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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`US ENDODONTICS LLC,
`
`Petitioner,
`
`- against -
`
`GOLD STANDARD INSTRUMENTS, LLC,
`
`Patent Owner.
`
`Case No. PGR2015-00019
`
`1133 Avenue of the Americas
`
`New York, New York
`
`September 12, 2016
`
`10:12 a.m.
`
`DEPOSITION OF A. JON GOLDBERG, Ph.D., held at
`
`the above-mentioned time and place, before Sharon Lengel,
`
`a Registered Professional Reporter, Certified Realtime
`
`Reporter, within and for the State of New York.
`
`212-279-9424
`
`Veritext Legal Solutions
`www.veritext.com
`
`212-490-3430
`GOLD STANDARD EXHIBIT 2047
`US ENDODONTICS v. GOLD STANDARD
`CASE PGR2015-00019
`
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`Page 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`US ENDODONTICS LLC,
`
`Petitioner,
`
`- against -
`
`GOLD STANDARD INSTRUMENTS, LLC,
`
`Patent Owner.
`
`Case No. PGR2015-00019
`
`1133 Avenue of the Americas
`
`New York, New York
`
`September 12, 2016
`
`10:12 a.m.
`
`DEPOSITION OF A. JON GOLDBERG, Ph.D., held at
`
`the above-mentioned time and place, before Sharon Lengel,
`
`a Registered Professional Reporter, Certified Realtime
`
`Reporter, within and for the State of New York.
`
`212-279-9424
`
`Veritext Legal Solutions
`www.veritext.com
`
`212-490-3430
`GOLD STANDARD EXHIBIT 2047
`US ENDODONTICS v. GOLD STANDARD
`CASE PGR2015-00019
`
`
`
`Page 2
`
`APPEARANCES:
`PATTERSON BELLKNAP WEBB & TYLER, LLP
`Attorneys for Petitioner
`1133 Avenue of the Americas
`New York, New York 10036
`BY: JEFFREY S. GINSBERG, ESQ.
` ABHISHEK BAPNA, ESQ.
`
`ROTHWELL, FIGG, ERNST & MANBECK
`Attorneys for Patent Owner
`607 14th Street, N.W.
`Washington, D.C. 20005
`BY: DEREK F. DAHLGREN, ESQ.
`
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`Page 3
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` STIPULATIONS
` IT IS HEREBY STIPULATED, by and between the
`attorneys for the respective parties hereto, that:
`
` All rights provided by the C.P.L.R., and Part
`221 of the Uniform Rules for the Conduct of Depositions,
`including the right to object to any question, except as
`to the form, or to move to strike any testimony at this
`examination is reserved; and in addition, the failure to
`object to any question or to move to strike any testimony
`at this examination shall not be a bar or a waiver to
`make such motion at, and is reserved to, the time of this
`action.
`
` This deposition may be sworn to by the witness
`being examined before a Notary Public other than the
`Notary Public before whom this examination was begun, but
`the failure to do so or to return the original of this
`deposition to counsel, shall not be deemed a waiver or
`the rights provided by Rule 3116, C.P.L.R., and shall be
`controlled thereby.
`
` The filing of the original of this deposition is
`waived.
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`Page 4
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`A. J O N G O L D B E R G, Ph.D.,
` having first been duly sworn by
` Sharon Lengel, the Notary Public,
` was examined and testified as
` follows:
`EXAMINATION
`BY MR. DAHLGREN:
` Q. Good morning, Dr. Goldberg.
` A. Good morning.
` Q. Could please state your name and
`address for the record.
` A. A. John Goldberg, 30 Berwyn
`Road, West Hartford, Connecticut.
` Q. And you're the same Dr. Goldberg
`that was previously deposed in this PGR
`proceeding?
` A. Yes.
` Q. And you have provided two
`declarations in this PGR proceeding?
` A. Yes.
` Q. And you're also the same
`Dr. Goldberg that was deposed in IPR
`2015-00632?
` A. Was that the 773?
`
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` A. Jon Goldberg, Ph.D.
