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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` ______________________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ______________________________
`
` TENNANT COMPANY,
`
` Petitioner,
`
` v.
`
` OXYGENATOR WATER TECHNOLOGIES, INC.,
`
` Patent Owner.
`
` Patent No. RE45,415
`
` Reissue Date: March 17, 2015
`
` Title: FLOW-THROUGH OXYGENATOR
`
` ________________________________
`
` VIDEO-RECORDED DEPOSITION OF:
`
` DR. MARIO TREMBLAY
`
` _________________________________
`
` Reported by: Gale Sweeney Christensen,
`
` CSR, RPR
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`www.veritext.com
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`888-391-3376
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`Veritext Legal Solutions
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`1 A P P E A R A N C E S
`2 Petitioner by: R. SCOTT JOHNSON
` THOMAS M. PATTON
`3 Attorneys at Law
` Suite 301
`4 111 East Grand Avenue
` Des Moines, Iowa 50309-1884
`5 rsjohnson@fredlaw.com
` tpatton@fredlaw.com
`
`6
`
`Patent Owner
`7 by: J. DEREK VANDENBURGH
` AARON W. PEDERSON
`8 Attorneys at Law
` Suite 4200
`9 225 South Sixth Street
` Minneapolis, MN 55402
`10 dvandenburgh@carlsoncaspers.com
` apederson@carlsoncaspers.com
`
`Also present: Dennis Goering, videographer
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`11
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`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
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`1 INDEX OF EXAMINATION
`2 Examination by Page
`3 Mr. Vandenburgh 5, 185
`4 Mr. Johnson 174
`5 EXHIBITS
`6 Exhibit
`Number Description Marked
`
`7
`
`Exhibit 2111 Petition for
`8 Inter Partes Review
` US Patent RE45,415
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`9
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`10
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`11
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`Exhibit 2112 TC_IPR_156 to 157
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`Exhibit 2113 TC_IPR_158 to 188
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`Exhibit 2114 Picture Wykey
`12 electrolysis apparatus
`13 Exhibit 2115 TC_IPR_272
`14 Exhibit 2116 E-Cell 3 Operation and
` Water Testing
`15 Instructions
` TC_IPR_273 to 275
`
`16
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`17
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`18
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`Exhibit 2117 TC_IPR_259 to 260
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`Exhibit 2118 TC_IPR_298
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`Exhibit 2119 TC_IPR_276 to 281
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`19
`20 INDEX OF ATTORNEY REQUESTS
`21 Request by Page Line
`22 Mr. Vandenburgh1 46 2
`23 Mr. Vandenburgh2 161 14
`24
`25
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`Page 2
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`Page 4
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`1 P R O C E E D I N G S
`2 THE VIDEOGRAPHER: We are on the
`3 record. Here begins media unit 1 in the
`4 video deposition of Dr. Mario Tremblay with
`5 the United States Patent and Trademark Office
`6 before the Patent Trial and Appeal Board,
`7 case number IPR 2021-00625, patent RE45,415,
`8 Tennant Company, Petitioner, versus
`9 Oxygenator Water Technologies, Patent Owner.
`10 Today's date is October 21st, 2021.
`11 The time on the video monitor is 9:11. The
`12 videographer for today is Dennis Goering,
`13 representing Veritext Corporation.
`14 The video deposition is taking
`15 place at the offices of Fredrikson & Byron,
`16 111 East Grand Avenue, Suite 301, Des Moines,
`17 Iowa.
`18 Will Counsel please voice identify
`19 themselves and state whom they represent.
`20 MR. VANDENBURGH: For the Patent
`21 Owner this is Derek Vandenburgh of the
`22 Carlson Caspers firm.
`23 MR. PEDERSON: Also Aaron Pederson
`24 of the Carlson Caspers firm.
`25 MR. JOHNSON: And for the
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`Page 3
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`Page 5
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`1 Petitioner this is Scott Johnson with
`2 Fredrikson & Byron.
`3 MR. PATTON: And Thomas Patton,
`4 Fredrikson & Byron.
`5 THE VIDEOGRAPHER: The court
`6 reporter today is Gale Sweeney, representing
`7 Veritext. Would the court reporter please
`8 swear in the witness.
