UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`KOSS CORPORATION,
`Patent Owner.
`_____________________
`
`CASE: IPR2021-00381
`U.S. PATENT NO. 10,491,982
`_____________________
`
`DECLARATION OF NICHOLAS S. BLAIR
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`KOSS CORPORATION,
`Patent Owner.
`_____________________
`
`CASE: IPR2021-00381
`U.S. PATENT NO. 10,491,982
`_____________________
`
`DECLARATION OF NICHOLAS S. BLAIR
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`I, Nicholas S. Blair, declare as follows:
`
`I.
`
`BACKGROUND
`1.
`I am the Director of Product for Koss Corporation (“Koss”). I have
`
`been employed by Koss since 2013. My prior position at Koss was Senior Industrial
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`Designer.
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`2.
`
`Prior to my employment at Koss, I worked at:
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` RedFusion Studios (“RedFusion”) from 2009 to 2013;
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` Brooks Stevens Inc. from 2006 to 2010;
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` Discovery Channel’s Smash Lab from 2007 to 2008;
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` Beyond Design, Inc. in 2006;
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` Brunswick Corporation in 2005 to 2006; and
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` Design Concepts from 2003 to 2005.
`
`3.
`
`I received a Bachelor’s in Fine Arts from the Milwaukee Institute of
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`Art & Design in 2001, and I studied architecture at the University of Wisconsin-
`
`Milwaukee.
`
`4.
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`My professional career has focused on designing products for
`
`consumers. Through my employment at both Koss and RedFusion, a significant
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`focus of my work has been on the design of earphones. I am familiar with the design
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`concepts and issues related to all types of earphones, including earbuds, in-ear, on-
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`ear, and over-ear earphones. I have devoted a large portion of my professional career
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`researching human factors, ergonomics, and human biology as it relates to delivering
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`personal audio in a safe, reliable, and comfortable manner. A core directive, while
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`employed at both Koss and RedFusion Studios, has been to collect expert knowledge
`
`in these areas and synthesize the related findings into cohesive personal listening
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`solutions.
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` Ergonomic mockups, CAD simulations, and material-targeted
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`prototyping are all utilized to confirm proper fit, feel, and function of all headphones
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`and earphones during their development phases. Headphone and earphone models
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`that I have developed while under the employment of Koss and RedFusion Studios
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`include the Pro4S, Striva Tap, KPH30i, KE7, KEB25i, KEB9i, and KPH14, among
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`others.
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`5.
`
`I am an inventor of eleven U.S. patents related to consumer audio
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`devices: Patent Nos. 10,136,210; 10,959,014; 10,531,176; 10,785,550; 10,856,059;
`
`9,628,880; 8,971,555; 10,291,972; 8,861,770; D687417; and 8,737,668.
`
`6.
`
`I make this declaration to address specific issues in the “Declaration of
`
`Dr. Jeremy Cooperstock” in IPR2021-00381 for U.S. Patent 10,491,982 (“’982
`
`Patent”). In preparing this declaration I reviewed the Declaration of Dr. Jeremy
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`Cooperstock (hereinafter “Cooperstock Declaration,” which I understand is exhibit
`
`APPLE-1003 in IPR2021-00381), published U.S. Patent Application Pub. No.
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`2008/0076489 to Rosener et al. (hereinafter “Rosener,” which I understand is exhibit
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`APPLE-1004 in IPR2021-00305), published U.S. Patent Application Pub. No.
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`2008/0166001 to Hankey et al. (hereinafter “Hankey,” which I understand is exhibit
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`APPLE-1005 in IPR2021-00381), and U.S. Patent No. 8,031,900 to Dyer et al.
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`(hereinafter “Dyer,” which I understand is exhibit APPLE-1006 in IPR2021-00381).
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`II. OPINIONS
`7.
`The external anatomy and structure of a human ear is represented in
`
`Diagram 1 below. As shown in Diagram 1, a tragus is defined by a ridge of cartilage
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`in front of an external opening of an ear canal. A ridge of cartilage located opposite
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`the tragus defines an antitragus. Just outside of the opening of the ear canal, a bowl-
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`shaped cavity represents a concha. The ear canal narrows inwardly from the concha
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`and curves away from a straight line. A heel, also called an intratragal notch, is
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`defined between the tragus and the antitragus at the bottom of the concha bowl.
