throbber
Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
`
` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` 3
`
` ----------------------------------------------------
` 4 H&S Manufacturing Company,)
` Inc., )
` 5 )
` Petitioner, )
` 6 )
` vs. ) File No. IPR2016-00950
` 7 )
` Oxbo International )
` 8 Corporation, )
` )
` 9 Patent Owner, )
` ----------------------------------------------------
`
` 10
`
` 11
`
` 12
`
` 13
`
` 14
`
` 15
`
` 16 TRANSCRIPT OF PROCEEDINGS
`
` 17 The following is the TRANSCRIPT OF
`
` 18 PROCEEDINGS, taken before Julie A. Brooks, Notary
`
` 19 Public, Registered Professional Reporter,
`
` 20 Telephonically, commencing at 10:00 a.m., Thursday,
`
` 21 July 20, 2017.
`
` 22
`
` 23
`
` 24
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` 25
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 APPEARANCES:
`
` 2
`
` 3
`
` Administrative Patent Judges:
`
` James A. Tartal
` 4 Phillip J. Kauffman
` Kevin W. Cherry
`
` 5
`
` 6 On Behalf of Petitioner:
`
` 7 Brad Pedersen, Esquire
` Mike Gates, Esquire
` 8 PATTERSON THUENTE PEDERSEN
` 4800 IDS Center
` 9 80 South Eighth Street
` Minneapolis, Minnesota 55402
` 10 (612) 349-5775
` arcand@ptslaw.com
`
` 11
`
` 12 On Behalf of Patent Owner:
`
` 13 Shane Brunner, Esquire
` MERCHANT & GOULD
` 14 3200 IDS Center
` 80 South Eighth Street
` 15 Minneapolis, Minnesota 55402
` (612) 332-5300
`
` 16
`
` 17
`
` 18
`
` 19
`
` 20
`
` 21
`
` 22
`
` 23
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` 24
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` 25
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 PROCEEDINGS
`
` 2 Whereupon, the TRANSCRIPT OF PROCEEDINGS
`
` 3 was commenced at 10:00 a.m. as follows:
`
` 4 ***
`
` 5
`
` 6
`
` 7 JUDGE TARTAL: H&S Manufacturing Company
`
` 8 versus Oxbo International Corporation, Case
`
` 9 IPR2016-00950.
`
` 10 I'm Judge Tartal. With me on the call
`
` 11 today are Judges Kauffman and Cherry.
`
` 12 Can we begin with identification of
`
` 13 counsel, please. Who do we have on the call today for
`
` 14 Petitioner?
`
` 15 MR. PEDERSEN: Your Honor, for
`
` 16 Petitioner, this is Brad Pedersen, and with me,
`
` 17 listening in, is Mike Gates. We also have a court
`
` 18 reporter, Julie Brooks, who is on the line.
`
` 19 JUDGE TARTAL: Thank you, Counsel, for
`
` 20 letting us know that. We would ask that, at the end of
`
` 21 the call when the transcript of the call has been
`
` 22 completed by the court reporter, that you file that as
`
` 23 an exhibit in the proceeding.
`
` 24 MR. PEDERSEN: We will do that, Your
`
` 25 Honor.
`
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 JUDGE TARTAL: Thank you.
`
` 2 And who do we have today on behalf of
`
` 3 the Patent Owner?
`
` 4 MR. BRUNNER: Good morning, Your Honor.
`
` 5 This is Shane Brunner, for the patent owner Oxbo.
`
` 6 JUDGE TARTAL: Petitioner, I believe,
`
` 7 requested the call, and it was in regards to
`
` 8 authorization to submit additional exhibits related to
`
` 9 documents from the district court proceedings, as I
`
` 10 understand it. So we will begin by turning it over to
`
` 11 Petitioner to address what they seek.
`
` 12 MR. PEDERSEN: Thank you, Your Honor.
`
` 13 In this situation, we've had co-pending district court
`
` 14 litigation that has gone along at the same time as this
`
` 15 ITR. And as the Board is aware, several orders, a jury
`
` 16 trial, and a decision in that case have come down since
`
` 17 the conference call that was last held on May 23rd.
`
` 18 So the request is a simple one, to
`
` 19 update selected portions of the court's orders and/or
`
` 20 findings of the proceeding so that the record can
`
` 21 reflect -- that the Board is going to be considering
`
` 22 on, you know, a complete record.
`
` 23 If either of these two cases or if both
`
` 24 of these cases were to go up on appeal, a strong
`
` 25 exception would be that all of what is attempted to
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 being submitted here by way of exhibits would come in
`
` 2 under FRAP 11 or 16 as supplementation to the record,
`
` 3 if either of these two proceedings would make their way
`
` 4 up the appellate process, if that were to happen.
