Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA271577
`ESTTA Tracking number:
`03/12/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173864
`Plaintiff
`Johnson & Johnson
`Mary Pat A. Weyback
`Drinker Biddle & Reath LLP
`1500 K Street, N.W.
`Washington, DC 20005-1209
`UNITED STATES
`dctrademarks@dbr.com
`Testimony For Plaintiff
`Jaye S. Campbell
`dctrademarks@dbr.com
`/Jaye S. Campbell/
`03/12/2009
`Testimony of S. Tang.pdf ( 291 pages )(14681458 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA271577
`ESTTA Tracking number:
`03/12/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173864
`Plaintiff
`Johnson & Johnson
`Mary Pat A. Weyback
`Drinker Biddle & Reath LLP
`1500 K Street, N.W.
`Washington, DC 20005-1209
`UNITED STATES
`dctrademarks@dbr.com
`Testimony For Plaintiff
`Jaye S. Campbell
`dctrademarks@dbr.com
`/Jaye S. Campbell/
`03/12/2009
`Testimony of S. Tang.pdf ( 291 pages )(14681458 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`JOHNSON & JOHNSON,
`
`V.
`
`KLEARSEN CORPORATION
`
`Opposer,
`
`:
`
`:
`
`Applicant.
`
`I
`
`Opposition No. 91-173,864 (parent)
`91-173,865 (child)
`
`NOTICE OF FILING TESTIMONIAL DEPOSITION AND EXHIBITS 1-23
`
`PLEASE TAKE NOTICE that, pursuant to 37 CFR § 2.125(0), Opposer, Johnson &
`
`Johnson, is filing with the Trademark Trial and Appeal Board the certified transcript of the
`
`testimonial deposition of Susan Y. Tang and Exhibits 1-23. Pursuant to 37 CFR § 2.125(a), a
`
`copy of the certified transcript of the testimonial deposition of Ms. Tang and copies of Exhibits
`
`1-23 have been served on Applicant by first class mail, postage prepaid.
`
`Respectfully submitted,
`
`JOHNSON & JOHNSON
`
`j¢¢s.Qc,o?l_4g[
`
`Norm D. St. Lan au
`
`Jaye S. Campbell
`DRINKER BIDDLE & REATH LLP
`
`1500 K Street, N.W., Suite 1100
`Washington, DC 20005-1209
`Tel: (202) 842-8800
`Fax: (202) 842-8465
`
`Counselfor Opposer
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true copy of the foregoing Notice of Filing of Testimonial
`Deposition and Exhibits 1-23 was served on App1icant’s counsel at the following address of
`record by first class mail, postage prepaid, this [;‘l7b~/day of March 2009:
`
`David A. Weinstein, Esq.
`695 South Colorado Boulevard
`
`Suite 360
`
`DENVER, CO 80246
`
` (
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`91-173,864 (Parent)
`
`91—173,865
`
`0/9
`/z%/
`
`JOHNSON &
`
`JOHNSON
`
`Opposer(s),
`
`vs.
`
`KLEARSEN CORPORATION,
`
`Respondent(s).
`
`DEPOSITION UNDER ORAL EXAMINATION OF
`
`SUSAN TANG
`
`DATE: November 24, 2008
`
`REPORTED BY: MICHAEL FRIEDMAN, CCR
`
`ESQUIRE DEPOSITION SERVICES
`
`90 Woodbridge Center Drive
`
`Suite 340
`
`Woodbridge, New Jersey 07095
`
`(732) 283-1060 or
`
`(800) 247-8366
`
`b11483
`
`
`
`
`
`
`
`TRANSCRIPT of the deposition of the
`
`witness, called for Oral Examination in the
`
`above-captioned matter, said deposition being taken by
`
`and before MICHAEL FRIEDMAN,
`
`a Notary Public and
`
`Certified Court Reporter of the State of New Jersey, at
`
`JOHNSON &
`
`JOHNSON, 199 Grandview Road, Skillman, New
`
`Jersey, on November 24, 2008, commencing at
`
`approximately 10:15 in the morning.
`
`‘Esquire Deposition Services
`
`
`
`A P P E A R A N C E S:
`
`DRINKER, BIDDLE & REATH, LLP
`
`1500 K Street, N.W.
`
`- Suite 1100
`
`Washington, D.C.
`
`20005
`
`(202) 843-8870
`
`BY:
`
`JAYE S. YUNG, ESQ.
`
`—and-
`
`NORM D. ST. LANDAU, ESQ.
`
`Attorneys for Johnson & Johnson
`
`Esquire Deposition Services
`
`
`
`WITNESS NAME
`
`S U S A N
`
`T A N G
`
`By Ms. Yung
`
`E X H I B I T S
`
`EXHIBIT NO.