`9 MARIO TREMBLAY, PH.D.,
`10 called as a witness, having been first duly
`11 sworn, testified as follows:
`12 CROSS-EXAMINATION
`13 BY MR. VANDENBURGH:
`14 Q. Good morning, Dr. Tremblay.
`15 A. Good morning.
`16 Q. I don't know if we had a chance to
`17 introduce ourselves. I'm Derek Vandenburgh,
`18 representing the Patent Owner, OWT, in this
`19 case. If would you please just for the
`20 record spell your first and last name and
`21 also give us your home address.
`22 A. Yes. So my name is Mario Tremblay,
`23 M-a-r-i-o, T-r-e-m-b-l-a-y. My home address
`24 is 145 Fourteenth Avenue North,
`25 St. Petersburg, Florida 33701.
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`Page 6
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`Page 8
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`1 Q. Great. Have you had your deposition
`2 taken before?
`3 A. Yes.
`4 Q. So you understand that you are under
`5 oath this morning just as if we were in a
`6 court of law?
`7 A. I do.
`8 Q. And you understand that the basic rules
`9 of the road, that I'm going to try to ask you
`10 clear questions. I'd ask that you try to
`11 give me clear answers. And if you do answer
`12 my question, I'm going to assume you
`13 understood it. Is that fair?
`14 A. That's fair.
`15 Q. And one of the biggest difficulties that
`16 often happens is us talking over each other.
`17 Try to let me finish my questions, and I'll
`18 try to let you finish your answer. Is that
`19 fair?
`20 A. That's fair.
`21 Q. All right. And then I think the last
`22 one that often comes up is we need to have
`23 you try to avoid head shakes, either yes or
`24 no or, you know, uh-huh or huh-uh because
`25 those are very difficult for the court
`
`1 A. Yes.
`2 Q. Where was that lawsuit venue?
`3 A. In Charlotte.
`4 Q. Were you representing the patent owner
`5 in that case or the accused infringement?
`6 A. The accused infringement.
`7 Q. And then tell me about the second case
`8 that you served as an expert in where you
`9 were deposed. First of all, how long ago was
`10 that one?
`11 A. More than 30 years ago.
`12 Q. All right. Do you recall what the
`13 general subject matter of that was?
`14 A. It was about coffee analysis and there
`15 was a foreign material thought to be a
`16 poison, and I analyzed the material,
`17 confirmed what the material was, and I
`18 testified in court what I -- what I did.
`19 Q. Did you say coffee?
`20 A. Coffee, Folgers coffee.
`21 Q. Yeah, okay. All right. Are you
`22 currently employed?
`23 A. I'm a consultant.
`24 Q. What sort of consulting do you do?
`25 A. Personal care, home care, COVID, and
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`Page 7
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`Page 9
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`1 reporter to decipher. So I'd ask that you
`2 try to remember to use, you know, yes or no
`3 if that's the appropriate part of your
`4 answer. Fair?
`5 A. Yes.
`6 Q. Great. All right. Let's jump into it.
`7 How many times have you had your deposition
`8 taken?
`9 A. Twice.
`10 Q. In either of those instances were you
`11 serving as an expert witness?
`12 A. Yes.
`13 Q. And is that the case of both of them?
`14 A. Yes.
`15 Q. Let's start with the most recent one.
`16 How long ago was that deposition?
`17 A. Last year.
`18 Q. And what was that case?
`19 A. It was a case regarding perfumes and
`20 reverse engineering via GC—MS. Do you want
`21 me to explain what GC—MS stands for?
`22 Q. Sure.
`23 A. Gas chromatography—mass spectrometry.
`24 Q. Was that in connection with a lawsuit of
`25 some sort?
`
`1 other related things in this field. The
`2 personal care is products.
`3 Q. For how long have you been a consultant?
`4 A. Four years.
`5 Q. During your consulting time have you
`6 been involved in any consulting projects
`7 other than this case that involves
`8 electrolysis?
`9 A. No.
`10 Q. I think in the declaration you gave in
`11 this case you did indicate that you did have
`12 some work in the area of electrolysis earlier
`13 in your career; is that correct?
`14 A. That's correct.
`15 Q. And where were you employed during that
`16 time?
