1 UNITED STATES PATENT AND
` TRADEMARK OFFICE
` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
` 3 ------------------------------x
`
`
` 4 PEAG LLC (d/b/a JLab Audio),
`
` 5 AUDIO PARTNERSHIP LLC and
`
` 6 AUDIO PARTNERSHIP PLC (d/b/a
`
` 7 Cambridge Audio)
`
` 8 Petitioner,
`
` 9 v.
`
`10 VARTA MICROBATTERY GMBH,
`
`11 Patent Owner.
`
`12 ------------------------------x
`
`13 Patent Numbers IPRs
`
`14 9,153,835 IPR2020-01211
`
`15 9,496,581 IPR2020-01212
`
`16 9,799,913 IPR2020-01213
`
`17 9,799,858 IPR2020-01214
`
`18
`
`19 DAY 2
`
`20 REMOTE VIDEO DEPOSITION OF WILLIAM H. GARDNER
`
`21 MARCH 4, 2021
`
`22
`
`23
`
`24 Teri C. Gibson, CSR, RPR, CRR and Notary Public
` 471088
`25
`
`JLab/Cambridge, Exh. 1033, p. 1
`JLab/Cambridge v. Varta, 2020-01212
`
`
` TRADEMARK OFFICE
` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
` 3 ------------------------------x
`
`
` 4 PEAG LLC (d/b/a JLab Audio),
`
` 5 AUDIO PARTNERSHIP LLC and
`
` 6 AUDIO PARTNERSHIP PLC (d/b/a
`
` 7 Cambridge Audio)
`
` 8 Petitioner,
`
` 9 v.
`
`10 VARTA MICROBATTERY GMBH,
`
`11 Patent Owner.
`
`12 ------------------------------x
`
`13 Patent Numbers IPRs
`
`14 9,153,835 IPR2020-01211
`
`15 9,496,581 IPR2020-01212
`
`16 9,799,913 IPR2020-01213
`
`17 9,799,858 IPR2020-01214
`
`18
`
`19 DAY 2
`
`20 REMOTE VIDEO DEPOSITION OF WILLIAM H. GARDNER
`
`21 MARCH 4, 2021
`
`22
`
`23
`
`24 Teri C. Gibson, CSR, RPR, CRR and Notary Public
` 471088
`25
`
`JLab/Cambridge, Exh. 1033, p. 1
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 UNITED STATES PATENT AND
` TRADEMARK OFFICE
` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` 3 ------------------------------x
`
` 4 PEAG LLC (d/b/a JLab Audio),
`
` 5 AUDIO PARTNERSHIP LLC and
`
` 6 AUDIO PARTNERSHIP PLC (d/b/a
`
` 7 Cambridge Audio)
`
` 8 Petitioner,
`
` 9 v.
`
`10 VARTA MICROBATTERY GMBH,
`
`11 Patent Owner.
`
`12 ------------------------------x
`
`13 Patent Numbers IPRs
`
`14 9,153,835 IPR2020-01211
`
`15 9,496,581 IPR2020-01212
`
`16 9,799,913 IPR2020-01213
`
`17 9,799,858 IPR2020-01214
`
`18
`
`19 REMOTE VIDEO DEPOSITION OF WILLIAM H. GARDNER
`
`20 CONCORD, MASSACHUSETTS
`
`21 WEDNESDAY, MARCH 4, 2021 - DAY 2
`
`22
`
`23 Reported by:
`
`24 Teri C. Gibson, CSR, RPR, CRR
`
`25 JOB #: 471088
`
`171
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 2
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1
`
` 2
`
` 3 MARCH 4, 2021
`
` 4
`
` 5
`
` 6
`
` 7 REMOTE DEPOSITION of WILLIAM H. GARDNER, held
`
` 8 REMOTE VIA ZOOM, CONCORD, MA, pursuant to notice, before
`
` 9 Teri C. Gibson, a Certified Shorthand Reporter, a
`
`10 Registered Professional Reporter, Certified Realtime
`
`11 Reporter, and Notary Public of the State of Massachusetts.
