.
`Claim 1 says the bottle is created from
`
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`15:36:14
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`15:36:16
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`15:36:19
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`15:36:30
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`15:36:33
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`15:36:38
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`15:36:40
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`15:36:43
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`15:36:45
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`15:36:46
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`15:36:49
`
`O-I Glass, Inc.
`Exhibit 1054
`Page 017
`
`
`
`425
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 213 of 254 PageID #: 10719
`Martin - direct
`colorized/decolorized mixed color cullet. Didn't you just
`tell me earlier that the entire batch and not the cullet is
`corrected in Ardagh's batches?
`Yes, I did.
`A.
`What is happening in Claim 1?
`Q.
`If you look carefully at Step 1, there are no raw
`A.
`materials. There is just cullet. The only thing you are
`melting is the cullet. The only thing to colorize or
`decolorize in this particular case is just the cullet you
`started with. There is no raw materials to decolorize or
`colorize.
`If you add raw materials as you said as allowed, that
`Q.
`cullet, would any decolorizer that you add still act only on
`that cullet?
`No, as we discussed, it would act on that particular
`A.
`color that you are trying to decolorize or the particular
`color that you are trying to colorize, too.
`Dr. Martin, were you in the courtroom yesterday during
`Q.
`the opening statements of Mr. Allcock, Ardagh's lawyer?
`Yes.
`A.
`Do you remember him showing this slide to the jury?
`Q.
`Yes, I do.
`A.
`Does this slide and Mr. Allcock's argument regarding
`Q.
`selectively decolorizing demonstrate a sound understanding
`of glass science?
`
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`O-I Glass, Inc.
`Exhibit 1054
`Page 018
`
`
`
`426
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 214 of 254 PageID #: 10720
`Martin - direct
`No, of course not.
`A.
`Why not?
`Q.
`Well, the glass pieces, of course, are gone in the
`A.
`melting process. They are no longer, you can find each one
`and decolorize each little particle as indicated in this
`step. All of the glass cullet, all of the raw materials are
`melted together as a uniform melt and you decolorize the
`color, all the little pieces are gone by that time.
`Dr. Martin, did you also conclude that Ardagh
`Q.
`infringed certain dependent claims of the '737 patent?
`Yes, I did.
`A.
`What is meant by a dependent claim?
`Q.
`Well, Claim 1 and 18 that we have been talking about
`A.
`are what we call independent claims. The dependent claims
`follow after an independent claim. And they add extra
`steps, maybe one step or multiple steps, two.
`In this slide are we looking at the asserted dependent
`Q.
`claims of the '737 patent?
`Yes, we are.
`A.
`What additional requirement is added by Dependent
`Q.
`Claim 20?
`If you remember back to 18, you have got your patent,
`A.
`your raw materials, your cullet, your colorizing and
`decolorizers. Here, what we are seeing, this claim says is
`the mixed color cullets must contained all three colors.
`
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`15:38:59
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`15:39:03
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`15:39:03
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`15:39:06
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`15:39:10
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`15:39:13
`
`O-I Glass, Inc.
`Exhibit 1054
`Page 019
`
`
`
`427
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 215 of 254 PageID #: 10721
`Martin - direct
`Claim 18 said only at least two Delores. Here is it is
`claiming all three colors, the flint, green and amber in the
`mixed cullet.
`What did you conclude about Ardagh's accused batches
`Q.
`with respect to Claim 20?
`That all of the amber and green batches, the mixed
`A.
`color cullet was in fact a mixture of all three colors.
`From what evidence did you determine that all of
`Q.
`Ardagh's accused batches infringed Claim 20?
`This came from the analysis of all the cullets, as you
`A.
`see here, we talked at length about this amber cullet, which
`is 4000 pounds.
`Let's move on to Claim 21. What limitation is added
`Q.
`by Claim 21?
`So Claim 21 kind of made me go to the end. This deals
`A.
`with a specific color you want to make, all the other claims
`were kind of independent of the color you wanted to make.
`This one is specifying an amber color. In addition to that,
`the additional step is that you are adding a decolorizer and
`a colorizer. Before it was one or two, but with this one it
`says you must add two, a decolorizer and a colorizer and you
`are making a specific amber collar.
`What did you conclude about Ardagh's accused
`Q.