`
`DESCRIPTION
`
`1
`
`— 23
`
`Various documents
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`Esquire Deposition Services
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`
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`Deposition Support Index
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`Direction to Witness Not
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`to Answer
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`Page Line
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`Page Line
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`Page
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`None
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`Request for Production of Documents
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`Page Line
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`'
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`Page
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`None
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`Stipulations
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`Page Line
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`None
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`Questions Marked
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`Page Line
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`None
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`Esquire Deposition Services
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`MS. YUNG:
`
`Please pre-mark Exhibits
`
`
`
`
`
`
`
`(Whereupon the above mentioned was
`
`marked for identification.) SUSAN TANG’,
`
`199 Grandview Road, Skillman, New Jersey,
`
`called as a witness, having been first duly sworn
`
`according to law, testifies as follows:
`
`
`
`
`
`Q
`
`I would like to state for the
`
`EXAMINATION BY MS. YUNG:
`
`
`D
`087
`record that giesfifil counsel David A.
`
`
`
`Weinstein,
`W—E—I—N-S-T—E—I—N has confirmed
` receipt of the Notice of Deposition and opted
`
`
`Mr. Weinstein has also not
`
` participation,
`
`including by telephone or
`
`not
`
`to attend.
`
`requested alternative methods for
`
`
`
`So, let's start with your
` background.
`You understand that you're here
`
`
`video conference.
`
`Esquire Deposition Services
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`
`
`10
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`11
`
`12
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`13
`
`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`
`
`S. Tang
`
`to testify in an opposition proceeding before
`
`the Trademark Trial and Appeal Board relating
`
`to Johnson & Johnson's opposition to the
`‘hrvzduwfix/£5 . ELECT1ZoNlL
`registration of the t£aéemark#s—eleetronic
`B&NDW&E
`-E*3AN$AéE
`bandage and ET—hyphen7—btndage,
`marks
`applications for these *mark is filed by a
`
`the
`
`Could you please state your full
`
`name for the record?
`‘(am
`Susan ¥ang Tang.
`
`A
`
`Q
`
`A
`
`You're employed by whom?
`
`Johnson & Johnson Consumer
`
`Companies, Incorporated.
`
`Q
`
`And Johnson & Johnson Consumer
`
`Companies Incorporated,
`
`JJCPC we wi11_call
`
`it, what's the affiliation of JJCPC with
`
`Johnson & Johnson?
`
`A
`
`JJCPC is an affiliate under the
`
`parent company, Johnson & Johnson.
`
`Q
`
`I'm showing a document that I have
`
`asked to be marked Exhibit 1. This document
`
`is Johnson & Johnson's most recent 10K filed
`
`with the SEC.
`
`Would you please review it and
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`identify it as such?
`
`A
`
`Yes,
`
`this is the Johnson & Johnson
`
`I will move it into evidence.
`
`If you turn to Exhibit 26 of the
`
`document, what is Exhibit 26?
`
`A
`
`Q
`
`These are the subsidiaries.
`
`The wholly—owned subsidiaries of
`
`Johnson & Johnson?
`
`A
`
`Q
`
`Yes.
`
`Do you see the company by whom
`
`you're employed on the list?
`
`A
`
`Yes.
`
`With JJCPC, what is your position?
`
`A
`
`I am the product director on
`
`Band-Aid brand in the marketing group.
`
`Q
`
`And could you just briefly describe
`
`your main job responsibilities?
`
`A
`
`My main job is really overlooking
`
`the brand's P&L in the marketplace.
`
`Q
`
`A
`
`P&L?
`
`Profits and losses, and my role is
`
`really overseeing the brand from a marketing
`
`perspective in terms of new products that we
`
`put into the marketplace, advertising, as
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`Esquire Deposition Services
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`
`
`S. Tang
`
`well as working with cross functional --
`
`cross functional partners internally in
`
`bringing those products to market.
`
`Q
`
`I will now show you a document that
`
`I had marked as Exhibit 2. This document is
`
`the Notice of Trial Deposition.
`
`Could you please review it and
`
`identify it as such?
`
`A
`
`(Witness reviewing.)
`
`Yes,
`
`this is the Notice of Trial
`
`Deposition.
`
`Q
`
`I move this document into evidence.
`
`Are you testifying today pursuant
`
`to this Notice of Deposition?
`
`A
`
`Q
`
`Yes,
`
`I am.
`
`Could you please describe the
`
`nature of Johnson & Johnson's first aid and
`
`wound care and bandage business?
`
`A
`
`Johnson & Johnson has been an
`
`innovator in the wound care space, where we
`
`_have a wide array of products for over a
`
`hundred years that care for the treatment as
`
`well as the protection of wounds, such as
`
`cuts and scrapes.
`
`We put a variety of products into
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`10
`
`the market such as adhesive, bandages and
`
`gauze to name a few examples, and we continue
`
`to bring new products into the market space,
`
`depending on technologies as well as consumer
`
`needs.