` Q. Correct.
` A. The IPR concerning the Luebke
`773 patent, yes.
` Q. And you have also provided
`testimony litigation between Dentsply and
`petitioner in the Eastern District of
`Tennessee; is that correct?
` A. Yes.
` Q. I know we have done this a few
`times now. But just quickly to recap a
`few ground rules. It's important to give
`verbal answers for the court reporter.
`Likewise, if you don't ask me -- or --
`excuse me. If you don't understand a
`question, will you ask me to clarify it?
`Is that fair?
` A. That's fair.
` Q. Okay. And if you don't ask me
`to clarify, is it safe to assume that you
`understand the question?
` A. Hopefully, I'll ask a question
`if I think it's unclear.
` Q. Is there any reason you can't
`give truthful and accurate testimony
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` A. Jon Goldberg, Ph.D.
`today?
` A. No.
` Q. Okay. So, Dr. Goldberg, you
`have provided opinions concerning a number
`of patents, listing Neill Luebke as the
`inventor; is that correct?
` A. Yes.
` Q. And the patent that was involved
`in this proceeding, is it all right if I
`refer to that as the 991 patent?
` A. Yes.
` Q. And you would agree that the 991
`patent -- that is substantially the same
`disclosure as the other Luebke patents
`you've provided testimony about?
` MR. GINSBERG: Objection to the
` form of the question.
` A. That's my understanding. I
`think I had qualified in some of my
`opinions that there are some small
`differences.
` Q. Okay. And is it all right if I
`refer to those other patents as the 773
`patent and the 341 patent?
`
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`Page 7
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` A. Jon Goldberg, Ph.D.
` MR. GINSBERG: Object to form.
` Let's just take a quick -- a quick
` break.
` MR. DAHLGREN: Sure.
` (Recess)
` MR. GINSBERG: And before we go
` back, Dr. Goldberg is being presented
` today to provide testimony limited to
` his August 4, 2016, supplemental
` declaration per the parties' agreement
` and in accordance with 37 CFR 42.53.
` The cross-examination today will be
` limited to the scope of Dr. Goldberg's
` August 4, 2016, declaration.
` MR. DAHLGREN: Jeff, you're free
` to make objections.
`BY MR. DAHLGREN:
` Q. So, anyway, Dr. Goldberg, I
`think the question was is it all right if
`I refer to those other patents as the 773
`and the 341 patent?
` A. Yes.
` Q. Okay. So what did you do to
`prepare for your deposition today?
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`Page 8
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` A. Jon Goldberg, Ph.D.
` A. I reviewed the supplemental
`declaration and went over the testing that
`was done in association with my original
`declaration, which was the COSAC data, and
`then the more recent data from ITS.
` Q. Okay. And did you meet with
`anyone?
` A. Yes. I met with the attorneys
`prior to this. I would also say that I
`did look over some of the back information
`but focused on the supplemental
`information.
` Q. Okay. And who did you meet?
` A. Attorneys Bapna and Ginsberg.
` Q. Okay. And how long did you meet
`for approximately?
` A. Let's see. Maybe six hours,
`something like that.
` Q. And which day or days --
` A. Yesterday.
` Q. Yesterday? Okay.
` And you've been retained by --
`well, Patterson Bellknap Webb & Tyler, in
`relation to the PGR, the IPR, and the
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`Page 9
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` A. Jon Goldberg, Ph.D.
`Tennessee litigation; is that correct?
` A. Correct.
` Q. And as of now, approximately how
`much have you received for your services?
` A. I'm going to guess 225,000.
` Q. Okay. And do you have any more
`time that you plan to bill for?
` MR. GINSBERG: Objection to
` form.
` A. Well, I haven't billed for the
`time involved with this and preparation
`for this.
` Q. Okay. You supplemented a
`supplemental declaration that discusses
`testing by Innovative Test Solutions,
`Inc.?
` A. Yes.
` Q. And that's, I believe, who you
`referred to earlier as the ITS testing?
` A. Yes.
