1
`
` 2
`
` UNITED STATES PATENT AND
`TRADEMARK OFFICE
`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
`
` 9
`
` Petitioner,
`
` 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
`
`REMOTE VIDEO DEPOSITION OF WILLIAM H. GARDNER
`
`MARCH 3, 2021
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24 Teri C. Gibson, CSR, RPR, CRR
` 471011
`
`25
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 1
`
`
`
` 2
`
` UNITED STATES PATENT AND
`TRADEMARK OFFICE
`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
`
` 9
`
` Petitioner,
`
` 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
`
`REMOTE VIDEO DEPOSITION OF WILLIAM H. GARDNER
`
`MARCH 3, 2021
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24 Teri C. Gibson, CSR, RPR, CRR
` 471011
`
`25
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 1
`
`
`
` 1
`
` 2
`
` UNITED STATES PATENT AND
`TRADEMARK OFFICE
`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
`
` 9
`
` Petitioner,
`
` 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
`
`20
`
`21
`
`22
`
`REMOTE VIDEO DEPOSITION OF WILLIAM H. GARDNER
`
` CONCORD, MASSACHUSETTS
`
` WEDNESDAY, MARCH 3, 2021
`
`23 Reported by:
`
`24 Teri C. Gibson, CSR, RPR, CRR
`
`25 JOB #: 471011
`
`1
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 2
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
`MARCH 3, 2021
`
` 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
`
`2
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 3
`
`
`
` 1 A P P E A R A N C E S:
`
` 2 BAKER BOTTS LLP
`
` 3 Attorneys for Petitioner and the witness.
`
`30 Rockefeller Plaza
`
`New York, New York 10112
`
` BY: JENNIFER TEMPESTA, ESQ.
`
`NICK PALMIERI, ESQ.
`
`(212)408-2500 jennifer.tempesta@bakerbotts.com
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10 LEYDIG, VOIT & MAYER
`
`11 Attorneys for Patent Owner.
`
`Two Prudential Plaza, Suite 4900
`
`180 North Stetson Avenue
`
`Chicago, IL 60601
`
` BY: Wes Mueller, Esq.
`
`Robert T. Wittman, Esq.
`
`312-616-5600 wmueller@leydig.com
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19 ALSO PRESENT:
`
`Dr. Martin Peckerar
`
`Rob Chang, Videographer
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`3
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 4
`
`
`
` 1
`
` 2
`
` P R O C E E D I N G S
`
` VIDEOGRAPHER: Madam Court Reporter,
`
` 3 counselors, one moment, please. We are going on the
`
` 4 record.
`
` 5
`
` Good morning. My name is Rob Chang. I
`
` 6 am a legal videographer associated with Barkley Court
`
` 7 Reporters, located at 10350 Santa Monica Boulevard,
`
` 8 Los Angeles, California 90025. The date is March 3,
`
` 9 2021. The time is 6:07 a.m. Pacific Standard Time.
`
`10 This deposition is taking place via remote method, in
`
`11 the matter of PEAG LLC et al. versus VARTA
`
`12 Microbattery GmbH.
`
`13
`
` Intellectual Property Review, Case
`
`14 number IPR2020-01211 through IPR2020-01214. This is
`
`15 the video deposition of William Gardner, being taken
`
`16 on behalf of respondent.
`
`17
`
` Will counselors for all the parties
`
`18 please identify themselves beginning with respondent
`
`19 counsel.
`
`20
`
` MR. MUELLER: Good morning. This is
`
`21 Wes Mueller from Leydig, Voit & Mayer, representing
`
`22 the patent owner in this inter partes review matter,
`
`23 and with me is Robert Wittman from our firm, and
`
`24 Dr. Martin Peckerar is also present by video as well.
`
`25
`
` MS. TEMPESTA: I am Jennifer Tempesta
`
`4
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 5
`
`
`
` 1 with Baker Botts on behalf of petitioners in these IPR
`
` 2 proceedings, and also with me today is Nick Palmieri,
`
` 3 and I'm also here on behalf the witness.