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`172
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 3
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 A P P E A R A N C E S:
`
` 2 BAKER BOTTS LLP
`
` 3 Attorneys for Petitioner and the witness.
`
` 4 30 Rockefeller Plaza
`
` 5 New York, New York 10112
`
` 6 BY: JENNIFER TEMPESTA, ESQ.
`
` 7 NICK PALMIERI, ESQ.
`
` 8 (212)408-2500 jennifer.tempesta@bakerbotts.com
`
` 9
`
`10 LEYDIG, VOIT & MAYER
`
`11 Attorneys for Patent Owner.
`
`12 Two Prudential Plaza, Suite 4900
`
`13 180 North Stetson Avenue
`
`14 Chicago, IL 60601
`
`15 BY: Wes Mueller, Esq.
`
`16 Robert T. Wittman, Esq.
`
`17 312-616-5600 wmueller@leydig.com
`
`18
`
`19 ALSO PRESENT:
`
`20 Dr. Martin Peckerar
`
`21 Rob Chang, Videographer
`
`22
`
`23
`
`24
`
`25
`
`173
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 4
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 P R O C E E D I N G S
`
` 2 VIDEOGRAPHER: Counselors, Madam Court
`
` 3 Reporter, good morning.
`
` 4 My name is Rob Chang. I am a
`
` 5 videographer associated with Barkley Court Reporters,
`
` 6 located at 10350 Santa Monica Boulevard, Suite 200,
`
` 7 Los Angeles, California 90025.
`
` 8 The date is March 4, 2021. The time is
`
` 9 9:59 a.m. Eastern Standard Time. This deposition is
`
`10 taking place via remote method in the matter of PEAG
`
`11 LLC, et al. versus VARTA Microbattery GmbH.
`
`12 Intellectual Property Review, IPR 2020-01211 through
`
`13 IPR 2020-01214.
`
`14 This is the video deposition of William
`
`15 Gardner, Day 2, being taken on behalf of respondent.
`
`16 Will counselors or all of the parties
`
`17 please identify themselves beginning with respondent
`
`18 counsel.
`
`19 MR. MUELLER: Good morning.
`
`20 This is Wes Mueller from Leydig, Voit &
`
`21 Mayer representing VARTA Microbattery, and with me by
`
`22 video is Mr. Robert Whittmann, and I believe
`
`23 Dr. Peckerar may also be attending, although I don't
`
`24 see that he is here.
`
`25 Oh, he is here. I apologize. I need
`
`174
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 5
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 to look at my screen.
`
` 2 Thank you.
`
` 3 MS. TEMPESTA: I am Jennifer Tempesta
`
` 4 with Baker Botts on behalf of petitioners. Also here
`
` 5 with me today is Nick Palmieri, also Baker Botts.
`
` 6 VIDEOGRAPHER: Thank you.
`
` 7 The court reporter may now swear in the
`
` 8 witness.
`
` 9 (Witness sworn.)
`
`10 THE WITNESS: I do.
`
`11 WILLIAM H. GARDNER
`
`12 DIRECT EXAMINATION
`
`13 BY MR. MUELLER
`
`14 Q. Good morning, Mr. Gardner.
`
`15 I would like to talk a bit about your
`
`16 opinions regarding the patentability of the claims in
`
`17 the '581 patent, and so that is expressed by you
`
`18 beginning at Paragraph 248 of your expert report, and
`
`19 going forward; do you see that?
`
`20 A. I do.
`
`21 (Exhibit 1003, marked for
`
`22 identification, expert declaration.)
`
`23 Q. And you may recall -- and you can refer to
`
`24 Page 189 of your expert report if you need to, but
`
`25 Claim 1 of the '581 patent includes an output
`
`175
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 6
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 conductor, which comprises of foil resting flat
`
` 2 between an end face of the spiral winding and the flat
`
` 3 top or flat bottom area to which it's connected, but
`
` 4 that claim does not include insulating means; is that
`
` 5 fair?