` Q. Okay. Are you aware of any
`other heat treatments done to endodontic
`files on petitioner's behalf?
` MR. GINSBERG: Objection to
`
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`Page 10
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` A. Jon Goldberg, Ph.D.
` form.
` A. I'm not sure what you mean.
`Formal heat-testing?
` Q. Correct. Let's start with that.
` A. I'm not aware of any.
` Q. Okay. And are you aware of any
`other bend testing done to heated
`endodontic files that was performed on
`petitioner's behalf?
` A. I'm not aware of any other.
` Q. Okay. Do you know a Lou
`Fiorini?
` A. I recognize the name. I think
`that's the ITS testing. That was, I
`think, the person that swore to the
`veracity of the ITS statement.
` Q. Have you ever met Lou Fiorini?
` A. No.
` Q. Have you ever spoken to Lou
`Fiorini?
` A. No.
` Q. Have you ever spoken to anyone
`employed at Innovative Test Solutions,
`Inc.?
`
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`Page 11
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` A. Jon Goldberg, Ph.D.
` A. You mean in my whole career? I
`don't recall. But, you know, I've had a
`long career, and I do work with testing
`companies, so maybe it's possible. I just
`don't recall. I don't believe so.
` Q. Okay. Have you ever spoken to
`anyone at ITS in connection with the
`testing that was performed and referred to
`in Mr. Fiorini's report?
` A. No.
` Q. Okay. The stiffness testing,
`according to Section 7.5 of the 2008 ISO
`standard, is standard endodontic file
`testing; correct?
` MR. GINSBERG: Objection to
` form.
` A. Well, it's -- I guess different
`people use different methods, and the ISO
`describes a particular method.
` Q. And ISO is a standard; correct?
` A. Yes.
` Q. And so it sets forth common
`testing for endodontic testing. Is that
`fair?
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`Page 12
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` A. Jon Goldberg, Ph.D.
` MR. GINSBERG: Objection to
` form.
` A. Each specification describes a
`method that someone could choose to use --
`and this way is different, you know -- use
`a common procedure, because the details
`are described in the specification.
` Q. Prior to your involvement in the
`Tennessee litigation, the IPR, and this
`PGR, had you ever heard of the stiffness
`testing set forth in Section 7.5 of the
`ISO 3630-1?
` MR. GINSBERG: Objection to
` form.
` A. Not specifically that one. But
`I've had a long history of being familiar
`with ISO and ADA tests, including
`orthodontics specifications that deal with
`bend properties of small-diameter wires.
` Q. So if I understand correctly,
`prior to your involvement in the Tennessee
`litigation, the IPR, and the PGR, you had
`not heard of the stiffness testing set
`forth in Section 7.5 of ISO 3630-1; right?
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`Page 13
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` A. Jon Goldberg, Ph.D.
` A. Not that specification, but as I
`said, I'm familiar with those
`specification systems and testing
`small-diameter wires.
` Q. But not specifically the
`stiffness testing set forth in Section 7.5
`of the ISO.
` A. I had not reviewed that one
`prior to this proceeding.
` Q. Okay. Now, is the stiffness
`testing in Section 7.5 of the ISO 3630-1
`an unusual test, in your opinion?
` MR. GINSBERG: Objection to the
` form of the question.
` A. I'm not sure what you mean by
`"unusual."
` Q. How do you understand "unusual"?
` A. Well, it can have different
`meanings. So that's why I'm asking how
`you're asking the question.
` Q. Do you consider that testing to
`be out of the ordinary?
` MR. GINSBERG: Objection to
` form.
`
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`Page 14
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` A. Jon Goldberg, Ph.D.
` A. So there's a wide, wide range of
`testing that can be done. I'm not sure --
`you want me to just talking about what the
`wide variation of tests can be?
` Q. So would you consider the
`stiffness testing in Section 7.5 of the
`ISO to be routine testing?
` MR. GINSBERG: Objection to the
` form of the question.
` A. Well, it's routine to the extent
`that that's the specification, and some
`people use that specification test. But
`there's other methods also.