`
` 4 VIDEOGRAPHER: Thank you.
`
` 5 The court reporter may now swear in the
`
` 6 witness.
`
` 7 (Witness sworn.)
`
` 8 THE WITNESS: I do.
`
` 9 COURT REPORTER: Counsel, you may
`
`10 proceed.
`
`11 MR. MUELLER: Thank you.
`
`12 WILLIAM H. GARDNER
`
`13 DIRECT EXAMINATION
`
`14 BY MR. MUELLER
`
`15 Q. Good morning, Mr. Gardner.
`
`16 Would you please state your full name?
`
`17 A. William H. Gardner.
`
`18 Q. And your residence address?
`
`19 A. 22 Hayward Mill Circle; Concord,
`
`20 Massachusetts.
`
`21 Q. Thank you.
`
`22 You understand that you are appearing today
`
`23 as an expert witness on behalf of the petitioners,
`
`24 correct?
`
`25 A. Correct.
`
`5
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 6
`
`
`
` 1 Q. Have you been retained as an expert witness
`
` 2 before this matter?
`
` 3 A. I have not.
`
` 4 Q. Have you had your deposition taken before?
`
` 5 A. I have not.
`
` 6 Q. So the way the process will go is I will
`
` 7 ask questions. Your counsel may object, but unless
`
` 8 you have an instruction not to answer the question, I
`
` 9 would expect an answer from you. If you need a break,
`
`10 let us know and certainly, we will accommodate that.
`
`11 My only request is that if there is a question
`
`12 pending, that you would please answer it before we go
`
`13 on break.
`
`14 Also, if you don't understand what I am
`
`15 asking, let me know, and I will try to clarify, but
`
`16 otherwise, if you provide an answer, I will assume
`
`17 that you've fairly understood the question; is that
`
`18 fair?
`
`19 A. Um. It is, yes.
`
`20 Thank you. Understood.
`
`21 Q. Okay. Now, you understand that there are
`
`22 actually four IPRs for which you are being deposed
`
`23 today?
`
`24 A. I do.
`
`25 Q. And those relate to four VARTA patents?
`
`6
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 7
`
`
`
` 1 A. That is my understanding.
`
` 2 Q. Okay. And we will refer to them in their
`
` 3 shorthand by the '835 patent, the '581 patent, the
`
` 4 '858 patent and '913 patent, and you understand what
`
` 5 those patent documents are, correct?
`
` 6 A. That's correct.
`
` 7 Q. And you also submitted your expert
`
` 8 declaration in the four IPRs concerning the VARTA
`
` 9 patents, correct?
`
`10 A. Correct.
`
`11 Q. And that was Exhibit 1003 in each of the
`
`12 four IPRs; is that your understanding?
`
`13 A. I do not know the exhibit number.
`
`14 Q. Okay. I will represent that your expert
`
`15 declaration is identified as Exhibit 1003.
`
`16 Did you bring a copy of your expert
`
`17 declaration to the deposition?
`
`18 You did not?
`
`19 A. I did not.
`
`20 MR. MUELLER: Okay. Mr. Chang, we
`
`21 might want to post Exhibit 1003.
`
`22 VIDEOGRAPHER: One moment, please.
`
`23 MR. MUELLER: And as the exhibit is
`
`24 being posted, Mr. Gardner, if you need to refer to it,
`
`25 please do. Not intending this to be a memory
`
`7
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 8
`
`
`
` 1 exercise.
`
` 2
`
` 3
`
` 4
`
` THE WITNESS: Understood.
`
` Thank you.
`
` MR. MUELLER: So, Mr. Chang, can we
`
` 5 simply have it available in case the witness needs to
`
` 6 refer to it?
`
` 7
`
` 8
`
` 9
`
`10
`
` VIDEOGRAPHER: Yes.
