EXHIBIT 4

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Paul Hatch - October 21, 2022

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1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE NORTHERN DISTRICT OF ILLINOIS

3 EASTERN DIVISION

4 __________________________________________

ABC Corporation I, et al., )

5 )

 Plaintiffs, ) CASE NO.

6 ) 1:20-cv-04806

v. )

7 )

The Partnerships and Unincorporated )

8 Associations Identified on Schedule "A" )

 )

9 Defendants. )

__________________________________________)

10

11

12

13

14

15

16

17

18 REMOTE DEPOSITION UNDER ORAL EXAMINATION OF

19 PAUL HATCH

20 DATE: October 21, 2022

21

22

23

24 REPORTED BY: CHARLENE FRIEDMAN, CCR, RPR, CRR

25

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1

2

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7 TRANSCRIPT of the deposition of the

8 witness, called for Oral Examination in the

9 above-captioned matter, said deposition being taken by

10 and before CHARLENE FRIEDMAN, a Notary Public and

11 Certified Court Reporter of the State of New Jersey, a

12 Registered Professional Reporter, and a Certified

13 Realtime Reporter, via video teleconference, by Zoom, on

14 October 21, 2022, commencing at approximately 9:58 in

15 the morning, Eastern Standard Time.

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1 A P P E A R A N C E S:

2

3

4 TARTER, KRINSKY & DROGAN, LLP

 1350 Broadway

5 New York, New York 10018

 (212) 216-8000

6 BY: MARK BERKOWITZ, ESQ.

 CHANDLER STURM, ESQ.

7 Attorneys for Plaintiffs

8

9

10 GLACIER LAW, LLP

 506 Second Avenue

11 Suite 1516

 Seattle, Washington 98104

12 (206) 397-8633

 BY: ROBIN CHENG, ESQ.

13 Attorneys for Defendant

14

15

16 ALSO PRESENT: YIYI LIU

17

18 * * * * * 

19

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24

25

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Paul Hatch - October 21, 2022

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1 I N D E X

2 WITNESS NAME PAGE

3 PAUL HATCH

4 By Mr. Cheng 7

5

6

7 * * * * * 

8

9

10 E X H I B I T S

11 EXHIBIT NO. DESCRIPTION PAGE

12 Exhibit 1 Declaration 42

13 Exhibit 2 Declaration 44

14 Exhibit 3 Expert witness report 62

15 Exhibit 4 Rebuttal report 78

16 Exhibit 5 Exhibit to rebuttal 79

17 Exhibit 6 Report 81

18 Exhibit 7 U.S. D 737,723 Patent 144

19

20

21 * * * * * 

22

23

24

25

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1 - - -

2 Deposition Support Index

3 - - -

4

5 Direction to witness not to answer

6 Page Line

7 None

8

9 Request for production of documents

10 Page Line

11 None

12

13 Questions marked

14 Page Line

15 None

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1 CERTIFIED SHORTHAND REPORTER: My

2 name is Charlene Friedman, a Certified

3 Shorthand Reporter and Notary Public of the

4 State of New Jersey. This deposition is

5 being held via videoconference equipment.

6 The witness and reporter are not in

7 the same room. The witness will be sworn in

8 remotely, pursuant to agreement of all

9 parties. The parties stipulate that the

10 testimony is being given as if the witness

11 was sworn in person.

12

13

14

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25

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Paul Hatch - October 21, 2022

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1 P A U L H A T C H,

2 called as a witness, having been first duly

3 sworn according to law, testifies as follows:

4

5 EXAMINATION BY MR. CHENG:

6 Q Good morning, Mr. Hatch.

7 Thank you for attending this

8 deposition.

9 A Good morning.

10 Q My name is Robin Cheng, and I'll be

11 conducting this deposition. I'll be asking

12 questions related to the case in front of the

13 Northern District of Illinois, Case No.

14 120-cv-04806.

15 Are you familiar with that case?

16 A Yes, I am.

17 Q So is there any reason that you

18 could not testify honestly or confidently or

19 competently?

20 A No.

21 Q Did you take any drugs or

22 medication, or do you have any mental illness

23 that would prevent you from testifying

24 honestly?

25 A No.

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Paul Hatch - October 21, 2022

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1 Q Okay. Mr. Hatch, how many expert

2 witness reports did you provide in this case?

3 A In this part of the case, I

4 provided one expert report, an initial report

5 plus two rebuttals.

6 I should also, if I may, point out,

7 I have printouts in front of me here, I just

8 want you to know now, that are unmarked of

9 all three documents.

10 Q All three documents?

11 A Yes.

12 Q Did you provide any other reports

13 in this case?

14 A Here in this case I provided

15 reports as well, and -- yes, that were of a

16 similar matter.

17 Q How many reports did you produce

18 previously before the three expert witness

19 reports that you just mentioned?

20 A There was a matching three that was

21 also an initial report and two rebuttal

22 reports, and those were provided in 2001.

23 Q Did you provide any reports in

24 response -- 2001, you said?

25 A I believe so, yes. That's 2001.

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Paul Hatch - October 21, 2022

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1 Q 2001 was 20 years ago.

2 A Oh, I'm sorry. 2021.

3 Q 2021?

4 A Yes.

5 Q Did you provide any report in 2020?

6 A I don't think so. I think the

7 first reports were in '21.

8 Q Let's -- so first, I will ask you a

9 few questions regarding your, you know, past

10 experience.

11 So Mr. Hatch, where do you live?

12 A I live in Chicago.

13 Q In Chicago.

14 And what's your highest education?

15 A Currently, I'm doing a Ph.D., but

16 prior to that, I had a -- I studied

17 industrial design. That was my

18 undergraduate.

19 Q And from where?

20 A Northumbria University.

21 Q In which country?

22 A In the U.K.

23 Q In the U.K.

24 And how long did you study for

25 that?

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Paul Hatch - October 21, 2022

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1 A That was -- it was -- well, I guess

2 five years. It was a four-year course, but I

3 took a one-year sabbatical.

4 Q And that is equivalent of a

5 Master's degree in the United States or --

6 A I'm sorry, no. It's an

7 undergraduate degree, a Bachelor's.

8 Q So that's a Bachelor's degree?

9 A Yes.

10 Q Did you -- after completing that

11 degree, did you pursue any further education?

12 A Not until my Ph.D.

13 Q And which Ph.D. program are you --

14 are you involved in?

15 A It's called Learning Sciences.

16 Q And which university?

17 A It's at the University of Illinois

18 at Chicago.

19 Q Have you passed your qualification

20 yet?

21 MR. BERKOWITZ: Objection to the

22 form.

23 A Do you mean in the Ph.D.?

24 Q For the Ph.D. program, yes.

25 A I'm halfway through the Ph.D. So

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1 I've passed several things so far.

2 Q That's great.

3 And before the Learning Science

4 program -- is that the title of the Ph.D.

5 program or what does the program involve?

6 A Yes, that is the title. It's

7 called the Learning Sciences.

8 It's a multidisciplinary course

9 that is based on psychology, technology and

10 learning. So it's related to education.

11 Q It's related to education.

12 Is there any portion of the program

13 dedicated to industrial design?

14 A Not specifically.

15 Q And have you served as an expert

16 witness in similar cases before?

17 A Yes, I have.

18 Q How many?

19 A I have provided testimony. I think

20 it's 14, possibly 15 times.

21 Q How many cases did you provide --

22 in how many cases did you provide this 14 to

23 15 testimony?

24 A So, I think that would be 11 or 12

25 cases in which I've been deposed.

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1 Q Have you ever served as an expert

2 witness at trial?

3 A Yes, I have.

4 Q How many times?

5 A That would be three times. The

6 three trials included a Jams hearing, I think

7 it's called.

8 Q And within that 11 to 12 cases,

9 what type of cases or what type of products

10 do those cases involve?

11 A A number of consumer and commercial

12 manmade products, quite a range of things,

13 based on my experience as an industrial

14 designer.

15 Q Can you give me some examples?

16 A One was regarding some

17 microphones --

18 (Brief pause in proceedings.)

19 A One previous case that I provided

20 testimony for was regarding microphones,

21 which were Array microphones.

22 Q And you mentioned microphone Array?

23 A Array. It's a particular type of

24 microphone.

25 Q What other types of consumer

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1 electronic products have you -- have you

2 testified for?

3 A The -- there was a case regarding

4 power tools. I guess that falls in that

5 category as well.

6 Also, a case regarding personal

7 care equipment, hair shaving.

8 Q Anything related to electronic

9 vehicles or traditional conventional

10 vehicles?

11 A I've got experience working in that

12 area, but I think not testifying in

13 infringement in that area.

14 Q When you say that you have

15 experience working in that area, what

16 experience are you referring to?

17 A I worked as an industrial designer

18 at a consultancy for -- well, as an

19 industrial designer for over 25 years, mostly

20 at a consultancy.

21 During that time, I designed a lot

22 of consumer products, which included, for

23 instance, a Segway.

24 There was a certain type of Segway

25 that I think was related to this particular

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1 case.

2 Q I'm not familiar with Segway.

3 Can you tell me more about that

4 product, Segway?

5 A Yes, sure.

6 The Segway product came out at

7 around 2005, I think, approximately. And the

8 invention allowed us, like a hoverboard, to

9 stand on it and use it as a mobility device.

10 The Segways are different from the

11 hoverboard. It also has a stand going up to

12 a handlebar that the person could then hold,

13 but it used a very, very similar technology.

14 Q How many wheels did the Segway

15 have?

16 A Two wheels.

17 Q Two wheels.

18 And is there any connection portion

19 between the two wheels?

20 MR. BERKOWITZ: Objection to form.

21 A On the Segways, it did have a -- it

22 has the portion between the wheels, yes, that

23 the user would stand on.

24 Q That the user would stand on.

25 And did you design the industrial

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1 portion of that product or did you design --

2 what portion of that product did you focus

3 your design on?

4 A So the Segways were designed as

5 commercial products or personal vehicles

6 launched, I guess, before I started working

7 on the version I did.

8 And my company was requested to

9 design a version of that based on that

10 technology that would change the industrial

11 design, that is, the look and feel, the

12 styling towards a particular use and a

13 particular demographic.

14 Q And what would that demographic be?

15 A Without divulging any confidential

16 information, it was for a particular sport

17 that this would be used in and the

18 demographic being the people who do the

19 sport.

20 And it was seen that the Segway

21 would be a very good -- a very good

22 technology to use that. However, I would

23 need some certain changes to make it

24 appropriate for that particular application.

25 Q And for the eleven trial cases that

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1 you testified in, are they all design patent

2 infringement cases?

3 A They are infringement -- I'm sorry,

4 they are intellectual property cases

5 involving utility patents and design patents.

6 Q Were you involved in utility

7 patent -- so, how many of them involved

8 utility patents and how many of them involved

9 design patents?

10 A I don't know the numbers off the

11 top of my head, but I think half -- about

12 half or maybe slightly more than half

13 involved design patents.

14 Q And the -- sorry, go ahead.

15 A And the others involved utility

16 patents. Some involved both.

17 Q Some involved both.

18 So you're saying you're about five

19 to six cases that you -- where to which you

20 served as an expert witness involving design

21 patent issues?

22 A Approximately that number for how

23 many I have provided deposition for.

24 I've also worked on some other

25 design patent cases that I've only provided

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1 analysis and reports to support the

2 particular case, but it didn't necessarily go

3 to deposition.

4 Q And how many of those cases in

5 which that you served analysis but not

6 deposition?

7 A Off the top of my head, I'm not

8 sure. I would say a few, which would be

9 several, I guess. Three to five, maybe more.

10 Q Do you know the outcome of those

11 cases, the five to six cases of design patent

12 that you served as being deposed, that you

13 were deposed in those cases and the three to

14 five cases that you provided analysis but you

15 were not deposed in those cases?

16 MR. BERKOWITZ: Objection to the

17 form, vague, compound.

18 A I know that some of the cases,

19 certainly the majority of the cases I worked

20 on had a positive outcome. Maybe it was

21 settled before they went to court.

22 But I -- I haven't followed up to

23 know about how all of my cases ended.

24 Q Is there any case that your

25 analysis was -- are there any cases that your

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1 analysis was rejected by the court for the

2 infringement analysis?

3 MR. BERKOWITZ: Objection to form.

4 A I'm not very sure about what may

5 have happened with some of my testimony

6 after -- afterwards, but I -- I'm not aware

7 of, you know, a successful Daubert motion,

8 that is, for instance, I think I would be

9 aware if there was a successful Daubert

10 motion to block me as an expert witness.

11 Q I guess that's what I was asking.

12 What I meant is, was there any

13 analysis that you provided that eventually

14 was not -- was not -- let me rephrase it.

15 Is there any analysis to which you

16 provided your opinions were not -- were not

17 taken by the court, meaning the court sided

18 with the other party and considered, although

19 you provided your expert report, the position

20 is -- the positions were not taken by the

21 court?

22 MR. BERKOWITZ: Objection to form.

23 A Yeah, I don't entirely understand

24 the question, but I --

25 Q Let me -- let me rephrase it.

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1 If you provided your opinion, were

2 they all considered by the court?

3 MR. BERKOWITZ: Objection to form.

4 A I believe all of the reports that

5 I've provided were considered and I have not

6 had a report struck, if that's what your

7 question is.

8 Q And in those cases, did the court

9 all rule in your client's favor or did they

10 side with the other party?

11 MR. BERKOWITZ: Objection to the

12 form. Asked and answered.

13 You can answer.

14 A Just to clarify, when you say in

15 those cases --

16 Q In those cases you provided your

17 analysis and testified as witnesses.

18 MR. BERKOWITZ: Same objection.

19 A Yes, sorry.

20 Can you either repeat or rephrase

21 the question?

22 Q Sure.

23 In those cases that you provided

24 your analysis and you served as an expert

25 witness, did the court all rule in your

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1 client's favor or did they side with the

2 other party?

3 MR. BERKOWITZ: Objection to the

4 form. Asked and answered.

5 A I'm not sure. I know that in -- I

6 believe in the majority of the cases it has

7 ended up in the favor of -- or in my favor,

8 so to speak, but I really haven't kept track

9 of all the cases.

10 Q So when you say the majority of the

11 cases, the rest of the cases, do you know

12 that the court ruled against your client or

13 you just don't know about the outcome of the

14 cases?

15 A I believe there's one or two --

16 there's certainly one I know of that didn't

17 go in favor of my client, but there's

18 several -- I guess I really didn't keep tabs

19 on to know whether it went one way or the

20 other -- or another.

21 Q And for that one case that didn't

22 go in favor of your client, do you know the

23 case caption or the case number?

24 A Yes. Specifically, that's one that

25 went to trial.

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1 I don't know the case number, but I

2 do have it in my appendix.

3 The case is Clearone versus Shure.

4 Q Okay. Thank you.

5 Mr. Hatch, who approached you

6 initially regarding this case?

7 MR. BERKOWITZ: Objection to the

8 form.

9 Q Who approached you initially

10 regarding providing opinions in this case?

11 A In this part of the case, the

12 attorneys present contacted me.

13 Q Which portion are you referring to?

14 A I'm sorry, this year, the case that

15 we're looking at this year.

16 Q Oh, this year.

17 For the entire case, who approached

18 you and asked whether or not you can provide

19 your opinion in this case?

20 A I don't actually recall, but it

21 would very likely have been one of the

22 attorneys that were previously involved on

23 this case in 2021.

24 Q And you don't remember the name of

25 that attorney?

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1 A I don't right now, no.

2 Q Do you remember which law firm that

3 attorney worked for?

4 A Sorry. Off the top of my head, I

5 don't know. I've not worked with that law

6 firm before.

7 Q And have you worked with the named

8 plaintiffs or defendants before?

9 A Not before this case, no.

10 Q And after this case?

11 MR. BERKOWITZ: Objection to the

12 form. Calls for speculation.

13 A Do you mean have I worked with

14 them --

15 Q In other cases.

16 A In other cases since the start of

17 this case, is that what you mean?

18 Q Since the start of the case.

19 A No, I haven't. I only worked on

20 this particular case for that particular

21 client.

22 Q Do you know the name of the

23 plaintiffs in this case?

24 A Yes, I do.

25 Q Who are they?

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1 A You're referring to Hangzhou Chic,

2 H-A-N-G-Z-H-O-U, and Chic is C-H-I-C.

3 Q Is that the only party you're

4 working for in this case?

5 A There's -- I believe there are also

6 the company called Unicorn, Unicorn

7 technology.

8 No, I'm sorry, it's Unicorn Global,

9 who are also plaintiffs in this case.

10 Q And aside from this case, you have

11 not worked with them in other cases?

12 A I have not worked with Hangzhou

13 Chic and Unicorn outside of this case.

14 Q Mr. Hatch, what's your hourly rate

15 for doing work in this case?

16 A It's $450.

17 Q Per hour?

18 A Per hour, yes. I believe that's in

19 my report.