`
` 5 So it seems prudent that the Board
`
` 6 should allow for the entry of these new court orders or
`
` 7 findings so they have a complete record in this regard.
`
` 8 And this will implicate the Novartis case that I
`
` 9 discussed but did not identify in the last call. And
`
` 10 that case is the case that talks about the relationship
`
` 11 between these two proceedings in terms of the effect
`
` 12 which -- particularly, with respect to claim
`
` 13 construction so --
`
` 14 JUDGE TARTAL: We, obviously, don't
`
` 15 wholesale incorporate the entire file out of a district
`
` 16 court into our proceeding, and that partly stems from
`
` 17 the prior order expunging documents. We do this based
`
` 18 on a consideration of each document that you're seeking
`
` 19 to have entered as an exhibit. So if it seems
`
` 20 reasonable to start with just a specific identification
`
` 21 of what it is you are seeking to have added to the
`
` 22 record in this case.
`
` 23 MR. PEDERSEN: So Petitioner would seek
`
` 24 two documents, each, I believe, two pages long. One of
`
` 25 them is a portion of the district court's final motion
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 in limine order that related to the grounds of validity
`
` 2 that were tried to the jury, to identify what those
`
` 3 grounds were based on. And that, I believe, is 1027
`
` 4 which has previously been submitted and expunged.
`
` 5 The second one would be the Special
`
` 6 Verdict Form relative to damages and what the jury
`
` 7 found with respect to willful infringement. That was
`
` 8 Exhibit 1028.
`
` 9 JUDGE TARTAL: And let's begin with the
`
` 10 first document. And, perhaps, it would be easiest to
`
` 11 take these one at a time. What is it about a portion
`
` 12 of the motion in limine in district court that you
`
` 13 represent is relevant to the proceeding that's before
`
` 14 us or that would provide some sort of context as to the
`
` 15 status of the case in district court, if the case has
`
` 16 already been -- it sounds like the case has already
`
` 17 gone to the jury and there's already a jury
`
` 18 determination in the case.
`
` 19 MR. PEDERSEN: So under the Novartis
`
` 20 versus Noven Pharmaceuticals case, 853 F.3d 1289, of
`
` 21 the Federal Circuit came down April of 2017, in
`
` 22 deciding whether or not the claim construction or
`
` 23 findings of the district court were relevant to the
`
` 24 PTAB IPR proceeding that was at issue in that case, the
`
` 25 Court took a look at a couple of things. But one of
`
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 the things that court, in that decision, focused on was
`
` 2 the similarity or distinction between the records in
`
` 3 the two proceedings.
`
` 4 And in this case, the motion in limine
`
` 5 would identify the grounds for which validity was
`
` 6 presented and demonstrate that there were no grounds
`
` 7 based on DiClemente as the primary reference that were
`
` 8 presented to the jury in the district court
`
` 9 proceedings.
`
` 10 So Petitioners are going to argue that
`
` 11 the district court finding relevant to patentability or
`
` 12 validity are not relevant based on the difference in
`
` 13 the record and the grounds that were considered.
`
` 14 JUDGE TARTAL: Okay. Let me -- do you
`
` 15 have anything to add on that document in particular?
`
` 16 MR. PEDERSEN: No, that's it, Your
`
` 17 Honor.
`
` 18 JUDGE TARTAL: Let me turn now to Patent
`
` 19 Owner to allow them to -- you can address broadly what
`
` 20 we are discussing, but also let's attempt, at least, to
`
` 21 focus on that first document, as well, please, and give
`
` 22 the Patent Owner an opportunity to be heard.
`
` 23 MR. BRUNNER: Yes, Your Honor. As far
`
` 24 as Exhibit 1027, our position on it is it is irrelevant
`
` 25 and it is unnecessary. In addition, it is only a
`
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 portion of the order. If the purpose of this is to say
`
` 2 that the specific ground that is at issue in this
`
` 3 proceeding was not specifically tried to the jury, that
`
` 4 is, in fact, the case.
`
` 5 But to say that there's no similarity,
`
` 6 that would be incorrect, because the reference -- two
`
` 7 of the references were tried in the case, and there
`
` 8 was -- there were similar prior art, including a file
`
` 9 reference which is nearly identical to the DiClemente
`
` 10 reference. That was tried in the case. So to say
`
` 11 there was no similarities, we disagree with that.
`
` 12 But, ultimately, our position is that
`
` 13 this partial order here is just irrelevant to this
`
` 14 proceeding.