`
` 6 And you can have a chance to look at the
`
` 7 '581 patent claims, including Claim 1 if you would
`
` 8 like to.
`
` 9 A. Repeat the question, please.
`
`10 Q. I am just trying to orient you regarding
`
`11 the requirements of Claim 1 of the '581 patent, and do
`
`12 you have a general understanding of what the claim
`
`13 requirements for Claim 1 of the '581 may be?
`
`14 A. I do.
`
`15 Q. Okay. And so it's your understanding that
`
`16 at least in Claim 1 of the '581 patent, there is no
`
`17 requirement of an insulating means; is that right?
`
`18 A. A moment, please.
`
`19 Q. But there is a requirement of a foil output
`
`20 conductor, correct?
`
`21 MS. TEMPESTA: Objection, form.
`
`22 Q. And now as I understand your opinions, you
`
`23 claim in Paragraphs 248 onward, that a person of
`
`24 ordinary skill in the art would be motivated to
`
`25 combined the teachings of Kobayashi with the knowledge
`
`176
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 7
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 of a POSA; is that correct?
`
` 2 A. 248, I say that the '581 challenge claims
`
` 3 would have been obvious over Kobayashi in view of
`
` 4 knowledge of a POSA.
`
` 5 Q. In Paragraph 248 to 250, you explain that a
`
` 6 person of ordinary skill in the art would have been
`
` 7 motivated to reduce the size and weight of the output
`
` 8 conductors in Kobayashi to use foils; is that fair?
`
` 9 A. I do state that a person of skill in the
`
`10 art would be motivated to reduce the thickness of
`
`11 output conductors to which, generally, called the
`
`12 foils.
`
`13 Q. For example, in Paragraph 250, can you read
`
`14 the first sentence that's expressed there?
`
`15 A. The first sentence of 250 reads, "A POSA
`
`16 making the button cell of Kobayashi would be motivated
`
`17 to include the metal foils generally known in the art
`
`18 as output conductors in order to increase the overall
`
`19 volume within the cell that is available for active
`
`20 components, such as the electrode assembly, to occupy
`
`21 and improve overall efficiency of the battery."
`
`22 Q. And so you would agree that your opinion is
`
`23 that a person skilled in the art would be motivated to
`
`24 modify the output conductors of Kobayashi to include
`
`25 or to make them to be metal foils; is that correct?
`
`177
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 8
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 A. That's correct.
`
` 2 Q. And then in Paragraph 254 of your expert
`
` 3 declaration, you say that Figure 1 of Kobayashi shows
`
` 4 the output conductors as elements 5a and 4a, and
`
` 5 that's in Paragraph 254, correct?
`
` 6 A. That's correct.
`
` 7 Q. And so you actually include a drawing of
`
` 8 Kobayashi Figure 1 as part of Paragraph 254, right?
`
` 9 And the output conductors that you are
`
`10 referring to are the plates 5a and 4a that are shown
`
`11 in Figure 1 in Paragraph 254 of your expert
`
`12 declaration, correct?
`
`13 A. That's correct.
`
`14 Q. And so your opinion, as I understand it, is
`
`15 that a person skilled in the art would be motivated to
`
`16 change 5a and 4a from plates into metal foils; do I
`
`17 understand your opinion correctly?
`
`18 A. A person would be motivated to reduce the
`
`19 thickness of those output conductors in order to
`
`20 increase the amount of capacity that can be fit in the
`
`21 cell and could reduce them to the point where they
`
`22 would be considered foils. Yes.
`
`23 Q. Would you agree with me that the amount of
`
`24 space that would be added by reducing the thickness of
`
`25 the output conductors 5a and 4a is infinitesimally
`
`178
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 9
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 small with reference to Figure 1, shown at
`
` 2 Paragraph 254 of your expert report?
`
` 3 A. No.
`
` 4 Q. You would not agree with that?