20 Q Is that the amount that you usually

21 charge your clients?

22 A Yes, it is. It's a standard rate,

23 and it's always the -- you know, not

24 contingent upon the outcome of this case in

25 any way.

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1 Q And that's the same rate for

2 providing your analysis and attending

3 deposition?

4 A Yes. However -- actually, I'm not

5 sure if I have a different rate for

6 depositions specifically.

7 With some of my work I have a

8 slightly higher rate for deposition, which

9 may or may not be the case with this case.

10 Q Have you talked about your rate for

11 attending deposition in this case?

12 A I have -- it would have been agreed

13 when I started to work with the attorneys,

14 yes.

15 Q I'm sorry, I'm not quite

16 understanding you.

17 So you said for some work there may

18 or may not be a higher rate.

19 Are you charging a higher rate for

20 attending deposition in this case?

21 A I would have to check.

22 With some clients I do charge --

23 generally, I do charge a higher rate for

24 deposition and trial, and that depends upon

25 the agreement, that particular agreement that

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1 has been made with the attorney.

2 Q Has there been an agreement made

3 with an attorney?

4 A There has, and I would have to

5 double check what that is. It's -- likely,

6 it's slightly higher for a deposition.

7 Q How many hours have you spent --

8 have you spent preparing and drafting your

9 declarations in this case?

10 MR. BERKOWITZ: Objection to form.

11 A Last year there was a lot of

12 analysis of a lot of different hoverboards

13 outside of the hoverboards that are in this

14 case.

15 There were a significant number of

16 hours involved in that part of the analysis.

17 This year I created three reports

18 and also conducted an analysis on five

19 hoverboards, but more specifically, the

20 current defendants, and therefore, there was

21 less time.

22 It's hard to estimate the hours,

23 but this year may be somewhere in 80 to 150

24 in that work.

25 Q Can you tell us about TEAMS Design

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1 USA?

2 A Sure, yes.

3 It's a design consultancy that I --

4 I founded the Chicago branch of in 1998 and

5 continued to -- to lead up until two years

6 ago.

7 Q What happened two years ago?

8 A I decided to -- to do my Ph.D., and

9 it's a full-time program and I dedicated

10 myself towards that.

11 Q Are you still with TEAMS Design

12 USA?

13 A I'm not. I am, however, on the

14 board and have partial ownership still.

15 Q Is that a -- what is the formality

16 of this company; is that a partnership or is

17 it a limited corporation or is it an

18 incorporated business?

19 A It's a -- I believe it's called a C

20 Corp. So it's not -- it's not public, if

21 that's what you mean. It's privately held.

22 Q And when you're saying the Chicago

23 branch, what's the headquarter of this

24 organization? Where's the headquarters?

25 A The headquarters is in Germany, and

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1 they were founded in 1956.

2 Q When you were working there, how

3 many staff employees did you supervise?

4 A It ranged through the years. At

5 the very start, I just had one employee and

6 we went up to about 28, I believe, and as an

7 average, usually around 15 to 20, I guess.

8 Q Do you know any person who worked

9 for plaintiff, Hangzhou Chic, at Intelligent

10 Technology Corporation?

11 MR. BERKOWITZ: Objection to the

12 form.

13 A I don't personally know them, any

14 person that works there, no.

15 Q Have you talked with anyone who

16 worked for them -- not them, for it, just one

17 company?

18 MR. BERKOWITZ: Objection to form.

19 A I've not spoken directly with

20 someone who works with Hangzhou Chic.

21 Q Do you know any person who works

22 for Unicorn Global, Inc.?

23 A I don't personally know anyone who

24 works for Unicorn Global, Inc.

25 Q Have you talked to anyone who works

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1 for Unicorn -- who works at Unicorn Global,

2 Inc.?

3 A I've not spoken with anyone who

4 works at Unicorn Global, Inc.

5 Q Do you know the person named Jing

6 Cui?

7 And I'll spell that for you.

8 J-I-N-G, and C-U-I, last name.

9 MR. BERKOWITZ: Objection to the

10 form.

11 A I don't know personally that

12 person.

13 Q Have you seen any documents drafted

14 by this person?

15 MR. BERKOWITZ: Objection to the

16 form.

17 A I'm sorry, who is the person, a

18 manager of one of the companies?

19 Q They are the accolades with the

20 company, yes.

21 A I don't think I've seen any

22 documents drafted by them.

23 Q Have you seen any reports submitted

24 by them in court?

25 MR. BERKOWITZ: Objection to the

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1 form.

2 MR. CHENG: Can you be more

3 specific so I understand your objections

4 better?

5 MR. BERKOWITZ: Sure.

6 It's outside the scope. It's

7 unclear who you're referring to, what reports

8 you're referring to. It's unclear what court

9 you're referring to --

10 MR. CHENG: I will be more

11 specific.

12 MR. BERKOWITZ: -- or when.

13 Q Mr. Hatch, do you know if Jing Cui

14 submitted any declarations in this case?

15 MR. BERKOWITZ: Objection to the

16 form. Asked and answered.

17 A I'm not aware of reading any of

18 those -- any of those declarations.

19 Q Do you know a person with the name

20 of Yia Wei Ying, Y-I-A, W-E-I, first name and

21 last name is Y-I-N-G.

22 A No, I'm not familiar with that name

23 right now.

24 Q Do you know whether or not this

25 person submitted any declarations in this --

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1 in this case?

2 A I'm not familiar with this person's

3 declarations.

4 Q Do you know a person with the name

5 Arthur Yuan, Y-U-A-N?

6 A Is Arthur an attorney?

7 Q I ask questions here.

8 A Oh, I'm sorry.

9 I believe there was an Arthur who

10 was an attorney on the case last year, but

11 again, I'm -- I'm not sure.

12 Q And do you know if Arthur Yuan ever

13 submitted any declarations in this case?

14 A If he was the attorney on my

15 client's side, the only declarations that I

16 know of are the declarations that I wrote.

17 Q I'm sorry, can you -- can you

18 repeat your answer? I don't think I quite

19 got it.

20 A I'm not sure if -- if Arthur is the

21 attorney.

22 Q Arthur is the attorney with a firm

23 Loeb & Loeb.

24 A Okay, great.

25 So I'm not familiar with

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1 declarations that they submitted other than

2 my declarations.

3 Q You don't know whether or not he

4 submitted declarations in this case?

5 A I -- I believe they -- they did

6 submit opinions to this case. I'm fairly

7 sure of that.

8 I only provided my declarations.

9 I'm only aware of the declarations that I

10 provided.

11 Q Did you read any of his

12 declarations?

13 MR. BERKOWITZ: Objection to the

14 form. Asked and answered multiple times.

15 A I'm sorry, can you repeat it?

16 Q Did you read any of his

17 declarations?

18 A Any of what declarations?

19 Q Any of Arthur Yuan's declarations

20 submitted in this case.

21 A No, I -- the only declarations I'm

22 aware of submitted from our side were from

23 me, that I know of.

24 Q Do you have any financial interest

25 depending on the outcome of this case?

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1 A I believe I have answered that

2 already, but no, the outcome does not affect

3 my -- anything financially for me.

4 Q Did you actually solicitate

5 business from either the firm Loeb & Loeb or

6 from the client?

7 MR. BERKOWITZ: Objection to form.

8 A No, I was approached by them. I

9 would not have approached them about this

10 case.

11 Q Do you know if TEAMS Design USA

12 actively advertised their business and

13 solicitate business from the law firm of Loeb

14 & Loeb or from the plaintiffs in this case?

15 A No, TEAMS doesn't directly

16 solicitate business from them beyond having a

17 website, but it is not directed at those

18 companies.

19 Q Do you use any agent, advertising

20 companies, online platforms, to advertise

21 their business?

22 A There -- there is a marketing group

23 that does look after social media posts, but

24 they don't do cold calling or direct calling

25 on potential clients.

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1 Q Out of the declarations and the --

2 out of the declarations you submitted in this

3 case and the expert witness report and the

4 rebuttal report you provided, did you

5 prepare -- did you prepare those documents by

6 yourself or with the assistance of another

7 party?

8 A I did a high majority of the work,

9 certainly all the analysis and the writing,

10 and I conferred with the attorneys for their

11 opinion, or rather, you know, on grammatical

12 errors and things like that.

13 So there was some help, but the

14 high majority of the opinions are all mine.

15 Q What documents did you review to

16 complete the declarations that you provided

17 before you -- before you provided the expert

18 witness reports?

19 MR. BERKOWITZ: Objection to the

20 form.

21 A I believe I've -- I've documented

22 that in Appendix C.

23 I reviewed the -- you're asking

24 which documents I reviewed.

25 I reviewed the patents and the --

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1 in this case, and the file histories, but I

2 also reviewed the accused products

3 themselves.

4 Q By "accused products," what

5 products were you referring to?

6 A The -- you know, more specifically

7 in the infringement report this year, my

8 focus was to look at the accused products

9 that I have termed Gyroor A through E.

10 Q Okay. So you're referring to the

11 expert witness report you provided this year.

12 Did you review -- are those the

13 only products that you reviewed in this case?

14 MR. BERKOWITZ: Objection to the

15 form.

16 A In the previous part of this case,

17 there were a lot more accused products. So

18 I -- I reviewed, as I mentioned before, a lot

19 more products last year.

20 Q How many products did you review?

21 A I'm not sure of the number. There

22 were very many.

23 I probably reviewed 10 or 12

24 physical products in person and maybe just as

25 many through other detailed information that

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1 was outside of the Gyroor products.

2 Q By other detailed information, do

3 you mean photos?

4 A Yes. Outside of the Gyroor

5 products, there were products that were not

6 obtainable by the counsel last year and so

7 I -- I reviewed them via photos of different

8 angles of those products, but the Gyroor

9 products in this case I've reviewed in

10 person.

11 Q Who provided the products to you?

12 A I -- I believe one of them I did

13 purchase myself online, but the other Gyroor

14 products were provided to me on my request by

15 the previous counsel.

16 Q Aside from the Gyroor products, did

17 you review any other accused products in

18 person or did you obtain any other -- did you

19 obtain any other accused products in their

20 physical form?

21 MR. BERKOWITZ: Objection to form.

22 Outside the scope of the reports.

23 A I -- I did review some other

24 products that were not manufactured or I

25 believe they were not manufactured by Gyroor

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1 in person last year, yes.

2 Q And for those products that you did

3 not receive a physical form, how did you

4 compare the products with -- with the

5 patents?

6 MR. BERKOWITZ: Objection to form.

7 Outside the scope.

8 A In some of the products where I or

9 all the attorneys were not able to get

10 physical products, partly because they had

11 been pulled off of the market, they provided

12 me with substantial photos of them and that's

13 what I used for my analysis, but that was

14 only for non-Gyroor products.

15 Q Do you think the substantial photos

16 are sufficient for you to form your opinion?

17 MR. BERKOWITZ: Objection to form.

18 Calls for speculation.

19 A I think in that particular case for

20 those non-Gyroor products, I was able to

21 provide some opinion based on the limited

22 information that I could get from the photos,

23 but I also acknowledge that I would need to

24 examine the physical product to finish that

25 analysis.

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1 However, the Gyroor products, I --

2 I had in person.

3 Q Is there a substantial difference

4 between the Gyroor products and the

5 non-Gyroor products?

6 MR. BERKOWITZ: Objection to form.

7 Calls for speculation.

8 A That was not necessarily part of my

9 analysis. That is, I wasn't comparing the

10 Gyroor products to the non-Gyroor products,

11 however, the Gyroor products I did have in

12 person and some of the non-Gyroor I didn't.

13 Q For the non-Gyroor products that

14 you did not obtain, the product that you only

15 viewed the photos, did you conclude that they

16 were infringing or do you think they were not

17 infringing products?

18 MR. BERKOWITZ: Objection to the

19 form. Outside the scope.

20 I just caution the witness to the

21 extent this is not a -- not referring to a

22 report that was issued. Just be aware of

23 that. It could be privileged communications

24 that you shouldn't disclose.

25 MR. CHENG: I'm not solicitating

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1 any privileged information.

2 If there's any question related to

3 any privilege, please assert it clearly so I

4 know that question should be avoided.

5 However, if it's not privileged

6 information, I'm free to ask.

7 MR. BERKOWITZ: Sure. So I'm

8 cautioning the witness.

9 MR. CHENG: Okay.

10 MR. BERKOWITZ: I don't fully

11 understand the question, so it's hard to give

12 a precise instruction.

13 I'm telling the witness to the

14 extent that his answer may reveal privileged

15 communications, you be aware of that.

16 Go ahead.

17 A For clarification, can you repeat

18 the question?

19 Q Of course.

20 You mentioned -- so let's do this

21 step by step.

22 A Yes.

23 Q For some of the products that you

24 reviewed, you did not review the physical

25 product?

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1 A For some of the non-Gyroor

2 products, I was unable to examine the

3 physical product which would have been

4 optimal.

5 Q Did you form -- and for those

6 products you only examined the image or the

7 photos provided to you?

8 A For those specific non -- for a few

9 of the non-Gyroor products, I was only able

10 to analyze some photos.

11 Q And after analyzing those photos,

12 did you form your opinion as to the

13 infringement nature of those products?

14 MR. BERKOWITZ: Objection to form.

15 A I was -- after analysis of the

16 non-Gyroor products, I was able to provide an

17 opinion on that basis, on the limited

18 information that I had, but also requested to

19 have the physical product for a more thorough

20 analysis.

21 Q Did you ever receive what you

22 requested?

23 MR. BERKOWITZ: Objection to form.

24 Calls for speculation.

25 A I did request a number of

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1 hoverboards that I didn't originally have,

2 non-Gyroor hoverboards, and did eventually

3 receive some that helped my analysis, yes.

4 Q But not all of those non-Gyroor

5 products?

6 MR. BERKOWITZ: Objection to form.

7 Mischaracterizes testimony.

8 A Some of the non-Gyroor products

9 last year had been pulled from the market and

10 the attorneys and myself were unable to get a

11 hold of physical samples.

12 Q Did you provide any opinion on

13 those products that you did not receive?

14 A I did provide --

15 MR. BERKOWITZ: Objection.

16 Just note my objection to the form.

17 It's been asked and answered multiple times.

18 You can answer.

19 A For the non-Gyroor products that

20 I -- I didn't have a physical product on, I

21 did provide analysis and also opinions, but

22 also asked for further physical products so

23 that I could create a more detailed analysis.

24 Q That's not the question I asked.

25 And I will repeat my question, and

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1 I want you to answer specifically to the

2 question I asked.

3 For the products, you never

4 received a physical product, for the accused

5 products that you never received the physical

6 products, did you provide your opinions on

7 those products?

8 MR. BERKOWITZ: Objection to form.

9 Asked and answered.

10 A I did provide an opinion, also an

11 initial analysis as detailed in my

12 declaration and made it clear that a better,

13 more detailed analysis would be through a

14 physical product.

15 I hope that answers your question.

16 Q How many patents -- how many design

17 patents did you review?

18 A I reviewed the four patents and

19 their file histories, the ones that are

20 relevant for this case, and I believe last

21 year I also reviewed -- I would have to

22 check.

23 I think there was a utility patent

24 that I reviewed but I did not base my

25 opinions on.

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1 MR. CHENG: Ms. Court Reporter, can

2 we take a break? Ten minutes.

3 (Brief recess taken.)

4 Q Let me introduce into evidence --

5 let me introduce Exhibit 1, and I will share

6 that with everyone in the chat.

7 (Above-mentioned document marked

8 for Identification.)

9 Q Mr. Hatch, can you download this

10 file or do you want me to share that with

11 you?

12 A I've downloaded it and I can view

13 it. Thank you.

14 Q Okay. You previously mentioned

15 that you provided declarations in this case,

16 starting in 2021.

17 Do you recognize this document?

18 A I do, yes.

19 And thinking of the timing of this,

20 this might even be 2020 when I started in

21 this case. It's all COVID years, but yes, I

22 do recognize this document.

23 Q So do you recognize this document

24 was provided by you?

25 A Yes. And I'm sorry, I don't know.

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1 I think it might be at the end of 2020, but

2 yes, this is from me.

3 Q Meaning the last page has your

4 signature.

5 Can you confirm that you signed

6 that document?

7 A Yes. I see the date as well. It

8 is the end of 2020.

9 Q So you did provide expert

10 declarations in the year of 2020?

11 A Yes, I believe so.

12 Q Okay.

13 A And I think when I was referring to

14 2021 and whether there were non-Gyroor

15 products, that was at around this time, which

16 was the end of 2020.

17 Q So you're saying this declaration

18 does not implicate Gyroor products?

19 MR. BERKOWITZ: Objection to the

20 form.

21 A That's not what I said, no.

22 Q I'm sorry, what did you say?

23 A That this declaration written at

24 the time, towards the end of 2020, included

25 some non-Gyroor products.

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1 Q Included non-Gyroor products?

