UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` -----------------------------x
`
` 1
`
` 2
`
`
` 3
`
` PEAG LLC (d/b/a JLab Audio),
` 4 AUDIO PARTNERSHIP LLC and
` AUDIO PARTNERSHIP PLC
` 5 (d/b/a Cambridge Audio),
`
` 6
`
` 7
`
` Petitioner,
`
`v.
`
` 8 VARTA MICROBATTERY GMBH,
`
` 9
`
` Patent Owner.
`
`10 -----------------------------x
`
`VIDEOTAPED DEPOSITION OF WILLIAM H. GARDNER
`
` July 28, 2021
`
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` Laurie J. Berg, CCR, RPR, CRR, CLR, CER,
`24 Notary Public
` 474941
`
`23
`
`25
`
` VARTA EX. 2051 Page 1 of 115
`PEAG/Audio Partnership v. VARTA
`IPR2020-01212
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` -----------------------------x
`
` 1
`
` 2
`
`
` 3
`
` PEAG LLC (d/b/a JLab Audio),
` 4 AUDIO PARTNERSHIP LLC and
` AUDIO PARTNERSHIP PLC
` 5 (d/b/a Cambridge Audio),
`
` 6
`
` 7
`
` Petitioner,
`
`v.
`
` 8 VARTA MICROBATTERY GMBH,
`
` 9
`
` Patent Owner.
`
`10 -----------------------------x
`
`VIDEOTAPED DEPOSITION OF WILLIAM H. GARDNER
`
` July 28, 2021
`
`11
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` Laurie J. Berg, CCR, RPR, CRR, CLR, CER,
`24 Notary Public
` 474941
`
`23
`
`25
`
` VARTA EX. 2051 Page 1 of 115
`PEAG/Audio Partnership v. VARTA
`IPR2020-01212
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` -----------------------------x
`
` 1
`
` 2
`
` 3
`
` PEAG LLC (d/b/a JLab Audio),
` 4 AUDIO PARTNERSHIP LLC and
` AUDIO PARTNERSHIP PLC
` 5 (d/b/a Cambridge Audio),
`
` 6
`
` 7
`
` Petitioner,
`
`v.
`
` 8 VARTA MICROBATTERY GMBH,
`
` 9
`
` Patent Owner.
`
`10 -----------------------------x
`
`11 Patent Numbers
`
`IPRs
`
`12 9,153,835
`
` IPR2020-01211
`
`13 9,496,581
`
` IPR2020-01212
`
`14 9,799,913
`
` IPR2020-01213
`
`15 9,799,858
`
` IPR2020-01214
`
`VIDEOTAPED DEPOSITION OF WILLIAM H. GARDNER
`
`Conducted Remotely
`
` 22 Hayward Mill Circle
`
` Concord, Massachusetts
`
` July 28, 2021
`
` 9:35 a.m. to 2:31 p.m.
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`25 Reporter: Laurie J. Berg, CCR, RPR, CRR, CLR, CER
`
`2
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 2 of 115
`
`
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` A P P E A R A N C E S
`
` Nick Palmieri, Esquire
`
` Jennifer C. Tempesta, Esquire
`
` BAKER BOTTS LLP
`
` 30 Rockefeller Plaza
`
` New York, New York 10112-4498
`
` 212.408.2500
`
` nick.palmieri@bakerbotts.com
`
` jennifer.tempesta@bakerbotts.com
`
` (Present via videoconference.)
`
` COUNSEL FOR PETITIONER AND DEPONENT
`
` Paul J. Filbin, Esquire
`
` Robert T. Wittmann, Esquire
`
` LEYDIG, VOIT & MAYER, LTD.
`
` Two Prudential Plaza
`
` 180 North Stetson Avenue
`
` Suite 4900
`
` Chicago, Illinois 60601-6745
`
` 312.616.5600
`
` pfilbin@leydig.com
`
` bwittmann@leydig.com
`
` (Present via videoconference.)
`
` COUNSEL FOR PATENT OWNER
`
`3
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 3 of 115
`
`
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` 3
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` A P P E A R A N C E S
`
` (continued)
`
` 4 Also Present:
`
` 5
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` Rob Chang, Legal Video Specialist
`
` (Present via videoconference.)
`
`4
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 4 of 115
`
`
`
`PAGE
`
` 7
`
`PAGE
`
` 1
`
` 2
`
` I N D E X
`
` 3 DEPONENT: WILLIAM H. GARDNER
`
` 4
`
` 5
`
`(Present via videoconference.)
`
` 6 EXAMINATION
`
` 7 (BY ATTORNEY FILBIN)
`
` 8
`
` 9
`
`10 NO.
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`E X H I B I T S
`
` (No exhibits marked.)
`
`5
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 5 of 115
`
`
`
` 1
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` 2
`
` P R O C E E D I N G S
`
`09:35 3
`
` THE VIDEOGRAPHER: Counselors, Madam
`
`09:35 4 Court Reporter, we are now going on the record.
`
`09:35 5
`
` Good morning. My name is Rob Chang. I am a
`
`09:35 6 videographer associated with Barkley Court Reporters.
`
`09:35 7
`
` The date is July 28th, 2021. The time is
`
`09:35 8 9:35 a.m. Eastern Daylight Standard Time.
