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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
`
`Page 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`TIDE INTERNATIONAL (USA), INC.,
`Petitioner,
`
`vs.
`
`UPL NA INC.,
`Patent Owner.
`____________________
`
`Case No. IPR2020-01113
`Patent No. 7,473,685
`____________________
`
`VIRTUAL VIDEOTAPED DEPOSITION OF
`DAVID A. ROCKSTRAW, Ph.D., P.E.
`June 17, 2021
`
`The virtual videotaped deposition of DAVID
`
`A. ROCKSTRAW, Ph.D., P.E., called by the Petitioner
`
` for examination, pursuant to agreement and pursuant
`
` to the applicable rules, taken stenographically by
`
` Sandra L. Rocca, CSR, RMR, RDR, CRR, via Zoom, on
`
` the 17th of June, 2021, at the hour of 9:57 a.m.
`
` Certification No. 084-003435
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`TIDE 1039
`Tide v. UPL
`IPR2020-01113
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
`
`Page 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`TIDE INTERNATIONAL (USA), INC.,
`Petitioner,
`
`vs.
`
`UPL NA INC.,
`Patent Owner.
`____________________
`
`Case No. IPR2020-01113
`Patent No. 7,473,685
`____________________
`
`VIRTUAL VIDEOTAPED DEPOSITION OF
`DAVID A. ROCKSTRAW, Ph.D., P.E.
`June 17, 2021
`
`The virtual videotaped deposition of DAVID
`
`A. ROCKSTRAW, Ph.D., P.E., called by the Petitioner
`
` for examination, pursuant to agreement and pursuant
`
` to the applicable rules, taken stenographically by
`
` Sandra L. Rocca, CSR, RMR, RDR, CRR, via Zoom, on
`
` the 17th of June, 2021, at the hour of 9:57 a.m.
`
` Certification No. 084-003435
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`TIDE 1039
`Tide v. UPL
`IPR2020-01113
`
`1
`
`
`
`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
`
`Page 2
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` APPEARANCES: (All parties appeared remotely)
`
` FINNEGAN HENDERSON FARABOW
` GARRETT & DUNNER, LLP
` By: MS. MAXIMILIENNE GIANNELLI
` 11955 Freedom Drive
` Reston, Virginia 20198-5675
` 571.203.2432
` max.giannelli@finnegan.com
`
` appeared on behalf of the
` Patent Owner;
`
` FISH & RICHARDSON
` By: MS. BAILEY K. BENEDICT
` 1221 McKinney Street, Suite 2800
` Houston, Texas 77010
` 713.654.5300
` benedict@fr.com
`
` -and-
`
` FISH & RICHARDSON
` By: MR. THAD C. KODISH
` 1180 Peachtree Street, 21st Floor
` Atlanta, Georgia 30309
` 404.892.5005
` tkodish@fr.com
`
` appeared on behalf of the
` Petitioner.
`
` Also Present:
`
` Mr. Gus Phillips, Videographer
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
`
`Page 3
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` I N D E X
`
` WITNESS PAGE
` DAVID A. ROCKSTRAW, Ph.D., P.E.
`
` EXAMINED BY
` Ms. Benedict 5
` Ms. Giannelli 66
`
` * * * * *
`
` E X H I B I T S
`
` NUMBER MARKED FOR ID
`
` Exhibit 1001
` U.S. Patent 7,473,685, Jadhav 11
`
` Exhibit 1005
` U.S. Patent 6,387,388, Misselbrook 43
`
` Exhibit 1009
` translation of Japanese patent
` JP H09-315902 A 50
`
` Exhibit 1024
` D.A. Knowles, "Chemistry and
` Technology of Agrochemical
` Formulations" 36
`
` Exhibit 2007
` D. Rockstraw Declaration 11
`
` Exhibit 2008
` D. Rockstraw CV 16
`
` * * * * *
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 4
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` VIDEOGRAPHER: We are now on the record for
`
` the video deposition of David Rockstraw, Ph.D. The
`
` time is 9:57 a.m., June 17th, 2021, in the matter of
`
` Tide International USA Incorporated versus UPL North
`
` America Incorporated, case number IPR2020-01113,
`
` Patent 7,473,685 being held in the United States
`
` Patent and Trademark Office before the Patent Trial
`
` and Appeal Board.
`
` The court reporter is Sandra Rocca. The
`
` videographer is Gus Phillips and both are
`
` representatives of GregoryEdwards Court Reporting.
`
` Will counsel please state their appearances
`
` for the record beginning with the Petitioner.