` Q. Okay. But it's fair to say that
`the stiffness testing in Section 7.5 is an
`example of routine testing for endodontic
`files. Is that fair?
` A. I would say it's fair to say
`that's a testing of stiffness.
` Q. But you don't consider it
`routine?
` MR. GINSBERG: Objection to
` form.
` A. Well, it's a specification, so
`
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`Page 15
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` A. Jon Goldberg, Ph.D.
`it's one that would be used by different
`people, but "routine" implies to me that
`that's what most people would do, and I
`don't know if that's the case, because
`there's other test methods that can be
`used.
` Q. Do you know what the standard
`testing is for manufacturers of endodontic
`instruments?
` MR. GINSBERG: Objection to
` form.
` A. I don't.
` Q. So you're not an expert in the
`standard testing protocols for
`manufacturers of endodontic instruments;
`is that correct?
` MR. GINSBERG: Objection to
` form.
` A. I'm familiar with standard test
`protocols. In my answer, what I meant was
`I'm not familiar with what the companies
`might use for quality control or what they
`might use internally. I could see they
`might use this test.
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`Page 16
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` A. Jon Goldberg, Ph.D.
` Q. Do you know -- sorry. I didn't
`mean to interrupt you.
` A. I'm sorry. I completed my
`answer.
` Q. Do you know whether the ISO
`Standard 3630-1 sets forth tests that
`files that are sold commercially are
`required to comply with?
` MR. GINSBERG: Objection to
` form.
` A. That would be my understanding,
`that if they're going to label it with a
`specification, you know, approved by ISO
`or ADA, then that would mean they had done
`that testing.
` Q. So is it fair to say that
`testing that is required for a file to be
`sold commercially and labeled with the
`standard is routine?
` MR. GINSBERG: Objection to the
` form of the question. I've been
` letting this questioning go on. This
` is clearly beyond the scope of the
` supplemental declaration. I will give
`
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`Page 17
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` A. Jon Goldberg, Ph.D.
` counsel some leeway. Other than that,
` I'm going to shut the deposition down,
` and we are going to call the Board.
` MR. DAHLGREN: As you know, you
` can file a motion. It's not a basis
` to shut down a deposition or instruct
` the witness not to answer.
` MR. GINSBERG: We will stop the
` deposition and get a ruling.
`BY MR. DAHLGREN:
` Q. So, Dr. Goldberg --
` MR. GINSBERG: And just for the
` record, we have the email from
` Mr. Dahlgren where he agreed this
` deposition would be limited to the
` scope of the expert declaration.
` We'll present that to the Board as
` well.
` MR. DAHLGREN: Well, Jeff, I
` think you're mischaracterizing our
` communications. And I disagree with
` what you're saying. You can make your
` objections on the record. I'd
` appreciate if you stop interrupting
`
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`Page 18
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` A. Jon Goldberg, Ph.D.
` the deposition.
` MR. GINSBERG: And I'll continue
` to allow this questioning to some
` extent, but if you continue to ask
` questions that are beyond the scope,
` we will stop the deposition and get a
` ruling from the Board.
` MR. DAHLGREN: Please stop
` interrupting the deposition.
` MR. GINSBERG: I will continue
` to provide appropriate objections to
` your questioning that's in violation
` of our agreement.
`BY MR. DAHLGREN:
` Q. So, Dr. Goldberg, I believe you
`said that it's your understanding that
`files that are sold commercially are
`required to comply with the ISO Standard
`3630-1; is that correct?
` A. I think that was your question.
`I don't think I answered it. So could you
`repeat the question?
` Q. Sure.
` Do you know whether files that
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` A. Jon Goldberg, Ph.D.
`are sold commercially are required to
`comply with ISO Standard 3630-1?
` A. I don't know specifically for
`endodontic files.
` Q. Okay. Would you expect the
`results to be different if ITS had used a
`1992 version of the ISO Standard 3630?
` A. No.
` Q. Would you expect the results to
`be different if ITS had used a 2004
`committee draft version of the ISO 3630?
