467
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 1 of 256 PageID #: 10761
`
`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
`Wednesday, April 19, 2017
`8:40 a.m.
`Trial Day 3
`- - -
`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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`
`08:26:06
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 001
`
`
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 1 of 256 PageID #: 10761
`
`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
`Wednesday, April 19, 2017
`8:40 a.m.
`Trial Day 3
`- - -
`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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`17
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`25
`
`08:26:06
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 001
`
`
`
`468
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 2 of 256 PageID #: 10762
`
`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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`
`08:34:43
`
`08:34:43
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 002
`
`
`
`518
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 52 of 256 PageID #: 10812
`Martin - cross
`Your Honor. And he will be --
`MR. SATCHWELL: And I will take that up. I will
`take those questions on the invalidity that comes later.
`THE COURT: Hold on, Mr. Nelson.
`MR. SCHLITZ: So let's do that. The invalidity
`side of the case.
`THE COURT: Sustained.
`MR. SATCHWELL: That's fine. Thank you.
`(Sidebar conference ends.)
`BY MR. SATCHWELL:
`Dr. Martin, you did not investigate whether there were
`Q.
`any changes in the Ardagh process between 2008 and 2011;
`correct?
`I evaluated Ardagh's records between 2008 and 2016.
`A.
`There were batch changes that I looked at, the composition.
`That is not really what I'm asking you about. I am
`Q.
`asking if you identified in your complete analysis any
`changes to the way Ardagh makes glass, not that a batch
`changing from amber to green, for example, but the changes
`in the way Ardagh makes glass between the beginning of your
`analysis which only goes back to 2008 and 2011.
`No, I think I just evaluated the data that I need to
`A.
`evaluate to look at the claims and the infringement.
`And, speaking generally, you have seen no evidence in
`Q.
`your analysis that would indicate any change in Ardagh's
`
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`09:48:21
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`09:48:21
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`09:48:21
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`09:48:21
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`09:48:21
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`09:48:21
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`09:48:30
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`09:48:30
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`09:48:33
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`09:48:36
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`09:48:40
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`09:48:48
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`09:48:51
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`09:48:56
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`09:48:58
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`09:49:02
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`09:49:05
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`09:49:09
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`09:49:15
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`09:49:19
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`09:49:24
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`09:49:27
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 003
`
`
`
`519
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 53 of 256 PageID #: 10813
`Martin - cross
`glass-making techniques over the period of any analysis you
`conducted; right?
`I think I can only say that I -- the data that I had
`A.
`to carefully evaluate was from 2008 to 2016.
`That's right. And during that time period, that's the
`Q.
`extent of your analysis?
`Yes, it is.
`A.
`And you haven't identified any changes in Ardagh's
`Q.
`glass-making techniques over that period; right?
`Well, that is a good question. In the records, there
`A.
`were indications of tank rebuilds and furnace rebuilds and
`they were shutting down their furnace. So in a sense, they
`were changing the process because they were rebuilding the
`furnace. But other than that, I didn't notice any other
`change.
`Is it your testimony that the rebuilt furnace
`Q.
`functioned in a different way than the old furnace?
`No, I'm saying that is one change I saw other than the
`A.
`batch changes.
`Neither of those are changing to the way Ardagh makes
`Q.
`its glass; right?
`(Nodding yes.)
`A.
`Okay. I want to talk now about your definition of
`Q.
`"mixed color cullet." You agree with me, don't you, that
`mixed color cullet is any cullet that is broken pieces of
`
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`09:50:39
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`09:50:42
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 004
`
`
`
`520
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 54 of 256 PageID #: 10814
`Martin - cross
`glass and mixed colors; right?
`That is what the Court has construed to be, yes.
`A.
`MR. SATCHWELL: Can we put Dr. Martin's Slide
`No. 17 up on the screen, please?
`Your Honor, I'd like to grab a different board,
`if that is okay?
`THE COURT: That's fine.
`MR. SATCHWELL: Your Honor, is it okay if I move
`to draw on the board?
`THE COURT: Sure.
`MR. SATCHWELL: Okay.
`BY MR. SATCHWELL:
`So, Dr. Martin, you agree, there is your construction
`Q.
`there at the bottom, I'm sorry, in the middle: broken
`pieces of glass of mixed color. Right?
`Yes, that is what the Court construed it to be.
`A.
`And that is mixed color cullet; correct?
`Q.
`That's true.
`A.
`Now, you would agree with me, wouldn't you, that glass
`Q.
`that is 60 percent amber, 30 percent green, 10 percent
`flint. That would be mixed color cullet; right?
`Yes, it would be.
`A.
`So I'm going to write that as 60, 30, 10. Is that
`Q.
`fair?
`A.
`
`It is probably best to put a letter above each one
`
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`09:51:42
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`09:51:56
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`09:52:41
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`09:52:44
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`09:52:54
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`09:52:57
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 005
`
`
`
`521
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 55 of 256 PageID #: 10815
`Martin - cross
`just so we know what the colors are.
`That's fair.
`Q.
`For the jury.
`A.
`Which letter should I put?
`Q.
`Whatever you decide.
`A.