`
`09:35 9
`
` This deposition is taking place via remote
`
`09:35 10 method in the matter of PEAG LLC, et al. versus VARTA
`
`09:35 11 Microbattery GmbH. This is the video deposition of
`
`09:35 12 William Gardner being taken on behalf of the Patent
`
`09:36 13 Owner.
`
`09:36 14
`
` Will counselors for all the parties please
`
`09:36 15 identify themselves, beginning with counsel for the
`
`09:36 16 Patent Owner?
`
`09:36 17
`
` MR. FILBIN: Good morning, everyone.
`
`09:36 18 This is Paul Filbin of Leydig, Voit & Mayer
`
`09:36 19 representing the Patent Owner, VARTA, in the IPR
`
`09:36 20 proceedings. With me today is Robert Wittmann of
`
`09:36 21 Leydig, Voit & Mayer also.
`
`09:36 22
`
` MR. PALMIERI: On behalf of the
`
`09:36 23 Petitioners, PEAG LLC, Audio Partnership LLC and Audio
`
`09:36 24 Partnership PLC in these IPR proceedings, my name's
`
`09:36 25 Nick Palmieri with Baker Botts. Also here with me is
`
`6
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 6 of 115
`
`
`
`09:36 1 Jennifer Tempesta, also of Baker Botts.
`
`09:36 2
`
`09:36 3
`
` THE VIDEOGRAPHER: Thank you.
`
` If needed, the court reporter may now swear
`
`09:36 4 in the witness, or please proceed.
`
`09:36 5
`
` 6
`
`09:36 7
`
` 8
`
` MR. FILBIN: Thank you, everyone.
`
`WILLIAM H. GARDNER
`
`09:36 9
`
` having been previously satisfactorily
`
`09:36 10 identified and duly sworn remotely by a Notary Public,
`
`09:36 11 was examined and testified as follows:
`
`09:36 12
`
`09:36 13
`
`09:36 14
`
`09:37 15
`
`09:37 16
`
`09:37 17
`
`09:37 18
`
`DIRECT EXAMINATION
`
` BY MR. FILBIN:
`
`Q.
`
`Good morning, Mr. Gardner.
`
`Would you please state your full name?
`
`William H. Gardner.
`
`And your residence address?
`
`My residence address is 22 Hayward Mill
`
`A.
`
`Q.
`
`A.
`
`09:37 19 Circle, Concord, Massachusetts.
`
`09:37 20
`
`Q.
`
`Great. And you understand you're appearing
`
`09:37 21 today as an expert witness on behalf of the
`
`09:37 22 Petitioners, correct?
`
`09:37 23
`
`09:37 24
`
`A.
`
`Q.
`
`I do.
`
`And you're the same Mr. Gardner that had his
`
`09:37 25 first deposition taken earlier in these IPR
`
`7
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 7 of 115
`
`
`
`09:37 1 proceedings?
`
`09:37 2
`
`09:37 3
`
`A.
`
`Q.
`
`That's correct.
`
`Have you had a -- a intervening deposition
`
`09:37 4 between the first one in this fir -- these proceedings
`
`09:37 5 and today?
`
`09:37 6
`
`09:37 7
`
`A.
`
`Q.
`
`No.
`
`So I know you -- you are now a seasoned
`
`09:37 8 veteran having gone through this already, but just so
`
`09:38 9 we have a good understanding of how today's going, you
`
`09:38 10 understand that you are currently under oath?
`
`09:38 11
`
`09:38 12
`
`A.
`
`Q.
`
`I do.
`
`Okay. And the way this will work is, this is
`
`09:38 13 a question-and-answer session with me asking
`
`09:38 14 questions, you giving the answers under oath. If your
`
`09:38 15 counselor objects, you should still continue to answer
`
`09:38 16 the question, unless you receive an instruction not to
`
`09:38 17 answer.
`
`09:38 18
`
`09:38 19
`
`09:38 20
`
`A.
`
`Q.
`
` Do you understand that procedure?
`
`I do.
`
`If there's -- at any time you need a break,
`
`09:38 21 please just let me know, and I'll do my best to
`
`09:38 22 accommodate that. The only caveat is that if there is
`
`09:38 23 a question pending, I'd ask that you answer the
`
`09:38 24 question before we go on break.
`
`09:38 25
`
` Is that all right?
`
`8
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 8 of 115
`
`
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`09:38 1
`
`09:38 2
`
`A.
`
`Q.
`
`Understood. Yes.
`
`And then, if any of my questions are unclear
`
`09:38 3 to you or you need some further clarification, please
`
`09:39 4 let me know or -- otherwise, I'll understand that
`
`09:39 5 you've understood my question and are answering it to
`
`09:39 6 your best ability.
`
`09:39 7
`
`09:39 8
`
`09:39 9
`
`A.
`
`Q.
`
` Make sense?
`
`Understood.
`
`Is there any reason you -- you cannot testify
`
`09:39 10 fully and truthfully today?
`
`09:39 11
`
`09:39 12
`
`A.
`
`No.
`
` MR. FILBIN: Mr. -- Mr. Videographer,
`
`09:39 13 does -- does the witness have all of the exhibits in
`
`09:39 14 the chat room yet? This may be a good time to just
`
`09:39 15 load -- load them if -- if he hasn't received them
`
`09:39 16 yet.
`
`09:39 17
`
` THE VIDEOGRAPHER: Counselor, the witness
`
`09:39 18 does not. I will load them immediately. One moment,
`
`09:39 19 please.