` A. Oh, boy, I just haven't looked
`at that one recently.
` MR. GINSBERG: And let me
` interpose an objection to the form of
` the question. Beyond the scope of the
` cross-examination.
` A. I'm sorry. I just haven't
`looked at that one recently. So I just
`don't recall the details of the testing.
` Q. Was there anything unusual about
`the heat treatments that ITS performed on
`the files?
` A. Again, I'm not sure what you
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` A. Jon Goldberg, Ph.D.
`mean by "unusual."
` Q. You would agree there was
`nothing out of the ordinary about the heat
`treatments that ITS performed on the
`endodontic files; correct?
` MR. GINSBERG: Objection to the
` form of the question.
` A. My comment is they were
`consistent with the claims of the patent,
`and that's why those times and
`temperatures were chosen.
` Q. Did you choose the times and
`temperatures that ITS used?
` A. No.
` Q. Do you know who chose the times
`and temperatures that ITS used?
` A. No.
` Q. Do you know if a metallurgist
`chose the times and temperatures that ITS
`used?
` A. I don't know.
` Q. Did you witness the heating by
`ITS?
` A. No.
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` A. Jon Goldberg, Ph.D.
` Q. So I take it you did not witness
`the testing that ITS performed.
` A. Correct.
` Q. And do you know if Mr. Fiorini
`witnessed all of the heat treatments that
`were performed on the endodontic files?
` A. I don't recall in his cover
`letter or declaration -- I'm not sure
`what -- if he said he physically saw it.
`But he did affirm that it was done in the
`normal course of business. So it's a
`certified lab, and that certification
`means that they have standard reproducible
`procedures. I don't know if Mr. Fiorini,
`as part of that normal process, would
`physically watch the heat-treating or not.
` Q. Okay. So to go back to my
`question, it's correct that you do not
`know if Mr. Fiorini witnessed all the heat
`treatments; correct?
` A. I don't know one way or other.
` Q. And similarly, you don't know if
`Mr. Fiorini witnessed all the bend testing
`that ITS performed; correct?
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` A. Jon Goldberg, Ph.D.
` A. He'd have to go back and look at
`the documents to see exactly -- I think,
`you know, there were two or three people
`that signed the documents, and I assume
`one did some of the testing, and I'm
`assuming that Mr. Fiorini was the
`supervisor. I don't think anything in the
`documentation said specifically that he
`was watching at the time that it was done.
` Q. Okay. In your supplemental --
`the supplemental testing supports your
`opinion that undue experimentation is
`needed to practice the claims of the 991
`patent; is that correct?
` A. I don't know if that was in the
`supplement or the original.
` Q. Well, so, again, the
`supplemental testing supports your opinion
`that undue experimentation is needed to
`practice the claims of the 991 patent; is
`that correct?
` MR. GINSBERG: Objection to the
` form.
` A. I don't -- I don't think one
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` A. Jon Goldberg, Ph.D.
`thing follows from the other. The
`supplemental testing was done to address
`concerns that Dentsply raised with the
`testifying done in the original
`declaration. That's a different issue
`than the question you raise about undue
`testing to practice the claims.
` Q. So, Dr. Goldberg, in your
`opinion, does the supplemental testing
`support your opinion that undue
`experimentation is needed to practice the
`claims of the 991 patent?
` MR. GINSBERG: Objection to
` form.
` A. I would say it supports my
`position that the claims are not enabled.
` Q. And part of that -- one of the
`bases for your opinion that the claims are
`not enabled is that undue experimentation
`is needed to practice chose claims; is
`that right?
` A. Yes.
` Q. What do you mean by "undue
`experimentation"?
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` A. Jon Goldberg, Ph.D.
` MR. GINSBERG: Objection to
` form.
` A. I mean that, in looking at the
`claims, if you wanted to practice the
`scope of the claims which covers
`compositions, temperatures, times, there
`wouldn't be enough information within the
`specification to be able to know what to
`do without doing an extensive amount of
`testing.