`
`Q
`
`And this market space that you
`
`describe,
`
`is it principally an end consumer
`
`retail space or does it also include other
`
`aspects?
`
`A
`
`It's a combination of both.
`
`The
`
`products are primarily marketed directly to
`
`consumers.
`
`They purchase them in the mass
`
`retail space, but these products are also
`
`distributed to professionals in professional
`
`outlets.
`
`Q
`
`To your understanding, what is the
`
`nature of the goods intended to be marketed
`-
`ELEUIBDNI (, BA/Ixflyyg,
`by Klearsen under their electronic and E
`E4§Hflm6E
`Evfiandagebtrademarks?
`
`A
`
`Based on the patent filing from
`
`Klearsen as well as their trademark filings,
`
`it appears that they're looking to market a
`
`device that looks like an adhesive bandage we
`
`:4
`see in the marketplace, except instead of a
`
`standard gauze in the middle of the bandage
`
`Esquire Deposition Services
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`
`
`S. Tang
`
`11
`
`
`
`there seems to be a battery placed in the
`middle of the gauze that delivers an
`
`
`
`You based your answer on reviewing
`
`
`
`
`
`electrical current.
`
`Q
`
`their patent and their two trademark
`
`applications, so at this time I will put
`
`
`
`-those pieces of evidence into the record.
`
`I have had marked as Exhibits 3 and
`
`4, respectively,
`
`the Tess records -- T—E-S—S
`
`records, which stands for Trademark
`
`
`Electronic Search System —— for serial number
`
`
`
`
`
`
`
`
`78526324 for the trademark Electronic
`
`
`
`Bandage, and as Exhibit Number 4, serial
`
`number 78526275 for E-Bandage.
`
`
`If you can,
`_
`_
`
`
`just review these two
`TESS
`
`documents and identify them as the test-
`
`
`
`
`
`product that you described in your answer
`
`records for the trademark applications?
`TESS
`These are the test records for
`
`A
`
`Electronic Bandage and E-Bandage.
`
`Q
`
`And the identification of goods
`
`described therein is consistent with the
`
`
`
`before?
`
`Yes, it's similar to what I have
`A
` seen in their patent filing.
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`Esquire Deposition Services
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`
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`S. Tang
`
`12
`
`Q
`
`Speaking of their patent, we will
`
`introduce as Exhibit 5 U.S. patent number
`
`6,738,662 filed by inventor Steven R. Frank.
`
`This patent was represented to us by opposing
`
`counsel as containing the product for which
`
`Klearsen seeks registration of the electronic
`
`and E—Bandage trademark.
`
`Could you please identify it as
`
`A
`
`Q
`
`Yes,
`
`this is the patent filing.
`
`I will move Exhibits 3 through 5
`
`into evidence.
`
`If you can, give a
`
`one-sentence summary of the -— what you
`
`conclude about
`
`the nature of their goods?
`
`A
`
`Based on the filings from Klearsen,
`
`it appears that they are marketing a -- an
`
`adhesive bandage with a battery that's
`
`associated or attached in the pad itself, and
`
`they are claiming this product
`
`to have the
`
`name Electronic Bandage or E-Bandage.
`
`Q
`
`To your understanding, what would
`
`you —— what would you identify as the target
`
`market for these goods?
`
`A
`
`Based on the device itself, it
`
`looks like it would be available for
`
`Esquire Deposition Services
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`
`
`S. Tang
`
`13
`
`consumers or health care professionals.
`
`Q
`
`Okay. And do you know, based on
`
`your role with Johnson & Johnson, whether the
`
`company intends to sell or sell the goods
`
`that fit the description provided by
`
`K1earsen's trademark applications in their
`
`patent?
`
`A
`
`Based on my experience and what we
`
`focus on from an innovation perspective, we
`
`are constantly looking to bring new
`
`innovations into the market space, of which
`
`technology around electric or electronic
`
`bandages would fall under.
`
`Q
`
`And consistent with that, do you
`
`know whether Johnson & Johnson maintains an
`
`interest in using the terms Electronic
`
`Bandage or E—Bandage to describe such a
`
`product?
`
`A
`
`Yes, and we know that electricity
`
`helps or aids in the healing of tissue, so
`
`this falls very much within the scope of the
`
`products we have in the marketplace.
`
`Q
`
`We're now going to talk a little
`
`bit about
`
`the public understanding of the
`
`terms at issue here.
`
`I will introduce as
`
`Esquire Deposition Services
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`
`
`S. Tang
`
`14
`
`Exhibit
`
`6 an Internet document from
`
`dvice.com, D—V—I-C—E.com, entitled Healfast,
`
`one word, electronic bandage concept kills
`
`wounds dead.
`
`Could you please identify this
`
`document as such?
`
`A
`
`(Witness reviewing.)
`
`Yes,
`
`this is an article entitled
`
`Healfast Electronic Bandage Concept, kills
`
`wounds dead.