`
`09:40 20
`
`09:40 21
`
`09:40 22
`
` (Pause.)
`
` BY MR. FILBIN:
`
`Q.
`
`So, Mr. Gardner, the videographer is loading
`
`09:40 23 a series of exhibits that were sent to your counsel
`
`09:40 24 last night with the expectation that they may be
`
`09:40 25 discussed today in some capacity or that you may need
`
`9
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 9 of 115
`
`
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`09:40 1 to refer to them in providing your answer.
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`09:40 2
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` I'd ask that, to the extent that you are
`
`09:40 3 referring to a certain exhibit in the course of your
`
`09:40 4 answer, that you would state on the record that that
`
`09:40 5 is what you are indeed doing.
`
`09:40 6
`
`09:40 7
`
`09:41 8
`
`A.
`
`Q.
`
` Does that make sense?
`
`Understood.
`
`So there -- and I'll -- I'll -- I'll identify
`
`09:41 9 the exhibits that are being provided in the chat room
`
`09:41 10 in a moment.
`
`09:41 11
`
` But just so you -- we're clear, to the extent
`
`09:41 12 that there are other exhibits that are of record
`
`09:41 13 already in these IPR proceedings that you want to
`
`09:41 14 refer to, please let me know what those are and we can
`
`09:41 15 evaluate whether those can be provided to you. Okay?
`
`09:41 16
`
`09:41 17
`
`A.
`
`Okay.
`
` THE VIDEOGRAPHER: Counselor Filbin,
`
`09:41 18 Gentleman Witness, the exhibits are now in chat, and
`
`09:41 19 you can access them any time you'd like.
`
`09:41 20
`
`09:41 21
`
` BY MR. FILBIN:
`
`Q.
`
`So, Mr. Gardner, while you're going through
`
`09:41 22 that exercise, I will, just for the record, identify
`
`09:41 23 what you are -- you've been given access to.
`
`09:42 24
`
` The first is -- is Exhibit 1003, which is
`
`09:42 25 entitled Declaration of William H. Gardner.
`
`10
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`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 10 of 115
`
`
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`09:42 1
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` The next is Exhibit 1004, which is -- I'll
`
`09:42 2 refer to as the -- the CV of Will -- William H.
`
`09:42 3 Gardner.
`
`09:42 4
`
` Exhibit 1005 is US Patent Application
`
`09:42 5 Publication Number US 2005/0233212 to Kaun. And in
`
`09:42 6 the course of the day, I'll refer to that patent
`
`09:42 7 application publication as "Kaun."
`
`09:42 8
`
` The next is Exhibit 1006, which is Japanese
`
`09:42 9 Patent Publication 2007-294111 to Kobayashi and
`
`09:43 10 includes an English-language certified translation of
`
`09:43 11 the same. And during the course of the day, I -- I
`
`09:43 12 will refer to that exhibit as "Kobayashi."
`
`09:43 13
`
` The next is Exhibit 1007, which is European
`
`09:43 14 Patent Specification EP 1 886 364 to Ryou, R-Y-O-U.
`
`09:43 15 And I'll refer to Exhibit 1007, in the course of the
`
`09:43 16 day, as "Ryou."
`
`09:43 17
`
` Next is Exhibit 1008, which is a Korean
`
`09:43 18 patent publication Laid-Open Patent Tuk 2003-0087316
`
`09:44 19 to Kwon and also includes an English-language
`
`09:44 20 translation.
`
`09:44 21
`
` The next is Exhibit 1039, 1039, which is a
`
`09:44 22 Japanese Patent Application Disclosure 2003-311 -- I'm
`
`09:44 23 sorry -- 31266 to Kannou, K-A-N-N-O-U, and that
`
`09:44 24 includes a certified English-language translation as
`
`09:44 25 well. And I'll refer to that document as "Kannou."
`
`11
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 11 of 115
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`
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`09:44 1
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` Before I continue, I'll -- I'll ask, is -- is
`
`09:44 2 that how you pronounce it, Mr. Gardner, Kannou?
`
`09:44 3
`
`09:44 4
`
`09:45 5
`
`A.
`
`Q.
`
`A.
`
`Yes, it is.
`
`Okay.
`
`Just a point of order, I have not received
`
`09:45 6 any documents.
`
`09:45 7
`
` MADAM COURT REPORTER: Excuse me, this is
`
`09:45 8 the court reporter. Mr. Chang, you sent them
`
`09:45 9 privately to me in the chat box.
`
`09:45 10
`
` THE VIDEOGRAPHER: Oh, I apologize. It
`
`09:45 11 only went to you, Madam Court Reporter?
`
`09:45 12
`
`09:45 13
`
` MADAM COURT REPORTER: Yes, sir.
`
` THE VIDEOGRAPHER: I thought it went to
`
`09:45 14 everybody. I apologize.
`
`09:45 15
`
`09:45 16
`
`09:45 17
`
`09:45 18
`
` One moment, please.
`
` (Pause.)
`
` BY MR. FILBIN:
`
`Q.
`
`You'll be pleased to know there's only two
`
`09:45 19 more, Mr. Gardner.
`
`09:45 20
`
` Exhibit 1040, 1040, United States Patent
`
`09:46 21 Application Publication Number US 2007/0218356 to
`
`09:46 22 Kawamura. And I'll refer to this Exhibit 1040 as Kaw
`
`09:46 23 -- "Kawamura."