`
` (Exhibit 1003 marked for identification,
`
` an expert declaration.)
`
`Q.
`
`So I'd also like to identify four --
`
`11 actually six additional exhibits, the four patents to
`
`12 which these IPRs are subject to.
`
`13
`
` And I will represent to you, Mr. Gardner,
`
`14 that those were all identified as Exhibit 1001, and so
`
`15 we have included the three numbers -- end numbers for
`
`16 the patents in connection with those exhibits, so
`
`17 maybe we can post Exhibit 1001-835, -581, -858, and
`
`-913 as well.
`
`18
`
`19
`
`20
`
`21
`
`22
`
` (Exhibit 1001, 1 of 4; 1001, 2 of 4; 1001,
`
` 3 of 4; and 1001, 4 of 4 marked for
`
` identification, U.S. patents.)
`
` MS. TEMPESTA: And, Wes, just for
`
`23 clarity, is it okay for the witness to then download
`
`24 those from the chat box, so he has them handy on his
`
`25 desktop computer?
`
`8
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 9
`
`
`
` 1 MR. MUELLER: What I would like to do
`
` 2 is have those documents, those exhibits, available to
`
` 3 the witness, because in the course of the deposition,
`
` 4 you no doubt will want to refer to the documents or
`
` 5 you may want to refer to them. And again, I am not
`
` 6 intending this to be an exercise of your -- of your
`
` 7 memory. So, yes, if you would please download them,
`
` 8 so they are available to you, Mr. Gardner.
`
` 9 Are we still trying to post the exhibits?
`
`10 VIDEOGRAPHER: Counselor, we are
`
`11 putting the exhibits into chat, so that the gentleman
`
`12 witness can review them at his leisure.
`
`13 MR. MUELLER: Okay. And as you do
`
`14 that, if you would also move Exhibit 1005, which is a
`
`15 Kaun reference. It's U.S. Patent Publication
`
`16 Number 2005/0233212, as well as Exhibit 1006, which is
`
`17 a Japanese patent publication, Number 2007/294111, to
`
`18 Kobayashi.
`
`19 VIDEOGRAPHER: Yes, sir.
`
`20 MR. MUELLER: Thank you.
`
`21 VIDEOGRAPHER: Counselor, the exhibits
`
`22 that you asked for are now in chat and are available
`
`23 to the gentleman witness.
`
`24 (Exhibit 1005 and Exhibit 1006, marked for
`
`25 identification, patent applications.)
`
`9
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 10
`
`
`
` 1 MR. MUELLER: Okay. Thank you,
`
` 2 Mr. Chang. I am looking at the chat. I don't see
`
` 3 Exhibit 1003. Is that just because of the size?
`
` 4 VIDEOGRAPHER: One moment, please.
`
` 5 MR. MUELLER: Okay.
`
` 6 VIDEOGRAPHER: Exhibit 1003 should be
`
` 7 available to everyone, including the gentleman
`
` 8 witness.
`
` 9 MR. MUELLER: Okay. And then, finally,
`
`10 one of the Exhibit 1001s doesn't appear to be
`
`11 available. It should be EX1001-581.
`
`12 VIDEOGRAPHER: Counselor, the final
`
`13 chat document that was loaded in is a reload of 581.
`
`14 MR. MUELLER: All right. Thank you.
`
`15 BY MR. MUELLER
`
`16 Q. So, Mr. Gardner, you now have a number of
`
`17 exhibits in front of you. I would like to first turn
`
`18 to Exhibit 1003, which is your expert declaration; do
`
`19 you see that?
`
`20 A. I do.
`
`21 Q. Now, have you recently reviewed your expert
`
`22 declaration?
`
`23 A. I have.
`
`24 Q. And do you still stand behind the
`
`25 contentions you make in your expert declaration?
`
`10
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 11
`
`
`
` 1 A. I do.
`
` 2 Q. And is there anything you want to change?