`
`Q
`
`A
`
`How did you access this document?
`
`I went
`
`to the Website,
`
`D—V-I-C-E.com.
`
`Q
`
`What date did you access the_
`
`document?
`
`A
`
`I accessed the document on
`
`November 23, 2008, at 11:01 p.m.
`
`Q
`
`Could you just confirm that the
`
`Internet address shown in the upper
`
`right-hand corner corresponds with the
`
`address that you located on your Internet
`
`browser?
`
`A
`
`Q
`
`Yes, it's the same address.
`
`Could you now briefly describe the
`
`relevance of this document?
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`Esquire Deposition Services
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`
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`S. Tang
`
`15
`
`A
`
`This document has in its title the
`
`phrase "Electronic Bandage", and the article
`
`goes on to describe a product very similar to
`
`what Klearsen has filed in their patent
`
`filing, and essentially,
`
`this is an adhesive
`
`bandage that contains an electronic field to
`
`help prevent infection.
`
`Q
`
`This is the document that asked to
`
`be identified as Exhibit 7. Exhibit 7 is an
`
`Internet article entitled, Electric bandage
`
`may spur healing from
`
`www.infectioncontroltoday.com.
`
`Could you please identify it as
`
`A
`
`Yes,
`
`this article is titled,
`
`Electric bandage may spur healing, and it's
`
`from the Website,
`
`www.infectioncontroltoday.com.
`
`Q
`
`And on what date did you access
`
`this document?
`
`A
`
`Q
`
`November 23, 2008, at 11:08 p.m.
`
`Could you please confirm that the
`
`hyperlink in the upper right—hand corner
`
`corresponds to the address that you entered
`
`on the Internet?
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`Esquire Deposition Services
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`
`
`S. Tang
`
`16
`
`A
`
`Q
`
`document?
`
`Yes, it's the same.
`
`Could you briefly describe this
`
`A
`
`This document has in its title
`
`electric bandage referenced, and in the
`
`article itself, the article speaks to how an
`
`electric field or a bandage —- a disposable
`
`bandage containing an electrical field could
`
`help aid in the healing of pressure wounds.
`
`Q
`
`I will now move Exhibit
`
`6 and 7
`
`into evidence.
`
`I'm showing you now a
`
`document that I asked to be marked Exhibit 8.
`
`It's a document entitled, Electronic bandages
`
`could speed healing,
`
`from a 1988 edition of
`
`the Washington post.
`
`Could you please identify this
`
`document?
`
`A
`
`This document is an article from
`
`the Washington Post from 1988 titled,
`Electronic bandages could speed healing.
`
`Q
`
`Actually, let me briefly return to
`
`Exhibit number
`
`6 —- I'm sorry, Exhibit 7
`
`entitled, Electric bandage may spur healing.
`
`I wanted to talk a bit about the
`
`use of electric there.
`
`We talked about
`
`Esquire Deposition Services
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`S. Tang
`
`17
`
`Electronic Bandage, but what can you conclude
`
`about
`
`the use of electric bandage in linking
`
`it to Electronic Bandage?
`
`A
`
`Based on the Internet articles as
`
`well as ones we pulled from periodicals, it
`
`appears that newspaper writers are using the
`
`phrase "electric bandage" and "electronic
`
`bandage" interchangeably to describe the same
`
`concept.
`
`Q
`
`Linking that to this article,
`
`Electronic bandages could speed healing,
`
`could you briefly describe the relevance of
`
`this article?
`
`A
`
`Again,
`
`in the headline the phrase
`
`"Electronic Bandages" appears within the
`
`body.
`
`It is a description of a technology
`
`that delivers electrical fields to wounds,
`
`and the delivery mechanism is in the form of
`
`a bandage or adhesive bandage.
`
`And the article also highlights
`
`that this device, once marketed, could be
`
`sold directly to professionals as well as to
`
`consumers.
`
`Q
`
`I am now showing you a document
`
`that I asked to be marked Exhibit 9. This
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`Esquire Deposition Services
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`S. Tang
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`18
`
`Exhibit
`
`9 is a copy of the State News Service
`
`from 1988.
`
`Could you please identify it as
`
`A
`
`Yes,
`
`this is an article from the
`
`State News Service from October 6, 1988, and
`
`the focus of this is also around electric
`
`bandages.
`
`Q
`
`If you flip to the end,
`
`I
`
`think
`
`it's the last feature of the article, could
`
`you read that title, please?
`
`A
`
`(Reading)
`
`Sure.
`
`The title of this
`
`section within the article is called,
`
`Electronic bandage under review, and the
`
`article goes on to highlight how the FDA is
`
`reviewing a proposal
`
`from a manufacturer
`
`called M-E-D-L-E-C Limited to manufacture an
`
`electronic bandage.