`
` 15 JUDGE TARTAL: And would you -- would --
`
` 16 say we decide the relevance or lack of relevance, am I
`
` 17 to understand that you would prefer, if the document
`
` 18 were admitted, it should be the complete document?
`
` 19 MR. BRUNNER: If it is going to be
`
` 20 submitted for the purpose of supplementing the whole
`
` 21 record, then I think the whole document would be more
`
` 22 appropriate than just 2 pages of a 16-page document.
`
` 23 JUDGE TARTAL: Okay. And it sounds like
`
` 24 the underlying point that the document purports to show
`
` 25 is not in dispute, is that correct, that you would
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 stipulate to the fact that the grounds asserted in the
`
` 2 district court did not include DiClemente?
`
` 3 MR. BRUNNER: As for Claim 1 of the 739
`
` 4 Patent, the Petitioner had dropped that as a
`
` 5 combination that it wished to pursue at trial. So it
`
` 6 was not pursued at trial with DiClemente, Hawnay
`
` 7 (phonetic), and Lawrence.
`
` 8 JUDGE TARTAL: Okay. Let's turn to the
`
` 9 second document. Petitioner, what is the second
`
` 10 document, and what is its relevance? And is it a
`
` 11 complete document?
`
` 12 MR. PEDERSEN: The second document is --
`
` 13 it was submitted to complete the document that Patent
`
` 14 Owner had submitted, which was the first part of the
`
` 15 jury verdict form regarding infringement and
`
` 16 patentability.
`
` 17 And the second part of the verdict form
`
` 18 represented by Document 1028 is the two pages of
`
` 19 Special Verdict Form with respect to damages and
`
` 20 willful infringement. So the submission that
`
` 21 Petitioner did here was in response to Patent Owner's
`
` 22 submission of Exhibit 2021, the Special Verdict Form
`
` 23 with respect to infringement and patentability. We
`
` 24 wanted to complete the record with respect to that,
`
` 25 noting that the willful infringement determination
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 would be evidence with respect to the allegations of
`
` 2 copying, a secondary consideration in this matter.
`
` 3 JUDGE TARTAL: Okay. Counsel, just
`
` 4 note, in the future, if a document is filed that you
`
` 5 feel warrants a response, it would be helpful to
`
` 6 request a call to the Board, rather than file a
`
` 7 responsive document. That way we can resolve it before
`
` 8 we go through unnecessary expungement processes and
`
` 9 additional calls.
`
` 10 Are you still seeking to have that
`
` 11 document entered? Because I believe the document you
`
` 12 are referring to that you are responding to has been
`
` 13 expunged.
`
` 14 MR. PEDERSEN: Yes. I think, as I
`
` 15 stated at the outset of the call, Your Honor, the
`
` 16 record in the district court, you know, whether it is
`
` 17 presented here or gets introduced at a later stage in
`
` 18 the proceeding, it is a judicial record. There's no
`
` 19 dispute about where it is at. And having that into
`
` 20 this record seems to be the more prudent course of
`
` 21 action.
`
` 22 So in regard to the filing of the
`
` 23 document and the requesting of the conference call, in
`
` 24 hindsight, I think Your Honor has certainly got good
`
` 25 advice there, that we probably should have requested a
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 call. We simply followed what the Patent Owner had
`
` 2 done with the supplemental information, considering
`
` 3 this not to be evidence, per se, as much as judicial
`
` 4 record. But your point is well taken, Your Honor.
`
` 5 JUDGE TARTAL: Okay. Turning to Patent
`
` 6 Owner, what is your response, and what is the -- are
`
` 7 you seeking still to have what you previously filed
`
` 8 that was referred to entered, or is your position now
`
` 9 that neither should be entered?
`
` 10 MR. BRUNNER: Well, Your Honor, when we
`
` 11 filed the liability verdict on non-obviousness, we did
`
` 12 that as -- we understood that to be part of our
`
` 13 mandatory disclosures that we had to update in the
`
` 14 concurrent proceedings.
`
` 15 Certainly, the district court's decision
`
` 16 on non-obviousness is, at least, relevant to some
`
` 17 extent. I can't say that we agree with it, that the
`
` 18 damages and willfulness verdict has the same import,
`
` 19 because it just is not something relevant to this
`
` 20 proceeding.
`
` 21 So ultimately, if it is -- if the Board
`
` 22 deems that it is appropriate mandatory notice to have
`
` 23 the verdict in, then we would like to have the
`
` 24 liability verdict in.