`
`09:46 24
`
` And then, finally, Exhibit 1041, which is
`
`09:46 25 entitled Supplemental Declaration of William H.
`
`12
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 12 of 115
`
`
`
`09:46 1 Gardner.
`
`09:46 2
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` THE VIDEOGRAPHER: Gentleman Witness
`
`09:46 3 Gardner, please look in the chat. You should have all
`
`09:46 4 of the exhibits that you'll be using today.
`
`09:46 5
`
` THE DEPONENT: (Viewing computer.) I do
`
`09:46 6 see exhibits in the chat. I'll need a moment to
`
`09:46 7 download them, please.
`
`09:46 8
`
`09:48 9
`
` (Pause.)
`
` THE DEPONENT: I have the files
`
`09:48 10 downloaded.
`
`09:49 11
`
`09:49 12
`
` BY MR. FILBIN:
`
`Q.
`
`Great. And just -- just to confirm that you
`
`09:49 13 have what I think you have, it's the following
`
`09:49 14 exhibits: 1003, 1004, 1005, 1006, 1007, 1008, 1039,
`
`09:49 15 1040 and 1041.
`
`09:49 16
`
`09:49 17
`
`A.
`
`Q.
`
`That's correct.
`
`Great. Okay. And so you are here today as
`
`09:49 18 -- as the expert witness on behalf of Petit --
`
`09:49 19 Petitioners, correct?
`
`09:49 20
`
`09:49 21
`
`A.
`
`Q.
`
`That's correct.
`
`And -- and Baker Botts retained you on behalf
`
`09:49 22 of the Petitioners in these IPRs?
`
`09:49 23
`
`09:49 24
`
`A.
`
`Q.
`
`That's correct.
`
`Are you receiving any compensation to appear
`
`09:49 25 here today?
`
`13
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`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 13 of 115
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`
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`09:50 1
`
`09:50 2
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`A.
`
`Q.
`
`I am.
`
`Can you -- what's -- what -- how are you
`
`09:50 3 being remuner -- re -- remunerated -- remunerated?
`
`09:50 4 Easy for me to say.
`
`09:50 5
`
`09:50 6
`
`09:50 7
`
`09:50 8
`
`09:50 9
`
`09:50 10
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`I'm compensated at a rate of $425 an hour.
`
`And who's paying you?
`
`My services are paid by Baker Botts.
`
`Could you reference Exhibit 1041?
`
`(Deponent complied.)
`
`This -- this is your supplemental
`
`09:50 11 declaration?
`
`09:50 12
`
`09:50 13
`
`A.
`
`Q.
`
`(Deponent viewing exhibit.) That's correct.
`
`Okay. And could you turn to page 1 and refer
`
`09:51 14 -- look at Paragraph 2, please?
`
`09:51 15
`
`09:51 16
`
`09:51 17
`
`A.
`
`Q.
`
` Do you have that?
`
`(Deponent viewing exhibit.) I do.
`
`Okay. Good. So you see there where a series
`
`09:51 18 of patents are referenced and then, in parentheses,
`
`09:51 19 they are given an abbreviated name; namely, the '835
`
`09:51 20 Patent, the '913 Patent, '858 Patent -- and I skipped
`
`09:51 21 one -- and the '581 Patent?
`
`09:51 22
`
`09:51 23
`
`09:51 24
`
`A.
`
`Q.
`
` Do you see that?
`
`(Deponent viewing exhibit.) I do.
`
`So -- so we have a common language, if I
`
`09:51 25 refer to those patents with the -- that abbreviated
`
`14
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 14 of 115
`
`
`
`09:51 1 name, you'll understand what I'm referring to; is that
`
`09:52 2 right?
`
`09:52 3
`
`09:52 4
`
`09:52 5
`
`A.
`
`Q.
`
`That's correct.
`
`Thank you.
`
`And -- and then in the -- in the last
`
`09:52 6 sentence of Paragraph 2, you reference your -- what
`
`09:52 7 you call your last declaration, dated July 7, 2020,
`
`09:52 8 and you cite to Exhibit 1003.
`
`09:52 9
`
`09:52 10
`
`09:52 11
`
`A.
`
`Q.
`
` Do you see that?
`
`(Deponent viewing exhibit.) I do see that.
`
`Okay. And you also refer to that as your
`
`09:52 12 "Original declaration."
`
`09:52 13
`
` If -- if through the course of the day, if I
`
`09:52 14 refer to your "original declaration," I take it you'll
`
`09:52 15 understand that I'm referring to Exhibit 1003; is that
`
`09:52 16 right?
`
`09:52 17
`
`09:52 18
`
`A.
`
`Q.
`
`It's understood.
`
`Okay. Good. All right. And -- and then
`
`09:52 19 just to go down, so we have kind of settled
`
`09:52 20 nomenclature; in Paragraph 3, you mention that
`
`09:52 21 collectively the '835 Patent, the '581 Patent, the
`
`09:53 22 '913 Patent and the '858 Patent can be referred to as
`
`09:53 23 the "challenged patents."
`
`09:53 24
`
` If I make mention to "the challenged patents"
`
`09:53 25 today, I take it that you will understand me to also
`
`15
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 15 of 115
`
`
`
`09:53 1 be referring, collectively, to those referenced
`
`09:53 2 patents; is that right?