`
`Q
`
`And based on these last four
`
`articles —— Exhibits 6, 7,
`
`8 and 9 -- what
`
`can you conclude about the term Electronic
`
`Bandage as applied to the products described
`
`therein?
`
`A
`
`It appears to me, based on
`
`articles,
`
`that since the mid to late '80s,
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`Esquire Deposition Services
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`
`S. Tang
`
`19
`
`the phrase electric and electronic bandage
`
`both have been intermittently used in
`
`periodicals, as well as Internet articles,
`
`expressing a very similar concept
`
`to what
`
`Klearsen is filing for.
`
`Q
`
`We're now going to look at
`
`dictionary definitions for the term
`
`electronic.
`
`To clarify —— let's go back and
`
`clarify what you said about
`
`the term
`
`"electronic bandage".
`
`I
`
`think you said intermittently.
`
`Did you mean interchangeably,
`
`that the terms
`
`electric and electronic are interchangeable,
`
`or did you mean intermittent?
`
`A
`
`Interchangeable.
`
`They are
`
`substitutes for each other.
`
`Q
`
`Back to the dictionary definitions.
`
`I will show you two documents that I asked to
`
`be marked Exhibit 10 and 11, respectively.
`
`Exhibit 10 is a printout from the
`
`American Heritage Dictionary accessed at
`
`www.B—A—R-T—L-E—B-Y.com.
`
`Could you please take a look at
`
`that and identify it?
`
`A.
`
`This is the dictionary definition
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`20
`
`of the word electronic pulled from the
`
`American heritage dictionary, and it's pulled
`
`from the Website, www.bartleby.com.
`
`Did you access this definition?
`
`Yes.
`
`And on what date?
`
`bNovember 23, 2008, at 11:05 p.m.
`
`Could you briefly describe how you
`
`accessed this dictionary definition?
`
`A
`
`I went onto the American Heritage
`
`Website and I typed in the word "electronic",
`
`and this word was pulled up.
`
`Q
`
`A
`
`What is the definition provided?
`
`(Reading) Electronic is an
`
`adjective, one, of or relating to electrons,
`
`two, of, based on, operated by or otherwise
`
`involving the controlled conduction of
`
`electrons or other charged carriers,
`
`especially in a vacuum, gas or semiconducted
`
`material.
`
`Q
`
`I'm now going to show you a
`
`document marked as Exhibit 11. This is a
`
`definition from dictionary.com of the term
`
`"electronic".
`
`Can you please identify this
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`21
`
`document?
`
`A
`
`This document is the definition of
`
`electronic pulled from dictionary.com.
`
`Q
`
`A
`
`Q
`
`Did you access this document?
`
`Yes.
`
`Can you describe how you accessed
`
`it, on what date?
`
`A
`
`I went
`
`to the Website,
`
`dictionary.com,
`
`typed in the word electronic,
`
`and this definition was pulled up.
`
`It was
`
`accessed on November 23, 2008 at 11:06 p.m.
`
`Q
`
`What is the definition of
`
`electronic provided therein? Can you -- you
`
`don't have to read all of them,
`
`just the top
`
`two.
`
`A
`
`(Reading) Electronic is an
`
`adjective, first definition, of or pertaining
`
`to electronics or to devices, circuits or
`
`systems developed through electronics, second
`
`definition, of or pertaining to electrons or
`
`to an electron.
`
`Q
`
`At risk of sounding repetitive,
`
`based on these definitions of the term
`
`electronic and the articles we reviewed as
`
`well as your experience as product director
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`22
`
`
`
`
`
`for Johnson & Johnson, what can you conclude
`
`the term "Electronic Bandage" as
`
`about
`
`applied to the goods that Klearsen seeks
`
`registration for in its trademarks?
`
`A
`
`Based on the definitions that were
`
`
`
`
`pulled from the dictionary Websites,
`
`phrase "electronic" seems to imply to
`
`the
`
`
`
`
`
`
`
`consumers that there's some form of an
`
`electrical charge or field that comes from
`
`the bandage. When the phrase electronic is
` paired with the word bandage,
`this is similar
`to the patents that Klearsen has filed.
`
` And Klearsen's patent seems top
`Q
`
`contemplate a bandage product?
`
`Correct.
`A
`
`
`For which electricity is used to
`Q
`create an
`
`
`electronic field?
`
`
`
` Yes.
` A
`
`Q
`
`You just described a consumer
`
`perception.
`
`What do you think the perception
`
`would be for medical professionals, if
`
`different from the consumer perception?
`
`
`A
`It would be the same as consumer
`perception.
`
`Klearsen applied to register
`
`
`
`Q
`
`Esquire Deposition Services
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`S. Tang
`
`23
`
`E—Bandage with the prefix E,
`
`hyphen.
`
`Does
`
`your analysis change any to the prefix E,
`
`hyphen?
`
`A
`
`No, it does not.