`
` 5 A. Infinitesimally small is not -- not
`
` 6 specific from -- it is not the majority of the cell, I
`
` 7 for sure agree with that. I think it's plain from the
`
` 8 picture by how much it can be reduced in that picture.
`
` 9 Q. Well, is it not the case that the output
`
`10 conductor shown in Figure 1, which are the plates 5a
`
`11 and 4a only extend beyond the insulating members of
`
`12 the winding core by a small fraction of an inch?
`
`13 A. Yes.
`
`14 Q. And so your opinion is that a person
`
`15 skilled in the art would be motivated to change those
`
`16 to be foils; do I have that right?
`
`17 A. That's correct.
`
`18 Q. Because they would gain about a quarter of
`
`19 an inch or less, if that?
`
`20 A. That's correct.
`
`21 Q. And do you cite anything to support your
`
`22 conclusion, sir?
`
`23 A. I believe I do.
`
`24 Q. What do you cite for support that a person
`
`25 of ordinary skill in the art would be motivated to
`
`179
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 10
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 modify the metal plate 5a and 4a to be metal foils in
`
` 2 order to save space?
`
` 3 A. Hold on, please.
`
` 4 In 256, I cite Linden.
`
` 5 Q. So you believe Linden supports the
`
` 6 proposition that a person of ordinary skill in the art
`
` 7 would be motivated to modify the metal plates to be
`
` 8 metal foils; is that right?
`
` 9 A. That's right.
`
`10 Q. And I presumably -- it's Page 35 of Linden,
`
`11 which talks about the motivation of a POSA to reduce
`
`12 the thickness of output conductors; is that right?
`
`13 A. What I specifically refer to is Linden at
`
`14 879, 1274.
`
`15 Q. And so is it your belief that the Toshiba
`
`16 inventors, which were working on the Kobayashi
`
`17 battery, did not have that same goal in mind when
`
`18 designing the Kobayashi battery?
`
`19 MS. TEMPESTA: Objection, form.
`
`20 THE WITNESS: Please restate that
`
`21 question.
`
`22 Q. You didn't understand my question?
`
`23 A. I did not.
`
`24 Q. Well, the goal that you are talking about
`
`25 was well understood, correct?
`
`180
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 11
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 A. It's well understood within batteries,
`
` 2 there is almost always a motivation to maximize the
`
` 3 amount of active material that can fit within the
`
` 4 cell.
`
` 5 Q. And would not the Toshiba inventors who
`
` 6 were designing the Kobayashi cell have been motivated
`
` 7 to maximize the amount of active material inside the
`
` 8 cell?
`
` 9 A. I can't speak to what their motivations
`
`10 were.
`
`11 Q. But you have no reason to believe they
`
`12 were -- not have been motivated to maximize the active
`
`13 components inside the cell, correct?
`
`14 MS. TEMPESTA: Objection.
`
`15 THE WITNESS: I can't say one way or
`
`16 another what their motivations may have been.
`
`17 Q. Now, how much volume do you believe would
`
`18 be obtained by modifying the output plates 5a and 4a
`
`19 to be metal foils?
`
`20 A. I can't say with certainty what the
`
`21 volume -- what the volume change would be.
`
`22 Q. And you never did any calculations to
`
`23 determine what the volume might be?
`
`24 A. I did not.
`
`25 Q. Okay. Well, to me it looks like it's a
`
`181
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 12
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 pretty small amount of volume if there is any.
`
` 2 MS. TEMPESTA: Objection to form.
`
` 3 Q. Now, let me ask you this question, sir. If
`
` 4 the metal plates are converted to metal foils, in your
`
` 5 opinion, will they not be recessed within the recesses
`
` 6 that are formed in the insulating members 8 and 9?
`
` 7 A. Can you restate that, please.
`
` 8 Q. If as you opine, a person skilled in the
`
` 9 art would be motivated to change the plates 5a and 4a
`
`10 to be metal foils, would not the changed metal foils
`
`11 be recessed within the recesses formed in plates 8 and
`
`12 9?