`
` MS. BENEDICT: Bailey Benedict with Fish &
`
` Richardson representing the Tide defendants. And
`
` also on the Zoom conference I guess is Thad Kodish,
`
` also with Fish & Richardson, also for the Tide
`
` defendants -- or Tide Petitioners rather.
`
` MS. GIANNELLI: Maximilienne Giannelli of
`
` Finnegan Henderson representing Patent Owner UPL NA
`
` and the witness, Dr. Rockstraw.
`
` DAVID A. ROCKSTRAW, Ph.D., P.E.,
`
` having been first duly sworn, was examined and
`
` testified as follows:
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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` EXAMINATION
`
` BY MS. BENEDICT:
`
` Q Good morning, Dr. Rockstraw. Thank you for
`
` joining our Zoom deposition today.
`
` A Good morning.
`
` Q Can you please state your full name and
`
` residential address for the record?
`
` A David Arthur Rockstraw, 2008 Calle De El
`
` Paso, Las Cruces, New Mexico, 88005.
`
` Q Thank you. Have you been deposed before,
`
` Dr. Rockstraw?
`
` A Yes, I have.
`
` Q How many times about?
`
` A I would say roughly 40 times now.
`
` Q And have you given testimony at a trial or
`
` an administrative hearing with your work as an
`
` expert witness?
`
` A Yes, I have.
`
` Q About how many times?
`
` A I would say around ten times.
`
` Q Were any of those trials or any of the
`
` technology at issue there related to pesticides?
`
` A Not that I recall.
`
` Q So you know the drill for a lot of this.
`
` I'm going to give you a couple instructions to start
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
`
`Page 6
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`09:59:57
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` off and a few of them may be different from what
`
` you've heard before given that this is a Zoom
`
` deposition and so I'm going to go through them even
`
` though they might sound repetitive to you.
`
` Is there any reason that you cannot give
`
` truthful and accurate testimony today?
`
` A There is not.
`
` Q You understand that your testimony today is
`
` under oath as if you were in court?
`
` A I do.
`
` Q Your attorney may make objections. These
`
` objections are to preserve objections for the
`
` record, but you are still obligated to answer the
`
` questions unless you choose to follow a privilege
`
` instruction not to answer. Do you understand that?
`
` A I understand.
`
` Q It's particularly difficult with remote
`
` depositions, but we need to work very hard not to
`
` speak over each other for the court reporter's sake.
`
` Do you understand?
`
` A I understand.
`
` Q So please wait to give your answer until I
`
` have finished talking and I in turn will wait to ask
`
` my next question until you have finished talking.
`
` A I understand.
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
`
`Page 7
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` Q If there is a question that you need
`
` clarification on, will you please ask me to clarify
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` the question?
`
` A I will.
`
` Q And if you don't ask for clarification, is
`
` it fair that I can assume you understand my
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` question?
`
` A That is fair.
`
` Q If you need a break, please let me know and
`
` I will do my best to give me -- to give you a break
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` and me when you ask, assuming there's not a pending
`
` question on the record.
`
` A I understand.
`
` Q Do you have any notes or papers with you
`
` today?
`
` A In front of me I have a clean copy of my
`
` declaration, as well as a number of references that
`
` I expect you will cover today.
`
` Q Okay. Can you tell me which references are
`
` in front of you right now?
`
` A I have the '685 patent and then my tab
`
` Misselbrook, CN '588A, JP '902, Mayer, Lescota,
`
` Knowles, Yamada, a list of Yamada patents, Cummings,
`
` Chan, a printout from the Sanyo catalog, and the
`
` '685 file history.
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 8
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` Q Thank you. And all of these references are
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` clean, they have no notes on them, no highlighting
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` on them, et cetera?
`
` A That is correct.
`
` Q So I will be transmitting exhibits through
`
` the chat window on the Zoom call so that the court
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` reporter can get copies of all of those exhibits. I
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` will ask that you not refer to the exhibits in front
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` of you unless I have asked you to refer to the
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` exhibits that I am transmitting in the chat window
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` because otherwise on the record there won't be a way
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` for the court reporter to tell what you are looking
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` at when you answer the questions.
`
` A I understand.
`
` Q And then I also note that Ms. Giannelli
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` appears to be in the room physically with you for
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` this deposition, is that correct?
`
` A That is correct.
`
` Q Can you please agree that you will not
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` communicate while we are on the record with
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` Ms. Giannelli other than through the Zoom platform?