`
` 3 A. There is one aspect in the very beginning
`
` 4 of my background --
`
` 5 Q. Okay.
`
` 6 A. -- which says that I have a position of --
`
` 7 at a company called InoBat Auto. I resigned that
`
` 8 position in December of last year.
`
` 9 Q. Okay. So -- let's see. So where are you
`
`10 at presently?
`
`11 A. I am at QuantumScape, where I have been
`
`12 employed since 2013.
`
`13 Q. Okay. But nothing else, no other changes
`
`14 to your expert declaration?
`
`15 A. That's correct.
`
`16 Q. And all of your opinions regarding the
`
`17 patentability of the claims in the VARTA patents are
`
`18 expressed in your expert declaration?
`
`19 A. That's correct.
`
`20 Q. So I guess -- let's post another exhibit,
`
`21 1004, which is your CV.
`
`22 (Exhibit 1004 marked for identification,
`
`23 Gardner CV.)
`
`24 Q. Now, is that correct, except for the job
`
`25 change that you just identified?
`
`11
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 12
`
`
`
` 1 A. Yes, it is.
`
` 2 Q. Okay. And you have a bachelor's degree in
`
` 3 mechanical engineering?
`
` 4 A. I do.
`
` 5 Q. From Rutgers?
`
` 6 A. Yes.
`
` 7 Q. And you've been involved in various past
`
` 8 job capacities as -- would you say a battery designer
`
` 9 or something else?
`
`10 A. I guess I would say a battery engineer.
`
`11 Q. A battery engineer.
`
`12 So have you been primarily involved on the
`
`13 production side?
`
`14 A. I have been involved in research,
`
`15 engineering and development, and production of
`
`16 batteries.
`
`17 Q. And that's over the course of years since
`
`18 you graduated from Rutgers, correct?
`
`19 A. That's correct.
`
`20 Q. So would you consider yourself to be -- to
`
`21 have a high level of expertise in the area of battery
`
`22 design?
`
`23 MS. TEMPESTA: Objection, form.
`
`24 THE WITNESS: I do consider myself to
`
`25 be an expert in battery design engineering production.
`
`12
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 13
`
`
`
` 1 Q. Okay. So it looked to me like the lion's
`
` 2 share of your work has been in cylindrical cells; is
`
` 3 that a fair characterization?
`
` 4 A. My work involved cylindrical as well as
`
` 5 prismatic cells and smaller form factor cells, often
`
` 6 referred to as coin cells or button cells.
`
` 7 Q. Now, you mention prismatic cells.
`
` 8 Can you explain what a prismatic cell is?
`
` 9 A. Prismatic is a term that is applied to
`
`10 batteries of roughly cuboid shape.
`
`11 Q. So it refers to the geometry of the cell
`
`12 housing; is that correct?
`
`13 A. That's correct.
`
`14 Q. Now, you say that you've also worked on
`
`15 small cells or small form factor cells, and you know
`
`16 those as button cells, correct?
`
`17 A. Small cells of a cylindrical geometry are
`
`18 often referred to as coin cells or button cells. And
`
`19 yes, I have been involved in them.
`
`20 Q. So to your understanding, a button cell is
`
`21 a cell that has a small cylindrical shape, correct?
`
`22 A. There is no formal definition, even no
`
`23 broadly accepted definition within the battery
`
`24 industry of -- let's say no written definition of coin
`
`25 cell or button cell. They are generally referred to
`
`13
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 14
`
`
`
` 1 as the shape of what you might consider a button,
`
` 2 always round, generally of some form factor where they
`
` 3 are shorter than they are wide. Never constrained to
`
` 4 some very specific size.
`
` 5 Q. So, for example, if the diameter of the
`
` 6 cell was 10 feet wide, you would still consider that
`
` 7 to be a button cell?
`
` 8 A. I don't know of any cells that are 10 feet
`
` 9 wide. I haven't contemplated what we might call that.