`17 A. Procter & Gamble.
`18 Q. And when is the latest that you can
`19 recall that you were involved in doing
`20 electrolysis work while you were at Procter &
`21 Gamble, how recent?
`22 A. It was before 9/11.
`23 Q. So prior to 2001?
`24 A. Yes.
`25 Q. I take it, do you recall that because we
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`1 all sort of know what we were doing around
`2 that time in the world?
`3 A. Because I designed electrolysis cell for
`4 DARPA and the Pentagon.
`5 Q. And you recall that was in 2001 or
`6 shortly before that?
`7 A. I did work before that. The majority of
`8 the work prior to that.
`9 Q. And over what time period did you work
`10 on that project for DARPA, you said?
`11 A. DARPA and the Pentagon.
`12 Q. Yes. And over what time frame did you
`13 do that work?
`14 A. That work -- that work carried on for
`15 three years. I worked on it about a year and
`16 a half.
`17 Q. And was that your only project at
`18 Procter & Gamble involving electrolysis?
`19 A. No.
`20 Q. How many other projects did you have
`21 while at Procter & Gamble involving
`22 electrolysis?
`23 A. Several.
`24 Q. Did they all involve the electrolysis of
`25 water?
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`Page 11
`1 A. Water as a base material, but more than
`2 just water.
`3 Q. Okay. Did any of those projects involve
`4 electrolysis of ordinary water?
`5 A. Yes.
`6 Q. Does the electrolysis reaction change
`7 depending on what's in the water?
`8 A. Yes.
`9 Q. I want to talk about the work that
`10 you've done in this case. Now, you've
`11 prepared a declaration that got submitted in
`12 connection with this IPR; correct?
`13 A. Yes.
`14 Q. And who have you been retained by for
`15 your work in this case?
`16 A. Scott.
`17 Q. And when were you retained?
`18 A. Approximately one and a half year ago.
`19 Q. So that would make it in the spring of
`20 of 2020?
`21 A. I am not certain on the time.
`22 Q. But you're confident it was in 2020?
`23 A. I'm confident it was about a year ago to
`24 a year and a half ago. I really don't know
`25 the first of the date.
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`Page 12
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`1 Q. What were you asked to do?
`2 MR. JOHNSON: Objection, form,
`3 instruct the witness not to answer to the
`4 extent it calls for attorney-client or work
`5 product protections.
`6 Q. Are you going to not answer my question?
`7 A. Do I have to?
`8 Q. I believe so, yes.
`9 A. Okay. I was asked to reproduce cells,
`10 and I reproduced a cell that was based on
`11 Wykey and a cell that was based on Davies.
`12 Q. Break that down a little bit. We'll be
`13 talking a lot about Wykey and Davies patents
`14 today. First of all, how did you become
`15 aware of the Wykey patent?
`16 A. So after Scott called me, I did a prior
`17 art search, sent a series of patents.
`18 Several were selected and discussed, and
`19 those two were chosen to create cells that
`20 represented the Wykey and Davies design.
`21 Q. So you identified both Wykey and Davies
`22 in the course of a prior art search that you
`23 did?
`24 A. I identified several of the patents that
`25 I sent, and some patents were sent to me.
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`Page 13
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`1 And I don't recall if these two were
`2 identified by me solely or if it was part of
`3 the overall search. I put all of the art
`4 together.
`5 Q. What did you search for?
`6 A. I searched for electrolysis of water.
`7 Q. Were you looking for anything more
`8 specific? What caused you to focus in on
`9 Wykey and Davies?
`10 A. I was sent a patent on Senkiw.
`11 Q. So I take it you had reviewed the Senkiw
`12 patent before you did your prior art search?
`13 A. I did.
`14 Q. And how was the Senkiw patent identified
`15 to you?
`16 A. It was sent by Scott.
`17 Q. So is it fair to say that your prior art
`18 search was to look for prior art that you
`19 believed was similar to what's disclosed in
`20 the Senkiw patent?
`21 A. Yes.
`22 Q. So you weren't asked to just find prior
`23 art, you know, that deals with a particular
`24 problem or that produces a particular
`25 publicize; correct?
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`Page 16
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`1 A. Correct.