`
`13 A. I don't recall whether the depth of the
`
`14 recess is specifically disclosed within Kobayashi.
`
`15 Q. But you were unable to determine that from
`
`16 looking at the drawings in Kobayashi?
`
`17 A. That's correct.
`
`18 Q. And so you didn't form any opinions as to
`
`19 whether the metal foils would be recessed within the
`
`20 recesses of the insulating members 8 and 9?
`
`21 A. Did not.
`
`22 Q. You did not?
`
`23 A. I did not.
`
`24 Q. Now, looking at that issue for the first
`
`25 time today, do you agree that there would be a
`
`182
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 13
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 significant problem if the metal foils would be
`
` 2 recessed within the recesses formed in the insulating
`
` 3 members 8 and 9?
`
` 4 MS. TEMPESTA: Objection, form.
`
` 5 THE WITNESS: Sorry. The question is
`
` 6 not clear.
`
` 7 Q. Would the modified Kobayashi battery cell
`
` 8 as proposed by you to include metal foils, rather than
`
` 9 the metal plates 5a and 4a, be susceptible to open
`
`10 circuits?
`
`11 A. I don't believe so.
`
`12 Q. You don't believe so, even if the metal
`
`13 foils were recessed within the recesses 8 and 9; is
`
`14 that correct?
`
`15 A. I didn't say that.
`
`16 Q. Well, what is your explanation for why the
`
`17 modification would not be susceptible to an open
`
`18 circuit?
`
`19 A. I think a person of ordinary skill in the
`
`20 art would know to adjust the depth of the recess with
`
`21 the output conductor that they aim to employ.
`
`22 Q. Now, your expert declaration, do you speak
`
`23 in connection with Claim 1 of the '581 patent as to
`
`24 whether there would be a modification of the depth of
`
`25 the recesses and the insulating members 8 and 9?
`
`183
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 14
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 A. I don't recall.
`
` 2 Q. Well, I didn't see it, so if you have
`
` 3 testified to that issue, can you show me where that is
`
` 4 in your expert declaration?
`
` 5 A. I don't recall having included it. I would
`
` 6 need to search through the entire document to confirm
`
` 7 with certainty. I don't believe that to be material.
`
` 8 Q. Does your opinion hinge on whether that's
`
` 9 material?
`
`10 A. It does not.
`
`11 Q. It does not.
`
`12 A. Restate that question.
`
`13 Q. Does your opinion hinge on whether there
`
`14 needs to be a modification of the recesses that are
`
`15 formed in the insulating members 8 and 9 of the
`
`16 Kobayashi cell?
`
`17 A. It does not.
`
`18 Q. Why is that, sir?
`
`19 A. I believe that a person of ordinary skill
`
`20 in the art would know to adjust the depth of the
`
`21 recess accordingly to accommodate the output conductor
`
`22 they have in mind.
`
`23 Q. You can't point to where in your expert
`
`24 declaration you talk about adjusting the output or
`
`25 adjusting the depth of the recess in the insulating
`
`184
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 15
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 member, correct?
`
` 2 A. That's correct.
`
` 3 Q. And at least not in connection with Claim 1
`
` 4 of the '581 patent, correct?
`
` 5 A. That's correct.
`
` 6 Q. I would also like to ask you some questions
`
` 7 regarding your analysis of the compatibility of the
`
` 8 claims of the '858 patent. Do you recall the '858
`
` 9 patent?
`
`10 A. I do recall the '858 patent.
`
`11 Q. That is the patent that also includes
`
`12 welding from the outside, correct?
`
`13 A. Give me a moment, please.
`
`14 Can you restate your question, please.
`
`15 Q. My question was -- I simply asked that a
`
`16 patent that includes a welding limitation in the
`
`17 claims; is that correct?
`
`18 And so, for example, if you turn to
`
`19 Page 196 to 197 of your expert declaration, you set
`
`20 forth the -- at least Claim 1 of the '858 patent?
`
`21 A. '858 does include welding in the claims.