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`Diagram 1. Ear anatomy. 1
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`1 https://www.westone.com/store/hearing_health_care/ear-anatomy
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`8.
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`Not depicted in Diagram 1 above, but a term that is used in Rosener, is
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`“pinna.” The pinna is the visible portion of the outer ear.
`
`9.
`
`Figure 5 of Rosener, reproduced below, depicts a user wearing a pair of
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`wireless earphones 502, 504. Each wireless earphone is “in the form of an earbud
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`designed to fit in the concha of the pinna of the user’s ear.” APPLE-1004, ¶[0030]
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`(emphasis added). The first and second wireless earphones 502, 504 have a securing
`
`mechanism to help maintain each earphone 502, 504 on the user’s ears. The securing
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`mechanism of the first and second earphones 502, 504 in Figure 5 consists of (1) the
`
`earbud in the concha of the pinna of the user’s ear and (2) a downwardly-extending
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`member that extends from the earbud portion of the earphone. The downwardly-
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`extending members are not numbered with a reference number in Rosener’s Figure
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`5, but the reproduced Figure 5 is annotated to identify the downwardly-extending
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`members.
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`10.
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`In such a configuration, the downwardly-extending member for each
`
`earphone is intended to extend downwardly through the intratragal notch of the
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`user’s ear. Stated another way, at least a portion of the downwardly-extending
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`member (e.g. a narrowed neck portion) is sized to be received in the space defined
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`between the tragus and antitragus of the user’s ear. The weight of the downwardly-
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`extending member pulls the earbud downward within the concha, which serves to
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`keep the earbud seated in the user’s ear on the lower surface of the concha.
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`11. Referring to FIG. 10A of Hankey, reproduced below, Hankey depicts a
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`headset 1000 that includes a primary housing 1010 attached to an earbud 1020 at a
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`neck 1030. The neck 1030 is a narrowed portion received by the intratragal notch
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`of the user’s ear. The weight of the primary housing 1010 pulls the earbud 1020
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`downward within the concha, which serves to keep the earbud 1020 seated on the
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`lower portion of the concha of the user’s ear.
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`12.
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`The securing mechanism of the first and second earphones 502, 504 in
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`Rosener and the headset 1000 in Hankey applies a force vector to the in-ear portion
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`of the earbud to ensure that the earbuds tend to stay on (or secured in) the user’s ear.
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`Diagram 2 below, is a free-body diagram schematically depicting the cumulative
`
`force (denoted “Fdownwardly-extending member”) applied by downwardly-extending
`
`members of Rosener’s earphones 502, 504 and Hankey’s headset 1000. As shown
`
`in Diagram 2, the cumulative force, Fdownwardly-extending member, is a downward force
`
`acting in the direction of the downwardly-extending member, i.e. through the
`
`intratragal notch of the user’s ear. Because the downwardly-extending member and
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`resultant downward force, Fdownwardly-extending member, extend downward from the concha
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`through the intratragal notch, the distance between the downward force, Fdownwardly-
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`extending member, and the in-ear portion of the earbud is minimized. The corresponding
`
`moment generated by the downward force, Fdownwardly-extending member, at the in-ear
`
`portion is similarly minimized and the earpiece maintains a secure fit in the user’s
`
`ear.
`
`Diagram 2. Force Vector Diagram.
`
`13. Dyer describes an earphone 100, shown in FIG. 1 of Dyer, reproduced
`
`below, which includes outer earphone enclosure 115, sound delivery member 111,
`
`and eartip 121. Outer earphone enclosure 115 houses low-frequency armature driver
`
`101 and high-frequency armature driver 103. Dyer’s earphone employs a different
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`securing mechanism than Rosener and Hankey. More specifically, Dyer’s eartip 121
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`extends into a user’s ear canal and expands to create a seal between the eartip 121
`
`and the user’s ear canal.2 The seal secures the earphone 100 within the user’s ear.
`
`14.