2 A Yes.

3 Q I see.

4 MR. CHENG: I'm going to introduce

5 to you in the chat the second document, which

6 is marked as Exhibit No. 2.

7 (Above-mentioned document marked

8 for Identification.)

9 MR. CHENG: Can you all see this

10 document?

11 MR. BERKOWITZ: I downloaded it.

12 Paul, have you been able to

13 download it?

14 THE WITNESS: Yes, and I've opened

15 it.

16 MR. BERKOWITZ: Okay.

17 Q Mr. Hatch, do you recognize this

18 document?

19 A I do, yes.

20 Q And can you confirm that the

21 document was prepared and signed by you?

22 A Yes, it is signed by me. I believe

23 the case number is different from the current

24 case here.

25 Q Exactly. That's what I'm trying to

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1 understand.

2 You said you have not worked with

3 plaintiffs in other cases aside from the

4 current case that you're being deposed for.

5 Did you prepare this document?

6 MR. BERKOWITZ: Objection to the

7 form.

8 A I did provide -- prepare this

9 document, yes, and I see this is probably the

10 same or very similar to the other document

11 that I also prepared, Exhibit 1, but I also

12 see the case number is different.

13 I was not aware that there were two

14 different case numbers for this case.

15 Q Did you authorize your report to be

16 used in this case?

17 MR. BERKOWITZ: Objection to the

18 form.

19 A I did authorize the attorneys to

20 use my document. I was not aware that this

21 would be a separate case because it involves

22 the same material.

23 Q I don't know if it involved the

24 same material.

25 What I'm trying to understand is,

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1 if this report is prepared by you, then you

2 should have known that your opinions provided

3 in the case 20-cv-05905 is this document

4 prepared by you.

5 MR. BERKOWITZ: Objection to the

6 form. Argumentative. Asked and answered.

7 A This document is provided by me,

8 but I was not aware of the time that -- at

9 the time that this may be used in a different

10 case, but it -- it's regarding the -- the

11 same material.

12 Q On the first page of Exhibit No. 2,

13 there is a case number, which is 20-cv-05905.

14 Can you see that case number?

15 A Yes, I do see that. Yes.

16 Q Did you put in the case number on

17 the first page?

18 MR. BERKOWITZ: Objection to the

19 form.

20 A I'm not sure if I actually put that

21 case number or if possibly the attorneys had

22 corrected what I had there before.

23 Q So it's possible that the attorney

24 used your report and changed the case number?

25 MR. BERKOWITZ: Objection to the

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1 form.

2 A It's possible that they did minor

3 edits like that and, obviously, I would have

4 trusted them with a case number. It's not

5 something I would have known about.

6 Q Did you sign for this document?

7 A I believe you've asked that, but

8 yes, I did sign this document and I did write

9 this document. This is my analysis.

10 Q And do you know what your analysis

11 was used for in the case 05905?

12 MR. BERKOWITZ: Objection to form.

13 A I see now, obviously, that it has a

14 different case number, but the -- my opinions

15 is what counted here and I -- I knew those --

16 how those were being used.

17 I was not aware that it had a

18 different case number, though.

19 Q But you did provide this report

20 separately or it's just one report being used

21 in different cases?

22 MR. BERKOWITZ: Objection to form.

23 A No, I did provide this separately.

24 It was -- for me, it was part of the

25 continuing -- continuing analysis of the very

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1 many infringing products.

2 Q Do you know what are the accused

3 products in the case 05905?

4 MR. BERKOWITZ: Objection to form.

5 Outside the scope.

6 A This is obviously, as you've

7 explained, a case outside of this case, but

8 the report does show the accused products in

9 this case, yes. There are very many.

10 Q And do you remember when this

11 report was executed or signed by you?

12 A I do see the date is included

13 there, which I don't question. It -- it was

14 filed on November the 30th, 2020.

15 Q So you've worked with plaintiffs in

16 multiple cases?

17 A I -- at the time I was under the

18 impression this was the same case, but I see

19 it has a different case number now, but my

20 analysis and my opinions were, as we can see,

21 the same and consistent.

22 Q Have you worked with plaintiffs in

23 any other cases?

24 A I am not aware of any cases outside

25 of these ones we're looking at that I worked

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1 with them on.

2 Q Back to Exhibit No. 1, and if you

3 can take a look at page number 21. and

4 there's a Table 8, "Accused Products of

5 Species I."

6 Can you see that table?

7 A Yes, I see this table.

8 Q And there are nine pictures on this

9 page and the bottom metal picture is a

10 hoverboard with the name or the brand name

11 SYLUS, S-Y-L-U-S.

12 Can you see that one?

13 A Yes, I see that one.

14 Q Did you receive a physical product

15 of this SYLUS hoverboard?

16 MR. BERKOWITZ: Objection to form.

17 Outside the scope.

18 A I'm not sure. I think it's quite

19 possible for this particular one. You see

20 this is one of very many and obviously it

21 looks very familiar.

22 Q Okay. and your declaration, Exhibit

23 1, the picture of the SYLUS hoverboard was

24 used as evidence to prove its infringing

25 product?

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1 MR. BERKOWITZ: Objection to form.

2 Mischaracterizes documents.

3 A This particular hoverboard was one

4 of very many that I analyzed and did conclude

5 they were substantially the same in the eyes

6 of the ordinary observer to the infringed

7 patent.

8 Q Aside from the picture included

9 here, did you review any other image or the

10 physical products related to this SYLUS

11 hoverboard?

12 MR. BERKOWITZ: Objection to form.

13 Outside the scope.

14 A It's very likely that I looked at

15 other views of this particular product, one

16 of many here, and I think I may have seen the

17 physical product for this one as well.

18 It's obviously very familiar

19 because it's -- it's the same shape and form

20 or very similar shape and form to many of the

21 hoverboards here.

22 Q Aside from this perspective view of

23 the SYLUS hoverboard, did you include any

24 other images for this SYLUS hoverboard in

25 this report?

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1 A In this particular report, I

2 believe I only show one of the images in one

3 particular view, but my analysis was -- was

4 broader.

5 Q Did you view other images in other

6 reports but you only particularly mentioned

7 this particular report?

8 MR. BERKOWITZ: Objection to the

9 form.

10 A I don't know, for instance, if in

11 that other case that you brought forward, if

12 it was included there. I may have included a

13 different view. It's possible, but certainly

14 my analysis beyond just looking at one

15 particular view.

16 Q Even though there's only one view

17 included in this report?

18 MR. BERKOWITZ: Is there a

19 question?

20 MR. CHENG: Yes.

21 Q So based on this report, based on

22 this one image, you conclude that, according

23 to your report, this product is infringing on

24 the patent in suit?

25 MR. BERKOWITZ: Objection to form.

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1 Mischaracterizes testimony.

2 A No, that's not what I said.

3 I've only -- in this particular

4 report, I've only included this one view.

5 Because there are so many similar

6 infringing images for the conciseness of this

7 report, I only showed one image; however,

8 there were very many other views and other

9 images that I analyzed among these products

10 as well as analyzed physical products.

11 Q And why did you not include other

12 views in this report?

13 A They -- the -- for the conciseness

14 of the report itself, to report the opinion,

15 it was not necessary to show all of the views

16 of all of the products because there were, in

17 this case, so very many. However, later

18 reports where I was analyzing just four or

19 five products, I -- I did then provide more

20 images.

21 Q When you say -- when you said not

22 necessary, do you think this one image is

23 sufficient to prove that this is an

24 infringing product?

25 MR. BERKOWITZ: Objection to the

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1 form. Asked and answered multiple times.

2 A This image only -- does not provide

3 all of the evidence of the analysis

4 necessary. This image represents one product

5 just for this report. The analysis was done

6 on very many images and physical products.

7 Q So based on this one image, it's

8 not conclusive this product is infringing?

9 Without other images, this conclusion is

10 insufficient from this one image?

11 MR. BERKOWITZ: Objection to form.

12 Mischaracterizes testimony.

13 A That's not what I'm saying, but

14 what I'm saying is, I've included one view as

15 part of this document. However, the analysis

16 of the infringement itself was done using

17 many years.

18 Q If the views are not included in

19 this report, how can we conclude that you

20 actually viewed other angles of this product?

21 A I believe it would be stated in the

22 report that I analyzed many views and

23 physical products as part of my analysis.

24 Q So although the images were not

25 included, your words that you viewed other

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1 images to be sufficient to conclude that the

2 products is infringing?

3 A The report is a reflection of my

4 analysis and it is the -- the aim of the

5 report is not to provide every possible piece

6 of evidence, but to provide my opinion, based

7 upon an analysis of the evidence and

8 therefore, that's what it does.

9 Q And in preparing this document --

10 in preparing this declaration marked as

11 Exhibit 1, what documents did you review?

12 A I reviewed the relevant patents,

13 filing histories, very many images of the

14 accused products and a number of physical

15 products as part of the analysis to prepare

16 this document.

17 Q And do you know what this document

18 was used for?

19 MR. BERKOWITZ: Objection to form.

20 A I'm sorry, what do you mean?

21 Q What document was used to support?

22 MR. BERKOWITZ: Same objection to

23 form.

24 A The -- my analysis of this

25 document -- my declaration provided my

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1 opinion on this case and it was used in this

2 case.

3 Q To support a motion?

4 A That is correct. I -- I stated

5 that I think in the -- yes, in the opening

6 paragraph, that this declaration is in

7 support of a preliminary injunction that was

8 going on at the time.

9 Q Did you review the motion for

10 preliminary injunction?

11 A I'm not sure. I don't think I -- I

12 don't think I did at the time. I was focused

13 on my own report. I don't think I saw

14 information like that.

15 Q And who provided you with a list of

16 accused products?

17 MR. BERKOWITZ: Objection to the

18 form.

19 A The attorneys, the counsel at the

20 time would have provided me with a list of

21 the potentially infringing reports when they

22 asked for my opinion on them.

23 Q Do you know how many potential

24 infringing products were identified?

25 MR. BERKOWITZ: Objection to the

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1 form. Outside the scope.

2 A In -- in this particular report,

3 there were very many that were part of the

4 analysis. I'm not aware of the exact number.

5 Q Were there any products identified

6 that -- identified by the attorney as

7 potentially infringing but deemed as not

8 infringing by you?

9 MR. BERKOWITZ: So I would

10 instruct -- to the extent -- I would instruct

11 the witness not to answer on the grounds of

12 privilege.

13 A Yeah, I believe I did have

14 discussions with the attorney --

15 MR. BERKOWITZ: Just to be clear,

16 I'm instructing you --

17 THE WITNESS: Okay.

18 MR. BERKOWITZ: -- again, at this

19 point, to the extent it involves

20 attorney-client communication, I'm

21 instructing you not to answer.

22 THE WITNESS: Okay, yep.

23 MR. BERKOWITZ: Just to be clear,

24 if you can answer without revealing any

25 privileged communications or work product,

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1 you can do so.

2 But to the extent that it involves

3 any communications with your attorney and

4 anything else outside the scope of this

5 declaration report, I instruct you not to

6 answer.

7 THE WITNESS: Okay, good. I was

8 kind of going there.

9 A But yes, we had conversations and,

10 obviously, you know, this -- I would not have

11 provided an opinion on something infringing

12 if I didn't believe it was infringing.

13 Q Mr. Hatch, are you familiar with

14 the patents-in-suit -- and when I use the

15 term "patents-in-suit," do you know what

16 patents I'm referring to?

17 A I believe you're referring to the

18 four patents that I referred to in my

19 declaration this year. I also refer to them

20 as the patents-in-suit.

21 Q Are you familiar with those four

22 patents?

23 A Yes, I am familiar with those four

24 patents.

25 Q Are you familiar with all the prior

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1 art referenced in those four patents?

2 A I did gain familiarity by looking

3 at the prior arts that is referenced in those

4 four patents.

5 Q Are there any prior arts that you

6 think should be viewed for infringement or

7 not infringement analysis in this case?

8 MR. BERKOWITZ: I'm sorry, I didn't

9 hear the first part of your question.

10 MR. CHENG: Ms. Reporter, if you

11 got it, can you read it back.

12 (Whereupon, the record was read

13 back by the reporter.)

14 MR. BERKOWITZ: Objection to the

15 form.

16 A Yes. I'm not sure of your

17 question, but my initial analysis was of the

18 prior art that was -- that was listed on the

19 patents themselves, which is the normal

20 approach for the initial analysis, pending

21 the defendant, bringing any additional prior

22 art that they may think is relevant.

23 Q Did you search for other prior

24 art -- did you search for additional prior

25 art other than the ones referenced in the

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1 patents-in-suit?

2 A At the start of this analysis, no.

3 I focused on the prior art that was listed on

4 the four patents.

5 Q Are you familiar with patent -- the

6 design patent number -- the design Patent No.

7 US D739,906?

8 A Yes, I am familiar with that.

9 Q Is that -- is that a prior art to

10 the four patents-in-suit?

11 MR. BERKOWITZ: Objection to the

12 form.

13 A It is listed on two of the patents

14 as being prior art and was, therefore, part

15 of my analysis.

16 Q Is this, in your opinion, a prior

17 art for all four patents-in-suit?

18 MR. BERKOWITZ: Objection to form.

19 A I believe its filing date was early

20 enough to be part of the consideration. I'm

21 not sure if there are other things that

22 impede it from it being considered prior art,

23 however, it was a part of my analysis.

24 Q Do you know the definition of prior

25 art?

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1 A I have an understanding of prior

2 art, yes.

3 Q Did you consider this 739,906

4 patent -- and we'll refer to this one as the

5 '906 patent.

6 Did you consider this '906 patent

7 only for analysis regarding two -- two of the

8 patents-in-suit or for all four

9 patents-in-suit?

10 A In my analysis, I provided a full

11 comparison of the '906 to all four patents,

12 which I provided in detail.

13 Q Mr. Hatch, do you understand the

14 legal standard for design patent infringement

15 analysis?

16 A I have an understanding enough to

17 be able to create an analysis. I'm not a

18 lawyer, but I do rely upon my understanding

19 of the law in my analysis.

20 Q And can you tell us, what's your

21 understanding of the law?

22 A I think my report says it probably

23 most succinctly. I did provide some summary

24 there and obviously there are many aspects to

25 the law.

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1 If you have something quite

2 specific, I can attempt to answer it.

3 Q I'd like to understand your

4 understanding regarding the legal standard

5 applied by you for your report.

6 MR. BERKOWITZ: Objection to form.

7 Asked and answered.

8 A There's just a number of --

9 Q In short, you have to answer the

10 questions instead of directing me to a

11 document.

12 MR. BERKOWITZ: No, I disagree with

13 that statement.

14 He answered your question.

15 MR. CHENG: No. He referred me to

16 a document. That's not what I asked for.

17 MR. BERKOWITZ: I disagree with

18 you.

19 The witness should answer the

20 question however he feels is appropriate.

21 Continue.

22 A I have included an outline in my

23 report of the legal standards that help me in

24 doing this analysis and I've relied upon my

25 understanding of them.

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1 It's not one standard. There are

2 legal standards that are -- that I presented

3 there.

4 Q Did you do the search yourself or

5 the legal standards was provided to you?

6 MR. BERKOWITZ: Objection to the

7 form.

8 A The attorneys -- are you referring

9 to the --

10 Q I'm referring to Section 2, "Legal

11 Standards," in your expert witness report.

12 A Of 2022?

13 Q Of 2022.

14 MR. CHENG: Let me mark that as

15 Exhibit 3, and I will drop that in the chat

16 so we know we're clear.

17 MR. BERKOWITZ: Thank you.

18 (Above-mentioned document marked

19 for Identification.)

20 A Yes, I wanted to refer to an

21 exhibit, and I realized there wasn't one.

22 Q So this is Exhibit No. 3, and I'm

23 putting that in the chat.

24 A Okay, I have it in front of me.

25 Q If you can take a look at Section

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1 2, "Legal Standards," which is on page 3.

2 And as you can see, your case is

3 cited in subsections related to the Legal

4 Standards.

5 Is that correct?

6 A That's correct, yes. It stretches

7 until page 6, yes.

8 Q Did you search for the cases

9 yourself?

10 A Some, if not a lot, of this

11 language would have -- I would have used in

12 previous cases that I've been involved in,

13 and so I think a lot of this came from me and

14 at some point the past, either from

15 information I was provided by attorneys or

16 information that I searched myself.

17 Q And which attorney provided you

18 assistance?

19 MR. BERKOWITZ: Objection to the

20 form.

21 A So for this document, I believe the

22 majority of this I had already -- I provided,

23 I put in here and I sourced it from the

24 previous two that I worked on.

25 It's also customary for me to ask

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1 the attorneys that I'm working for to check

2 and to correct anything that I may have

3 misstated here.

4 Q Which attorney did you ask to check

5 this section?

6 A I would have asked the -- the

7 current attorneys, such as Mark, to check

8 over this section.

9 Q Did they give you any feedback on

10 this section?