`batches -- I will start again. What did you conclude about
`Ardagh's accused amber batches as they relate to Claim 21 of
`
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`15:40:15
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`15:40:37
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`O-I Glass, Inc.
`Exhibit 1054
`Page 020
`
`
`
`428
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 216 of 254 PageID #: 10722
`Martin - direct
`
`the '737 patent?
`So in this case I was just looking at the amber
`A.
`batches. The greens were not part of this analysis. In
`this case the amber batches, all of the amber batches, this
`is a subset, just the amber batches, all of them, all of
`Ardagh's methods have infringed this claim.
`We are looking at JTX-5. We are back at the Milford
`Q.
`example. Can you walk us through the first thing that you
`had to find in Claim 21?
`Claim 21, first of all, is making an amber batch. We
`A.
`said that. Then I have to look for a decolorizing agent.
`You have already seen that cuprous oxide, that is a
`decolorizer for the green when you want to make an amber
`batch. That is the first step. That is the color specific
`staging here.
`But the third step you have to do is you then
`have to look for a colorizing agent that is going to enhance
`the remaining or the particular color, the amber color. So
`I needed to look for an amber colorizer and carbocite is a
`very demonstrative colorizer for the amber colorizing glass.
`We don't have to time to walk through all of the
`Q.
`different amber batch records today. Did you locate both a
`decolorizing agent and a colorizing agent in all of Ardagh's
`amber batch records?
`Yes, Again, focusing our attention just on the amber
`A.
`
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`15:41:59
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`O-I Glass, Inc.
`Exhibit 1054
`Page 021
`
`
`
`429
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 217 of 254 PageID #: 10723
`Martin - direct
`batches I defined that both the coloring agent and a
`decolorizing agent were added to all of their amber batches.
`Would that information be summarized in PX-379?
`Q.
`Yes, it would. And you would look for the amber
`A.
`batches for that particular claim infringement.
`Let's move on to Claim 22, Dr. Martin. What does
`Q.
`Claim 22 add to Claim 20?
`It looks a little complex. It is actually pretty
`A.
`simple. If you look at the very end, it says green color.
`Claim 22 is the green analogy to Claim 21.
`Did any of Ardagh's green batches infringe Claim 22?
`Q.
`Many of them did, in fact. Many of them did.
`A.
`From what evidence did you conclude that any of
`Q.
`Ardagh's infringe Claim 22 of the '737 patent?
`So in this case, we had to change a little bit. I had
`A.
`to find just the green batches now, just the green cullet.
`This one is their number 23 tank at the Seattle
`plant. And CH at the top left is a green, champagne green,
`so that I identified as the green color. Then I first
`looked for a decolorizer, another way we are going to
`decolorizer the amber because we want to bring up the green.
`So I located for a decolorizing agent that walks off the
`long wavelength read. And one of those is cobalt oxide.
`After you have located a decolorizing agent in this
`Q.
`batch, what was the next step?
`
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`15:43:16
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`15:43:22
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`15:43:30
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`O-I Glass, Inc.
`Exhibit 1054
`Page 022
`
`
`
`430
`Case 1:14-cv-00392-GMS Document 269 Filed 09/03/17 Page 218 of 254 PageID #: 10724
`Martin - direct
`Well, because in Claim 21 and Claim 22 you
`A.
`manufacturer a colorizing agent and a decolorizing agent, I
`found my decolorizer. Now I have to find a colorizer in the
`batch.
`What colorizing agent did Ardagh add to this
`Q.
`particular example?
`Looking at the raw materials, I have highlighted it
`A.
`here, iron chromite at 767 pounds was add to this particular
`batch.
`Other than this Seattle 2 example of a champagne green
`Q.
`glass from JTX-50, did Ardagh's other green batches also
`infringe Claim 22?
`Yes, many of them do.
`A.
`Are those also recorded in your PX-379 summary
`Q.
`exhibit?
`Right. In that case you would look for the amber
`A.
`collar and then you would look for the colorizers and
`decolorizers.
`You may have misspoke. Claim 22 relates to an amber
`Q.
`or green color?
`22, you would look for the green color and look for
`A.
`the decolorizers and the colorizers.
`Returning to the dependent Claims 1 more time, Dr.
`Q.
`Martin, what is dependent Claim 24 require?
`In this case, we are back to a dependent claim coming
`A.
`
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`15:44:39
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`O-I
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