`
`22 Q. Which you express as element 1E in the way
`
`23 in which you parse Claim 1 of the '858 patent,
`
`24 correct?
`
`25 A. I trust 1E as at least one of the
`
`185
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 16
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 conductors is a metal foil in connection with the
`
` 2 respective housing half with weld beads and/or weld
`
` 3 spots passing through the housing, the weld beads in
`
` 4 or weld spots originate from an outer side.
`
` 5 Q. And you agree in connection with your
`
` 6 expert declaration, that you did not need to construe
`
` 7 element 1E in order to conduct your analysis, right?
`
` 8 A. I don't recall whether or not I construed
`
` 9 1E.
`
`10 Q. Well, do you want to look in your claim
`
`11 construction section that begins at Page 36 of your
`
`12 expert declaration?
`
`13 A. I did not construe Claim 1E of '858.
`
`14 Q. So in your expert opinion, claim element 1E
`
`15 had an understanding or had a meaning that was
`
`16 understood by a person of ordinary skill in the art,
`
`17 correct?
`
`18 A. That's correct.
`
`19 Q. Now, if you look at element 1A of Claim 1
`
`20 of the '858 patent, do you see that, sir, on Page 196
`
`21 of your expert declaration?
`
`22 A. Sorry, which claim number?
`
`23 Q. The claim element 1A, do you see that?
`
`24 A. I do see 1A of '858.
`
`25 Q. Now, that claim element refers to housing
`
`186
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 17
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 halves; is that right?
`
` 2 A. Claim element says, "two metal housing
`
` 3 halves separated from one another by an electrically
`
` 4 insulating seal forming a housing having a plane
`
` 5 bottom region and a plane top region parallel
`
` 6 thereto."
`
` 7 Yes, it refers to the housing halves.
`
` 8 Q. Now, I am going to refer you to one of the
`
` 9 numerous times that you've reproduced Figure 1 of
`
`10 Kobayashi in your expert declaration, Paragraph 332,
`
`11 and just to allow you to look at the Kobayashi
`
`12 structure; do you see that?
`
`13 A. I do see the Kobayashi structure shown in
`
`14 332.
`
`15 Q. Is it your opinion that Kobayashi includes
`
`16 two housing halves?
`
`17 A. It is.
`
`18 Q. It is?
`
`19 So your opinion is that Kobayashi's top 11
`
`20 is a housing half; is that correct?
`
`21 A. That's right.
`
`22 Q. And it's cup 13, is a housing half; is that
`
`23 right?
`
`24 A. That's right.
`
`25 Q. And that's despite the appearance that
`
`187
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 18
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 those -- the housing halves aren't the same; is that
`
` 2 right?
`
` 3 MS. TEMPESTA: Objection, form.
`
` 4 THE WITNESS: Yes.
`
` 5 Q. In other words, they have different
`
` 6 geometric structures?
`
` 7 A. The housing halves shown in Kobayashi do
`
` 8 have different geometric structures.
`
` 9 Q. But you consider them to be housing halves;
`
`10 is that right?
`
`11 A. That's correct.
`
`12 Q. And to your understanding of a person of
`
`13 ordinary skill in the art in the field of battery
`
`14 design, would understand that two housing pieces with
`
`15 a cup in the top should be housing halves, whether or
`
`16 not the pieces have the same geometric shape; is that
`
`17 right?
`
`18 A. That's correct.
`
`19 Q. Now, is that from your general experience
`
`20 in the area of battery design?
`
`21 A. I don't recall all of the times in which
`
`22 I've heard these two components referred to as housing
`
`23 halves or whether I've heard them referred to as
`
`24 housing halves outside of the patents.
`
`25 Q. Fair enough.
`
`188
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 19
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 Now, referring to Paragraph 372 of your
`
` 2 expert declaration, you talk about the output
`
` 3 conductors in Kwon and Kobayashi being of similar
`
` 4 form; do you see that?
`
` 5 A. In 372 of the expert declaration, my expert
`
` 6 declaration, I cite that "the output conductor in both
`
` 7 Kwon and Kobayashi are of similar form."