`
`In fact, if we
`
`look at the abbreviation using E in front of
`
`the word bandage, we can see that E is
`
`commonly used in the -— our vernacular today,
`
`as in the case of E—mail, and I think
`consumers understand that when "E4 is used in
`
`abbreviation before a noun, it stands for
`
`electronic or electric.
`
`Q
`
`We're now going to briefly discuss
`
`competitor needs for the terms as issue.
`
`I'm
`
`looking at a document that I had marked as
`
`Exhibit 12.
`
`Exhibit 12 is a patent application
`
`for a device called, Tissue reconstruction
`
`and regeneration.
`
`Could you please look at this
`
`document and identify it as such?
`
`A
`
`This is the patent application for
`
`tissue regeneration.
`
`Q
`
`If you turn to page 4, which is in
`
`the background of the invention portion of
`
`the patent,
`
`the first paragraph speaks to an
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`24
`
`electric bandage.
`
`Could you read the paragraph and
`
`explain its relevance?
`
`A
`
`(Reading.)
`
`Sure.
`
`This is the
`
`start of the paragraph.
`
`In another aspect,
`
`the invention features an electric bandage
`
`for application to a tissue defect. This
`
`electric bandage includes a flexible sheet, a
`
`chamber fixed to the flexible sheet, and
`
`containing an extracellular matrix, e.g., a
`
`cell free ECM.
`
`Q
`
`Is the electric bandage described
`
`similar to the products that we discussed and
`
`similar to Klearsen's product?
`
`A
`
`Yes, it is.
`
`If we look at the
`
`backing of an adhesive bandage, it can be
`
`described as a flexible sheet, and the
`
`chamber fixed to the sheet, as mentioned in
`
`this patent application,
`
`is similar to the
`
`battery in the gauze of what Klearsen has
`
`described.
`
`Q
`
`To just reinforce that claim 28,
`
`and the subsequent subclaims based on claim
`
`28, what do these claims pertain to?
`
`A
`
`There's a list of claims under
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`25
`
`claim 28 which all are based off of the
`
`phrase "electric bandage".
`
`Q
`
`A
`
`Could you please read claim 28?
`
`(Reading.)
`
`Sure. Claim 28 reads
`
`as, An electric bandage for application to a
`
`tissue defect,
`
`the device comprising a
`
`flexible sheet, a chamber fixed to the
`
`flexible sheet, and containing an
`
`extracellular matrix, a first conductor
`
`arranged on one side of the chamber, a second
`
`conductor arranged on another side of the
`
`chamber, an electric power source connected
`
`to the first and second conductors, a buffer
`
`reservoir arranged to deliver its contents to
`
`the extracellular matrix in the chamber, and
`
`a controller connected to the electric power
`
`source for applying an electrical potential
`
`to the extracellular matrix.
`
`Q
`
`Thank you.
`
`In claim 28, how is the
`
`term electric bandage used?
`
`A
`
`It's basically used to summarize
`
`and concisely explain what the product is,
`
`which appears to be a form -- a device
`
`similar to an adhesive with a battery source
`
`in the middle.
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`26
`
`Q
`
`Based on your experience,
`
`is the
`
`relevant consuming public likely to equate
`
`electric with electronic or electronic
`
`bandage with electric bandage?
`
`A
`
`The two phrases, electric and
`
`electronic,
`
`seems to be used interchangeably.
`
`Q
`
`I'm now showing you a document that
`
`I marked as Exhibit 13.
`
`I will actually
`
`review Exhibits 13, 14 and 15 with you
`
`together, because they all pertain to the
`
`same company and the same product.
`
`Exhibit 13 is an article entitled
`
`D—O—N—N—E—R Corp. International issues
`
`speculative buy recommendation on E-L-A-S—T
`
`technologies Inc.
`
`This article is obtained from the
`
`PR newswire, and it's dated June 26, 2000.
`
`Could you please identify this document as
`
`such?
`
`A
`
`Yes,
`
`this article is entitled
`
`Donner Corp. International issues speculative
`
`buy recommendation on Elast Technologies,
`
`Inc. dated June 26,
`
`2000.
`
`Q
`
`Is Exhibit 14 -- I'm showing you an
`
`article entitled L—I-T-E-G-L-O-W Industries
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`27
`
`to purchase Bioelectronics Corporation. This
`
`is obtained from the business wire, and it's
`
`dated October 5, 2000.
`
`Could you please identify it?
`
`A
`
`Yes,
`
`this is the article entitled
`
`Liteglow Industries to purchase
`
`Bioelectronics Corporation from the business
`
`wire dated October 5, 2000.
`
`Q
`
`And as Exhibit 15,
`
`I'm showing you
`
`an article entitled Elast Technologies
`
`receives speculative buy recommendation from
`
`Donner Corp. obtained from the business wire
`
`on June 27, 2000.
`
`Could you please identify this
`
`document?