`2 Q. Were you familiar with either the Wykey
`3 or the Davies patents prior to your work in
`4 this case?
`5 A. No.
`6 Q. Were you aware of any commercialized
`7 products based on those patents prior to your
`8 work in this case?
`9 A. No.
`10 Q. Are you aware of any commercialized
`11 products now relating to those patents?
`12 A. No.
`13 Q. At the time you did your prior art
`14 search, were you already contemplating that
`15 you would be making samples according to some
`16 patents?
`17 A. No.
`18 Q. When was that decision made?
`19 A. After several conversations with Scott.
`20 Q. And why did you decide to make
`21 reproductions of devices that you believed
`22 were in accordance with those patents?
`23 A. I was asked by Scott.
`24 Q. And what was the purpose of your doing
`25 so?
`
`1 instructions?
`2 A. I provided them over the phone, and it
`3 was shortly after I was asked to find a
`4 contract lab to build the cells.
`5 Q. So I'm a little confused by that. So
`6 are you saying that Mr. Pylkki did not build
`7 the cells?
`8 A. He did build the cells.
`9 Q. You had investigated a contract lab but
`10 instead went to Mr. Pylkki?
`11 A. I looked at many contract lab. It would
`12 have taken -- it was during the pandemic. It
`13 would have taken six months to a year for any
`14 of my contract lab to build a cell like the
`15 Wykey and Davies.
`16 Q. And you understand that Mr. Pylkki at
`17 the time was working for Tennant?
`18 A. Yes.
`19 Q. Was he employed by Tennant at that time
`20 point?
`21 A. As far as I believe.
`22 MR. JOHNSON: And I do have a
`23 spelling on that. It's P-y-l-k-k-i.
`24 BY MR. VANDENBURGH:
`25 Q. When you asked Mr. Pylkki to build these
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`Page 15
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`Page 17
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`1 A. I was asked to reproduce the Wykey
`2 patent and the Davies patent, the cells.
`3 Q. You also in your report I think indicate
`4 that you -- well, strike that. We're going
`5 to be looking at physical reproductions that
`6 you were involved in testing of. Did you
`7 physically yourself build those?
`8 A. No.
`9 Q. Who built them?
`10 A. Russ Bilski (phonetic).
`11 Q. Pylkki, I believe?
`12 A. Pylkki.
`13 Q. I think it's P-y-l-l-k-i {sic}?
`14 A. P-y-l-l-k-i {sic}.
`15 MR. JOHNSON: I thought it was two
`16 ks, but --
`17 A. I'll take your word.
`18 MR. VANDENBURGH: We'll get it at a
`19 break.
`20 MR. JOHNSON: We'll get it at a
`21 break.
`22 BY MR. VANDENBURGH:
`23 Q. Did he make them per your instructions?
`24 A. Yes.
`25 Q. When and how did you provide those
`
`1 reproductions, was that the first time you
`2 had spoken with him?
`3 A. Yes.
`4 Q. Was there anybody else on the call
`5 during that conversation?
`6 A. I don't believe our first call when I
`7 called Russ directly.
`8 Q. And during that first call what did you
`9 tell him to do?
`10 A. I asked him if he would be capable to
`11 build these two cells that I described to
`12 him.
`13 Q. Did you provide specific dimensions
`14 during that call?
`15 A. The first call?
`16 Q. Correct.
`17 A. I don't believe so.
`18 Q. And what did Dr. Pylkki tell you in
`19 response to your request?
`20 A. He was fairly certain that he had the
`21 equipment to be able to reproduce the cells
`22 that I described to him.
`23 Q. Now, he also built a reproduction
`24 purported to be of a patent of yours;
`25 correct?
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`1 A. Correct.
`2 MR. JOHNSON: Objection to form.
`3 Q. So we'll call that the Tremblay
`4 reference.
`5 A. Tremblay reference.
`6 Q. So you also asked him to build a
`7 reproduction of the Tremblay reference?
`8 A. I did.
`9 Q. Did you ask him to reproduce anything
`10 else?
`11 A. I asked him to reproduce another cell
`12 recently.
`13 Q. So that was not done in connection with
`14 what ultimately became the two declarations
`15 that you filed for IPR proceedings?
`16 A. No.