`
`10 Q. But would you consider that to be a button
`
`11 cell if you were to confront a cell that had a 10-foot
`
`12 wide diameter, but had a smaller height than its
`
`13 diameter, would that be a button cell in your
`
`14 understanding?
`
`15 A. I can't say definitively.
`
`16 Q. Okay. What if you confronted a cell that
`
`17 was cylindrical, that had a diameter of, say, one foot
`
`18 and was six inches in height, would that be a button
`
`19 cell in your understanding?
`
`20 A. I wouldn't argue against someone calling it
`
`21 a button cell.
`
`22 Q. But it is the case, is it not, that a
`
`23 button cell is typically a much smaller diameter than
`
`24 one foot; isn't that fair?
`
`25 A. Most commonly, yes.
`
`14
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 15
`
`
`
` 1 Q. Okay. And in fact, a button cell is
`
` 2 typically quite small; isn't that correct?
`
` 3 A. Quite small is not definitive. Can you be
`
` 4 specific?
`
` 5 Q. All right. How about small enough to fit
`
` 6 in a true wireless headphone.
`
` 7 A. Button cells can be small enough to fit in
`
` 8 wireless headphones, yes. They can also be large
`
` 9 enough where they would not fit in a wireless
`
`10 headphone, a typical wireless headphone size.
`
`11 Q. Now, you indicated that you worked on small
`
`12 cells which are -- or known as coin cells or button
`
`13 cells; is that correct?
`
`14 A. That's correct.
`
`15 Q. Can you describe your work in that area?
`
`16 A. I can.
`
`17 Q. Please do.
`
`18 A. In my position at Electrochem, one of
`
`19 Electrochem's products was a cell that was roughly one
`
`20 inch in diameter and roughly one quarter of an inch
`
`21 tall; that was a production cell. I worked on
`
`22 troubleshooting and solving some process problems with
`
`23 that cell.
`
`24 I've also worked with small zinc air cells
`
`25 in my position at Duracell in a research environment,
`
`15
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 16
`
`
`
` 1 in a common --
`
` 2 Q. Sorry. Go ahead. I apologize.
`
` 3 A. -- in a commonly employed test platform in
`
` 4 research of batteries is called a coin cell, a cell
`
` 5 that is roughly one-inch diameter, roughly 1/8th of an
`
` 6 inch tall. I have been involved in the designing of
`
` 7 those cells and setting up and managing processes by
`
` 8 which they are made.
`
` 9 Q. Now, for the product -- the small product
`
`10 that you worked on for Electrochem, do you recall what
`
`11 the application of that battery was?
`
`12 A. I do not.
`
`13 Q. About what time did you work on the
`
`14 Electrochem button cell?
`
`15 A. It was during my employment at Electrochem,
`
`16 which was roughly one year long, and I will, if you
`
`17 don't mind, I will refer to my CV. I was at
`
`18 Electrochem from August 2005 to October 2006. So it
`
`19 was in that timeframe.
`
`20 Q. Okay. And what kind of structure was the
`
`21 Electrochem product, internally?
`
`22 A. It was a layered -- It was of a layered
`
`23 construction.
`
`24 Q. Okay. What is a layered construction?
`
`25 A. The cell was comprised of three layers; an
`
`16
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 17
`
`
`
` 1 electrode, a cathode electrode, and a separator. The
`
` 2 three layers were nominally in the shape of disks.
`
` 3 Q. Okay. And what type of housing was used in
`
` 4 the Electrochem product?
`
` 5 A. It was a metal housing.
`
` 6 Q. Was the housing beaded over?
`
` 7 A. The housing was not beaded over.
`
` 8 Q. What type of chemistry was used in the
`
` 9 Electrochem battery?
`
`10 A. The type of chemistry was lithium
`
`11 oxyhalide.
`
`12 Q. Was that a primary battery?
`
`13 A. Yes, it was.
`
`14 Q. And can you explain what a primary battery
`
`15 is?