`
`09:53 3
`
`09:53 4
`
`A.
`
`Q.
`
`That's right.
`
`Okay. Great. So the -- the original
`
`09:53 5 declaration was prepared or -- or dated, rather,
`
`09:53 6 July 7, 2020, and your supplemental declaration is
`
`09:53 7 dated June 22, 2021; is that right?
`
`09:53 8
`
`09:54 9
`
`A.
`
`Q.
`
`(Deponent viewing exhibit.) I don't recall.
`
`I'd invite you to refer to Page 72 of
`
`09:54 10 Exhibit 1003, and that's PDF Page -- Page 68 of the --
`
`09:54 11 of the document itself, the last page.
`
`09:54 12
`
`09:54 13
`
` Are you there?
`
`A.
`
`(Deponent viewing exhibit.) Page 72 of
`
`09:54 14 Exhibit 1003 is Page 75 of 201. The supplemental
`
`09:54 15 declaration --
`
`09:54 16
`
`09:54 17
`
`09:54 18
`
`09:54 19
`
`09:54 20
`
`09:55 21
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Oh, I'm sorry.
`
`-- is Exhibit 1041.
`
`I gave you the wrong exhibit number.
`
`Yeah.
`
`I'm sorry. Exhibit 1041.
`
`(Deponent viewing exhibit.) Exhibit 1041 is
`
`09:55 22 dated June 22nd, 2021.
`
`09:55 23
`
`Q.
`
`And then, in Exhibit 1003, on Page 188 of the
`
`09:55 24 PDF, 185 of the document, if you refer to that page,
`
`09:55 25 does that refresh your memory as to when you signed
`
`16
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 16 of 115
`
`
`
`09:55 1 your original declaration?
`
`09:55 2
`
`09:56 3
`
`09:56 4
`
`A.
`
`Q.
`
`A.
`
`(Deponent viewing exhibit.) Yes.
`
`What date was that?
`
`(Deponent viewing exhibit.) My original
`
`09:56 5 declaration was signed July 7th, 2020.
`
`09:56 6
`
`Q.
`
`Okay. So, in the time between your original
`
`09:56 7 declaration dated July the 7th, 2020, and your
`
`09:56 8 supplemental declaration dated June 22, 2021, has your
`
`09:56 9 understanding of the challenged patents or the prior
`
`09:56 10 art referenced in your original declaration changed in
`
`09:56 11 any way?
`
`09:56 12
`
`09:56 13
`
`A.
`
`Q.
`
`I don't recall.
`
`Is there anything you could refer to that
`
`09:56 14 would refresh your recollection?
`
`09:57 15
`
`A.
`
`I continue to stand by what's in my original
`
`09:57 16 declaration and supplemental declarations.
`
`09:57 17
`
`Q.
`
`Okay. So, as you sit here today, there is
`
`09:57 18 nothing that you would change in the contents of your
`
`09:57 19 original declaration, Exhibit 1003; is that correct?
`
`09:57 20
`
`09:57 21
`
`A.
`
`Q.
`
`I don't believe so. That's correct.
`
`And, as you sit here today, there is nothing
`
`09:57 22 that you would change in the contents of your
`
`09:57 23 supplemental declaration, Exhibit 1041; is that
`
`09:57 24 correct?
`
`09:57 25
`
`A.
`
`That's correct.
`
`17
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 17 of 115
`
`
`
`09:57 1
`
`Q.
`
`Okay. Did you write the supplemental
`
`09:58 2 declaration, Exhibit 1041, yourself?
`
`09:58 3
`
`09:58 4
`
`A.
`
`Q.
`
`Not all of it, no.
`
`Can you identify the contents that you did
`
`09:58 5 not write?
`
`09:58 6
`
`09:58 7
`
`A.
`
`Q.
`
`I don't have that tract.
`
`I'm sorry, what was the last part of your
`
`09:58 8 answer? I don't have --
`
`09:58 9
`
`09:59 10
`
`09:59 11
`
`A.
`
`Q.
`
`I don't have that tract.
`
`Tract. Okay. Understood.
`
`Can you tell me, generally, what parts of the
`
`09:59 12 -- of the supplemental dec -- declaration,
`
`09:59 13 Exhibit 1041, you did not write yourself?
`
`09:59 14
`
`A.
`
`It's difficult to answer that question. The
`
`09:59 15 document was -- well, there were multiple
`
`09:59 16 contributors, all of my opinions. There was drafting
`
`09:59 17 of a substantial part of the document, the language by
`
`09:59 18 Baker Botts, which I -- I reviewed.
`
`09:59 19
`
`10:00 20
`
`Q.
`
`Can you identify who the contributors were?
`
` MR. PALMIERI: Ob -- ob -- objection;
`
`10:00 21 privileged.
`
`10:00 22
`
`10:00 23
`
` MR. FILBIN: What -- on what basis?
`
` MR. PALMIERI: Seeking -- seeking --
`
`10:00 24 seeking attorney-client-privileged information.
`
`10:00 25
`
` Will, you can -- you can answer.
`
`18
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 18 of 115
`
`
`
`10:00 1
`
`A.
`
`I don't know that I recall all of the people
`
`10:00 2 with whom I interacted in preparing the document. The
`
`10:00 3 primary person with whom I interacted was Counselor
`
`10:00 4 Palmieri.