`17 Q. What is that one a reproduction of?
`18 MR. JOHNSON: Objection and
`19 instruct the witness not to answer. We're
`20 getting into work product for a district
`21 court litigation that is not the subject of
`22 these IPR proceedings. So I will instruct
`23 the witness not to answer questions about
`24 work he has done outside of these IPR
`25 proceedings.
`
`1 point a clean copy of, I believe,
`2 Exhibit 1003?
`3 MR. PEDERSON: Yep.
`4 Q. Exhibit 1003. Do you recognize this as
`5 the declaration that you signed in connection
`6 with this IPR proceeding?
`7 A. Well, based on the first page, yes. Do
`8 you want me to look through it?
`9 Q. Please.
`10 MR. JOHNSON: And objection, form.
`11 Just so the record's clear, this is just the
`12 declaration only. It does not include any of
`13 the exhibits to it.
`14 MR. VANDENBURGH: Thank you.
`15 A. Looks like the same copy.
`16 Q. Great. If you would turn to page 9 of
`17 this document, in paragraph 14 you describe
`18 what you believe to be a person of ordinary
`19 skill in the art pertaining to OWT's '415
`20 patent in the 2003 time frame; is that
`21 correct?
`22 A. Correct.
`23 Q. How did you come to that opinion?
`24 A. Which opinion?
`25 Q. The opinion about what the level of
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`Page 21
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`1 BY MR. VANDENBURGH:
`2 Q. All right. So just to be clear, for the
`3 time period prior to your declarations that
`4 were submitted in connection with the IPRs,
`5 did you ask Mr. Pylkki to create any
`6 reproductions other than for Davies, Wykey,
`7 and Tremblay?
`8 A. No.
`9 Q. Why did you choose those three rather
`10 than other prior art references you were
`11 aware of?
`12 A. I was asked by Scott to reproduce Wykey
`13 and Davies.
`14 Q. So those two, the sole reason is because
`15 you were told by Tennant's counsel; is that
`16 fair?
`17 A. Yes.
`18 Q. How about Tremblay? Why did you choose
`19 to reproduce the Tremblay?
`20 A. I was asked by Scott.
`21 (Deposition Exhibit 2111 was
`22 marked for identification by the
`23 reporter.)
`24 Q. I would like to show you what I have
`25 marked as Exhibit 2111. It is also at this
`
`1 ordinary skill in the art for the subject
`2 matter the '415 patent was in the 2003 time
`3 frame?
`4 A. The most simple way I could describe a
`5 skill set needed to do -- to do what you just
`6 described.
`7 Q. And how would you describe the subject
`8 matter of the '415 patent?
`9 A. The '415, the Senkiw patent?
`10 Q. Correct.
`11 A. A patent that generate small oxygen
`12 bubble of less than 50 micron with a critical
`13 distance and also nanobubbles, the critical
`14 distance in nanobubbles and a few other
`15 detail. Do you want me --
`16 Q. Well, I guess my question -- I'm trying
`17 to understand -- I assume that when you
`18 described the field of the '415 patent is it
`19 that specific? Are you saying that a person
`20 of skill in the art would be somebody who
`21 works specifically with bubbles under
`22 50 microns, or is it more generic than that?
`23 A. I'm sorry. I thought you asked me to
`24 describe the Senkiw patent.
`25 Q. I'm trying to understand the field of
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`Page 22
`1 the '415 patent as described in paragraph 14
`2 of your declaration.
`3 A. Water electrolysis.
`4 Q. Now, you say that in paragraph 14 that a
`5 person of ordinary skill in the art would
`6 have a degree in chemistry, chemical
`7 engineering, or similar discipline and at
`8 least two years of experience with
`9 electrolysis or alternatively equivalent
`10 industry experience; fair?
`11 A. Yes.
`12 Q. How much industry experience would one
`13 need to have to be a person of ordinary skill
`14 in the art if they don't have chemistry,
`15 chemical engineering, or some other degree?
`16 A. A similar amount of time.
`17 Q. So also then just two years?
`18 A. Yes.
`19 Q. So we could, I think, for your opinion
`20 just condense these two and say you have to
`21 have two years working in the field
`22 regardless of your degree?
`23 MR. JOHNSON: Objection to form.