11 MR. BERKOWITZ: Objection.

12 And I instruct the witness not to

13 answer.

14 A We spoke about it. I obviously

15 can't divulge exactly what we said.

16 Q So can you, in your own words,

17 describe the Legal Standards that is used for

18 design patent infringement analysis?

19 MR. BERKOWITZ: Objection to the

20 form. The report speaks for itself.

21 A I couldn't do it much justice, not

22 being a lawyer, but I am -- you know, I do

23 rely upon the information that I've read in

24 here and I do have a good understanding of

25 it, but I would refer to the writing.

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1 Even if I were to do the analysis,

2 I would refer back to the writing upon which

3 I relied upon.

4 Q You can read the relevant portion,

5 if you want.

6 A Which of these pages are you

7 referring to as being relevant?

8 Q I mean, that's your call.

9 I'm asking which portion do you

10 think is relevant to your understanding of

11 the Legal Standards used for design patent

12 infringement analysis.

13 A I believe it's all quite relevant

14 for this case.

15 Q You can read it.

16 A It's 14 pages long.

17 MR. BERKOWITZ: Again, the witness

18 is welcome to do that. I'm not sure that's

19 productive use of the parties' time. If

20 that's really what you want, you can have him

21 read from his report.

22 I'm just putting it out there that

23 it might not -- it's your choice, but

24 alternatively, you can have him read through

25 it and you can ask questions you want to ask.

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1 MR. CHENG: I want to understand

2 which portion that he thinks is most relevant

3 for the design patent infringement analysis.

4 I mean, the whole section is

5 devoted to Legal Standards but a lot of them

6 are not -- they're Legal Standards for

7 analysis.

8 MR. BERKOWITZ: I'm not sure I

9 follow what you're asking, but it's your

10 deposition.

11 I'm not looking to interrupt you.

12 I'm just trying to make use of the time we

13 have. However you would like to proceed.

14 Q Mr. Hatch, you can go ahead and

15 read the portion that you think is relevant

16 for design patent infringement analysis.

17 A Just for clarification, I believe

18 this is all relevant for the analysis. I

19 don't -- you mentioned just now but not

20 before that you were looking for the most

21 relevant parts. I think that's a different

22 question.

23 Q Then the most relevant part is

24 fine.

25 A It's all equally relevant. I

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1 wouldn't -- I wouldn't --

2 Q That's good.

3 Then you can read all portions that

4 you think is most relevant.

5 A If you're sure you want to use your

6 time this way, because there's four pages of

7 it that I would be reading here.

8 I'm not quite sure why, but I'm

9 happy to read it. So -- and stop me at any

10 time.

11 Q Sure. Of course.

12 A Section 2, Legal Standards.

13 "I am not a lawyer. Rather, I'm an

14 industrial designer" -- and this is obviously

15 just explaining, "Section A, the limiting

16 purpose of a design patent. I understand

17 that a U.S. patent does not grant the owner

18 the right to use the invention. Rather, the

19 owner is granted the right for a limited

20 period of time to prevent others from making,

21 using, offering for sale or selling the

22 patented invention in the United States or

23 importing the patented invention into the

24 United States."

25 Q I'm going to stop you here.

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1 Do you know the limited period of

2 time? Do you know how long that is?

3 A Oh, I'm sorry, yes. It's mentioned

4 here. It's the limited time that is given to

5 design patents, which currently is -- or at

6 least for the patents involved in this case,

7 15 years. I believe -- yes, 15 years I think

8 is relevant for this.

9 Q Okay. And --

10 A Go ahead.

11 Q You can start from the second

12 paragraph of Section B and let's read from

13 there.

14 A The second paragraph of Section B

15 reads, "I understand that under precedent

16 from the U.S. Court of Appeals for the

17 Federal Circuit, the Federal Circuit, trial

18 courts have a duty to conduct claim

19 construction in design patent cases as in

20 utility patent cases," and that comes from

21 Egyptian Goddess.

22 "The court has recognized the

23 design patents typically are claimed as shown

24 in drawings, and the claim instruction is

25 adapted accordingly."

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1 It refers to --

2 Q You can skip all the cases, just

3 the substantial portion.

4 A "Given the difficulties entailed in

5 trying to describe the design in words, the

6 preferable cost is not to attempt to construe

7 a design patent by providing a detailed

8 verbal description of the claimed design. As

9 I understand, after a design patent claim is

10 construed, the claim must be compared to

11 accused design to determine whether there has

12 been infringement. I also understand

13 infringement occurs when an ordinary observer

14 giving such attention as a purchaser usually

15 gives deems two designs are substantially the

16 same, meaning the resemblance is such as to

17 deceive an observer inducing him to purchase

18 one supposing it to the other."

19 "I am also aware that infringement

20 is determined in the light of prior art by

21 applying the ordinary observer test through

22 the eyes of an observer familiar with the

23 prior art. Thus, the hypothetical ordinary

24 observer is presumed to have a complete

25 knowledge of all relevant prior art."

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1 Q Good. Let's stop here.

2 A Okay.

3 Q So have you decided the scope of

4 all the patents-in-suit in this case?

5 MR. BERKOWITZ: Objection to the

6 form. Lack of foundation.

7 A I reviewed the prior art as

8 mentioned before that was --

9 Q Sorry, not the prior arts. Sorry,

10 not the prior arts. I mean the scope of the

11 patents-in-suit.

12 MR. BERKOWITZ: Same objections.

13 A Yes, I believe I was answering that

14 question.

15 I understand you're not referring

16 to the prior art, but the prior art helps us

17 inform, but yes, I did develop an

18 understanding of the scope of the patents,

19 the four patents-in-suit.

20 Q I'm sorry, did you just say that

21 prior art should be considered to construe

22 the scope of the patents?

23 MR. BERKOWITZ: I would suggest

24 restarting the question and answer.

25 MR. CHENG: That's better.

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1 Q So did you mean that prior art

2 should be considered for the design patent --

3 for the design patent construction, claim

4 construction?

5 A In the initial part of infringement

6 analysis, the claim construction or the

7 construing that one would do would be

8 analyzing the provided images, the figures of

9 the particular patents to understand whether

10 they are plainly dissimilar to the accused

11 product.

12 Prior art helps inform the -- more

13 exactly the scope in the second parts of the

14 analysis when we look to understand if they

15 are substantially the same.

16 Q Just to be clear, you're saying

17 that accused products and prior art should be

18 considered for claim construction?

19 MR. BERKOWITZ: Objection to form.

20 Mischaracterizes testimony.

21 A Yeah, that's a little different. I

22 was talking about the infringement here, the

23 first step to construe the patents.

24 Q What should be considered for --

25 MR. BERKOWITZ: Don't -- no, no,

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1 hang on.

2 You have to let the witness finish

3 if he's in the middle. You can't cut him

4 off.

5 A Initially the figures themselves of

6 the patents represent what is the claimed

7 design and so those -- the first step in

8 infringement analysis to construe what is

9 claimed by those patents.

10 Q Do you think prior art and accused

11 products should be considered for the first

12 step of scope of claim construction?

13 MR. BERKOWITZ: Objection to form.

14 Asked and answered.

15 A No. The accused products do not

16 inform us of the scope of the patents in that

17 first step.

18 Q And what are the scopes for the

19 four patents-in-suit in this case?

20 A In infringement analysis, we

21 construe the claim by looking at the figures

22 of the patents themselves and only if we find

23 that they -- you know, in infringement

24 analysis, if we find that they are not

25 dissimilar from the accused products, we move

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1 forward to compare them directly to the prior

2 art.

3 I think that answers your question.

4 Q It didn't. I think you're mixing

5 claim construction with infringement in that

6 analysis.

7 Do you understand that those are

8 two distinct steps for infringement analysis?

9 MR. BERKOWITZ: Objection to form.

10 A I do understand that there are

11 distinct steps in infringement analysis, as

12 I've outlined in my report, and I noticed the

13 experts on the other side did not conduct,

14 which I remarked in my rebuttal.

15 Q So do you know -- so what are the

16 scopes?

17 A The scopes?

18 MR. BERKOWITZ: Objection to the

19 form.

20 Q For the four patents-in-suit.

21 MR. BERKOWITZ: Objection to the

22 form. Compound.

23 A If you're referring to

24 understanding the scope based on construing

25 for infringement analysis, then the figures

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1 themselves provide us with what that scope is

2 by analyzing those.

3 I'm sorry, I'm confused by your

4 question. Maybe it was too broad.

5 You said what are the scopes of the

6 patents, is that right?

7 Q What are the scopes for the

8 patents-in-suit after your claim

9 constructions?

10 MR. BERKOWITZ: Objection to the

11 form.

12 A The -- the scope is defined in,

13 say, the second step of infringement

14 analysis.

15 You know, I can't talk about

16 outside of infringement analysis necessarily,

17 but here for this report, it was important to

18 understand the scope for the second part of

19 infringement analysis by analyzing the prior

20 art and its relationship or distance to the

21 patents-in-suit.

22 Q In your opinion, should broken

23 lines be considered for claim construction?

24 MR. BERKOWITZ: Objection to form.

25 Calls for a legal conclusion.

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1 A Yeah, it's a very open question

2 again. I cannot answer to whether I

3 considered broken lines to be relevant in

4 this particular analysis, in infringement

5 analysis.

6 Yes, broken lines are to be

7 considered. They represent unclaimed areas

8 of a patent, but they are to be considered as

9 part of the analysis.

10 Q So you think unclaimed areas as

11 waiving the scope of design patent?

12 MR. BERKOWITZ: Objection to form.

13 A I didn't catch the middle word, was

14 it leaving?

15 Q No.

16 So you're saying unclaimed areas

17 are waiving the scope of design patent?

18 A I don't believe that's what I said,

19 but the unclaimed areas should be considered

20 in analysis as I have done. You're asking

21 whether they're waiting.

22 Well, it really depends on what

23 part of analysis and where the unclaimed

24 matter is, you know. It's a -- whether it's

25 in prior art versus the patents at hand.

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1 Q Okay. Does the broken line form

2 part of the claimed design for a design

3 patent?

4 A In the designed patents, the

5 unclaimed -- I'm sorry, the broken line

6 represents unclaimed areas of the patent.

7 Q Okay. Do you think an unclaimed

8 area of a patent should be considered for

9 design patent infringement analysis?

10 MR. BERKOWITZ: Objection to form.

11 A It depends whether -- well, it

12 should be considered. That doesn't mean that

13 it's claimed as such, but it also depends on

14 whether the particular unclaimed area is in

15 prior art or if it's in the patents at hand.

16 Q And do you know what side-by-side

17 comparison means?

18 A Yes.

19 Q Can you explain that to me?

20 A I provided side-by-side comparisons

21 in my report to show the analysis, but a

22 side-by-side is comparing one item directly

23 to another, for instance, a -- a particular

24 figure compared to a similar viewpoint of the

25 accused product, for instance.

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1 Q You mean, a figure from the

2 patents-in-suit be compared with a figure

3 from an accused product?

4 A Almost, yes. The -- for instance,

5 a side-by-side might be between a patent and

6 an accused product, and so you would show the

7 figure from the patent next to a similar

8 angle of -- of not a figure, but a photograph

9 of the accused product. However, the

10 analysis would be done by viewing the product

11 as a whole.

12 Q And do you think any prior art

13 should be compared with the accused products

14 and the patents-in-suit at the same time?

15 A In the second part of the

16 infringement analysis of the ordinary

17 observer test, it is important to compare,

18 also, the prior art.

19 Q Side-by-side with the accused

20 products and the patents-in-suit?

21 A It's not a hundred percent.

22 I'm sorry, it's known as a

23 three-way analysis, and it doesn't always

24 have to be undertaken.

25 However, I did provide a thorough

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1 three-way analysis as the experts on the

2 other side have not done. And so I did do

3 the three-way, which is like a side-by-side

4 analysis.

5 Q Can you point to me where the

6 three-way was done?

7 A It's not in your exhibits yet, but

8 the side-by-side -- I'm sorry, the three-way

9 analysis was done as part of both rebuttal

10 reports that I provided.

11 MR. CHENG: We'll mark this

12 document as Exhibit 4.

13 That is the rebuttal report

14 provided by Mr. Hatch, dated September the

15 12th.

16 (Above-mentioned document marked

17 for Identification.)

18 A Maybe for the record, this is the

19 rebuttal report to Jim Gandy and not the

20 other rebuttal report I provided?

21 Q Right.

22 So there are two rebuttal reports.

23 This rebuttal is for Jim Gandy, and

24 this rebuttal is marked as Exhibit 4.

25 Can you download this report and

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1 view the content of the report?

2 A Yes, I do have this report.

3 Q Okay. Can you point out the

4 side-by-side comparison or the three-way

5 comparison portion of the report?

6 A I see you didn't include the

7 exhibit, but it's -- the exhibit to this

8 rebuttal.

9 Q I'm including the exhibit as

10 Exhibit 5 for this deposition.

11 (Above-mentioned document marked

12 for Identification.)

13 Q And I'm sharing that with you in

14 the chat.

15 A Okay. I do have that document.

16 Q Are you saying those are the

17 three-way side by side analysis that you did?

18 A Yes, I did title it that way.

19 So it's a three-way comparison

20 between the infringing products, the patents

21 at issue and what was then the reported

22 closest prior art, the '906.

23 Q The first time that you did this

24 comparison, three-day -- is this the first

25 time you did the three-way comparison in this

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1 case?

2 MR. BERKOWITZ: Objection to the

3 form.

4 A I had done this analysis prior to

5 this report but this documented and showed

6 the analysis as a three-way.

7 MR. BERKOWITZ: I just want to note

8 the time.

9 I think we've been going about an

10 hour and 20 or so.

11 I just want to check in and see if

12 the witness needs a break or is anybody

13 thinking about lunch?

14 Do we have any thoughts?

15 MR. CHENG: We can take a break.

16 If anyone wants to get lunch, I'm fine with

17 that.

18 How long do you think we should

19 break for?

20 MR. BERKOWITZ: Do you want to take

21 five or ten minutes now and go for a bit and

22 take lunch later or do you want to take lunch

23 now?

24 MR. CHENG: I'm flexible.

25 MR. BERKOWITZ: Paul, is it okay

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1 with you, let's take five or ten now and go

2 for another half an hour or 40 minutes and

3 take lunch.

4 How does that sound?

5 THE WITNESS: That sounds perfectly

6 fine with me.

7 (Brief recess taken.)

8 Q I shared a document marked as

9 Exhibit 6 in the chat.

10 (Above-mentioned document marked

11 for Identification.)

12 Q Mr. Hatch, can you open that

13 document?

14 A I have it open.

15 Q I want you to look at this report

16 and confirm that it's the report that you

17 provided.

18 A Yes, this is a report that I --

19 that I provided.

20 Q Do you know when you provided this

21 report?

22 A Yes, I see it was August 2021.

23 Q Is that when you provided this

24 report to defendants?

25 A I believe it would have been very

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1 close to this date, if not actually on that

2 date.

3 I do see, however, this report has

4 been marked up by someone and that was not in

5 the original version.

6 Q That's marked up by the court.

7 That's the only way that we received the

8 report.

9 Did you do a three-way comparison

10 in this report?

11 MR. BERKOWITZ: Objection to the

12 form.

13 A I provided -- I did a three-way

14 comparison as part of my analysis at this

15 stage, but I provided that three-way

16 side-by-side, at least presented it in the

17 report that followed this. That was the

18 rebuttal report of last year.

19 Q I'm just asking, did you do a

20 three-way comparison in this report?

21 MR. BERKOWITZ: Objection to form.

22 A I did a three-way comparison, to

23 answer your question, as part of my analysis

24 as I was creating this report.

25 I did not show the three-way until

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1 the rebuttal, which followed this shortly

2 after this report.

3 Q Why did you not show the analysis

4 that you did in this report?

5 MR. BERKOWITZ: Objection to form.

6 A I -- this report was about my

7 initial analysis and to provide the details

8 that were important here rather than respond

9 to information that the experts on the other

10 side had then brought up to light.

11 So as they considered the '906 to

12 be the closest prior art, I then provided the

13 three-way analysis. However, prior to that,

14 the '906 was only one of the many prior art

15 for me to report about in this report. I

16 hope that was very clear.

17 Q Not entirely.

18 Can you --

19 A Sure.

20 Q Can you rephrase your answer,

21 because that sounds very confusing.

22 A Okay, yes.

23 I did mention a couple of things.

24 But simply, I did do analysis on the prior

25 art, which included, for instance, the '906.

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1 However, because there was many

2 pieces of prior art, I didn't include a

3 three-way comparison analysis as part of this

4 report on every one of those prior arts until

5 the closest prior art was identified by the

6 experts, and then I provide a three-way

7 analysis as part of my report, for what they

8 considered to be the closest prior art.

9 Q Do you agree that the '906 patent

10 is the closest prior art?

11 MR. BERKOWITZ: Objection to the

12 form.