`
`A
`
`Yes,
`
`this document is Elast
`
`Technologies receives speculative buy
`
`recommendation from Donner Corp.
`
`International from business wire dated
`
`June 27, 2000.
`
`Q
`
`Could you briefly describe the
`
`relevance of these three articles that all
`
`reference a product called the P-O—R-T-I-C
`
`electronic bandage?
`
`A
`
`These three articles are from
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`28
`
`different news sources, and they pertain to
`
`financial coverage of various companies as
`
`well as information or background on certain
`
`companies, and all three articles reference
`
`the Portic Electronic Bandage in its
`
`articles, and essentially the description of
`
`the technology is an adhesive bandage or a
`
`strip with adhesive that contains a center or
`
`a pad that has an electrical current.
`
`Q
`
`And you said all three articles
`
`reference a Portic Electronic Bandage.
`
`I
`
`think that the June 26, 2000 article in its
`
`sixth and seventh paragraph references the
`
`Portic Electric Bandage.
`
`Can you confirm that?
`Yes.
`So,
`there was a mistake in
`
`A
`
`two of the articles.
`The Portic device is
`referenced as an electronic bandage, but in
`
`the article from June 26, 2000,
`
`the product
`
`is referenced in the article three times as
`
`an electric bandage.
`
`Q
`
`What can you conclude by these
`
`differing references about
`
`the public's
`
`perception of the terms electronic bandage
`
`and electric bandage?
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`29
`
`A
`
`The writers as well as the public,
`
`they are using the phrase electronic and
`
`electric bandage interchangeably, and in
`
`case,
`
`to describe the exact same product.
`
`Q
`
`I now move Exhibits 13 through
`
`into evidence.
`
`I'm now showing you a
`
`document that I asked to be marked 16. This
`
`Exhibit 16 is an article from the Daily Mail
`
`entitled, Electric bandages kickstart
`
`healing, dated October 3, 2007.
`
`Could you please identify this
`
`document?
`
`A
`
`Sure. This article is titled,
`
`Electric bandages kickstart healing,
`
`from the
`
`Daily Mail, dated October 9, 2007.
`
`Q
`
`Could you please explain the
`
`relevance of this document?
`
`A
`
`This article has the phrase
`
`electric bandages in its title, and it
`
`actually opens with electric bandage in its
`
`first paragraph.
`
`Then the article goes on to explain
`
`what an electric bandage is,
`
`the description
`
`essentially describes what the article calls
`
`a large sticking plaster, which is another
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`30
`
`name for adhesive bandage, and it contains an
`
`electrical unit in the middle of that bandage
`
`that fires a current on to the wound.
`
`Q
`
`And to your understanding,
`
`is the
`
`product described in this article similar or
`
`identical to the product that Klearsen is
`
`claiming in its trademark applications?
`
`A
`
`It appears to me that it's
`
`identical in that it contains an electrical
`
`unit in the middle of the bandage, delivering
`
`a current to the wound.
`
`Q
`
`I'm now showing you a document that
`
`I asked to be marked Exhibit 17. This
`
`Exhibit 17 is an article entitled, Electric
`
`bandage that zaps wounds,
`
`from the Daily
`
`Mail, and it's dated October 19, 2004.
`
`Could you please identify this
`
`document?
`
`A
`
`This article is titled, Electric
`
`bandage that zaps wounds from the Daily Mail,
`
`October 19, 2004.
`
`Q
`
`And could you briefly describe the
`
`relevance of this article?
`
`A
`
`Again,
`
`in the title the phrase
`
`electric bandage is used.
`
`To summarize the
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`31
`
`article,
`
`the article goes on to describe
`
`essentially a bandage that uses electricity
`
`to treat wounds.
`
`The technology itself is described
`
`as a tiny electrical current in the dressing,
`
`and delivered through a form that is similar
`
`to a bandage.
`
`Q
`
`And to your understanding is the
`
`product described in this article similar to
`
`Klearsen's product?
`
`A
`
`This is identical to the Klearsen
`
`product,
`
`in the sense that an electrical
`
`current is delivered to the wound through the
`
`device of an adhesive bandage.
`
`Q
`
`I'm now going to show you two
`
`documents that we will talk about together.
`
`The first is a document that I asked to be
`
`marked Exhibit 18.
`
`Exhibit 18 is an article entitled,
`
`Design and engineer show to be held in Boston
`
`from the PR newswire dated June 3, 1985.
`
`The
`
`document that I asked to be marked Exhibit 19
`
`is an article entitled, The eastern design,.
`
`engineering show and conference attracting
`
`200 exhibitors will be held June 3 through 5
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`32
`
`n-BQJRJ
`\10\U'|
`
`in the Bayside Exhibition Center, Boston.
`
`This document was obtained from the
`
`PR newswire dated May 31,
`
`1985.