`24 A. Yes.
`25 Q. Do you consider yourself to have been a
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`Page 24
`1 that. Based on what you know today, when you
`2 build an electrolysis cell, are there
`3 multiple factors that will affect whether or
`4 not oxygen bubbles are formed?
`5 A. Yes.
`6 Q. And are there multiple factors that
`7 affect the size of oxygen bubbles if they are
`8 formed that are formed?
`9 A. Yes.
`10 Q. Let's go through some of those. One
`11 would be the shape and size of the
`12 electrodes; correct?
`13 A. Yes.
`14 Q. And another would be the spacing of the
`15 electrodes; correct?
`16 A. Yes.
`17 Q. Another would be the voltage applied to
`18 the electrodes; correct?
`19 A. Yes.
`20 Q. And the amperage applied to the
`21 electrodes?
`22 A. Yes.
`23 Q. Is whether bubbles will be formed and
`24 the size of them depending on whether the
`25 electrodes are put in static or flowing
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`1 person of at least ordinary skill in the art
`2 in 2003?
`3 A. Yes.
`4 Q. Would you consider yourself to have been
`5 a person of extraordinary skill in the art in
`6 2003?
`7 A. No.
`8 Q. How many years of experience in the
`9 field of water electrolysis had you had by
`10 2003?
`11 A. Approximately three and a half years.
`12 Q. And you have a Ph.D.; correct?
`13 A. Correct.
`14 Q. What is that Ph.D. in?
`15 A. Analytical chemistry.
`16 Q. So you have more than a minimum amount
`17 of time working the field, and you have a
`18 Ph.D. in an area where no skill is required
`19 to be a person of ordinary skill in this art.
`20 Don't you think that makes you a person of
`21 extraordinary skill in this art in 2003?
`22 MR. JOHNSON: Objection, form,
`23 compound.
`24 A. No.
`25 Q. Now, based on your experience -- strike
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`1 water?
`2 MR. JOHNSON: I'm sorry. Can I
`3 have that question read back.
`4 (The requested portion of the
`5 record was read by the court
`6 reporter.)
`7 MR. JOHNSON: Objection to form,
`8 compound.
`9 BY MR. VANDENBURGH:
`10 Q. It is compound. I'll break it up. Is
`11 the question of whether you will get bubbles
`12 at all in an electrolysis process dependent
`13 on whether the electrodes are put in static
`14 or flowing water?
`15 A. No.
`16 Q. Is the size of bubbles that will be
`17 created dependent on whether the electrodes
`18 are put in static or flowing water?
`19 A. No.
`20 Q. So your understanding is, for example,
`21 if you have a high flow velocity across the
`22 electrodes, that won't change the size of
`23 bubbles that are formed on those electrodes?
`24 A. How do you define high?
`25 Q. At this point I suppose I'm asking at
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`1 any level, you know, reasonable in the real
`2 world whatsoever.
`3 A. At a reasonable flow rate, they will all
`4 generate bubbles.
`5 Q. Okay. Will the size of the bubbles vary
`6 depending upon how high the flow velocity is
`7 across the electrodes?
`8 A. Not unless you have an extraordinarily
`9 high rate.
`10 Q. And when you say extraordinarily high,
`11 define what you mean by that.
`12 A. Unusual.
`13 Q. I mean, can you tell me in feet per
`14 minute or feet per second?
`15 A. Hundreds of gallons per minute.
`16 Q. Now, I think this may come up later on
`17 in this deposition, so I want to make sure we
`18 are on the same page. You can define flow
`19 rate in terms of gallons per minute; correct?
`20 A. Yes.
`21 Q. But the actual velocity of the water as
`22 it travels over the electrodes is going to
`23 depend on more than just that flow rate in
`24 gallons per minute; correct?
`25 A. Yes.
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`1 created.
`2 MR. JOHNSON: Objection to form.
`3 A. If the speed at which you're flowing
`4 across the anode, which is where the oxygen
`5 bubbles are created, is so excessive, you
`6 could change the form, the shape of the
`7 bubble, the diameter of the bubble, you can
`8 change the configuration, so it would have an
`9 impact if you are so fast that you're
`10 sheering the surface of the electrode.