`
` A I do agree. In fact, from where I'm sitting
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` I cannot even see her because the monitor in front
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` of me is so large that it obstructs my view of her
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` completely.
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 9
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` Q Fair. So if Ms. Giannelli kicks you under
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` table and tries to do sign language over the top of
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` the monitor, you'll just put on your blinders?
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` A I don't think her legs are long enough to
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` kick me under the table. She's at the far end of a
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` conference room table.
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` Q And I doubt that she would. If for some
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` reason that changes and there is some communication
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` between the two of you that we are not able to pick
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` up on the Zoom platform, will you please agree that
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` you will immediately notify the court reporter so
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` that we can record what the communication was?
`
` A I agree.
`
` Q Thank you. I will also note that if you
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` take notes or write on the exhibits that are in
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` front of you currently, we will need to get copies
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` of those and make them exhibits to this deposition.
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` If you do not write on them, I don't believe that
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` will be necessary.
`
` A I understand.
`
` Q Do you understand that? Are you looking at
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` any electronic documents on your screen other than
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` the Zoom chat right now?
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` A I am not.
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` Q And will you please agree not to look at any
`
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 10
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` documents electronically unless they are the
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` documents that I send you to look at during this
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` deposition?
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` A I agree.
`
` Q And will you please agree that you will not
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` have any chat or email windows open outside of this
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` Zoom platform with which you'd be communicating with
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` counsel or anyone else?
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` A I agree.
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` Q As we go through the exhibits in this
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` deposition, I will be using the corresponding
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` exhibit numbers from the IPR. So for example, your
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` declaration is Exhibit 2007 from the IPR
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` proceedings. I think the patent is Exhibit 1001. I
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` think that will be easier than giving them new
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` exhibit numbers. Will that work for you and do you
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` understand that?
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` A I understand. That will work.
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` Q And if we look at a document that does not
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` already have an exhibit number, I will designate it
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` with letters such as Exhibit A and B, et cetera,
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` just for clarity's sake. Does that make sense?
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` A That does.
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` Q All right. I would like to start off by
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` sharing Exhibit 2007, which is your declaration.
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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` I'm going to drop it into the chat window.
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` (Document marked previously as
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` Exhibit 2007 was presented.)
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` Q And will you let me know when you have that
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` document downloaded and opened?
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` A I now have it downloaded and opened and I
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` also have the hard copy in front of me on the table.
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` Q So Exhibit 2007 that I just sent you is the
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` declaration of David A. Rockstraw in IPR2020-01113,
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` is that correct?
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` A That is correct.
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` Q And is that the same as the hard copy
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` exhibit that you have in front of you?
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` A Yes, it appears to be so.
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` Q I am going to ask you to leave this exhibit
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` open on your monitor or to keep the hard copy
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` accessible as we'll probably be returning to this
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` repeatedly throughout the deposition. The next
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` exhibit that I want to share is Exhibit 1001.
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` (Document marked previously as
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` Exhibit 1001 was presented.)
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` Q Can you go ahead and open that and let me
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` know when you have it up electronically?
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` A I have it downloaded and open now.
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` Q Do you see that Exhibit 1001 is a copy of
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` U.S. Patent Number 7,473,685?
`
` A It is.
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` Q And do you have a copy of that patent in
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` front of you in hard copy?
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` A Yes, I do.
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` Q And those copies look to be the same
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` document?
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` A It does appear to be the same document.
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` Q Thank you. And you recognize this that's
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` the patent that's at issue in this IPR proceeding,
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` correct?
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` A I do recognize that.
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` Q Okay. This is another one that I'll ask you
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` to leave open on your monitor and that I'll ask you
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` to keep accessible in front of you throughout the
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` deposition and we'll probably be returning to it
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` multiple times.
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` A I understand.
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` Q All right. And those are the two exhibits
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` that I'll just put in. I just wanted to get those
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` out of the way for some housekeeping before we start
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` getting into questions and I'll send you the
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` remaining exhibits as we go through the deposition
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` and hopefully we will open those up and then be able
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` to close them and not look at them again when we're
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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` done just to make it a little easier.
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` A Okay.
`
` Q If we turn to Exhibit 2007, your expert
`
` report, looking at page number 4 of the document,
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` this is your qualification section. Do you see
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` that?
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` A I do.
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` Q Would you say that you included a summary of
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` your most relevant qualifications in this section of
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` your declaration?
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` A That is what that section was intended to
`
` provide, yes.
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` Q Okay. I'd like to jump to paragraph 15.