`
`The Cooperstock Declaration states, “the POSITA would arrive at a
`
`combined Rosener-Hankey-Dyer canalphone, such as, for example, the canalphone
`
`shown in the following figure, which includes a body portion containing canalphone
`
`elements, including the acoustic components, of Dyer’s canalphone.” APPLE-1003
`
`at ¶97 (emphasis in original). According to Cooperstock, the “body portion”,
`
`highlighted with red in Cooperstock’s composite figure, reproduced below,
`
`2 The eartip 121 is a “soft, pliable material such as foam or silicon in order to achieve
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`the desired snug fit within the user's ear canal.” Dyer, at col. 1, lines 54-56.
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`“corresponds to the portion of the housing that contacts a user’s ear and is inserted
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`into an ear of user 500 when worn.” Id. at ¶98 (emphasis added).
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`15. As a preliminary matter, the entire “body portion” in Cooperstock’s
`
`Rosener-Hankey-Dyer canalphone would not fit in a user’s ear. Cooperstock’s
`
`“body portion” includes eartip 121, sound delivery member 111, and outer earphone
`
`enclosure 115 (all from Dyer), along with a neck 1030 (from Hankey). The neck
`
`1030 connects the remainder of the “body portion” to Hankey’s primary housing
`
`1010. From the neck 1030 to the eartip 121, the “body portion” defines a straight
`
`arm with a bulbous outer earphone enclosure 115 between the neck 1030 and the
`
`sound delivery member 111.
`
`16. Cooperstock’s “body portion” does not account for the ear canal’s
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`geometry. More specifically, the ear canal bends and tapers inwardly from the
`
`concha, however, Cooperstock’s “body portion” defines a straight structure (or arm)
`
`that does not complement the shape of the user’s ear canal. Jamming the “body
`
`portion” including the outer earphone enclosure 115 into the user’s ear would be—
`
`at best—uncomfortable for the user. Moreover, if the straight “body portion” was
`
`somehow jammed into the user’s ear, the canalphone would achieve a poor fit in the
`
`user’s ear. The ear tip 121 at one end of the straight “body portion” would meet
`
`resistance along the contours and tapering of the ear canal, which would prevent the
`
`eartip 121 from reaching a suitable sealing location in the ear canal. The contoured
`
`geometry of the ear canal would also misalign the neck 1030 at the opposite end of
`
`the straight “body portion” with the user’s intratragal notch so that the neck 1030
`
`would not be seated in the user’s intratragal notch.
`
`17.
`
`If Cooperstock’s “body portion” was partially inserted into a user’s ear,
`
`eartip 121 and sound delivery member 111 would be positioned in the concha and/or
`
`may extend into the ear canal; however, the bulbous outer earphone enclosure 115
`
`would not fit in the user’s ear. The geometry of outer earphone enclosure 115 would
`
`prevent eartip 121 from sufficiently penetrating the ear canal in order to form a seal
`
`therein. As a result, eartip 121 would be an inadequate securing mechanism for the
`
`Rosener-Hankey-Dyer canalphone. The geometry of the outer earphone enclosure
`
`115 would also prevent the neck 1030 from being held in the intratragal notch and,
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`thus, the neck 1030 (between earbud 1020 and primary housing 1010) would also be
`
`an inadequate securing mechanism for the Rosener-Hankey-Dyer canalphone.
`
`Cooperstock’s Rosener-Hankey-Dyer canalphone lacks an adequate securing
`
`mechanism to hold the canalphone in a user’s ear, which would lessen the sound
`
`quality characteristics of the earbud and result in earphones that are uncomfortable
`
`for the user.