`11 Q. Isn't it true that the flowing water can
`12 knock a bubble off of the anode as it's being
`13 formed?
`14 A. Yes.
`15 Q. And that act of knocking it off will
`16 change the size of the bubble; correct?
`17 A. Yes.
`18 Q. So in that sense shouldn't it be
`19 reasonable that the rate of the velocity of
`20 water flow should have a substantial effect
`21 on the resulting bubble size?
`22 A. Up to a point.
`23 Q. So if the bubble has, for lack of a
`24 better word, more time to grow on the anode
`25 before it's knocked off by the flow, you'll
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`1 Q. So when you are -- I understand that
`2 perhaps in a particular system a hundred
`3 gallons per minute would be considered very
`4 high, but how does that equate to an actual
`5 velocity of the water over the electrodes?
`6 A. So for clarification, when I said a
`7 hundred gallons per minute, it's with the
`8 type of cells included in the discussion. If
`9 you were to build an industrial size cell,
`10 then it would be a million gallons per
`11 minute.
`12 Q. Okay. Okay. And that's good to know.
`13 So at a hundred gallons per minute in the
`14 size that we are talking about here, can you
`15 equate that to a flow velocity?
`16 A. It would be restricted. It would not
`17 flow at this flow rate.
`18 Q. So are you saying that for the type of
`19 the devices that we are dealing with in this
`20 case you couldn't get the flow velocity high
`21 enough to affect the bubble size?
`22 A. What do you mean bubble size? Do you
`23 mean like any change at all?
`24 Q. No, I guess I am saying a meaningful
`25 change in the size of bubbles that are
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`1 on average get bigger bubbles; correct?
`2 A. Not necessarily.
`3 Q. But it's possible; right?
`4 A. Yes.
`5 Q. Is it hard to predict the effect that
`6 flow rate will have or flow velocity will
`7 have on the size of bubbles?
`8 A. Yes.
`9 Q. Going back to just generally to things
`10 that affect whether bubbles are formed and
`11 the size, one of those is the spacing between
`12 the electrodes; correct?
`13 A. Yes.
`14 Q. And if we are in the situation where we
`15 have flowing water, does the size of bubbles
`16 also depend on the orientation of the
`17 electrodes relative to the flow? In other
`18 words, if the flow is kind of right into a
`19 flat electrode versus running parallel to and
`20 sheering the electrode, that's going to
`21 change the size of the bubbles; correct?
`22 A. Yes.
`23 Q. Does the shape or the housing of the
`24 container that the electrodes are put in
`25 affect whether bubbles are created?
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`1 A. No.
`2 Q. Does the shape of the housing affect the
`3 size of bubbles that are created?
`4 A. Possibly.
`5 Q. Does the conductivity of the water
`6 affect whether or not bubbles will be formed
`7 in a particular system?
`8 A. Yes.
`9 Q. And does it also affect the size of
`10 bubbles that are created in a particular
`11 system?
`12 A. Yes.
`13 Q. Does the particular chemical makeup of
`14 impurities in the water affect whether
`15 bubbles are made in a particular system?
`16 A. Yes.
`17 Q. And does it also affect the size of
`18 bubbles that are made in a particular system?
`19 A. Yes.
`20 Q. All these things that we've discussed
`21 that affect whether and/or what size bubbles
`22 will be formed, was that all known in 2003?
`23 A. Yes.
`24 Q. So a person of skill in the art reading
`25 the '415 patent would understand while
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`1 I assume that's for the same reason, because
`2 increasing the amperage increases current
`3 density and, therefore, bubble size?
`4 A. Yes.
`5 Q. How did electrode spacing affect bubble
`6 size?
`7 A. The current density increases as you
`8 reduce the gap.
`9 Q. So are you saying that the spacing
`10 affects bubble size in exactly the same way
`11 as voltage and amperage do?
`12 MR. JOHNSON: Objection to form,
`13 compound.
`14 A. Can you repeat that, please.
`15 MR. VANDENBURGH: Can I have it
`16 read back.
`17 (The requested portion of the
`18 record was read by the court
`19 reporter.)
`20 MR. JOHNSON: Same objection as to
`21 compound.
`22 A. Yes.