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` Will you let me know when you're there?
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` A I am there.
`
` Q Paragraph 15 discusses your experience as
`
` lead process research engineer for a multi-step
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` process to manufacture methyl
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`3-hydroxy-2-thiophenecarboxylate. Did I pronounce
`
` that correctly?
`
` A Yes, you did.
`
` Q Thank you. I practiced. This chemical is
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` an intermediate to the active ingredient in a dry
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` flowable herbicide formulation, is that correct?
`
` A That is correct.
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 14
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` Q So methyl 3-hydroxy-2-thiophenecarboxylate
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` is not itself an active ingredient in a pesticide
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` formulation, correct?
`
` A That is correct.
`
` Q What is the eventual active ingredient that
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` is synthesized from this called?
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` A I don't recall at this point what the active
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` ingredient was.
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` Q Do you recall the trade name of the
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` pesticide?
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` A Harmony.
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` Q I'm sorry.
`
` A Harmony.
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` Q Harmony. Thank you. So it takes multiple
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` steps to synthesize this intermediate, correct?
`
` A That's correct.
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` Q And you were the lead process research
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` engineer heading up this multi-step process to
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` manufacture the intermediate, correct?
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` A That is correct.
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` Q And after the intermediate was synthesized,
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` did it take multiple more steps to synthesize the
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` active compound?
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` A I don't recall at this point how many more
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` steps. I know that this particular intermediate was
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 15
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` very close to the final product.
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` Q Were you the lead process engineer heading
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` up the process that got from this intermediate
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` ingredient to the active ingredient?
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` A I had oversight of the entire project to the
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` final product, but I did not do the research from
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` this intermediate that led to the final active.
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` Q But you did the research for the process to
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` create the intermediate?
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` A That's correct.
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` Q After the active ingredient was synthesized,
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` it would then be combined with excipients and
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` processed into granular form, correct?
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` A That is correct.
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` Q And that was also a multi-step process,
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` correct?
`
` A That is correct.
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` Q Were you the lead process engineer heading
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` up that part of the process?
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` A I had oversight of the entire production
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` process, yes.
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` Q Were you responsible for choosing the
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` excipients that were used in the final pesticide
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` granules?
`
` A I was not the one that made those decisions.
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 16
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` Q Were you involved in optimizing the amounts
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` of the excipients used in the final pesticide
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` granules?
`
` A No, I was not.
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` Q In fact, DuPont was selling the Harmony
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` granules before you even began working there,
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` correct?
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` A They were.
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` Q They started selling them sometime in the
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` 1980s, is that right?
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` A I don't recall when they started selling
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` them.
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` Q And you started working there in 1990, is
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` that correct?
`
` A That is correct.
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` Q So before you began working on this project,
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` someone else had selected the appropriate excipients
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` and the appropriate amounts of those excipients for
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` the granular Harmony pesticide, correct?
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` A That is correct.
`
` (Document marked previously as
`
` Exhibit 2008 was presented.)
`
` Q I am sharing in the chat window
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` Exhibit 2008, which is a copy of your CV. Will you
`
` let me know when you have that downloaded and open,
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 17
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` please?
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` A I have it downloaded and opened.
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` Q And is this document your CV that was
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` submitted with your expert declaration in this IPR
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` proceeding?
`
` A It does appear to be so, yes.
`
` Q Do you have a hard copy of this document in
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` front of you?
`
` A I do not.
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` Q Sitting here now, can you point to any
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` experience on your CV that is more relevant than the
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` experience listed in the qualification section of
`
` your expert declaration?
`
` A I cannot.
`
` Q Looking at page 1 of your CV, you have
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` specific areas of expertise listed. Do you see
`
` that?
`
` A I do.
`
` Q You did not include pesticide formulation as
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` a specific area of expertise on this list, did you?
`
` A I did not.
`
` Q I'm going to move ahead to the next page,
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` page 2 of your CV which lists department head
`
` administrative highlights. Do you see that?
`
` A I do.
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 18
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` Q These do not include any tasks related to
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` pesticide formulation, does it?
`
` A No.
`
` Q I'll scroll down to the next page, page 3.
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` You have a list of current and recent research
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` areas. Do you see that?
`
` A I do.
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` Q These do not list any research areas
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` specific to pesticide formulation, do they?
`
` A They do not.
`
` Q Next looking at primary teaching subject
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` areas and the comprehensive list of subject matter
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` taught, neither of these include any subject matter
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` that is specific to pesticide formulation, does it?