`
`Susan,
`
`could
`
`you identify Exhibits 18 and 19, please?
`
`A
`
`Exhibit 18 is an article titled,
`
`Design and engineering show to be held in
`
`Boston from the PR newswire on June 3, 1985,
`
`and Exhibit 19 is titled, The eastern design
`
`engineering show and conference attracting
`
`200 exhibitors will be held June 3 to 5 in
`
`the Bayside Exhibition Center, Boston,
`
`from
`
`the PR newswire dated May 31, 1985.
`
`Q
`
`Both these articles use the term
`
`electric bandage.
`
`You can take them one at a
`
`time, how is the term electric bandage used
`
`therein?
`
`A
`
`In Exhibit 18, electric bandage is
`
`used to summarize a technology that cuts the
`
`healing time of wounds.
`
`In Exhibit 19,
`
`the
`
`same phrase,
`
`electric bandage,
`
`is used to
`
`describe a product that contains -— a bandage
`
`that contains a battery that delivers a
`
`current to the wound.
`
`Q
`
`And both of these uses of electric
`
`bandage, are they consistent with describing
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`33
`
`the product that Klearsen has applied for in
`
`its trademark applications?
`
`A
`
`Q
`
`Yes.
`
`As we talked about a little before,
`
`these articles use electric bandage as
`
`opposed to the applied for Electronic
`
`Bandage.
`
`What can you conclude about
`
`the
`
`relationship between electric bandage and
`
`Electronic Bandage?
`
`A
`
`Based on these articles from 1985,
`
`the phrase electric bandage and the
`
`technology has appeared in the marketplace,
`
`and in fact based on subsequent articles as
`
`well as Internet articles, it appears that
`
`the phrase electric bandage and Electronic
`
`Bandage are being used to describe very
`
`similar if not identical technologies.
`
`Q
`
`‘Now I will show you three
`
`documents.
`
`They will be Exhibits 20 through
`
`22.
`
`The document that I asked to be
`
`marked Exhibit 20 is an article entitled,
`
`High tech watch.
`
`It's from the Rocky
`
`Mountain News dated June 10, 1990.
`
`Esquire Deposition Services
`
`
`
`S. Tang
`
`34
`
`Exhibit 21 is an article entitled,
`
`Market for burn care products, with a
`
`subtitle, Other products and technologies,
`
`colon, D-E-R-M—A-P-U-L-S—E. This article was
`
`obtained from K-A-L-O-R—A—M-A Info, Inc., and
`
`Exhibit 22, also obtained from Kalorama Info,
`
`Inc. entitled, Company profiles, semicolon,
`
`S—T—A-O-D—Y-N, Inc., and this last article is
`
`dated 1993.
`
`Could you please identify exhibits
`
`20 through 22?
`
`A
`
`Exhibit 20 is titled, High tech
`
`watch from the business section in the Rocky
`
`Mountain News, and this is dated June 10,
`
`1990. Exhibit 21 is titled, Other products
`
`and technologies, colon, Dermapulse. This is
`
`from March 1993.
`
`And then Exhibit 22 is titled,
`
`Company profiles, colon, Staodyn, Inc.,
`
`the
`
`date is October 1993.
`
`Q
`
`These three articles all relate to
`
`a product developed by Staodynamics, S-T-A-0,
`
`Dynamics, later renamed Staodyn.
`
`Could you briefly describe the
`
`product herein and how it relates to this
`
`sh-L.Ul\)
`®\1O\U1
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Esquire Deposition Services
`
`
`
`35
`
`
`
`summarized as an electronic bandage similar
`
`S. Tang
`
` dispute?
`
`
`A
`These three articles all describe
` the main product from Staodyn, which is
`
`
`
`to other descriptions that we've discussed.
`
`
`
`It's essentially a bandage with a technology
`
`of delivering electrical currents or an
`
`
`
`electrical pulse to the wound.
`
`
`
`
`In these three articles,
`
`the news
`
`
`sources are all very different and they use
`the phrase "electronic bandage" to describe
`
`
`
`
`
`
` 12 the technology and to summarize the
`
`technology.
`
`Q
`
`11
`
`13
`
`14
`
`Could you read the sentence in the
` 15
`
`
`first article from the Rocky Mountain News
`16
`
`that includes "electronic bandage"?
`
`
`17
`A
`(Reading)
` 18 Exhibit 20,
`the sentence reads,
`
`
`being conducted by the University of
`
`Tennessee School of Medicine on Staodynamics
`
`
`
`
`21
` 22
`
`23
`
`
`development of an electronic bandage.
`
`Sure. This is in
`
`G—E—N—T—Z-K-O-W also will direct studies
`
`19
`
`20
`
`
`
`new wave pain management system and the
`
`ongoing joint research product with the
`
`24
`
`University of Miami School of Medicine on
`
`25
`
`Esquire Deposition Services
`
`
`
`S. Tan
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