` Q. So it's fair to say that your
`opinion regarding undue experimentation is
`based on the volume of testing that would
`be required to practice the claims of the
`991 patent?
` MR. GINSBERG: Objection to
` form.
` A. Yes. I believe so.
` Q. Okay. What type of testing
`would you use to determine how to practice
`the claims of the 991 patent?
` A. Well, you would need to do a
`large matrix of testing, because there's
`many variables that influence the result
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` A. Jon Goldberg, Ph.D.
`of getting the 10 degrees of permanent
`deformation. So you would need to decide
`on a particular composition, you would
`need to decide on processing, how that
`would be processed, and you would have to
`decide on the time and temperature that
`would be used, all of which affect the
`final outcome. So that's a large matrix
`for the range of compositions and range of
`temperatures that are given.
` Q. So with -- given a particular
`composition and processing history, what
`type of testing would you do on that file
`to determine whether you could practice of
`the claims of the 991 patent?
` MR. GINSBERG: Objection to
` form.
` A. I'd follow what's described in
`patent and in the claims, because I assume
`that's what you mean, are we able to
`achieve that 10 degrees of permanent
`deformation.
` Q. So what type of testing would
`you use to determine whether you could
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` A. Jon Goldberg, Ph.D.
`achieve the claimed amount of permanent
`deformation?
` MR. GINSBERG: Objection to
` form.
` A. I would use a bend test,
`probably ISO from 1992.
` Q. And what would you do -- strike
`that.
` What type of heat treatments
`would you use?
` A. Well, you would have to test
`over that full range. This is the
`problem, that different treatments,
`different times are going to give
`different results. So you would have to
`test a very large number of temperatures,
`because the claims -- the patent describes
`them 25 degrees, 300 degrees, up to the
`melting point. So I would have to take a
`particular composition and then treat it
`at those various times and temperatures to
`see which ones were effective in getting
`the desired outcome.
` Q. And you're familiar with a
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` A. Jon Goldberg, Ph.D.
`number of review articles that did
`characterize various physical properties
`of nickel titanium compositions over a
`wide range of heat treatment temperatures;
`correct?
` MR. GINSBERG: Objection to
` form.
` A. I'm familiar, for example, with
`Pelton, that the issue there is Pelton
`takes one specific composition, one
`specific processing, and heat-treats
`within a relatively narrow range relative
`to the claims of the patents. So Pelton
`would help, as far as what Pelton teaches,
`that is this composition, this processing,
`this temperature, this time. But I would
`still need to do a lot of experimentation
`to be able to practice the entire scope of
`the claims.
` Q. And you're familiar with a
`reference by Miyazaki as well?
` A. Yes.
` MR. GINSBERG: Objection to the
` scope of this questioning. It goes
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` A. Jon Goldberg, Ph.D.
` far beyond the information contained
` in the supplemental declaration of Jon
` Goldberg. It runs afoul of 37 CFR
` 42.53.
` Q. And you're aware that Miyazaki
`characterized physical properties of a
`nickel titanium alloy with a different
`composition than Pelton; correct?
` A. Correct.
` MR. GINSBERG: Objection to
` form. Beyond the scope of
` declaration.
` Q. And used a number of heat
`treatment temperatures; correct?
` MR. GINSBERG: Same objections.
` A. Yes.
` Q. And so Pelton and Miyazaki are
`examples of people conducting the types of
`experiments that you believe are undue
`with respect to the claims of the 991
`patent?
` MR. GINSBERG: Objection to the
` form of the question. Beyond the
` scope of Dr. Goldberg's supplemental
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` A. Jon Goldberg, Ph.D.
` declaration.
` A. So I'm not sure I follow the
`logic of their testing being undue.
` Q. So I think we -- I think you
`testified that Pelton and Miyazaki are
`examples where specific nickel titanium
`compositions were subjected to different
`heat treatments and physical properties
`were characterized for those different --
`physical properties were characterized for
`those different heat treatments; correct?
` A. Yes.