`
`16 A. Yes.
`
`17 Q. Please do.
`
`18 A. In simple terms, there are two categories
`
`19 of batteries: primary and secondary. Secondary
`
`20 batteries are designed to be rechargeable, charge and
`
`21 discharge. And primary batteries are not designed to
`
`22 be rechargeable. They are built in the charge state,
`
`23 and they discharge only.
`
`24 Q. Okay. Now, you said you also worked on
`
`25 zinc air cells that were quite small; do you recall
`
`17
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 18
`
`
`
` 1 that testimony?
`
` 2 A. I do.
`
` 3 Q. Can you -- please briefly explain how a
`
` 4 zinc air cell works.
`
` 5 A. A zinc air cell has an anode that is
`
` 6 comprised of zinc, an electrolyte that is aqueous, a
`
` 7 solution of potassium hydroxide, and a cathode that is
`
` 8 air recharged. My primary work with zinc air cells
`
` 9 was in how they are mechanically assembled. At the
`
`10 time I worked with them, I was not involved in their
`
`11 chemistry.
`
`12 Q. Okay. Now, you mentioned that the cathode
`
`13 is "air recharged." What does that mean?
`
`14 A. As I mentioned, this is many years ago and,
`
`15 at the time, I was not involved in the chemistry, and
`
`16 I do not have expertise in how zinc air cathodes are
`
`17 recharged.
`
`18 Q. Does a zinc air cell need to be vented to
`
`19 atmosphere?
`
`20 A. A zinc air cell does need access to oxygen
`
`21 in order for the reaction to proceed.
`
`22 Q. And why is that?
`
`23 A. As I mentioned, I am not an expert in zinc
`
`24 air chemistry, so I am not able to elaborate any
`
`25 further on that.
`
`18
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 19
`
`
`
` 1 Q. Okay. Now, is it your contention that
`
` 2 design of small button cell batteries is different or
`
` 3 there are different considerations as compared to the
`
` 4 design of conventional cylindrical cell batteries?
`
` 5 A. There are certainly aspects of it that are
`
` 6 different and different considerations need to be
`
` 7 made. There are many aspects, which the
`
` 8 considerations could be either very similar or even
`
` 9 identical.
`
`10 Q. So as you sit here, can you identify some
`
`11 of the different design considerations that would
`
`12 apply to small button cell batteries as compared to
`
`13 conventional cylindrical batteries?
`
`14 A. An obvious difference between small
`
`15 batteries and large batteries is their size as it's
`
`16 stated, and the energy that a battery can deliver is
`
`17 proportional to the quantity of active material that
`
`18 can be contained within the container. So the
`
`19 container occupies some fraction of the total volume
`
`20 of the cell, and as the cell becomes smaller, it
`
`21 becomes a greater and greater engineering challenge to
`
`22 make the container occupy an adequately small volume
`
`23 fraction.
`
`24 Q. And volume fraction is fraction of the
`
`25 total available volume; is that correct?
`
`19
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 20
`
`
`
` 1 A. Yeah. In most simple terms, the volume
`
` 2 fraction of the case is volume of the case divided by
`
` 3 the total volume of the cell.
`
` 4 Q. So other than the size difference between
`
` 5 small button cell batteries and conventional
`
` 6 cylindrical cells, is there any other design
`
` 7 considerations that you can think of?
`
` 8 A. That's a very general question, so I am not
`
` 9 able to say with certainty. If there are -- a
`
`10 specific configuration, I could certainly comment on
`
`11 it.
`
`12 Q. Okay. Maybe we will get to it.
`
`13 Now, in your expert declaration, you
`
`14 indicate that you are an inventor on a number of
`
`15 patents, and I think you testified to that as well; is
`
`16 that correct?
`
`17 A. That's correct.
`
`18 Q. And specifically, in Paragraph 11 of your
`
`19 expert report or your expert declaration, you indicate
`
`20 that two patents that -- on which you are an inventor
`
`21 are of particular relevance to these IPR petitions; do
`
`22 you recall that?