`
` 25 We still disagree that the damages
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 verdict is at all relevant to this proceeding. If the
`
` 2 Board deems that it is not part of a -- a liability
`
` 3 verdict is not part of a mandatory notice requirement,
`
` 4 then we can live with it also not being part of the
`
` 5 record.
`
` 6 JUDGE TARTAL: And so if the document is
`
` 7 entered, then you would seek to have -- excuse me, what
`
` 8 the entire document is that you would propose having
`
` 9 entered into the record, that is.
`
` 10 MR. BRUNNER: Yes. So if what we had
`
` 11 submitted was Paper 32 and Exhibit 2021, which was
`
` 12 the -- was an Updated Mandatory Notice attaching
`
` 13 Exhibit 2021, which is the liability verdict for the
`
` 14 district court case.
`
` 15 JUDGE TARTAL: And so is the damages
`
` 16 verdict the same document with initial pages, or is
`
` 17 that a separate document, as you understand it?
`
` 18 MR. BRUNNER: Yeah, that is a separate
`
` 19 document. The trial was done in bifurcated fashion, so
`
` 20 liability had been found, and then a separate trial on
`
` 21 damages was had. So it is a separate document.
`
` 22 JUDGE TARTAL: Okay. And then, I guess,
`
` 23 understanding that these are all public documents that
`
` 24 have been entered into the district court record,
`
` 25 that's correct, isn't it, Patent Owner?
`
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 MR. BRUNNER: That is correct, Your
`
` 2 Honor.
`
` 3 JUDGE TARTAL: Is there anywhere --
`
` 4 other than the relevance issue, is there any prejudice
`
` 5 that you feel should be brought to our attention in
`
` 6 terms of having these documents included in the record
`
` 7 and proceeding?
`
` 8 MR. BRUNNER: It really goes to the
`
` 9 relevance of the document and the purpose for how it
`
` 10 might be used at some oral hearing or in this
`
` 11 proceeding as a whole.
`
` 12 JUDGE TARTAL: Okay. And, Petitioner,
`
` 13 anything additional that you contend?
`
` 14 Touching on that issue, I don't believe
`
` 15 that any of this is relevant to an issue that would be
`
` 16 addressed at an oral hearing, so without deciding in
`
` 17 advance, that may not be an issue.
`
` 18 Petitioner, is there anything that you
`
` 19 would add?
`
` 20 MR. PEDERSEN: No. With respect to now
`
` 21 expunged Exhibit 1028, the damages verdict, again, that
`
` 22 was submitted on our part to get a complete picture of
`
` 23 what the district court and the jury had found in this
`
` 24 case and the basis on which they had found it, in terms
`
` 25 of the relevant -- you know, it is what it is, because
`
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 it is a public record. And it goes to a case -- a
`
` 2 point on which the Patent Owner would have the burden
`
` 3 of carrying secondary consideration evidence. So the
`
` 4 relevance of it at oral hearing would be minor, at
`
` 5 best.
`
` 6 JUDGE TARTAL: Is there any reason,
`
` 7 Petitioner, that the points about which you seek to
`
` 8 make with regard to these documents couldn't be
`
` 9 identified in a stipulated filing that Patent Owner
`
` 10 would agree to, rather than the documents being entered
`
` 11 into the record? Is there a reason why the documents
`
` 12 themselves would be preferable to a stipulation?
`
` 13 MR. PEDERSEN: Petitioner is more than
`
` 14 willing to work on a stipulation, given the fact that
`
` 15 the documents could be made of record later in an
`
` 16 appellant record, because they are judicial documents.
`
` 17 It is kind of six of one, half dozen of others, as far
`
` 18 as we're concerned.
`
` 19 JUDGE TARTAL: Patent owner, is that
`
` 20 something you would be agreeable to?
`
` 21 MR. BRUNNER: Well, I think it depends
`
` 22 upon what it is. I mean, if the stipulation is that
`
` 23 the documents exist, that's fine. I disagree with the
`
` 24 purpose that, you know, that it is even being
`
` 25 acknowledged of having a minimal relevance is that,
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 because of the finding of no willingness, that that
`
` 2 somehow bears on the obviousness and secondary
`
` 3 consideration.
`
` 4 There certainly is no requirement or
`
` 5 there is no reason to believe that the -- that there
`
` 6 was no copying or -- because there was a finding of no
`
` 7 willfulness. One does not follow the other.
`
` 8 Therefore, I don't know that we would be able to
`
` 9 stipulate for the purpose for which they wish to use
`
` 10 it. In fact, we disagree with that, that that has any
`
` 11 relevance whatsoever here. It kind of misses the point
`
` 12 and is a bit of a side show as to what the issues are
`
` 13 in this proceeding.