`
`18. Additionally, because only Dyer’s eartip 121 and sound delivery
`
`member 111 in Cooperstock’s Rosener-Hankey-Dyer canalphone would be
`
`positioned within the user’s ear, the primary housing 1010 would be spaced apart
`
`from the user’s ear due to the length of Cooperstock’s “body portion.” As such, the
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`primary housing 1010 would be displaced away from the intratragal notch and the
`
`downwardly-extending
`
`force, Fdownwardly-extending member, would not extend
`
`therethrough. More specifically, the added length of the outer earphone enclosure
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`115 would contribute to an extended moment arm between eartip 121 and primary
`
`housing 1010, and the primary housing 1010 would have a weight that generates a
`
`downwardly-extending force. The downwardly-extending force of primary housing
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`1010 is offset from the in-ear portion of the canalphone by the length of the extended
`
`moment arm, and the downwardly-extending force would generate a moment force
`
`in proportion to the length of the extended moment arm. Such a moment force would
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`effectively apply torque to Cooperstock’s “body portion” so that the “body portion”
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`would seek to pivot the “body portion” out of the user’s ear. Any connection
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`between the in-ear portion of the canalphone and the user’s ear would be tested by
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`this torque. Moreover, the extended moment arm between the neck 1030 and the
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`sound delivery member 111/eartip 121 would exasperate the effect of any force—in
`
`addition to the downwardly-extending force corresponding to the weight of the
`
`primary housing—applied to the primary housing 1010. In short, Cooperstock’s
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`Rosener-Hankey-Dyer canalphone would be easily dislodged from a user’s ear
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`during normal, everyday use.
`
`19.
`
`The outer earphone enclosure 115 in Dyer is large enough to enclose
`
`and protect Dyer’s low-frequency armature driver 101 and high-frequency armature
`
`driver 103, which are the acoustic transducers for Dyer’s earphone 100. An ill-fitting
`
`canalphone prone to acoustic leakage, such as Cooperstock’s Rosener-Hankey-Dyer
`
`canalphone, would require a larger acoustic transducer than well-fitting earphones
`
`for equivalent sound quality. A relatively larger acoustic transducer explains the
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`bulbous geometry and length of the outer earphone enclosure 115 even as applied in
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`Cooperstock’s Rosener-Hankey-Dyer canalphone.
`
`20.
`
`This is why, in my opinion, Cooperstock’s Rosener-Hankey-Dyer
`
`canalphone would not stay in a user’s ear. The canalphone does not include an
`
`adequate securing mechanism, and the “body portion” thereof forms an extended
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`cantilevered arm between the in-ear portion of the canalphone and the primary
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`housing 1010, which would generate a significant torque at the in-ear portion from
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`the offset weight of the primary housing. Such torque would cause user discomfort
`
`as the canalphone is rotated upward away from the lower surface of the concha and
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`would likely dislodge the canalphone from the user’s ear. In my years of experience,
`
`I have never seen a canalphone like Cooperstock’s Rosener-Hankey-Dyer
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`canalphone, which lacks an adequate securing mechanism and has an elongated arm
`
`between the primary housing and the in-ear portion. Cooperstock’s canalphone is
`
`also not aesthetically pleasing because the primary housing 1010 would be
`
`positioned awkwardly far from the user’s ear.
`
`III. CONCLUDING REMARKS
`21.
`I am not being paid specifically for making this declaration, although I
`
`am paid by Koss for my employment. I have no direct interest in the outcome of
`
`any litigation involving the ’982 Patent, although I own stock in Koss.
`
`22.
`
`In signing this declaration, I recognize that this Declaration will be filed
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`as evidence in a contested case before the Patent Trial and Appeal Board of the
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`United States Patent and Trademark Office. I also recognize that I may be subject
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`to cross-examination in the case and that cross-examination will take place within
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`the United States. If cross-examination is required of me, I will appear for cross-
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`examination within the United States during the time allotted for cross-examination.
`
`23.
`
`I am a U.S. citizen, a resident of the United States, over 18 years of age,
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`and mentally competent to make this Declaration.
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`I have personal knowledgeof the
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`facts stated in this declaration and could testify competently to them if asked to do
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`SO.
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`24.
`
`I declare that all statements made herein of my own knowledgearetrue
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`and that all statements made on information and belief are believed to be true, and
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`further that these statements were made with the knowledge that willful false
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`statements and the like so made are punishable by fine or imprisonment, or both,
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`under Section 1001 of Title 18 of the United States Code.
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`Executed this 2¢™ day of September, 2021 in pewewieFF —_, Wisconsin
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`ee S. Blair
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