`23 Q. How about the size and shape of the
`24 electrodes? How do those affect bubble size?
`25 A. The greater surface of the electrode
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`1 reading it that many things other than
`2 spacing of the electrodes are going to have
`3 an effect on the bubble size created using
`4 devices described in the patent; correct?
`5 A. Yes.
`6 Q. Now, I want to go back over and discuss
`7 a little bit about what effect will be had by
`8 changing various ones of these parameters.
`9 So let's start with amperage applied to the
`10 electrodes. Does increasing amperage result
`11 in larger or smaller bubbles?
`12 A. So increasing the current density? The
`13 amperage would increase the current density.
`14 The current density has a direct impact on
`15 bubble size.
`16 Q. Just so I understand, the effect is
`17 increasing the voltage increases current
`18 density, and that increases bubble size?
`19 A. Correct.
`20 Q. So higher current density, in your
`21 opinion, results in higher greater bubble
`22 size?
`23 A. Correct.
`24 Q. And so another thing that we talked
`25 about was the amperage affects bubble size.
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`1 creates greater current densities, and that
`2 will have an impact on bubble size.
`3 Q. So you're saying that -- well, strike
`4 that. Does increasing the size of the
`5 electrodes increase current density?
`6 A. If you keep the same voltage and you
`7 increase the electrode size, you will
`8 increase the current density, correct.
`9 Q. And as a result you would expect an
`10 increase in the size of bubbles?
`11 A. Yeah, it -- a nominal increase.
`12 Q. If you increase the size of the
`13 electrodes and keep the voltage the same, the
`14 amperage will increase, will it not?
`15 A. Yes.
`16 Q. How does electrode material affect
`17 whether bubbles are created and the size of
`18 bubbles are created?
`19 A. So aluminum, iron, titanium, they create
`20 different bubbles.
`21 Q. And when you say different bubbles, what
`22 all do you mean? First of all, does it
`23 affect the size of the bubbles that are
`24 created?
`25 A. Yes.
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`1 Q. Can it also affect what type of bubbles
`2 are created, oxygen versus perhaps chlorine
`3 or something else?
`4 A. Yes.
`5 Q. Is the effect of electrode material on
`6 bubble size predictable?
`7 A. How do you describe predictable?
`8 Q. Do you have an expectation in advance of
`9 running an experiment what effect changing
`10 the electrode material will have on bubble
`11 size?
`12 A. If I looked at -- if I did the research
`13 and looked at it, I would be able to predict.
`14 I would not know all of it by heart.
`15 Q. Okay. So it's something that was known
`16 in 2003; correct?
`17 A. Yes.
`18 Q. And but it's not something that is
`19 subject to some sort of mathematical formula?
`20 A. No.
`21 Q. We talked already a bit about flow
`22 velocity, but just to be clear, is it your
`23 opinion that increasing flow velocity will
`24 decrease the size of bubbles that are
`25 created?
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`1 A. Can you repeat this. I'm sorry.
`2 Q. Yeah. Is it your opinion that
`3 increasing flow velocity along the electrodes
`4 will decrease bubble size?
`5 A. So in the practical range that I would
`6 work with or that you're expected to work
`7 with it would be relatively similar in size.
`8 Q. And what is the basis for that opinion?
`9 A. Theoretical comment -- theoretical
`10 expectation. If you flow at excessive speed,
`11 you have a greater impact on the bubble size.
`12 If you're flowing at nominal speeds that are
`13 300 mills per minute or 800 mills per minute,
`14 it won't change the bubble size.
`15 Q. And is that based on testing you've done
`16 or literature you've read?
`17 A. Based on my experience.
`18 Q. And when you say your experience, are
`19 you talking about your experience in
`20 connection with this case or your prior
`21 experience?
`22 A. So my prior experience and from reading
`23 patent arts.
`24 Q. Again, was that then -- to the extent it
`25 was based on reading patents, is that reading
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`1 patents in connection with this case?
`2 A. So prior to this case I did quite a bit
`3 of prior art search and writing different
`4 patents in this area. And that was my
`5 understanding. And I confirmed this by
`6 reading quite a bit more art for this case.
`7 Q. I think we also talked about the -- if
`8 you're in the flowing water situation, the
`9 orientation of the e