`
` 8 Q. And just for convenience, I believe that
`
` 9 Paragraph 397 of your expert declaration, you show the
`
`10 output conductors of Kobayashi and Kwon side by side;
`
`11 is that correct?
`
`12 A. In 397, I do show the output between Kwon
`
`13 and Kobayashi side by side.
`
`14 Q. Okay. Now, in on the left-hand side of
`
`15 Paragraph 397, you are showing the output conductors
`
`16 of Kobayashi in red; is that correct?
`
`17 A. That's correct.
`
`18 Q. And on the right-hand side, you are showing
`
`19 the outputs conductors of Kwon?
`
`20 A. That's correct.
`
`21 Q. Now, you agree that Kwon is a capacitor,
`
`22 right?
`
`23 A. I do.
`
`24 Q. And so are you -- and I think you explain
`
`25 in your expert report that it is not a battery?
`
`189
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 20
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 A. I believe I do.
`
` 2 Q. But you say that it's a similar technology;
`
` 3 is that right?
`
` 4 A. I don't recall saying that it's a similar
`
` 5 technology.
`
` 6 Q. Okay. Well, then why would a person of
`
` 7 ordinary skill in the art look to the capacitor
`
` 8 technology of Kwon in order to perform welding as in
`
` 9 Kobayashi?
`
`10 A. In my report, I explain similarities
`
`11 between the two.
`
`12 Q. Okay. And just for reference, on the
`
`13 left-hand side of the drawing of output conductors of
`
`14 Kobayashi, did you intend the red coloration to extend
`
`15 down into the recess of the insulating members, 8 and
`
`16 9?
`
`17 A. I did not.
`
`18 Q. You did not?
`
`19 A. I did not.
`
`20 Q. Well, you agree that part of the plate is
`
`21 recessed in the insulating members 8 and 9, right?
`
`22 A. I do agree, yes.
`
`23 Q. Now, how do you -- but is it your opinion,
`
`24 then, that the output conductor shown in Kobayashi
`
`25 also is recessed within the insulating members 8 and
`
`190
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 21
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 9?
`
` 2 A. Can you restate that, please.
`
` 3 Q. I am trying to understand whether you
`
` 4 believe that the output conductor disclosed by
`
` 5 Kobayashi includes the portion of the metal plates 5a
`
` 6 and 4a that are recessed within the insulating members
`
` 7 8 and 9.
`
` 8 A. The output conductor of Kobayashi are
`
` 9 listed as 5a and 4a, and they do go within the recess
`
`10 within components 8 and 9.
`
`11 Q. All right. And I am just wondering why you
`
`12 didn't color that portion of the plates 5a and 4a?
`
`13 A. I don't recall.
`
`14 Q. Okay. Now, affixed to the current
`
`15 collectors, which you've colored in green on the
`
`16 right-hand side of the drawings that you've shown,
`
`17 which is the Kwon structure, would you agree that you
`
`18 have a carbon slurry coating that is affixed to the
`
`19 current collector?
`
`20 A. Kwon discloses a carbon slurry coating that
`
`21 is affixed to the green component shown in the
`
`22 drawing.
`
`23 Q. Now, in the Kwon structure is active
`
`24 material contacting the housing?
`
`25 A. It is not.
`
`191
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 22
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 Q. But the output conductors are in direct
`
` 2 contact with active material; is that correct?
`
` 3 A. In the Kwon construction, yes.
`
` 4 Q. Now, is there an issue in connection with
`
` 5 the Kwon structure if the weld passes through the
`
` 6 current collector?
`
` 7 MS. TEMPESTA: Objection, form.
`
` 8 THE WITNESS: I can't say with
`
` 9 certainty. It would depend on specific configuration
`
`10 of how weld passes through.
`
`11 Q. Well, what about the configuration
`
`12 disclosed by Kaun -- I'm sorry -- by Kwon?
`
`13 A. I am sorry, the question?