13 A When they put it forward, I

14 don't -- out of the choices of prior art that

15 has been put forward in this case, I don't

16 disagree necessarily. I don't find it

17 particularly -- well, I'm sorry.

18 You know, it was important for me

19 to then analyze the '906 because they had

20 proposed it. It certainly wasn't my role

21 to -- to question whether that's the closest

22 or not, but to analyze it according to what

23 they proposed as being the closest.

24 My understanding of the law in this

25 situation is that it is the -- the burden of

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1 the defendant to provide the closest prior

2 art and they did that and I analyzed it.

3 Q Do you think an ordinary observer

4 would know about the D '906 patent?

5 MR. BERKOWITZ: Objection to the

6 form.

7 A As I stated, the understanding of

8 infringement and in the ordinary observer

9 test, the understanding of the ordinary

10 observer, an ordinary purchaser with a -- who

11 is an ordinary purchaser of products like

12 this, would have had knowledge of prior art

13 at the time of the patent.

14 Q I'm sorry, this might come as I'm

15 asking you the same question, but because

16 your answer was not very clear, do you think

17 this ordinary observer would know about the D

18 '906 patent when looking at the products?

19 MR. BERKOWITZ: Objection to the

20 form.

21 A Yes. I'm sorry for my long

22 answers. Sometimes you're being very broad

23 with your questions and so I have to make

24 sure you understand where I'm coming from.

25 But the ordinary observer in this

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1 particular case would be familiar with the

2 '906 as well as other prior art. That is my

3 understanding.

4 Q And what are the differences?

5 Let's do the analysis one by one. Let's

6 first focus on the D '723 patent, which is

7 one of the four patents-in-suit.

8 What are the differences between

9 the D '723 patent versus the D '906 patent?

10 MR. BERKOWITZ: Objection to the

11 form.

12 A So you're requesting to run through

13 the ordinary observer test, in which case we

14 now look for similarities between the product

15 and to understand whether they are not

16 dissimilar or not.

17 Is that correct?

18 Q No, I'm asking you to compare the

19 patents-in-suit with the prior art and to

20 identify the similarity and the dissimilarity

21 between those two patents?

22 MR. BERKOWITZ: Object to the form.

23 It's outside the scope.

24 A Okay. You said between those two

25 patents.

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1 Which two are you referring to?

2 Q I was referring to the D '723

3 patent and the prior art, D '906 patent.

4 A I see.

5 Well, that's not part of the

6 analysis. I think you misunderstand.

7 We compared the accused product and

8 the patent to the prior art to understand

9 which may be closer.

10 Q So you do not think a comparison

11 between the patents-in-suit and the prior art

12 is necessary?

13 MR. BERKOWITZ: Objection to form.

14 A The patents -- each of the

15 patents-in-suit is compared to prior art,

16 such as the '906, only when also comparing it

17 to the accused because it's relevant to

18 understand the distance of one to the other

19 and not a direct comparison in the way that

20 you're suggesting.

21 Q So -- well, I'm not suggesting

22 anything. I'm simply asking whether or not

23 you have done any comparison between the '723

24 patent and the prior art, D '906 patent.

25 A Yes, I -- I have conducted -- you

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1 know, I became very familiar with the '906

2 patent, to understand -- I'm not sure what

3 your question is.

4 I did analyze the patent. I did

5 compare it -- sorry, I did compare the '906

6 to the '723 in particular regard as part of

7 the three-way analysis, which included the

8 accused product because the '906 helps us

9 understand the scope of the '723.

10 Q Scope is the word used for claim

11 construction.

12 So are you saying the '906 patent

13 will help us understand claim constructions?

14 MR. BERKOWITZ: Objection to the

15 form.

16 A And again, you're being quite

17 general.

18 But at the very start of the

19 infringement analysis, we looked at the

20 patent, its patent history, you know,

21 claimed/unclaimed matter. And the -- the

22 prior art, such as the '906, is only put into

23 direct comparison when we have already

24 decided to move into the second part of the

25 infringement analysis. And that being said,

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1 of course, because any prior art that's

2 disclosed in part of the patent, it is part

3 of the initial analysis as well.

4 I'm sorry, that was very long as

5 well, but I think your question was a little

6 bit off.

7 Q I don't think my question was off.

8 I think you're confusing the scope analysis

9 with the infringement analysis, but let's

10 just be clear.

11 I will ask you if the '906 patent

12 was compared to the D '723 patent.

13 MR. BERKOWITZ: Objection to form.

14 Go ahead.

15 Q Did you compare the D '723 patent

16 with the D '906 patent to identify the

17 similarity and dissimilarity between the two

18 patents?

19 A I did include the -- comparing the

20 '906 to the '723 when doing a three-way

21 analysis with the accused products in mind to

22 understand the similarities and

23 dissimilarities.

24 Q I just want to give you some

25 background of why I ask this question.

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1 A Okay.

2 Q So prior art comes into play to

3 show that there are some prior art that has

4 disclosed certain designs already.

5 So in light of this -- so in the

6 infringement analysis, when you compare the

7 accused products with the patents-in-suit, if

8 your -- if the -- if there is a prior art,

9 the difference between the prior art and the

10 patents-in-suit is constructive.

11 Because when you compare those

12 patents, when you compare the patents-in-suit

13 with this prior art, you can tell that

14 they're similar in certain aspects and

15 they're dissimilar in certain aspects, and

16 that helps you to perform this comparison

17 between the accused products and the

18 patents-in-suit.

19 So first, you have to understand

20 what are the differences between the

21 patents-in-suit and the prior art.

22 If the patents-in-suit and the

23 prior art are the same, then really there's

24 no need to do further analysis.

25 So that's why I ask you, can you

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1 see the similarities and dissimilarities

2 between the D '723 patent and the D '906

3 patent.

4 MR. BERKOWITZ: Objection to the

5 form, argumentative, asked and answered.

6 A So to clarify, you're asking if I

7 can see the similarities and dissimilarities

8 between the '723 patent and the '906?

9 Q Yes.

10 A Which the answer would be yes.

11 Q What are the similarities between

12 those two patents?

13 A The -- again, as part of this

14 analysis -- I guess what you're saying is --

15 I'm not sure what you're saying.

16 What are the similarities?

17 What I've provided here was part of

18 a three-way analysis with the accused really

19 to see about which is clear rather than list

20 individual similarities, which is -- or

21 differences, which is not technically part of

22 the analysis, but you are correct in saying

23 that the '906 should be understood for what

24 it stands for.

25 But the analysis is more about the

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1 distance between it and the '723, and there's

2 a fair amount of distance.

3 Maybe that answers your question.

4 There's a lot that they have in difference.

5 Q Let's focus on the distance, then.

6 Let's see, what are the differences between

7 the D '723 patent and the D '906 patent?

8 A Well, overall impression, as would

9 be seen by an ordinary observer at the time,

10 it gives a very different overall impression.

11 It's incorrect to, say, list

12 individual little details, but in viewing the

13 two images in different angles, there is a

14 very different impression given by the '906,

15 which -- which has a very, you know, smooth,

16 rounded, clear of any kind of markings or

17 hard edges. You know, it's got this kind of

18 melted look to it, right, just for other

19 conversation to put it into words, which is

20 highly different from the impression that we

21 get from any of the other products that I

22 analyzed as part of this case.

23 Q So I was asking you the differences

24 between the '723 patent and the prior art of

25 the '906 patent, and you said there are hard

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1 edges and one is more smooth than the other

2 and those are the differences between those

3 two patents.

4 MR. BERKOWITZ: Objection to the

5 form.

6 A Yeah, you definitely misstated my

7 words.

8 But the important thing is that

9 it's about the overall impression. And the

10 overall impression we have from the '906 is

11 this very kind of melted kind of feel,

12 whereas the '73 -- were you -- sorry, I'm

13 just checking.

14 Is it the '726 or '723? '723,

15 correct. Whereas the '723 in particular does

16 not give that overall same impression of it

17 being melted.

18 Q Do they have similar overall shape?

19 MR. BERKOWITZ: Objection to form.

20 A Depends what you mean by shape.

21 Q The hourglass shape that you

22 mentioned -- I'm sorry, I'll let you finish

23 first.

24 A Yeah, I guess I was going to say

25 that, you know, it's not about necessarily

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1 shape analysis of the product as a whole.

2 It's about the impression.

3 However, in my report, I did refer

4 to the hourglass shape, for instance, which

5 is a part of the overall impression. It

6 helps inform the overall impression.

7 And, you know, to help answer that

8 question, yes, they do both share as part of

9 the overall impression an hourglass shape.

10 Q If that hourglass shape -- does the

11 hourglass shape form an impression of the

12 overall shape of the product?

13 MR. BERKOWITZ: Objection to the

14 form.

15 A It's my opinion that the hourglass

16 shape contributes to the overall impression.

17 I think that's important. It's not the

18 entirety of the impression.

19 Q What other attributes do you think

20 contributes to the overall impression?

21 A Of which one?

22 Q Of the '723 patent.

23 A I believe, you know, the ordinary

24 observer, the impression that the ordinary

25 observer at the time, who's never seen a

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1 product like this but has knowledge of the

2 prior art that was shown, would notice, yes,

3 it has an hourglass shape, but also, a

4 generally flat surface with areas to put your

5 feet, for instance, and that it has open

6 fenders on the side above the wheels.

7 And, you know, there are a number

8 of things that make that overall impression

9 and the -- some of the feel of those forms

10 that make that impression, are hard edges,

11 defined shapes.

12 So that's the general kind of

13 impression, and it's not limited to the words

14 I used. I'm just trying to describe the

15 image that we see in context to looking at

16 the prior art that existed before.

17 Q So just to summarize what you said,

18 you said that they both have similar

19 hourglass shape.

20 Is that correct?

21 MR. BERKOWITZ: Objection to form.

22 A Yeah. More specifically, I said

23 that they do both share an hourglass shape,

24 which is part of the overall impression.

25 Q Which is part of the overall

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1 impression.

2 And the dissimilarity between the

3 '723 patent and the '906 patent, you said,

4 comes from the flat surface, the open fenders

5 and the overall feel, you said, like the

6 feeling where you look at the products.

7 A Yes.

8 Q Okay. And together with hard

9 edges, which really are the key contributors

10 that distinguish one -- distinguish the D

11 '723 patent from the D '906 patent?

12 A That's more or less incorrect to

13 take the wording so literally, but the idea

14 is that the ordinary observer would notice

15 differences, such as that contributes to the

16 overall impression.

17 So the hourglass shape is still

18 part of the overall impression of -- of both,

19 but the overall impression is very different

20 at the end of viewing both.

21 Q Okay. And then you think that's

22 why an ordinary observer would not confuse

23 the D '723 patent to the D '906 patent,

24 despite that the hourglass shape contributes

25 to the overall impression or the sufficient

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1 dissimilarity, including the flat surface,

2 the fenders and the edges and the overall

3 feelings when you look at the two patents,

4 and that those all together contributes to

5 the -- to the dissimilarity that the ordinary

6 observer can distinguish?

7 MR. BERKOWITZ: Objection.

8 Objection to the form, mischaracterizes

9 testimony.

10 A Yeah, I think that's almost

11 correct, but this was not -- you know, you

12 framed this as whether the ordinary observer

13 would be confused between these two products,

14 which was not part of the analysis here.

15 I was just explaining how the

16 ordinary observer would view these as being

17 quite different, but I did not analyze, you

18 know, the ordinary observer test as to

19 whether these are substantially different,

20 you know, using those official words. That

21 was not part of the analysis.

22 What I was saying is, you know,

23 it's my opinion that there is a lot of

24 difference in the overall impression here.

25 Q Are these differences substantially

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1 dissimilar?

2 MR. BERKOWITZ: Objection to the

3 form.

4 A To conduct an official analysis, I

5 would have to look at the prior art of the

6 '906 to -- to understand it a lot better.

7 But my -- my opinion is that the

8 impression is that it is -- it is really

9 quite different, you know. I wouldn't want

10 to use the word "substantially different"

11 because that infers that I've conducted a

12 full analysis on that specific item, whereas

13 the analysis I did was using it as the prior

14 art and not the target of the analysis.

15 I hope I wasn't too confusing

16 there.

17 Q No, you're not confusing.

18 I think it's good that we can

19 recognize there are differences between the D

20 '723 patent and the D '906 patent because

21 that's constructive, and I won't go through

22 all the products because we have four patents

23 and we have four products with 16 different

24 analysis.

25 I won't ask you to do all 16 of

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1 those analysis.

2 Let's just pick one product. Let's

3 just pick a -- product B, let's go with

4 product B.

5 So do you think product B is

6 substantially different from the D '906

7 patent?

8 A My analysis was actually on the

9 difference between product B or differences

10 in similarities between B and the patent, say

11 the '723, among others.

12 Q The D '723, okay.

13 Do you find the product B is

14 substantially dissimilar from the D '723

15 patent?

16 A No, I find it substantially the

17 same.

18 Q Does product B have a smooth

19 hourglass shape?

20 A The hourglass shape that it has

21 contributes to the overall impression. It

22 does have an hourglass shape, yes.

23 Q Does it have smooth lines or does

24 it have edgy lines?

25 MR. BERKOWITZ: Objection to the

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1 form.

2 A The edgy lines that you referred to

3 do contribute to the overall impression of

4 the Gyroor B.

5 Q Of the Gyroor -- of Gyroor product

6 B.

7 Well, when we look at the surface,

8 do they have different patents and design

9 lines on the standing pads, the two pads that

10 you stand on?

11 A Are you -- so when you say the

12 difference, you're talking about between the

13 '723 and Gyroor B application?

14 Q Yes.

15 A They both share having a generally

16 flat, you know, pronounced flat area for

17 standing on. That's something they share,

18 and there are individual differences when we

19 zoom in further.

20 Q Does the D '906 patent have

21 surfaces to stand on?

22 A The '906 patent is a much

23 smoother -- I called it a melted rounder

24 form.

25 It's presumed you may be able to

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1 stand on it, but it does not have a

2 pronounced flat surface for standing on like

3 the '723 and the accused products.

4 Q The flat surface you stand on,

5 which part is not flat?

6 If you can point that through the

7 pictures, it would be very helpful. If we're

8 looking at Exhibit No. 5, we can just point

9 to the pictures. So that will be easier.

10 A Are you referring to the '906?

11 Q No, I'm referring to the flat

12 surface that you said is present in the D

13 '723 patent but not in the D '906 patent.

14 I just want to ask you, which

15 picture you looked at and made that

16 determination.

17 A Okay. Obviously, the analysis is

18 done on a combination of all figures, but you

19 do see a generally flat surface and

20 pronounced standing pads on the '723.

21 Q From which picture?

22 A Again, the analysis was done on all

23 pictures but we can look at Figure 6, for

24 instance, of the D '723 patent.

25 Q Which page are you referring to?

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1 A You said Exhibit 5?

2 Q Yes.

3 A We can look at page 4.

4 Q Okay.

5 A I see the rendition is a little

6 compromised, but I'm obviously very familiar

7 with the patent image itself.

8 But we see that the surface of the

9 '723 has a generally flat surface and it has

10 pronounced -- you know, when you compare it

11 here to the '906, the '723 has pronounced --

12 what did you call it? -- tread areas, I

13 think, for treads.

14 So that flatness there is

15 pronounced. It's being made very visible,

16 and that's seen with all competitors too, but

17 not the '906.

18 Q So you're saying the '906 patent

19 doesn't have a flat surface to stand on?

20 A No, that's not what I said.

21 Q I'm trying to understand what you

22 said. You said the '723 patent has a flat

23 surface.

24 Is that flat surface also present

25 in the D '906 patent?

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1 A The '723 has a generally flat

2 surface at the top, but it has these

3 pronounced treads.

4 Q By treads, you mean the lines, sir?

5 A Yes. To clarify -- that's a good

6 question. I was trying to think of the word

7 you used, but the foot tread areas, right,

8 those areas, the footpads, let's call it, are

9 pronounced and we see exactly, you know, that

10 generally flat area with the pronounced foot

11 treads, and that is not present in the '906,

12 for instance.

13 Q When you say it's pronounced, are

14 you saying that -- how is that more

15 pronounced in the D '906 patent, because in

16 the D '906 patent there are two flat surfaces

17 as well?

18 MR. BERKOWITZ: Objection to the

19 form.

20 A Yes, I think you're assuming that

21 they are flat surfaces there. You know, I

22 would say it's generally flat, even on the

23 '906. However, there are no pronounced, that

24 is, there's no defined areas of footpads, so

25 I have no idea.

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1 For instance, the inventor at that

2 point had the inclination of having a defined

3 area to mark where the feet might go, whereas

4 the '723 does have some pronounced areas

5 where the feet might go.

6 Q So you're saying --

7 A I'm sorry, by pronounced, I mean

8 something like explicit, if that helps.

9 Q And it helps.

10 And by the '906 patent, you think

11 people will not know where to stand on this

12 product?