`
` A Not specific to pesticide formulation, but
`
` many of the topic areas cover the fundamentals that
`
` are necessary to perform pesticide formulations.
`
` Q Can you give me one example, please?
`
` A Well, the most fundamental course, Material
`
` and Energy Balances, which is the basis for the
`
` discipline of chemical engineering teaches one how
`
` to account for material energy that enter and leave
`
` a system. Being able to perform such calculations
`
` is necessary -- it's a necessary skill for any
`
` chemical process, including pesticide formulations.
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` Q And in teaching that class, did you teach
`
` your students how to choose excipients for pesticide
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` formulations?
`
` A I did not.
`
` Q In any of the other classes that you taught,
`
` did you teach your students how to choose excipients
`
` for pesticide formulations?
`
` A I did not.
`
` Q Going down to the next page, we've got a
`
` list of your chemical process design, review,
`
` forensic analysis and expert witness work. Do you
`
` see that?
`
` A I do.
`
` Q I want to jump specifically to number 18 on
`
` this list, which is involves trade secret theft
`
` involving a process to manufacture ant insecticide
`
` baits. Do you see that?
`
` A I do.
`
` Q Now, I understand that this was a trade
`
` secret case, so I am not asking for any specifics on
`
` the technology.
`
` At a very high level, did the technology
`
` here involve selection of excipients to formulate a
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` pesticide?
`
` A It did not.
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`19
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 20
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` Q Other than number 18 on this list, none of
`
` your -- of your chemical process design, review,
`
` forensic analysis and expert witness work was
`
` related to formulation of a pesticide, is that
`
` right?
`
` A 28 involved formulation of fungicides. But
`
` I believe those would be the only two on the list.
`
` Q And for the work done in 28, did that work
`
` involve consideration of the excipients needed to
`
` formulate the pesticide?
`
` A It did not.
`
` Q Then looking at -- make sure I'm not missing
`
` something here. Looking at your work experience,
`
` other than the project at DuPont that we already
`
` discussed working on the Harmony pesticide, do you
`
` have any other direct work experience regarding the
`
` formulation of pesticides?
`
` A In the time that I was at DuPont, I worked
`
` in a group called corporate process development and
`
` much of that time I worked in the agricultural
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` products division of the company. I was part of the
`
` sulfonylurea creativity team and so I was involved
`
` in the development of many of the agricultural
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` products that were being developed at DuPont for
`
` that period of time.
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`20
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 21
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`10:24:06
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`1
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` Q Did your involvement extend to selecting
`
` excipients to be used in the pesticide formulations?
`
` A It did not.
`
` Q Continuing on, I'm about halfway down
`
` page 10 of your CV at this point. You've got a list
`
` of peer reviewed publications. It looks like you
`
` have 25 peer reviewed publications listed. Do you
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` see that?
`
` A I do.
`
` Q None of these publications cover pesticide
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` formulation, do they?
`
` A They do not.
`
` Q Then continuing on, you have a list of I
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` think 70 other publications and/or presentations.
`
` This begins on page 12 of your CV. Do you see that?
`
` A I do.
`
` Q Of these 70 listed, none cover pesticide
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` formulation, do they?
`
` A They do not.
`
` Q Jumping ahead now to page 16 of your CV, you
`
` have three patents listed here. I'm assuming you
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` are an inventor on these three U.S. patents, is that
`
` correct?
`
` A That is correct.
`
` Q And none of these patents relate to
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`21
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`David A. Rockstraw, Ph.D., P.E. - June 17, 2021
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`Page 22
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`10:24:19
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`10:24:39
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`10:24:41
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`10:24:47
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`10:24:49
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`10:24:52
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`10:24:56
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`10:24:57
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`10:24:59
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`10:25:10
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`10:25:11
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`10:25:15
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`10:25:15
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`10:25:19
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`10:25:20
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`10:25:26
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`10:25:30
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`10:25:34
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`10:25:37
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`10:25:40
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`10:25:42
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`10:25:52
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`1
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`2
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`3
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`4
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` pesticides, do they?
`
` A They do not. They either involve activated
`
` carbon or pharmaceutical intermediates.
`
` Q All right. And then just for completeness
`
` sake, we have a list of professional service and
`
` honors and awards and then some service activities
`
` on the final pages.
`
` Were any of those professional service,
`
` honors and awards or service activities related to
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` pesticide formulation?
`
` A They were not.
`
` Q You are not a pesticide formulations
`
` chemist, are you?
`
` A I am a chemical enginee
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