`
`10:00 5
`
`Q.
`
`And is it right that there were multiple
`
`10:00 6 drafts of the supplemental declaration prepared?
`
`10:01 7
`
`10:01 8
`
`A.
`
`Q.
`
`That's correct.
`
`Do you -- do you recall who prepared the
`
`10:01 9 initial draft of your supplemental declaration?
`
`10:01 10
`
`10:01 11
`
`10:01 12
`
`10:01 13
`
`10:01 14
`
`A.
`
`Q.
`
`A.
`
`Q.
`
` MR. PALMIERI: Objection; privileged.
`
`I do.
`
`Who was that?
`
`It was Counselor Palmieri.
`
`Do you recall adding any opinions into the
`
`10:02 15 supplemental declaration?
`
`10:02 16
`
`A.
`
`All of the opinions in the supplemental
`
`10:02 17 declaration are mine.
`
`10:02 18
`
`Q.
`
`I guess I'm ask -- a little bit more on the
`
`10:02 19 mechanics side of this in the sense of, from the
`
`10:02 20 initial draft to the final draft, do you recall any of
`
`10:02 21 the additions that you may have made to the document?
`
`10:02 22
`
`10:02 23
`
`A.
`
`Q.
`
`I don't recall.
`
`Is it possible that you made no additions to
`
`10:02 24 the supplemental declaration?
`
`10:02 25
`
`A.
`
`No.
`
`19
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 19 of 115
`
`
`
`10:03 1
`
`10:03 2
`
`10:03 3
`
`Q.
`
`A.
`
`Q.
`
`That's not possible?
`
`It's not possible.
`
`But, as you sit here today, you cannot
`
`10:03 4 identify any additions that you did make?
`
`10:03 5
`
`A.
`
`I don't recall the specifics of changes I
`
`10:03 6 made.
`
`10:03 7
`
`Q.
`
`Did anyone ask you to take anything out of
`
`10:03 8 the supplemental declaration?
`
`10:03 9
`
`10:03 10
`
`10:03 11
`
`A.
`
`Q.
`
` MR. PALMIERI: Objection; privileged.
`
`Not that I recall.
`
`As you sit here today, are there any opinions
`
`10:03 12 that you have formed in connection with the challenged
`
`10:03 13 patents pertaining to issues raised in these IPR
`
`10:03 14 proceedings that are not set forth in either the
`
`10:03 15 supplemental declaration, Exhibit 1041, or the
`
`10:04 16 original declaration, Exhibit 1003?
`
`10:04 17
`
`10:04 18
`
`A.
`
`Q.
`
`None of which I'm aware.
`
`Do you agree that you have not arrived at any
`
`10:04 19 opinion regarding the presence of secondary
`
`10:04 20 considerations, also known as objective indic --
`
`10:04 21 indicia of nonobvious -- nonobviousness, with respect
`
`10:04 22 to the challenged claim patents?
`
`10:04 23
`
`10:04 24
`
`10:04 25
`
`A.
`
`Q.
`
`Can you repeat the question, please?
`
`Sure. Sorry.
`
`Do you agree that you've not arrived at any
`
`20
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 20 of 115
`
`
`
`10:04 1 opinion regarding the presence of secondary
`
`10:04 2 considerations, which are also known as the objective
`
`10:04 3 indicia of nonobviousness, with respect to the
`
`10:05 4 challenged patents?
`
`10:05 5
`
`A.
`
`I don't believe I have a complete
`
`10:05 6 understanding of the legal definition of the term
`
`10:05 7 "secondary considerations."
`
`10:05 8
`
`Q.
`
`With that in mind, that you do not have a
`
`10:05 9 complete understanding of the legal definition of the
`
`10:05 10 term "secondary considerations," is it true, then,
`
`10:05 11 that you have no opinion regarding the presence of
`
`10:05 12 secondary considerations?
`
`10:05 13
`
`A.
`
`I don't believe I can accurately answer that
`
`10:05 14 not knowing the definition of secondary
`
`10:05 15 considerations.
`
`10:05 16
`
`10:06 17
`
`Q.
`
`Oh, I see. Just one sec.
`
`Can -- can you refer to your original
`
`10:06 18 declaration, Exhibit 1003, at Paragraph 25?
`
`10:06 19
`
`10:06 20
`
`10:07 21
`
`10:07 22
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`(Deponent complied.)
`
`Just tell me when you're there.
`
`I'm there.
`
`Okay. Good. So I'll -- I'll read this, and
`
`10:07 23 again, this is from your original declaration, where
`
`10:07 24 you state, "I also understand that an obviousness
`
`10:07 25 determination includes the consideration of various
`
`21
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 21 of 115
`
`
`
`10:07 1 factors such as (1) the scope and content of the prior
`
`10:07 2 art, (2) the differences between the prior art and the
`
`10:07 3 challenged claims, (3) the level of ordinary skill in
`
`10:07 4 the pertinent art, and (4) the existence of secondary
`
`10:07 5 considerations such as commercial success, long-felt
`
`10:07 6 but unresolved needs, failure of others."
`
`10:07 7
`
` Does reference to this Paragraph 25, in your
`
`10:07 8 original declaration, give you a renewed understanding
`
`10:07 9 of what is meant by a secondary consideration?
`
`10:07 10
`
`A.