`
`23 A. I do. I've just observed it on my screen.
`
`24 Q. So why did you say two patents that you
`
`25 obtained are of particular relevance to these IPR
`
`20
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 21
`
`
`
` 1 petitions?
`
` 2 A. May I review the content of those two
`
` 3 patents to remind me of their content.
`
` 4 Q. You cited one in your expert report, which
`
` 5 is Exhibit 1014. I am not sure I have the other one
`
` 6 handy, but we will certainly put up Exhibit 1014.
`
` 7 MR. MUELLER: If we can do that now,
`
` 8 Mr. Chang. Thank you. I am not sure he -- we might
`
` 9 have lost him.
`
`10 (Exhibit 1014 marked for identification, a
`
`11 patent.)
`
`12 VIDEOGRAPHER: Counselor, one moment,
`
`13 please. I am having a slight issue. Madam Court
`
`14 Reporter, if we can go off the record for a few
`
`15 moments, I'd appreciate it.
`
`16 COURT REPORTER: Off the record.
`
`17 (Off the record.)
`
`18 VIDEOGRAPHER: We are going back on the
`
`19 record. The time is 6:56 Pacific Standard Time.
`
`20 MR. MUELLER: Mr. Gardner, we had a
`
`21 short break, but prior to the break, I had asked you
`
`22 why, in your view, two of your patents were relevant
`
`23 to these IPR proceedings, and I've shared with you one
`
`24 of your patents, which is your '441 patent; that is
`
`25 Exhibit 1014 in these IPR proceedings. Do you see
`
`21
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 22
`
`
`
` 1 that?
`
` 2
`
` 3
`
`A.
`
`Q.
`
`I do.
`
`Can you explain why the '441 patent, which
`
` 4 is Exhibit 1014, is of particular relevance to these
`
` 5 IPR proceedings?
`
` 6
`
`A.
`
`I can. It relates to batteries of a spiral
`
` 7 wound construction that are contained in a housing.
`
` 8
`
`Q.
`
`But now, you did not contend that your '441
`
` 9 patent should be used as a prior art reference to show
`
`10 that the VARTA patent claims are unpatentable,
`
`11 correct?
`
`12
`
`13
`
`A.
`
`Q.
`
`That's correct.
`
`Okay. Now, Mr. Gardner, in Paragraph 12 of
`
`14 your declaration, you identify materials and
`
`15 information considered. Do you see that?
`
`16
`
`17
`
`A.
`
`Q.
`
`I do.
`
`And it is the case, is it not, that you
`
`18 carefully reviewed all of the materials that are
`
`19 identified at Paragraph 12?
`
`20
`
`21
`
`A.
`
`Q.
`
`That's correct.
`
`But if the -- if a particular item is not
`
`22 identified in connection with, I guess it's
`
`23 Paragraph 13 - I apologize -- then is it fair to say
`
`24 that you have not considered it?
`
`25
`
`A.
`
`All o f the items that were of relevance,
`
`22
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 23
`
`
`
` 1 material in forming my opinion, are listed in 13.
`
` 2 Q. Okay. Now, how did you arrive at the items
`
` 3 in Exhibit 13?
`
` 4 MS. TEMPESTA: Objection, form.
`
` 5 And I would just caution the witness
`
` 6 not to reveal contents of communications with
`
` 7 attorneys in responding to the question.
`
` 8 THE WITNESS: Can you reask the
`
` 9 question, please.
`
`10 Q. So you indicate in Paragraph 13 of your
`
`11 declaration that you reviewed and considered a number
`
`12 of materials, correct?
`
`13 And you identify what those materials are,
`
`14 correct?
`
`15 A. That's correct.
`
`16 Q. So my question is, how did you conclude
`
`17 that the materials identified in Paragraph 13 ought to
`
`18 be the pertinent materials for review in connection
`
`19 with these IPRs.