` Q. And that's the type of testing,
`I believe, that you testified one would
`need to do for various compositions and
`process histories to practice the claims
`of the 991 patent; is that correct?
` MR. GINSBERG: Objection to
` form. Beyond the scope of
` Dr. Goldberg's supplemental
` declaration.
` A. I'm sorry. Can you repeat the
`question?
` Q. Sure. And the testing in
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` A. Jon Goldberg, Ph.D.
`Miyazaki and Pelton is the type of testing
`that I believe you testified one would
`need to do for various compositions and
`process histories to practice the claims
`of the 991 patent; is that right?
` MR. GINSBERG: Objection to form
` of the question. Beyond the scope of
` Dr. Goldberg's supplemental
` declaration.
` A. What's -- that's the type of
`testing that would need to be done to look
`at the times processing, temperatures, et
`cetera. But as I said, to measure the
`outcome, I would use the procedure
`described in the patent.
` Q. So if fair to say it's your
`opinion that one would then need to do the
`bend testing on those various compositions
`that were heat-treated at various
`temperatures and times?
` A. If you wanted to confirm that it
`achieved 10 degrees of permanent
`deformation, yes.
` Q. So you would agree you couldn't
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` A. Jon Goldberg, Ph.D.
`use, for example, the A sub F to predict
`whether or not it would exhibit 10 degrees
`of permanent deformation?
` A. No.
` MR. GINSBERG: Objection to the
` form of the question. Beyond the
` scope of Dr. Goldberg's supplemental
` declaration.
` A. Yeah. I'm sorry if I was
`confusing things. I thought we were
`talking about specifically using the bend
`test. The work in Pelton gives you
`guidance as to how to increase the A sub
`F, which would give you the desired
`outcome of deformation, and Miyazaki
`plotted bend test curves, the entire
`curves, and shows the entire amount of
`permanent deformation, so you could look
`at that and see that you would be
`achieving the ability to permanently
`deform the file.
` Q. Do you know what temperature ITS
`used when they're conducting -- excuse me.
`Strike that.
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` A. Jon Goldberg, Ph.D.
` Do you know what temperature was
`used for the bend testing that ITS
`conducted?
` A. I'm sorry. Can you repeat or
`clarify that question?
` Q. For the conditions under which a
`bend testing were performed by ITS, do you
`know what the temperature was?
` A. I don't recall.
` Q. You would agree that if you
`conducted a bend test at 40 degrees
`Celsius, for example, you could get
`different results than conducting it at
`23 degrees Celsius; correct?
` MR. GINSBERG: Objection to form
` of the question.
` A. Yes you could.
` Q. And --
` A. It's possible, I would say. I
`guess you would have to see the data.
` Q. And you would agree that, on
`occasion, orthodontic materials are tested
`at body temperature; is that right?
` A. That could be done, yes.
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` A. Jon Goldberg, Ph.D.
` Q. Do you consider that to be
`routine testing for orthodontic materials?
` MR. GINSBERG: Objection to form
` of the question.
` A. Again, there are definitely labs
`that do testings at different
`temperatures. I...
` Q. And I believe you said earlier
`you don't know what temperature
`Mr. Fiorini used for the testing that ITS
`conducted; correct?
` A. I don't recall.
` Q. Okay. So, Mr. Goldberg, you
`have provided opinions as a person skilled
`in the art in this technology; is that
`correct?
` A. Correct.
` Q. Can you tell me the different
`chemical properties of nickel titanium?
` MR. GINSBERG: Objection to form
` of the question. Beyond the scope of
` Dr. Goldberg's supplemental
` declaration.
` A. What do you mean by "chemical
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` A. Jon Goldberg, Ph.D.
`properties"?
` Q. Well, Dr. Goldberg, do you
`recall providing an opinion as to the
`level of skill in the art in this
`technology?
` A. Yes.
` Q. And do you recall whether that
`included having knowledge as to the
`different chemical properties of nickel
`titanium?
` A. Are you -- are you referring to
`the fact that the chemical -- the
`microstructure affects the mechanical
`prop
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