`Let's make that 60 amber, 30 green, 10 flint. Okay?
`Q.
`Is that a typical mixed color cullet you have seen in your
`work?
`I think that could be considered among those. Yes.
`A.
`What about a mix that was 80 percent amber, 20 percent
`Q.
`green, 10 -- or I guess that would leave 10 percent. No.
`80/20 mix would be 100 percent. Right?
`Sure.
`A.
`So 80 amber and 20 green. That would also be mixed
`Q.
`color cullet; right?
`Yes, that would be mixed colors.
`A.
`So it could be three colors or two; right?
`Q.
`Yes.
`A.
`What about -- let's take an extreme example. Would it
`Q.
`still be mixed color cullet if, for example, we had
`98 percent amber, only 1 percent green, and only 1 percent
`flint?
`
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`
`I apologize for turning my back to the jury.
`I'm not sure I can do this without doing so.
`Um-hmm.
`A.
`
`09:53:00
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`09:53:02
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`09:54:15
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 006
`
`
`
`522
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 56 of 256 PageID #: 10816
`Martin - cross
`Would that also be mixed color cullet, Dr. Martin?
`Q.
`I think in a radical sense, yes, it's three colors,
`A.
`and you can measure 1 percent, so, yes, you would call that
`mixed color.
`That would be the construction you applied in this
`Q.
`case; correct?
`I think that is correct.
`A.
`And you agree with me that cullet that is 75 percent
`Q.
`amber and 25 percent green is also mixed color cullet;
`correct?
`Yes, it would be.
`A.
`I don't want to keep doing this. We have the idea if
`Q.
`it has more than one color, it is mixed color cullet; right?
`It's a matter of, yes, if it has more than one color.
`A.
`Yes.
`Now, I want to turn very quickly to the glass calc
`Q.
`spreadsheet. We saw that towards the end of your testimony
`yesterday.
`
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`
`And I don't think I'm going to put it up right
`now, but does the '521 patent cover all calculations related
`to glass batches?
`All calculations?
`A.
`Right.
`Q.
`All batches?
`A.
`Yes.
`Q.
`
`09:54:16
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`09:54:19
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`09:54:22
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`09:54:27
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`09:54:27
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`09:54:49
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`09:55:20
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`09:55:21
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`09:55:25
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`09:55:26
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`09:55:27
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 007
`
`
`
`523
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 57 of 256 PageID #: 10817
`Martin - cross
`
`No.
`A.
`Of course not.
`Q.
`There are millions of calculations. Yes.
`A.
`The '521 patent only covers a specific set of
`Q.
`calculations with regard to glass batches; right?
`Yes, that is correct.
`A.
`Do you know when Ardagh started using the glass calc
`Q.
`spreadsheet we talked about yesterday?
`No, I would not. I only have information from 2008 to
`A.
`2016.
`And so, again, I think the answer is clear but I just
`Q.
`want to close out this line and we can move on. You don't
`have any information or conclusions on what Ardagh was using
`prior to the glass calc spreadsheet, whenever that would
`have been; right?
`No, I do not.
`A.
`All right. Now, you have been in court all week;
`Q.
`right?
`Yes, I have.
`A.
`Were there any witnesses you weren't here for?
`Q.
`I don't believe so.
`A.
`So you are aware that by November 11th, 2004, Mr. Lame
`Q.
`had concluded, quote, "this isn't a patent infringement
`situation." Right? You saw that testimony and you saw that
`demonstrative.
`
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`09:56:11
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`09:56:37
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`09:56:46
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`09:56:49
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`09:56:52
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 008
`
`
`
`524
`Case 1:14-cv-00392-GMS Document 270 Filed 09/03/17 Page 58 of 256 PageID #: 10818
`Martin - cross
`MR. SCHLITZ: Objection, Your Honor. Relevance.
`MR. SATCHWELL: I'm sorry, Your Honor. I'm
`establishing this infringement period. He has seen nothing
`since 2008 through 2011. I just want to confirm he hasn't
`seen anything that contradicts Mr. Lame's testimony.
`THE COURT: I'll let him ask that.
`BY MR. SATCHWELL:
`I think you know where I'm going. Have you seen
`Q.
`anything that contradicts Mr. Lame's testimony that this was
`not an infringement period or an infringement situation in
`2004?
`It is true I focused my attention on infringement
`A.
`between 2004 and 2016. There is a lot of other information.
`I'm just, I'm not familiar with. So Mr. Lame's testimony,
`I'm just not familiar with.
`And I think there may have been an error in your
`Q.
`answer. I want to make sure the record is fair. Your
`infringement analysis was between 2008 and 2016 or 2004 to
`2016?
`2008 to 2016.
`A.
`Okay.
`Q.
`Anything having to do with Mr. Lehman's conclusions in
`Q.
`2004 would be outside the scope of your analysis?
`Yes, it would be.
`A.
`You were also here when Dr. Lehman testified earlier
`Q.
`
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`09:57:47
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`09:58:47
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`09:58:51
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`09:58:54
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`09:58:55
`
`O-I Glass, Inc.
`Exhibit 1055
`Page 009
`
`
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