`
`It doesn't change the answer to my question
`
`10:08 11 -- to your question. No, it doesn't change my
`
`10:08 12 understanding of secondary considerations.
`
`10:08 13
`
`Q.
`
`So you've -- you -- sitting here today, you
`
`10:08 14 do not know what secondary considerations means?
`
`10:08 15
`
`A.
`
`The extent of what I know about secondary
`
`10:08 16 considerations is what's stated in Paragraph 25, my
`
`10:08 17 original declaration, to the extent that I recall.
`
`10:08 18
`
`Q.
`
`Okay. And then -- so just confirming, then,
`
`10:08 19 that, with that being the extent of your understanding
`
`10:08 20 of what secondary considerations means, I take it that
`
`10:09 21 you have not formed any opinions regarding the
`
`10:09 22 presence of secondary considerations, with respect to
`
`10:09 23 the challenged patents?
`
`10:09 24
`
`10:09 25
`
`A.
`
`Q.
`
`That's correct.
`
`And just as a subset of that, you -- you are
`
`22
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 22 of 115
`
`
`
`10:09 1 not providing any opinion in these IPR proceedings
`
`10:09 2 whether any VARTA products are commercially
`
`10:09 3 successful; is that correct?
`
`10:09 4
`
`10:09 5
`
`A.
`
`Q.
`
`That's correct.
`
`Well, I'll -- I'll ask you this, sort of a
`
`10:09 6 mechanics thing, but your supplemental declaration,
`
`10:10 7 there is only one version of your sup -- supplemental
`
`10:10 8 declaration, correct?
`
`10:10 9
`
` And I'll -- maybe I'll give you a little
`
`10:10 10 context. There -- the -- the Exhibit 1041 was filed
`
`10:10 11 separately in each one of the four IPR proceedings.
`
`10:10 12 So my question is, particularly, were -- were
`
`10:10 13 different versions of your supplemental declaration
`
`10:10 14 prepared, depending on which one of the challenged
`
`10:10 15 patents your -- your supplemental declaration was
`
`10:10 16 being submitted for in the particular IPR proceeding?
`
`10:10 17
`
`10:10 18
`
`10:10 19
`
`10:10 20
`
`10:10 21
`
`10:11 22
`
`A.
`
`No.
`
` MR. PALMIERI: Objection to form.
`
` MR. FILBIN: I -- I agree, Nick.
`
` BY MR. FILBIN:
`
`Q.
`
`A.
`
`Answer if you can, Mr. Gardner.
`
`No, not that I'm aware. I prepared one
`
`10:11 23 single -- prepared and signed one single supplemental
`
`10:11 24 declaration.
`
`10:11 25
`
`Q.
`
`Okay. So -- and I'll ask it differently,
`
`23
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 23 of 115
`
`
`
`10:11 1 just for the sake of clarity.
`
`10:11 2
`
` So, as -- to your understanding, your -- the
`
`10:11 3 supplemental declaration that was submitted in each
`
`10:11 4 one of the four separate IPR proceedings is identical;
`
`10:11 5 is that correct?
`
`10:11 6
`
`A.
`
`I -- I can't speak to what was submitted. I
`
`10:11 7 prepared and signed only one supplemental declaration.
`
`10:11 8
`
`Q.
`
`Okay. And -- and so, as far as you are
`
`10:11 9 concerned, you consider to be your declaration
`
`10:11 10 testimony provided in these IPR proceedings. The
`
`10:12 11 declaration testimony contained in Exhibit 1041 is
`
`10:12 12 identical in each one of the four IPR proceedings in
`
`10:12 13 which the sup -- the supplemental declaration was
`
`10:12 14 submitted; is that right?
`
`10:12 15
`
`A.
`
`I can only confirm that Exhibit 1041 appears
`
`10:12 16 to be consistent with the supplemental report that I
`
`10:12 17 submitted on June 2021.
`
`10:12 18
`
`Q.
`
`And it was not your intention to submit
`
`10:12 19 different declaration testimony in any one of the four
`
`10:12 20 IPR proceedings in which the supplemental declaration
`
`10:12 21 was submitted; is that correct?
`
`10:12 22
`
`10:13 23
`
`A.
`
`Q.
`
`Can you repeat the question, please?
`
`Yes. It was not your intention to submit
`
`10:13 24 different declaration testimony in any one of the four
`
`10:13 25 IPR proceedings in which the supplemental declaration
`
`24
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 24 of 115
`
`
`
`10:13 1 was submitted; is that correct?
`
`10:13 2
`
`A.
`
`I didn't say that. I said I can confirm that
`
`10:13 3 Exhibit 1041 appears to be the declaration that I
`
`10:13 4 prepared that we've called a supplemental declaration.
`
`10:13 5 I did not prepare multiple supplemental declarations.
`
`10:13 6
`
`Q.
`
`Well, I -- so, I guess, the question still
`
`10:13 7 remains pending, although it was a slightly different
`
`10:13 8 question to get at it a different way. So I'll ask it
`
`10:13 9 again.
`
`10:13 10
`
` It was not your intention to submit different
`
`10:13 11 declaration testimony in any one of the four IPR
`
`10:14 12 proceedings in which the supplemental declaration was
`
`10:14 13 submitted; is that correct?
`
`10:14 14
`
` MR. PALMIERI: Objection; form. He's
`
`10:14 15 asked and answered.