13 MR. BERKOWITZ: Objection to the

14 form.

15 A That's not what I'm saying.

16 But for instance, the '906 could

17 be -- as you know, we don't know what size

18 this is.

19 It could be -- the whole thing

20 could be as big as one foot, a person's foot,

21 or it could be as big as a surfboard, but

22 there's no indication as to where one might

23 provide footpads in this invention.

24 If it were bigger, like you would

25 have smaller footpads near the middle, but we

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1 don't know that. The designers did not have

2 possession of an idea at that time of -- of

3 pronouncing or explicating of something like

4 a footpad.

5 Q And how is that pronounced in the D

6 '723 patent?

7 MR. BERKOWITZ: Objection to the

8 form.

9 A We do see some form of area that

10 has been outlined that we can infer is for

11 standing on, that we're calling footpads.

12 But really, in doing the

13 comparison, we're seeing a pronounced area,

14 an explicit defined area on this and on the

15 accused products that is absolutely not

16 present in the prior art. It's entirely new.

17 Q So you're saying the lines on the

18 standing pad marked where people should

19 stand, and without the lines, people would

20 not know where to stand on a hoverboard?

21 MR. BERKOWITZ: Objection to the

22 form.

23 A That's also not what I'm saying.

24 But what I am saying is, that the

25 inventors of the '723 patent did explicate

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1 certain zones or areas that were not

2 pronounced or explicated in the prior art

3 '906. These areas, you and I, today, are

4 inferring calling footpads.

5 They may all be something

6 different, but yes, they are visibly present

7 and contribute to the overall impression.

8 Q And to your understanding, was that

9 the first time that this defined area for

10 standing was ever disclosed on the hoverboard

11 products? Was that --

12 MR. BERKOWITZ: Objection to the

13 form.

14 A That's not what I said, but when

15 comparing to the '906, the '906 does not

16 disclose that as an idea and they have not

17 explicated that.

18 I believe in the further prior art

19 of items of other forms, there were some

20 areas that might represent explicating

21 footpads or something similar, but not on the

22 '906.

23 Q I see.

24 So you agree, although that was not

25 included in the '906 patent, that was

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1 disclosed in some other prior art?

2 MR. BERKOWITZ: Objection to the

3 form, mischaracterizes testimony.

4 A Yes, almost. It was not part of

5 the '906 but there exists other prior art

6 that I analyzed that had areas that may be

7 defined as -- as footpads. However, not

8 in -- not giving the same overall impression.

9 Q Overall impression of the standing

10 footpads?

11 MR. BERKOWITZ: Objection to the

12 form.

13 A Overall impression of the object as

14 a whole. Thank you for allowing me to

15 clarify.

16 Q No problem.

17 MR. CHENG: It's almost 1:00.

18 Let's take a lunch break.

19 MR. BERKOWITZ: Okay.

20 (Luncheon recess taken.)

21 Q Mr. Hatch, did you communicate with

22 your counsel during the break?

23 A No, I did not.

24 Q And let's get back to the report.

25 Mr. Hatch, you mentioned that the

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1 standing pad was present, the flat area of

2 the standing pad was present in the D '723

3 patent but not in the prior art.

4 Is that correct?

5 A I said the -- one of the things

6 that contributes to the overall impression

7 are the pronounced areas that we're calling

8 standing pads that are not pronounced in the

9 '906 in such a way.

10 Q Are you talking about appearance

11 when you're talking about pronounced?

12 A Yes, yes. I also use the word

13 explicated, but there's -- you know, the

14 inventor at the time was clearly marking that

15 area and designating it for something that

16 they presume is the feet, which the '906 did

17 not.

18 Q In your opinion, an ordinary

19 observer would not know the area for feet in

20 the '906 patent?

21 MR. BERKOWITZ: Objection to form.

22 A The ordinary observer, viewing

23 '906, would not be called attention to a

24 particular area on that generally flat

25 surface for any specific reason.

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1 Q When we're talking about

2 appearance, what do you consider as

3 appearance? Or let's use the more correct

4 term, the ornamental aspect.

5 What do you consider as ornamental

6 in a design patent?

7 MR. BERKOWITZ: Objection to form.

8 A I guess we talk about the

9 impression that the ornamental appearance

10 makes and that's important.

11 In this particular case, say in the

12 '723, the ornamental appearance is -- is

13 claimed and shown using solid lines and

14 everything on that contributes in some way to

15 the overall impression.

16 Q I didn't ask -- I didn't ask

17 overall impression. I asked what do you

18 consider as ornamental.

19 MR. BERKOWITZ: Objection to form.

20 A Yeah, I -- I was telling you about

21 what I consider ornamental to be in this

22 case, which is exactly what we're seeing as

23 the claimed design.

24 You know, the product as a whole

25 shows an ornamental design as shown.

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1 Q Do you understand -- do you

2 understand what is considered a functional

3 aspect of a design pattern?

4 A Yes, the question about

5 functionality is quite different from what

6 you asked before, but functionality, for

7 instance, there's a certain utility that is

8 implied by an ornamental object.

9 And in infringement analysis, we do

10 try to identify whether certain aspects are

11 driven primarily by functionality or not.

12 And the functionality implies that -- I'm

13 sorry, a long-winded answer again.

14 Because functionality is a big

15 thing. It's -- you know, if it's driven by

16 functionality, if a certain aspect of the

17 design is driven by functionality rather than

18 purely ornamental, that means, you know, if

19 it looked different, it wouldn't necessarily

20 provide the same function, therefore, it's

21 primarily functional.

22 In this case, we are looking at an

23 ornamental design.

24 Q Do you know functionality and the

25 functional aspects of a design are two

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1 different concepts?

2 MR. BERKOWITZ: Objection to the

3 form.

4 A It depends what you mean, whether

5 you're talking about infringement analysis or

6 invalidity. That plays a different role in

7 there or even in trade dress, so yes, there

8 are differences.

9 Q In the context of design patent

10 infringement analysis.

11 A And the question being, do I

12 understand there may be a difference between

13 functional elements and functionality in

14 infringement analysis, is that your question?

15 Q In infringement analysis context,

16 do you understand the functionality and the

17 functional aspects of a design are two

18 different concepts?

19 MR. BERKOWITZ: Objection to the

20 form.

21 A No, I understand there's a

22 difference, but what's -- yes, because for

23 instance, an ornamental part of a design may

24 have a function.

25 They have functionality, but

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1 functional aspects might -- might be talking

2 about certain parts that may be or may not be

3 driven by function.

4 Q Are there any parts in a hoverboard

5 patent, let's say the D '723 patent, driven

6 by function?

7 MR. BERKOWITZ: Object to the form.

8 A Did you say are there any reports,

9 is that what you said.

10 Q No.

11 Are there any parts in the D '723

12 patent driven by function?

13 MR. BERKOWITZ: Objection to the

14 form.

15 A My understanding is that what we

16 see is not primarily driven by function, that

17 the claimed design is ornamental.

18 Q Is a claimed design ornamental

19 because only ornamental aspects are claimed

20 design?

21 A Is that a question?

22 Q What I'm asking you is, is there

23 a -- functional aspects in the -- in the

24 claimed design here?

25 MR. BERKOWITZ: Objection to the

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1 form.

2 A The claimed design is of an

3 ornamental design. The -- it depicts

4 something that would have certain utilitarian

5 use, i.e., functional usage, however, they

6 are primarily ornamental in my analysis.

7 Q And what are those functional

8 utility things that would be in the design

9 patent?

10 MR. BERKOWITZ: Objection to the

11 form.

12 Q And let's use the D '723 patent as

13 an example.

14 A Okay. So from the patent, it can

15 be inferred that the utility or the function

16 of this claimed design is of a self-balancing

17 vehicle of some kind because that's the title

18 of the patent.

19 There are no other descriptions to

20 call out any particular functions of the

21 claimed design. So if you're asking about

22 the claim of the claimed design, I think

23 that's about it.

24 Q Well, I guess you still haven't

25 been very clear as to your understanding of

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1 ornamental aspects of this claimed design.

2 So you're saying all claim designs

3 are ornamental in the D '723 patent?

4 A Yes, all claim parts of the design

5 of the '723 patent are primarily ornamental.

6 That is correct, yes.

7 Q When you say "primarily

8 ornamental," are you indicating part of them

9 or not?

10 A I'm sorry, I didn't catch the last

11 bit. Am I indicating --

12 Q Part of the claimed design are not

13 ornamental?

14 A No. Because I was talking about

15 the claimed design as a whole, which is

16 important in infringement analysis to look at

17 the object as a whole.

18 And what we see there, all of the

19 claim parts, as a whole, relate to ornamental

20 design. They are not primarily functional,

21 for instance, because it could have a very

22 different appearance and still potentially

23 provide the same function --

24 Q So you just mentioned --

25 A -- on a self-balancing vehicle.

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1 Q Yes.

2 So you just mentioned function, so

3 it does serve function via on the line

4 function can be served in different design,

5 that's what you're saying?

6 A That's correct.

7 And the function that I explained

8 before, its function as a self-balancing

9 vehicle and could have a different ornament.

10 Q And do you think that the D '906

11 patent have different ornamental or different

12 ornaments from the D '723 patent?

13 A The '906 also claims an ornamental

14 design that is different from the '723

15 patent, yes.

16 Q And do you think the product B also

17 served the same function with a different

18 ornament in this design?

19 MR. BERKOWITZ: Objection to form.

20 A I don't know about the same

21 function.

22 What function are you referring to

23 with that particular product?

24 Because with that product, it's --

25 it's more specific about what function it

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1 serves.

2 Q What function?

3 You mentioned the function. You

4 said the function can be served with

5 different designs.

6 So I'm asking you, how the function

7 in B -- so what's the function in the D '723

8 patent does the design serve?

9 A The claimed design function is --

10 is shown as being for a self-balancing

11 vehicle. So that's its overriding function.

12 Product B falls under that

13 category, but it -- it limits itself in the

14 functions it describes. It's specifically a

15 hoverboard design.

16 Q So is product B a hoverboard under

17 the same concept as a hoverboard as a

18 self-balancing vehicle?

19 MR. BERKOWITZ: Objection to the

20 form.

21 A A hoverboard could be considered a

22 self-balancing vehicle.

23 Q And does product B have a function

24 of a hoverboard or self-balancing vehicle?

25 A It serves as a hoverboard, which is

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1 a type of a self-balancing vehicle, yes.

2 Q And is that on the line function

3 served through the same design as the D '906

4 patent or D '723 patent or served through a

5 different design?

6 MR. BERKOWITZ: Objection to the

7 form.

8 A The function of a self-balanced

9 vehicle, as we understand, can be served

10 through -- this was part of my report -- can

11 be served through other ornamental designs,

12 such as and includes product B.

13 Q And how is product B's ornamental

14 design different from -- different from the D

15 '723 patent?

16 MR. BERKOWITZ: Objection to the

17 form.

18 A It -- it's -- the ornamental design

19 is -- is very similar of scores, and I guess

20 you're asking my function before, but now

21 you're talking about ornamental design.

22 You know, it's very similar, but

23 there are differences in smaller details.

24 Q Can you highlight those differences

25 for me?

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1 A As I've shown you in my report, it

2 shares a lot of commonality and we -- we look

3 at that through the eyes of an ordinary

4 observer in context of the prior art.

5 Q If you --

6 MR. BERKOWITZ: You have to let him

7 finish.

8 MR. CHENG: That's fine. I thought

9 he was finished.

10 A So rather than looking at the

11 individual differences, which is the

12 incorrect analysis in this case, we look at

13 the design as a whole and compare them.

14 Q So you only look at the design as a

15 whole.

16 Do you still look at the design in

17 the details?

18 A The design in details -- you know,

19 the details of the design, the ornamental

20 details of the design do contribute to the

21 overall impression.

22 And we -- we look at, okay, what is

23 the contribution, what -- what contributes

24 substantially to that whole world impression

25 and if there are small details like screw

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1 holes that we believe the ordinary observer

2 would not, that would not affect the overall

3 impression to the ordinary observer, and

4 those have a lesser effect on the overall

5 impression.

6 Q And again, I -- well, I think the

7 defendants have been much better image in the

8 screw hole but the question is, can you

9 highlight the differences between product B

10 and the D '723 patent for me?

11 A The differences, again, in context

12 of the '906, which is the --

13 Q That's not the question.

14 A We can do it the incorrect way, if

15 you want.

16 Q That's not the question that I

17 asked.

18 I'm asking if you compare product B

19 with the D '723 patent, can you highlight the

20 differences between the product B and the D

21 '723 patent?

22 MR. BERKOWITZ: Objection to form.

23 A Maybe, you know, to do that, we

24 could use one of my -- my tables, right?

25 So we can look at it officially so

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1 I can answer your question.

2 Q Go ahead.

3 A I'm thinking where -- you're

4 talking about '723 compared to B.

5 So if we look at Exhibit 5, and

6 that would be page 1 to 5. And to zero in on

7 one page, I guess we can look at page 4

8 because we get an angle view of it.

9 We see the '723 and product B and,

10 of course, the prior art.

11 So just to clarify, before I do

12 this, you are asking about the viewpoint of

13 the ordinary observer in this.

14 Is that correct?

15 Q Well, I guess that comes to the

16 question. You have to define the ordinary

17 observer for me first.

18 A Oh. Well, the ordinary observer

19 defined, obviously, in my report, which I can

20 refer to here.

21 The ordinary observer in

22 infringement analysis, as you know, is

23 defined as the ordinary purchaser. And we

24 look at the ordinary observer to understand

25 the level of acuteness.

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1 And in this particular case, we

2 consider the ordinary observer, i.e., the

3 purchaser, to be the consumer user or, say,

4 the parent of the user, if it's a child who

5 is choosing and purchasing this product,

6 whether they're on social media or online or

7 some brick and mortar store.

8 So they come across this and choose

9 to purchase this. I think that answers your

10 question to define an ordinary observer in

11 this case.

12 Q Can you point to the section where

13 you define this ordinary observer in your

14 report?

15 A Sure.

16 I believe it's -- which exhibit is

17 the initial report?

18 Q It's Exhibit 3.

19 A Yes, thank you.

20 So it is on page -- it's page 8.

21 There's a section -- I'm sorry, it's not page

22 8.

23 Q Is it page 6?

24 If you go by the cover, it's page

25 8, but if by the line, the page number, it's

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1 page 6.

2 A Yes, that's correct.

3 I have three paragraphs about a

4 definition of an ordinary observer generally.

5 The third paragraph is where I

6 state specifically here, in my deposition, of

7 the ordinary observer.

8 Q Thank you.

9 If you can read that portion that

10 you defined ordinary observer in this case

11 would be very helpful.

12 A It is my opinion that an ordinary

13 observer in this case is the typical

14 purchaser of hoverboards, i.e, a consumer

15 user or the parents of a user each having

16 little or no experience purchasing

17 hoverboards.

18 The ordinary observer encounters

19 products like the claimed designed, online

20 stores, television and entertainment media

21 and social media and purchases them using

22 online stores or from brick and mortar

23 stores, like Best Buy or Walmart.

24 Q So a typical, ordinary observer may

25 have knowledge of the prior art?

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1 A Yes, a typical, ordinary observer

2 would have knowledge of the prior art, the

3 relevant prior art.

4 Q And does a consumer have little or

5 no experience purchasing hoverboards indicate

6 that person's knowledge of hoverboards?

7 MR. BERKOWITZ: Objection to the

8 form.

9 A So a real life consumer, which I

10 think you're referring to, it's my opinion

11 that they would not have substantial

12 knowledge of the industry as a whole, which

13 is expected here.

14 They are an ordinary purchaser with

15 ordinary acuteness to hoverboards and don't

16 necessarily have years of experience

17 designing or understanding the differences,

18 the nuances of hoverboards.

19 Q And why did you pick this

20 purchaser, a real life purchaser for this

21 particular case?

22 A It's my understanding that that's

23 the majority, the high majority of people who

24 buy these products and products like this,

25 based on prior experience with this category

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1 and similar categories.

2 Q Although this real life purchaser

3 may not have other knowledge of the prior

4 arts and the products in the industry,

5 it's -- and that was the question -- even

6 though you think -- even though you know this

7 purchaser in real life may not have all the

8 knowledge about the prior arts and the

9 products in the industry?

10 MR. BERKOWITZ: Objection to the

11 form.

12 A Yeah, my understanding is that the

13 consumer in real life would not have

14 knowledge of all of the prior art or all of

15 the competing hoverboards, that is correct.

16 Only the hypothetical ordinary

17 observer is considered to have knowledge of

18 the prior art.

19 Q And you think this purchaser in

20 real life, as defined in your report, fits

21 better in the situation?

22 A Fits better than?

23 Q Than the hypothetical ordinary

24 observer in this case.

25 A That's not what I said.

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1 We look at the purchaser in real

2 life to understand the level of acuity

3 they -- the level of attention that they pay

4 to viewing the product, but the hypothetical

5 ordinary observer is actually the operational

6 construct, if you will, that we use for the

7 analysis.