`
`20 MS. TEMPESTA: Same objection.
`
`21 THE WITNESS: Well, I reviewed the
`
`22 materials in context of the subject patent and
`
`23 determined that they contained relevant information.
`
`24 Q. So did you do independent searching of the
`
`25 available patents in other literature in order to
`
`23
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 24
`
`
`
` 1 understand whether the subject matter of the VARTA
`
` 2 patents was patentable?
`
` 3 A. I did not.
`
` 4 Q. And did you do any independent testing of
`
` 5 any of the configurations that are set forth in the
`
` 6 listing of materials to determine whether the subject
`
` 7 matter of the VARTA patent claims is patentable?
`
` 8 MS. TEMPESTA: Objection, form.
`
` 9 THE WITNESS: I can't recall if -- I
`
`10 can't say with certainty whether -- so I included my
`
`11 experience in forming my opinions, and I can't recall
`
`12 with certainty, you know, what tests I may have done
`
`13 over time that may have informed me.
`
`14 Q. Okay. Now, you set forth a summary of your
`
`15 opinions in Paragraph 14 of your expert report,
`
`16 correct?
`
`17 A. That's correct.
`
`18 Q. And it appears as though you rely primarily
`
`19 on two references, the Kobayashi reference and the
`
`20 Kaun reference; is that correct?
`
`21 A. I rely on Kobayashi and Kaun as well as
`
`22 Kwon and Ryou.
`
`23 (Reporter clarification.)
`
`24 Q. And while we are thinking about it,
`
`25 Mr. Chang, maybe we can also post and have available
`
`24
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 25
`
`
`
` 1 in the chat room Exhibit 1007, which is the Ryou
`
` 2 reference, R-Y-O-U, as well as Exhibit 1008, which is
`
` 3 the Kwon reference, K-W-O-N.
`
` 4 (Exhibit 1007 and Exhibit 1008 marked for
`
` 5 identification, patent specification and
`
` 6 patent application.)
`
` 7 VIDEOGRAPHER: Counselor, both exhibits
`
` 8 are in the chat.
`
` 9 Q. Okay. So, Mr. Gardner, you've identified
`
`10 in addition to Kobayashi and Kaun, the Kwon and Ryou
`
`11 references, correct?
`
`12 A. That's correct.
`
`13 Q. Now, you also rely on just the general
`
`14 knowledge of a person of ordinary skill in the art; is
`
`15 that right?
`
`16 A. That's correct.
`
`17 Q. So my question to you is, why did you cite
`
`18 the additional patents that are set forth or in
`
`19 publications that are set forth in Paragraph 13 of
`
`20 your expert report if you didn't rely on them as
`
`21 rendering the claims unpatentable?
`
`22 A. To which section are you referring?
`
`23 Q. I am pointing you to Paragraph 13.
`
`24 A. Yes.
`
`25 Q. These are a number of patents, and I guess
`
`25
`
`WILLIAM H. GARDNER
`
`Eve Energy Co., Ltd v. Varta Microbattery Gmbh
`
`Eve Ex. 1032, p. 26
`
`
`
` 1 a publication as well on which you identify as
`
` 2 materials that you considered --
`
` 3 A. That's right.
`
` 4 Q. -- correct?
`
` 5 A. Yes.
`
` 6 Q. And my question is, why did you consider
`
` 7 those materials if you didn't rely on them as a basis
`
` 8 for your opinions that the patent claims are
`
` 9 unpatentable?
`
`10 A. Which reference are you referring to
`
`11 specifically that I did not rely on?
`
`12 Q. Well, for example, Exhibit 1014, your
`
`13 patent.
`
`14 A. So I referenced my patent 1014 in my
`
`15 background in explaining why my background is relevant
`
`16 and makes me an expert in this subject matter.
`
`17 Q. Okay. What about Schmutz, Exhibit 1017?
`
`18 A. So
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