`
`10:14 16
`
`A.
`
`I can only confirm that Exhibit 1041 is the
`
`10:14 17 supplemental declaration that I prepared. I did not
`
`10:14 18 prepare multiple supplemental declarations.
`
`10:14 19
`
`Q.
`
`Okay. So it was not your intention to
`
`10:14 20 prepare different versions of Exhibit 1041,
`
`10:14 21 supplemental declaration; is that correct?
`
`10:14 22
`
`10:14 23
`
` MR. PALMIERI: Ob -- objection; form.
`
`A.
`
`I did not prepare different versions of
`
`10:14 24 Exhibit 1041.
`
`10:14 25
`
`Q.
`
`Okay. What did you do to prepare for today's
`
`25
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 25 of 115
`
`
`
`10:15 1 deposition, if anything?
`
`10:15 2
`
`A.
`
`I reviewed my supplemental declaration. I
`
`10:15 3 reviewed my original declaration. I reviewed the
`
`10:15 4 transcript from my first deposition. I reviewed
`
`10:15 5 relevant prior art that's cited in the declarations.
`
`10:15 6 I reviewed the challenged patents. I met with Baker
`
`10:15 7 Botts' attorneys.
`
`10:16 8
`
`10:16 9
`
`10:16 10
`
`10:16 11
`
`10:16 12
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Who did you meet with at Baker Botts?
`
`I met with Counselors Palmieri and Tempesta.
`
`Was this one meeting or multiple meetings?
`
`It was more than one meeting.
`
`How many meetings did you have with
`
`10:16 13 Counselors Palmieri and Tempesta?
`
`10:16 14
`
`A.
`
`I don't know if I recall, precisely. I
`
`10:16 15 believe -- I know it was more than one. I believe it
`
`10:16 16 was less than or equal to three.
`
`10:17 17
`
`Q.
`
`And, in -- in total, how much time did you
`
`10:17 18 spend in these meetings with Counselors Palmieri and
`
`10:17 19 Tempesta?
`
`10:17 20
`
`A.
`
`To the best of my recollection, between one
`
`10:17 21 and five hours.
`
`10:17 22
`
`Q.
`
`Did you communicate with anyone else
`
`10:17 23 regarding today's deposition or the contents of your
`
`10:17 24 testimony?
`
`10:17 25
`
`A.
`
`Not that I recall.
`
`26
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 26 of 115
`
`
`
`10:17 1
`
`10:17 2
`
`10:18 3
`
`Q.
`
`A.
`
`Q.
`
`Is it possible that you did?
`
`I don't believe so.
`
`In Exhibit 1041, your supplemental
`
`10:18 4 declaration, if you could refer to Paragraph 3. Just
`
`10:18 5 let me know when you're there.
`
`10:18 6
`
`10:18 7
`
`A.
`
`Q.
`
`(Deponent complied.) I'm there.
`
`Okay. So you -- you -- you say that you were
`
`10:18 8 retained by Baker Botts on behalf of -- I -- I -- I
`
`10:18 9 call it PEAG LLC doing business as JLab Audio, Audio
`
`10:18 10 Partnership LLC and Audio Partnership PLC doing
`
`10:18 11 business as Cambridge Audio, collectively referred to
`
`10:18 12 as Petitioners.
`
`10:18 13
`
`10:18 14
`
`10:18 15
`
`A.
`
`Q.
`
` Do you see that?
`
`(Deponent viewing exhibit.) I do.
`
`Have you -- have you communicated with anyone
`
`10:19 16 from JLab Audio in connection with the challenged
`
`10:19 17 VARTA patents?
`
`10:19 18
`
`10:19 19
`
`A.
`
`Q.
`
`Not to my knowledge, no.
`
`Have you communicated with anyone from
`
`10:19 20 Cambridge Audio in connection with the challenged
`
`10:19 21 patents?
`
`10:19 22
`
`10:19 23
`
`A.
`
`Q.
`
`Not to my knowledge, no.
`
`Have you heard of a -- a battery manufacturer
`
`10:19 24 by the name of Mic-power?
`
`10:19 25
`
`A.
`
`I have.
`
`27
`
`WILLIAM H. GARDNER
`
`VARTA EX. 2051 Page 27 of 115
`
`
`
`10:19 1
`
`Q.
`
`Do you have -- their involvement in
`
`10:19 2 connection with these IPR proceedings?
`
`10:19 3
`
`10:19 4
`
` (Technical difficulties.)
`
` MADAM COURT REPORTER: Can you please
`
`10:19 5 repeat that?
`
`10:19 6
`
`10:19 7
`
` MR. PALMIERI: Objection; scope.
`
` MADAM COURT REPORTER: Can you please
`
`10:19 8 repeat that, sir? I couldn't hear you.
`
`10:19 9
`
` THE DEPONENT: I didn't hear the question
`
`10:19 10 either.
`
`10:19 11
`
`10:19 12
`
`10:20 13
`
`10:20 14
`
` MR. FILBIN: Oh, sorry.
`
` THE DEPONENT: It broke up.
`
` BY MR. FILBIN:
`
`Q.
`
`Do you -- do you have an understanding of --
`
`10:20 15 if any, the connection of Mic-power with respect to
`
`10:20 16 the IPR proceeding -- these IPR proceedings?
`
`10:20 17
`
`10:20 18
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