8 But we apply the level of attention

9 from the -- the purchaser to the hypothetical

10 ordinary observer. So it's not one or the

11 other. One helps define the other.

12 Q Which define the other?

13 I'm a bit confused here.

14 So are you saying you're using two

15 standards or you're using one standard here?

16 A The standard for the hypothetical

17 ordinary observer is that we apply the level

18 of acuteness of the purchaser.

19 And so when I say one helps inform

20 the other, it's knowing the level of

21 acuteness of the purchaser. The real life

22 purchaser helps us inform the level of

23 acuteness that an ordinary observer would

24 pay.

25 Q The hypothetical ordinary observer

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1 would pay?

2 A Yes, yes.

3 Q And so, you agree in this case, a

4 hypothetical ordinary observer will have

5 knowledge of all the prior art?

6 MR. BERKOWITZ: Objection to the

7 form.

8 A Yes, unlike the purchaser in real

9 life, they have knowledge of the relevant

10 prior art.

11 Q But however, in this case, you're

12 saying, it is my opinion that an ordinary

13 observer in this case is the typical

14 purchaser of hoverboards.

15 So should this case use the

16 standard of a hypothetical ordinary observer

17 or use the standard that you define here as

18 the typical purchaser of hoverboards in your

19 own words about purchasing in real life?

20 A It's kind of the same thing. You

21 may be misunderstanding this, but when we

22 define -- in these cases, when we define who

23 the ordinary observer is, it's a hypothetical

24 person, it's based upon this real life

25 purchaser.

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1 And that's why it's phrased in that

2 way, that the ordinary observer in this case

3 is the typical purchaser of hoverboards.

4 That's the typical phraseology but it doesn't

5 mean that these are competing aspects.

6 Q So you agree a hypothetical

7 ordinary observer has knowledge of all the

8 prior arts, however, here, you define this

9 ordinary observer in this case as a typical

10 purchaser who has limited knowledge of all

11 the prior arts and the products in the

12 industry, how do you reconciliate the gap

13 here?

14 MR. BERKOWITZ: Objection to the

15 form.

16 A I think you're twisting things a

17 little here, but as I said before, it's the

18 level of attention that we actually use from

19 the purchaser in real life to help us inform

20 the ordinary observer.

21 It's normal to phrase it this way,

22 that that purchaser is the ordinary observer.

23 But this hypothetical impression of

24 the ordinary observer that we use is not the

25 purchaser from real life, but one who has

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1 that level of attention but is informed by

2 the prior art. And that's the hypothetical

3 version of the ordinary observer.

4 Q So what you just stated, is that

5 included in your report?

6 MR. BERKOWITZ: Objection to the

7 form.

8 A I do describe, for instance,

9 further up, the definition of the ordinary

10 observer, you know, in the previous

11 paragraphs, and how it's -- how it's

12 applicable when doing infringement analysis.

13 I believe it's clear.

14 I believe it is in the report, to

15 answer your question, that we are defining

16 who we think this ordinary observer

17 represents, and we use this ordinary observer

18 later in the document as a viewpoint.

19 So I think that's a yes to your

20 question.

21 Q So I'm reading the section that you

22 tried to define the ordinary observer.

23 At the end of the paragraph you

24 mention the ordinary observer is also the one

25 who's aware of the number of closely similar

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1 prior art designs and conversant with the

2 prior art.

3 Just to be clear, do you think the

4 hypothetical ordinary observer should know

5 all the prior arts or just to the number of

6 closely similarly prior art designs?

7 MR. BERKOWITZ: Objection to the

8 form.

9 A My understanding is that they

10 have -- I can't define exactly where the line

11 is there, but my understanding is they have

12 knowledge of the relevant prior art, and

13 certainly relevant in this case would be

14 prior art that's cited on -- on the -- by the

15 patents themselves.

16 I believe it's often debated as to

17 exactly what falls under relevant and that's

18 not something for me to argue, but what is

19 very clear, though, is that everything on the

20 patents is certainly relevant to this case.

21 Q And now, let's go back to the parts

22 that you mentioned. Go back to the Exhibit

23 No. 5 where you compared the products,

24 accused products, the patents-in-suit and the

25 prior art.

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1 We were trying to highlight the

2 differences between product B and the D '723

3 patent.

4 And can you go through the

5 differences with us?

6 A Yes.

7 So if we look at just for this

8 conversation, obviously, the analysis is done

9 looking at all the views at the same time.

10 But if we look at page 4 of the

11 exhibit, five that you mentioned, you know,

12 where we see an angle view of both?

13 Q Umm-hmm.

14 A To define the differences and the

15 reason we went around this way is, as I said,

16 we need to be looking through the eyes of the

17 ordinary observer, and so the ordinary

18 observer at this time, if they -- if they

19 have knowledge of the '906, then that helps

20 inform them what they -- what becomes

21 prevalent to them about the impression that

22 they get, right, the ornamental design.

23 Q Umm-hmm.

24 A And that helps them understand,

25 okay, well, what's similar and what's

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1 different, okay?

2 Q What's different, yeah. Okay.

3 A Okay. So we see lots of

4 similarities, particularly with the '906 in

5 mind. We do see some smaller details, when

6 we zoom in a little bit.

7 For instance, the '906 has a fender

8 skirt, like a sort of closed area around the

9 wheels. Whereas, in the '723 and product B,

10 we see that they both have an open fender.

11 But there are differences in the

12 way that they have that open fender that are

13 both different and quite far away from the

14 '906, but there are differences in the way

15 that they have that.

16 Product B, for instance, has a

17 little less material in the way that it's an

18 open fender.

19 The '723 has a little bit more

20 material as it wraps around, but it's still

21 above the wheel. So it's still open and

22 giving visibility to the wheel. So there's a

23 difference when we drill down into a smaller

24 level there.

25 Again, with the context of the

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1 '906, one of the biggest differences they

2 both have, from the '906, is that they have

3 these pronounced areas of the foot tread

4 areas and they have different approaches.

5 They both have foot -- pronounced foot

6 treads, but they have differences in the way

7 that they address that.

8 Product B has angled lines in

9 different sort of angled lines that the '723

10 has in the way that it pronounces those

11 things, but they're very similar because the

12 '906 doesn't even have any pronounced at all.

13 So again, there are differences at

14 a much lower level of -- of detail. These

15 differences, you know, do contribute to the

16 overall impression.

17 Staring at the two things, an

18 ordinary observer will notice differences,

19 but of course, this test is not about whether

20 we know just differences. It's about whether

21 we believe the product B, the D '723, are

22 closer to each other than the '906, you know,

23 with view of the '906, and they are.

24 Sorry for the long answer, but you

25 wanted a list of differences.

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1 Q That's perfect.

2 I mean, I want you to show me the

3 differences or highlight the differences, and

4 I do thank you, almost got it right, except

5 from -- you know, when you compare A to B,

6 you notice the differences, anyone does,

7 where A is different from B, you certainly

8 know the differences.

9 And I think the prior art comes

10 into play that will enhance the differences

11 between A and B.

12 Do you agree? I mean --

13 A No, I think --

14 MR. BERKOWITZ: Objection to the

15 form.

16 A -- in this particular case, the

17 '906 does inform us, help understand what are

18 the differences. The '906 says, okay, this

19 is the world that happened before the

20 invention of the '723.

21 You are saying that this is the

22 closest prior art.

23 So if '906 happens and some time

24 after that the '723 happens, then -- then

25 yes, I understand what got invented at the

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1 time of the '723.

2 And then, of course, I ask myself,

3 well, if product A now comes along, is that a

4 huge step from '723 or not considering the

5 big step that -- the big differences between

6 '906 and the '723.

7 And it's really quite clear, you

8 know, and that's the analysis that's going on

9 here.

10 I cannot see how someone can think

11 that the melted form of the '906 can

12 somehow -- somehow come between the '723 and

13 product A or product B.

14 Q Product A and product B, what do

15 you mean by product A and product B?

16 A I'm referring to the accused

17 products, Gyroor product A and Gyroor product

18 B.

19 Q But you're not comparing product A

20 to product B?

21 A No. I was comparing them to the D

22 '723 and comparing them to the '906 and

23 seeing the substantial gap. I guess, between

24 the '723 and the '906, but that sort of size

25 gap, those huge differences are much bigger

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1 than the gap that '723 has to product A.

2 Q Well, let's just focus on one

3 product, and let's use product B as an

4 example.

5 A Sure.

6 I could repeat the same for that.

7 You brought up product A, so I was just

8 answering that question.

9 Q I didn't, but I think you first

10 mentioned product A, but let's use product B

11 as an example here.

12 A Sure.

13 Q First, I would like to ask you

14 about the -- let's take a look at page 1. I

15 think that is the top view of the products,

16 accused products of the patents-in-suit, D

17 '723 and the prior art D '906.

18 A Yes, I'm looking.

19 Q Let me share my screen with

20 everyone so when I refer to certain aspects

21 you understand what I'm saying here.

22 Can you see my screen?

23 A Not yet.

24 Oh, yes, I can.

25 Q And can you see the little mouse

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1 I'm using?

2 A Yes.

3 Q Okay. So this is product -- this

4 is the D '723 patent. This is product B and

5 this is the '906 patent?

6 A Yes, from one particular view.

7 Q From the top view, you're correct.

8 Let's see. This product A --

9 sorry, this top view of D '723 patent have an

10 hourglass shape.

11 Do you agree?

12 A Yes, it -- you know, yes, it does

13 have a generally hourglass shape.

14 Q And do you think it's a similar

15 shape as the D '906 patent?

16 A The '906 in this view has an

17 hourglass shape as well and there are

18 similarities in its hourglass shape.

19 Q And do you see that the connecting

20 portion for product B, which I'm pointing

21 here, has a more straight or edging curve

22 than both of them?

23 Let me enlarge it a little bit.

24 A You may need to zoom in. I know

25 the area you're talking about, straight or

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1 edgy?

2 Q Umm-hmm.

3 A Can you define what you mean by

4 straight or edgy?

5 I see there is a straight part in

6 the area.

7 Q In the middle, exactly.

8 A On all three, right, the '906 and

9 Figure 1, too?

10 Q I would say '906 is more smooth.

11 There's no clear --

12 A Are you talking about the straight

13 you're alluding to?

14 You used the word "straight." So

15 there's a straight portion in the middle,

16 which I see when we move this.

17 Q For product B?

18 A The '906, right.

19 Q And can you see that the cover

20 covers, you know, less than half of the

21 wheels here on both sides?

22 A On the top view of the --

23 Q For product B.

24 A Yeah, you're talking about the

25 fender, right?

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1 Q I'm talking about the fender or the

2 wheel cover, if that's easier.

3 And can you see -- you cannot say

4 the same for D '723 patent.

5 Is that correct?

6 MR. BERKOWITZ: Objection to the

7 form.

8 A We see in this particular view, in

9 Figure 1, we only see some of the wheel, and

10 in product B we see a little bit more of the

11 wheel.

12 So there's a difference which I

13 described earlier. They both have open

14 fenders but there's a little less material on

15 product B.

16 Q I would say a lot less material.

17 Do you agree?

18 MR. BERKOWITZ: Objection to the

19 form.

20 A In the light of the '906, which

21 almost completely covers the wheel --

22 Q Not from the top view. You can't

23 tell that. I mean, the top view is similar.

24 MR. BERKOWITZ: Objection to the

25 form.

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1 A Yeah, sure.

2 In the top view, we only see some

3 of the wheel, but we see it only partially

4 covers the wheel, however, the analysis is

5 not done in singular views.

6 Q Well, we're going to -- we're going

7 through them one by one. So right now, we're

8 just looking at the top view. As you

9 mentioned before, the design for the standing

10 pads are different.

11 Can you see that there are a lot of

12 different angles and shapes for the product

13 B?

14 A To the '906?

15 Q To the '906 and to the D '723

16 patent. You can't possibly argue that they

17 are similar design.

18 MR. BERKOWITZ: Objection to form.

19 A Yes, the -- you know, the '906 has

20 no pronounced pads. And on B, we do see

21 pronounced pads and it is different. It has

22 differences to the '723 pronounced pads in

23 that it has what you call angular forms.

24 Yes, absolutely. When we zoom in

25 like this, we can identify the differences,

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1 yes.

2 Q Okay. Are they different in

3 shapes?

4 A What shapes? Like the -- you're

5 talking about the pronounced --

6 Q I'm looking at that here.

7 A Yes.

8 Q So we were talking about the

9 appearance.

10 What is the appearance of the pads

11 here?

12 A They're generally flat shape with a

13 pronounced area that we're calling footpads,

14 which is what we see on product B and not on

15 the '906.

16 So there are differences. You

17 know, to your point, there are definitely

18 differences, particularly when we look at the

19 inner lines, you know, the inner details of

20 those printouts for footpads.

21 Q And --

22 A And the prior art -- I'm sorry,

23 Robin. I was delayed with my continuation.

24 You know, the point being that the

25 '906 doesn't even have -- it's not even in

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1 the ballpark. It's not at the table of

2 pronounced footpads.

3 So the details in between those,

4 it's only making the '906, you know, run out

5 the door. It's highlighting the bigger

6 differences that these have to the '906.

7 Q But we're talking about the

8 ornamental aspect.

9 A Umm-hmm.

10 Q So when you're talking about

11 ornamental, it's not -- you know, you have to

12 be specific.

13 Are these --

14 A Yes.

15 Q There are lines, shapes, shades,

16 curves.

17 So what part of the appearance

18 you're referring to?

19 MR. BERKOWITZ: Objection to form.

20 A I'm referring to the impression of

21 the product as a whole, and here we were

22 talking about the pronounced footpads and the

23 ornamental way that they are described as --

24 you know, as being pronounced on the design.

25 So you're correct, you know, we are

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1 talking about the ornamental. I certainly

2 wasn't talking about the function.

3 Q Well, I think -- it sounds like

4 you're talking about function.

5 You're saying it's here, it's not

6 here. It's more the concept rather than the

7 appearance.

8 So are you talking about the

9 concept of having lines, having shapes or are

10 you talking about the actual ornamental

11 features such as the shape, the curve?

12 A I don't understand what you're

13 saying.

14 I'm talking about the impression

15 that the visual gives us, which is, of

16 course, about the ornamental impression

17 rather than the concept.

18 Q And --

19 A Go ahead.

20 Q And now I'm moving to page number 2

21 of the report.

22 And as we were discussing the '723

23 patent and the product B and the '906 patent,

24 and can you tell that in the middle of the

25 hoverboard, the '906 patent is more raised

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1 slightly in the middle of the hoverboard, as

2 I'm pointing back with my mouse here?

3 A Yes.

4 Can you zoom in a little just to be

5 sure?

6 Q Yes.

7 So as the mousing is pointing, can

8 you see this part that's slightly raised in

9 the middle?

10 A Yes, that's right.

11 I do see that the top surface of

12 that hoverboard, the '906, is generally flat,

13 but it does raise a little in the middle that

14 you were pointing out, yes.

15 Q And the '723 also has the slightly

16 raised in the middle portion?

17 A It looks like it might be the same

18 sort of level as the footpads on the left and

19 right, but, you know, it's generally pretty

20 flat there.

21 Q Yeah, I think maybe because the --

22 I think because --

23 A I don't know if you want to look at

24 that level of detail.

25 Q But no, it mentions a poor quality,

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1 I think, in your report. Let me see if I can

2 pull the actual patent out.

3 MR. CHENG: We'll mark this as

4 Exhibit No. 7.

5 (Above-mentioned document marked

6 for Identification.)

7 Q Mr. Hatch, can you open that

8 document?

9 A Yes.

10 Do you want me to screen share

11 or --

12 Q No, I will do the screen share.

13 A Okay.

14 Q Can you see my screen?

15 A Yes.

16 Q And can you see that's Figure 3 of

17 the '723 patent?

18 A Yes, that's correct.

19 Q And can you see that the middle of

20 this '723 patent is raised slightly in the

21 middle?

22 MR. BERKOWITZ: Objection to the

23 form.

24 A It ends up being about the same

25 height as the footpads on the sides.

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1 Q So you disagree with me?

2 A I think we see it -- if you

3 actually draw a line there between the

4 footpads, you'll see it's the same height,

5 but not this level of scrutiny.

6 Not only is it correct, but we

7 shouldn't be analyzing one particular view

8 for something that is a matter of millimeters

9 between the footpads, the distance between

10 the footpads, you'll see it's the same

11 height.

12 Q Of course, it's easier just to

13 attribute everything to the overall

14 impression, but to understand how this

15 overall impression formed, we have to go

16 through some of the details.

17 Let's also take a look at the

18 thickness of the wheels.

19 Do you agree that the wheels of

20 product B are significantly thicker than in

21 the D '723 patent?

22 A So comparing the wheels, my

23 understanding is that the wheels are

24 unclaimed and so in this analysis, we're not

25 comparing the thickness of wheels.