`
` 14 JUDGE TARTAL: Right. Presumably, the
`
` 15 stipulation would just be to the content and facts of
`
` 16 the document. So for example, if there was a finding
`
` 17 of no willfulness, then that's not in dispute. Any
`
` 18 argument that would be made based on that, certainly
`
` 19 that wasn't previously made, would not be permitted
`
` 20 during the hearing but wouldn't be part of the
`
` 21 stipulation, as I understand it.
`
` 22 Let me put the parties on hold for a
`
` 23 moment and consult with the panel and see if we have
`
` 24 any additional questions. So please just hold the line
`
` 25 for a moment.
`
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`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 (Pause in Proceedings.)
`
` 2 JUDGE TARTAL: Counsel, this is Judge
`
` 3 Tartal. Is counsel for Petitioner still on the call?
`
` 4 MR. PEDERSEN: Yes, I am, Your Honor.
`
` 5 JUDGE TARTAL: And is counsel for Patent
`
` 6 Owner still on the call?
`
` 7 MR. BRUNNER: Yes, Your Honor.
`
` 8 JUDGE TARTAL: Okay. Thank you,
`
` 9 Counsel, for the information that you provided. We're
`
` 10 going to take the request under advisement and issue an
`
` 11 order shortly, rather than ruling on the call, until we
`
` 12 have a chance to discuss it a little bit further as a
`
` 13 panel.
`
` 14 Is there anything additional from the
`
` 15 Petitioner today?
`
` 16 MR. PEDERSEN: In light of the call
`
` 17 today, we note that the demonstratives are due to the
`
` 18 file this week, tomorrow, and we've talked with counsel
`
` 19 for Patent Owner. We would jointly like to ask for a
`
` 20 one-day deferral until Monday. If the Board's order
`
` 21 comes out by then, that will assist in terms of what is
`
` 22 of record for this case for demonstratives.
`
` 23 JUDGE TARTAL: That's fine. And I won't
`
` 24 include that in the order. Or at least, I'll take a
`
` 25 look and see if it is included. But demonstratives
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`
` 1 would be, otherwise -- are you referring to the date of
`
` 2 exchange for demonstratives or the date of -- the date
`
` 3 of exchange?
`
` 4 MR. PEDERSEN: Yes.
`
` 5 JUDGE TARTAL: Okay. That's fine.
`
` 6 Patent owner, is that correct, that you are agreeable
`
` 7 to Monday for the exchange of demonstratives?
`
` 8 MR. BRUNNER: That is correct, Your
`
` 9 Honor.
`
` 10 JUDGE TARTAL: Okay. Then any other
`
` 11 questions or issues from Patent Owner at this time?
`
` 12 MR. BRUNNER: No, Your Honor.
`
` 13 JUDGE TARTAL: Okay. Thank you,
`
` 14 Counsel. And this call is adjourned.
`
` 15 MR. PEDERSEN: Thank you Your Honor.
`
` 16 (Whereupon, the TRANSCRIPT OF
`
` 17 PROCEEDINGS was concluded at 10:24 a.m.)
`
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`Depo International, Inc.
`(763) 591-0535 or (800) 591-9722 | info@depointernational.com
`
`Page 17
`
`Page 17 of 18
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`

`

`Hearing - 7/20/2017
`H&S Manufacturing Company, Inc. vs. Oxbo International Corporation
`
` 1 STATE OF MINNESOTA )
` COUNTY OF ANOKA )ss.
` 2 CERTIFICATE
`
` 3 BE IT KNOWN that I, Julie A. Brooks, took the
` foregoing TRANSCRIPT OF PROCEEDINGS;
`
` 4
`
` That the foregoing TRANSCRIPT OF PROCEEDINGS is a
` 5 true record of the testimony given by said witness;
`
` 6 That I am not related to any of the parties
` hereto, nor an employee of them, nor interested in the
` 7 outcome of the action;
`
` 8 That the cost of the original has been charged to
` the party who noticed the TRANSCRIPT OF PROCEEDINGS,
` 9 and that all parties who ordered copies have been
` charged at the same rate for such copies;
`
` 10
`
` WITNESS MY HAND AND SEAL this 24th day of July,
` 11 2017.
`
` 12
`
` 13
`
` 14 Julie Brooks, Notary Public, RPR
`
` 15
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`
`Depo International, Inc.
`(763) 591-0535 or (800) 591-9722 | info@depointernational.com
`
`Page 18
`
`Page 18 of 18
`
`

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