`
`14 Q. As I understood your testimony, you said
`
`15 you couldn't state with certainty whether there would
`
`16 be an issue, because it would depend on the
`
`17 configuration of how the weld passes through; is that
`
`18 fair?
`
`19 A. Kwon clearly discloses the configuration in
`
`20 which the weld passes through the housing into the
`
`21 output conductor.
`
`22 Q. Right, and so my question is, in the Kaun
`
`23 -- strike that.
`
`24 My question is in connection with the Kwon
`
`25 design, if the weld bead passes through the output
`
`192
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 23
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 conductor, is that going to cause a disruption in the
`
` 2 operation of the Kaun -- Kwon device?
`
` 3 A. I don't recall Kwon disclosing a weld bead
`
` 4 that passes through the conductor.
`
` 5 Q. Sure.
`
` 6 Kwon is going to try to avoid passing
`
` 7 through, but if it does happen to pass through, will
`
` 8 the Kwon structure nonetheless be operable?
`
` 9 A. That depends on specifically how it passes
`
`10 through, extent to which it passes through, and
`
`11 collateral damage. It's not possible to say with
`
`12 certainty whether a specific configuration.
`
`13 Q. Okay. So you meant not only does the
`
`14 specific configuration, but you would need various
`
`15 operating conditions in order to give an opinion; is
`
`16 that fair?
`
`17 A. You are asking me to make an opinion of
`
`18 very general circumstance, and it's just not as simple
`
`19 and clearcut as that.
`
`20 Q. Okay. Fair enough.
`
`21 Now, do you agree that the current
`
`22 collector with the carbon slurry coating would be a
`
`23 rigid structure?
`
`24 A. I don't recall whether Kwon speaks
`
`25 specifically to flexibility of that structure or not.
`
`193
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 24
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 Q. Yeah, I am just asking for your
`
` 2 understanding as an expert battery/capacitor designer.
`
` 3 A. And the question, please?
`
` 4 Q. Do you understand Kwon's current collector
`
` 5 to be a rigid structure?
`
` 6 A. I do not.
`
` 7 Q. You do not?
`
` 8 A. I do not.
`
` 9 Q. You understand it to be a flexible
`
`10 structure?
`
`11 A. I don't believe that Kwon discloses -- I
`
`12 don't recall Kwon disclosing anything specific about
`
`13 flexibility. Given what I know about the art, one
`
`14 generally keeps materials thin or as thin as possible.
`
`15 Q. Now, have you ever designed a capacitor?
`
`16 A. Not that I recall.
`
`17 Q. Have you ever overseen the manufacture of a
`
`18 capacitor?
`
`19 A. I have not.
`
`20 Q. Now, directing your attention to
`
`21 Paragraph 373 of your expert declaration, you contend
`
`22 that in "Kobayashi, the output conductor plate is
`
`23 connected to its respective housing part before the
`
`24 cell is sealed"; do you see that?
`
`25 A. In 373, I state that, "The laser welding
`
`194
`
`WILLIAM H. GARDNER - DAY 2
`
`JLab/Cambridge, Exh. 1033, p. 25
`JLab/Cambridge v. Varta, 2020-01212
`
`
`
` 1 method of Kwon can also be performed once the housing
`
` 2 is fully assembled."
`
` 3 Q. Right. Now I am focusing your attention on
`
` 4 the fourth sentence, where you state, "For example,
`
` 5 according to Kobayashi, the output conductor plate is
`
` 6 connected to its respective housing part before the
`
` 7 cell is sealed."
`
` 8 Do you see that?
`
` 9 A. I do see that.
`
`10 Q. And now do you stand behind that contention
`
`11 as to Kobayashi?
`
`12 A. I do.
`
`13 Q. In Paragraph 374 of your expert
`
`14 declaration, you say that Kwon provides "better and
`
`15 more precise connections"; do you see that?
`
`16 A. I do see that.
`
`17 Q. Well, that seems like a very general
`
`18 assertion. Can you explain what you mean b
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