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1 If you zoom in, you'll see that

2 there's a lot of breaking lines there. That

3 being said, of course, you know, they --

4 they're pretty thick wheels especially when

5 compared to the '906.

6 Q Oh, I'm looking at the Exhibit 7.

7 I think that broken thing is just

8 the design of the wheel.

9 So you're saying the wheels are not

10 claimed in the D '723 patent?

11 A I believe your experts alluded to

12 that as well, but we see that there are

13 broken lines there, if you want to look. The

14 patent is there, but there's lots and lots of

15 broken lines.

16 Q I'm enlarging the picture here.

17 Are you referring to the cover of

18 the wheels -- not the cover, but how do you

19 say that, the most outside portion of the

20 wheels with the dotted line or are you

21 talking about the entire wheel in broken

22 line?

23 A Specifically, the wheel tread,

24 which I think is what you're referring to.

25 The hub is certainly also

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1 unclaimed, but you can see the tread is also

2 made up of broken lines, the view you have on

3 the screen right now.

4 Q I see.

5 So you're saying the entire tire or

6 the wheel does not form part of the claimed

7 design?

8 MR. BERKOWITZ: Objection to the

9 form.

10 A In the '723, it's shown as

11 unclaimed.

12 Q As unclaimed?

13 A Yeah.

14 Q Okay.

15 A However, the '906 has very skinny

16 wheels.

17 Q It's also unclaimed, I think.

18 A And what we see in the '723 and all

19 the other products here, product A through E,

20 are thick tires, not skinny, like on the

21 '906.

22 However, it is unclaimed anyway, so

23 that's not necessarily a moot argument.

24 Q Can you tell from the side view the

25 fender are pointing up, which is

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1 significantly different from the fender or

2 the wheel cover that was in the D '723

3 patent?

4 A Yeah, not only in this view, but in

5 other views you do see differences between

6 the open fenders, certainly and, you're

7 correct. On B, it looks like they go up.

8 And on the '723, the fender, in the same

9 area, the same type of fender also goes up.

10 The difference being on B that it

11 doesn't return back down again, so it's the

12 last bit of the fender that reveals a bit

13 more wheel.

14 Do you see that?

15 Q Yes. I think the angle was also

16 different.

17 A My understanding is that the style

18 of that curve is very, very similar, but of

19 course, on B it cuts off.

20 Again, we're looking at the nuance

21 differences when the '906 there has a closed

22 fender. There's this fender skirt that goes

23 way down.

24 Q Well, from the front view, which is

25 what we're looking at, that looks more

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1 similar than the fender in product B that

2 goes up with a different angle.

3 A If it were a correct analysis to

4 identify differences in singular views only,

5 I think you're correct, however the analysis

6 that was done is the design as a whole, and

7 we know that the '906 has a substantially

8 different looking fender, you know.

9 Q I mean, we are identifying them as

10 a whole, but you can't take the whole thing.

11 I mean, one thing from my meditation

12 practice, I -- again, at one point you can

13 only focus on one aspect of a matter. So

14 that's why we're going through them page by

15 page to get a better understanding of that.

16 Now I'm moving to the third page,

17 which shows the bottom view of the item. And

18 again, if I enlarge it, I don't know if

19 it's -- the quality of the picture is good,

20 can you see that there are -- well, first, I

21 think compared with the D '723 patent and the

22 D '906 patent, they both have hourglass shape

23 from the bottom view.

24 Do you agree?

25 A Yes, all items on this page have a

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1 general hourglass shape, yes.

2 Q Which is first disclosed in the D

3 '906 patent?

4 MR. BERKOWITZ: Objection to form.

5 A The '906 did disclose an hourglass

6 shape, yes, as part of it in its overall

7 appearance.

8 Q From the bottom view, can you tell

9 me the difference between the D '723 patent

10 and the D '906 patent?

11 A Well, obviously, the analysis is

12 done on the product as a whole because just

13 looking at isolated views may be misleading.

14 However, to answer your question,

15 when we're comparing these images, yes, we

16 see, you know, there's a different -- you

17 know, in this particular view, we are seeing

18 the hourglass shape and there are a lot of

19 similarities between product B, the '723 and

20 the '906.

21 The wheels, as we know, are

22 unclaimed. They all share a fair number

23 of -- of parts of this, this overall

24 impression in this particular view.

25 Q So the overall impression of the

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1 bottom view is quite similar, all three of --

2 all three of them, the patents-in-suit, the

3 accused product B and the '906 patent?

4 MR. BERKOWITZ: Objection to the

5 form.

6 A In this particular view, they are

7 fairly close, yes.

8 Q And I guess page number 4 we had

9 looked at already. This is also a very --

10 A I'm not sure why those are so

11 pixilated, but we're familiar with the

12 originals at least.

13 Do you not want to look at the side

14 views?

15 Q I'm trying to see if I can get a

16 clear view of the side view.

17 Let me take a look at the other

18 pattern, which may have a better view. It's

19 right here.

20 So as shown here -- that is figure

21 5 of the D '723 patent, which shows a side

22 view of the claimed design.

23 Can you see that?

24 A Yes.

25 Q And where the fender covers

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1 significantly, especially the top --

2 especially the top of the wheel.

3 Do you agree?

4 A Yes.

5 The open fender here sits on top of

6 the wheel. The wheel is unclaimed but we

7 know it's there and reveals the hub on the

8 side of the wheel.

9 Q And if we take a look at the

10 product B, as you can see, none of the wheel

11 is covered by the fender and the side view

12 clearly showed that the whole fender does not

13 cover the wheel from the side view.

14 MR. BERKOWITZ: Objection to the

15 form.

16 A That's not how -- you made a

17 statement.

18 Is that a question?

19 Q It's a question.

20 A The fender here is also above the

21 wheel and it does reveal the side of the

22 wheel.

23 In this case, we see a lot more of

24 the tread of the wheel, but of course,

25 that's, you know, unclaimed in the patent

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1 we're looking at.

2 Q Okay.

3 A And in the '906, we only can see

4 the hub or anything. So it's an entirely

5 closed one, and so, you know, when we say

6 which one is closer to each other, it's very

7 clear that this fender on top of the wheel is

8 revealing most of the wheel is common between

9 the '723 and product B, and the '906 has a

10 completely different direction.

11 Q How did you determine what is

12 closed or what is further?

13 A Based on what we're seeing here,

14 for instance, that the -- that we have a --

15 what's called a fender skirt, you know, like

16 a closed wheel, picture those cars from the

17 '50s and '60s, they used to have that, a

18 fender skirt, a cover over its wheels. I'm

19 not sure why.

20 And today, we have the approach

21 that's product B in '723, why there's a

22 fender on cars that reveals the wheel and

23 people like to show off their hubs and do

24 fancy designs.

25 Product B does a good job of that

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1 as well, so I feel, in closing the wheel,

2 like '906 does and closing the hub entirely.

3 Q Not entirely -- sorry, I'll let you

4 finish.

5 A Correct. Not entirely.

6 We do see probably the bottom of

7 the tread, but the way it's enclosed there

8 gives it a whole different feel.

9 So to answer your question, you

10 know, what makes that so different, you know,

11 why is that further away, it's because it's

12 giving it quite a different impression.

13 Q Let me --

14 A Because with a car with a fender

15 skirt, it would certainly catch my eye.

16 Q I understand that.

17 Well, you mentioned the word

18 "feel."

19 You could easily argue that an

20 ordinary observer can have the feel that

21 product B has a more edgy, more futuristic

22 design, so the fender goes up, and the -- on

23 the '906 patent, and the '723 patent has some

24 more traditional covering of the wheel

25 design.

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1 How do you define the feel that an

2 ordinary observer feels?

3 A I guess the feel is -- you know,

4 look and feel as being the way we perceive

5 the object, so we look at it and we get a

6 certain sense of it. And we, in doing so, we

7 think about prior references we had to

8 objects like that.

9 And I guess I was bringing up cars.

10 I mean, it doesn't mean you have to

11 be car experts, but certainly if I saw a car

12 with covered wheels, that would stand out to

13 me.

14 Whereas, the difference between

15 '723 and product B, if I saw those on cars,

16 that would not stand out to me, so I would

17 not have a different feel, whereas I would to

18 the '906.

19 Q So by "feel," you're referring to

20 the emotional perception that the ordinary

21 observer received from seeing the products

22 and then seeing the patent?

23 A Yeah. "Impression" is probably a

24 better word, but we -- I was using the terms

25 look and feel to describe, you know, that

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1 we're observing the design, not necessarily

2 say an emotional attachment to the product.

3 It's about the ornamental styling.

4 Q Is that from your own perspective

5 or from the perspective of the ordinary

6 observer that you defined in your report?

7 A It's from the perspective of the

8 ordinary observer.

9 Q And by feel, you're referring to

10 the -- to your own word, the ornamental

11 styling?

12 A Yes. You're asking about that, and

13 look and feel is a phrase, by itself, that's

14 used to refer to styling as opposed to, say,

15 functionality.

16 So I was using that to -- to help

17 describe what we're looking at here, but

18 obviously in my report, I use the word

19 "impression," which is the -- the official

20 term that we're using here.

21 Q Is that objectively or subjectively

22 when you're referring to the impression?

23 A I'm doing so to represent what the

24 ordinary observer would be looking at. So I

25 think I'm being objective in this case.

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1 Q Okay.

2 MR. CHENG: We're almost finished.

3 Let me just -- let's just do -- I

4 think I can wrap up everything within 30

5 minutes. I just have a few more questions

6 related to product E that was included here.

7 MR. BERKOWITZ: Why don't we take

8 five or ten minutes because we've been going

9 now about an hour and 15.

10 MR. CHENG: Sure, yeah. Let's take

11 five or ten. I have no preference.

12 (Brief recess taken.)

13 Q Mr. Hatch, just a few more

14 questions regarding the product E included in

15 your expert witness report.

16 First, why did you include

17 Exhibit -- why did you include product E, the

18 Gyroor product E in your report?

19 MR. BERKOWITZ: Objection to the

20 form.

21 A Well, I believe it -- it also

22 infringes on the patent.

23 Q How did you know that ink

24 fringed -- how did you know about this

25 product?

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1 A The -- the attorneys informed me

2 about product E and asked me to analyze it.

3 Q When did they inform you about

4 product E?

5 A I'm not sure. Obviously, some time

6 before I wrote the document up.

7 Let me pull up the exhibit here.

8 Yeah, I'm not sure exactly of the

9 timing because product E was a later analysis

10 that I did and I got ahold of the product

11 itself, the sample, and looked at it and then

12 added it to my infringement report.

13 Q Was product E -- was product E

14 included -- I'll ask was the analysis of

15 product E included in your prior reports?

16 A I -- I'm just trying to recall.

17 I think -- let me see.

18 You sent in Exhibit 1, is it -- I

19 think it might have been in the 2021, if I

20 can check.

21 Q Oh, take your time. You can check

22 it.

23 A Okay, thank you.

24 I don't want to misstate that,

25 because I know it came later.

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1 Q Of course.

2 A I'm just not sure of the timing.

3 Yes. So I think it was -- I think

4 it came -- I included it for the first time

5 in my first infringement report of 2022.

6 Q Can you tell me the date for the

7 2022 report?

8 A I believe that's Exhibit 3, and

9 what date, I think the date is -- it's

10 August, possibly August the 15th I think it

11 was filed.

12 Q And is there any reason that was

13 not included in your prior reports?

14 MR. BERKOWITZ: Objection to the

15 form.

16 A I was not aware of it in prior

17 reports that it wasn't included in. So as

18 soon as my attention was brought towards it,

19 I analyzed it and included it in my

20 infringement report.

21 Q And I'm looking at the Exhibit No.

22 6, which is dated August 24, 2021.

23 Can you take a look at that,

24 Exhibit No. 6?

25 A Yes.

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1 Q Can you confirm that product E is

2 not included in this report?

3 MR. BERKOWITZ: Objection to the

4 form.

5 A It -- it's -- there are no images

6 of Gyroor product E included in Exhibit 6.

7 Q Did you know about product E when

8 you submitted this report?

9 MR. BERKOWITZ: Objection to form.

10 Asked and answered.

11 A I don't think I was aware of it as

12 a -- as a separate product of Gyroor's at

13 that time.

14 Q Okay.

15 MR. CHENG: I have no further

16 questions.

17 Thank you.

18 MR. BERKOWITZ: Okay. I have no

19 questions for the witness.

20 MR. CHENG: Great.

21 And thank you, Mr. Hatch, so much

22 for attending the deposition today. I know

23 it took a while.

24 And I thank you, Ms. Reporter, for

25 helping us with this process.

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1 (Whereupon, the deposition was

2 concluded at 3:10 p.m.)

3 (Witness was excused.)

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1 C E R T I F I C A T E

2 I, CHARLENE FRIEDMAN, a Certified Court

3 Reporter and Notary Public, qualified in and for

4 the State of New Jersey do hereby certify that

5 prior to the commencement of the examination PAUL

6 HATCH was duly sworn by me to testify to the truth

7 the whole truth and nothing but the truth.

8 I DO FURTHER CERTIFY that the foregoing

9 is a true and accurate transcript of the testimony

10 as taken stenographically by and before me at the

11 time, place and on the date hereinbefore set forth.

12 I DO FURTHER certify that I am neither a

13 relative of nor employee nor attorney nor counsel

14 for any of the parties to this action, and that I

15 am neither a relative nor employee of such attorney

16 or counsel, and that I am not financially

17 interested in the action.

18

19

20 ____________________________

21 CHARLENE FRIEDMAN, RPR, CRR, CCR of the

22 State of New Jersey

23 License No: 30XI00204900

24 Date: October 21, 2022

25

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1 LAWYER'S NOTES

2 PAGE LINE

3 ____ ____ ___________________________________

4 ____ ____ ___________________________________

5 ____ ____ ___________________________________

6 ____ ____ ___________________________________

7 ____ ____ ___________________________________

8 ____ ____ ___________________________________

9 ____ ____ ___________________________________

10 ____ ____ ___________________________________

11 ____ ____ ___________________________________

12 ____ ____ ___________________________________

13 ____ ____ ___________________________________

14 ____ ____ ___________________________________

15 ____ ____ ___________________________________

16 ____ ____ ___________________________________

17 ____ ____ ___________________________________

18 ____ ____ ___________________________________

19 ____ ____ ___________________________________

20 ____ ____ ___________________________________

21 ____ ____ ___________________________________

22 ____ ____ ___________________________________

23 ____ ____ ___________________________________

24 ____ ____ ___________________________________

25 ____ ____ ___________________________________

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1 DEPOSITION ERRATA SHEET

2

3

4

5

6 DECLARATION UNDER PENALTY OF PERJURY

7 I declare under penalty of perjury

8 that I have read the entire transcript of

9 my Deposition taken in the captioned matter

10 or the same has been read to me, and

11 the same is true and accurate, save and

12 except for changes and/or corrections, if

13 any, as indicated by me on the DEPOSITION

14 ERRATA SHEET hereof, with the understanding

15 that I offer these changes as if still under

16 oath.

17

18

19

20

21 Signed on the _______ day of

22 ________________, 20____

23

24 ___________________________________

25 PAUL HATCH

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1 DEPOSITION ERRATA SHEET

2 Page No._____Line No._____Change to:__________

3 ______________________________________________

4 Reason for change:____________________________

5 Page No._____Line No._____Change to:__________

6 ______________________________________________

7 Reason for change:____________________________

8 Page No._____Line No._____Change to:__________

9 ______________________________________________

10 Reason for change:____________________________

11 Page No._____Line No._____Change to:__________

12 ______________________________________________

13 Reason for change:____________________________

14 Page No._____Line No._____Change to:__________

15 ______________________________________________

16 Reason for change:____________________________

17 Page No._____Line No._____Change to:__________

18 ______________________________________________

19 Reason for change:____________________________

20 Page No._____Line No._____Change to:__________

21 ______________________________________________

22 Reason for change:____________________________

23

24 SIGNATURE:__________________DATE:_____________

25 PAUL HATCH

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1 DEPOSITION ERRATA SHEET

2 Page No._____Line No._____Change to:__________

3 ______________________________________________

4 Reason for change:____________________________

5 Page No._____Line No._____Change to:__________

6 ______________________________________________

7 Reason for change:____________________________

8 Page No._____Line No._____Change to:__________

9 ______________________________________________

10 Reason for change:____________________________

11 Page No._____Line No._____Change to:__________

12 ______________________________________________

13 Reason for change:____________________________

14 Page No._____Line No._____Change to:__________

15 ______________________________________________

16 Reason for change:____________________________

17 Page No._____Line No._____Change to:__________

18 ______________________________________________

19 Reason for change:____________________________

20 Page No._____Line No._____Change to:__________

21 ______________________________________________

22 Reason for change:____________________________

23

24 SIGNATURE:__________________DATE:_____________

25 PAUL HATCH

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