Integrated Cards, L.L.C. v. McKillip Industries, Inc.

Filing 132

MOTION by Plaintiff Integrated Cards, L.L.C. for judgment AS A MATTER OF LAW DISMISSING AFFIRMATIVE DEFENSE OF LACHES AND MEMORANDUM IN SUPPORT (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Birmingham, Jon)

EXHIBIT A

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(Resumed at 9:54 a.m.)
THE CLERK: 06C2071, Integrated Cards versus McKillip

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'80s, '90s, late '80s.

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Q. Did you work there for a number of years?

Industries.
MR. CHU: Good morning, your Honor.
THE COURT: Good morning.

A. Oh, yes.
Q. Is this the company that's owned by Steve McKillip?

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09:57:30
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A. Yes, it is.
Q. And it was at the time you worked there?

THE CLERK: Counsel, identify yourself for the

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record.
MR. CHU: Michael Chu, C-h-u, for the defendant,

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A. Correct.
Q. Was United Stencil and Affixing known in the industry as
USA when you worked there?

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USA/Docufinish.
THE COURT: Good morning.

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A. Yes, it was.
Q. When it later changed its name to USA/Docufinish, was it
known in the industry as USA?

MS. CRISWELL: And Jacqueline Criswell on behalf of

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USA/Docufinish.
THE COURT: Good morning.

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A. Correct.
Q. Who supervised your work at USA?

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MR. SCHROER: Steven Schroer and Jon Birmingham for

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the plaintiff.
THE COURT: Good morning.

A. .Began with Chuck Casagrande, and then different
supervisors after that, Janet Storjohann, Rob Serblowski

Good morning.
MR. SCHROER: Sorry to hear your cold isn't better,
your Honor.

09:58:13
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(phonetic).
Q. Okay. Now, during the period you worked for USA, did it

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make what witnesses have referred to as easy release or clean
release cards?
A. Yes.

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THE COURT: Well, difficult for April mostly.
MS. CRISWELL: Can I ask out of curiosity how the

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09:55:32 21
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verdict came back yesterday?
THE COURT: It was guilty on both counts.

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Q. Did it also make integrated cards?
A. Yes.
Q. I'm showing you what's been previously marked as

09:58:26
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Are you ready to proceed?
MS. CRISWELL: We're ready. 229

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Defendant's Exhibit 15 and Defendant's Exhibit 16.
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09:56:0B

USA calls to the stand Brian Wooley.
(Witness takes the

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09:58:48

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What type of card is on Defendant's Exhibit 15?

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stand.)

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A. That's an easy release card.
Q. Okay. And what type of card is on Defendant's Exhibit 16?

THE COURT: Sir, please raise your right hand. (The witness was sworn.)

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A. That is an integrated card.
Q. And can you explain the difference between the two?

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BRIAN WOOLEY, DIRECT EXAMINATION BY MS. CRISWELL:

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09:59:10

A. Yes. An integrated card is a form and it has a die cut
patch on the back to a specific size, and it is die cut in the

Q. Please state your name for the record.
A. Brian Wooley.

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front.
And a clean release card is a card that is

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Q. How long have you been invoived in the printing industry?

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manufactured then applied to the form.

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A. I was involved in the printing industry for about twenty
years or a little bit more.
Q. What did you do?

Q. And is the clean release card raised as opposed to flush
with the document?
A. Yes.

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09:56:54 09:56:54 09:56:56 09:56:56 09:56:57 09:56:59 09:57:03

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A. I was a press operator.
Q. Were you a custom press operator?
A. Yeah.
Q. And what does that mean?

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Q. Did you call an integrated card -- and do you call an
integrated card a generic card?

A. Yeah.

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09:59:36
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Q. Why do you do that?

A. A custom press operator's a little bit more involved than
your regular press operator with the -- you know, a lot of

A. I nicknamed them, oh, years and years back. What it was
is I converted to easy release cards, and there's a complex
conversion for that. And with an integrated card, it's just a

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.,.

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different conversions all at one time.
Q. Okay. And did you work for USA when it was called United
Stencil and Affixing?

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printed form with a patch and die cut, so there is no basic
converting, no integrated -- no complex converting, no

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A. Yes, I did.
Q. Do you recall when you started there?
A. I don't know the exact date. It was probably back in the

printing going on, so I nicknamed them generic cards.
Q. Okay. So it's kind of a disparaging term, generic cards,
because you don't think they're that complex to make; is that

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BY MR. SCHROER:

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(The witness was sworn.)
THE COURT: Thank you.

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Q. Good morning, sir.
A. Good morning.

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Q. There's more than one type of integrated card, is there
not?

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CHUCK CASAGRANDE, DIRECT EXAMINATION BY MS. CRISWELL:

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A. The only integrated card that I am familiar with is the
one basically converted like the sample here (indicating).
Q. And you never toid Mr. McKillip how USA made integrated
cards, did you?
A. No.

Q. Can you state your name for the record?
A. Chuck Casagrande.

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Q. What business are you in?

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A. I work for a company called Stratatek.
Q. What's your position?

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Q. The only thing you told him was that Docufinish did make

A. President.
Q. What does Stratatek do?

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them?

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A. Correct.
MR. SCHROER: Thank you. That's alL.

A. We sell laminates, pressure sensitive laminates in the
forms industry.
Q. Is that -- laminates is like an adhesive?

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BRIAN WOOLEY, REDIRECT EXAMINATION BY MS. CRISWELL:

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A. It's an adhesive, typically a film or a paper with
adhesive.
Q. How long have you been involved in the printing industry?

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Q. You testified, didn't you, that when John asked you
whether USA made integrated cards, you told him, Yes, but that
you called them generic cards, correct?

10:19:0B 19 A. For 25 years.
10:19:13 20 Q. In the industry, to what company does USA refer?

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A. Correct.
Q. And did you explain to John what you meant by generic
cards?
A. Yes.

1019:16 21 A. United Stencil and Affixing, USA/Docufinish.

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101923 22 Q. Did you work for any of John McKillip's companies, John J.
10192B 23 McKillip?

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101929 24 A. Yes, in high school and some in college.

Q. And for the record, again, what did you tell John?
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101931 25 Q. What companies?

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A. I told John that it's a form that goes through a machine.
It gets a patch on the back. It gets die cut, and then off

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A. Illnois Stencil and American Stencil.
Q. Did you work for any of Steve McKillip's companies?

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the machine it goes.
MS. CRISWELL: Okay. Thank you, Mr. Wooley.
THE WITNESS: You're welcome.

A. Yes. I worked at USA.

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Q. When?

A. From '87 to June of '95.
Q. What was your position there?
A. Plant manager.

MR. SCHROER: Recross?

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BRIAN WOOLEY, RECROSS-EXAMINATION

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Q. How would you describe what an integrated card is?

BY MR. SCHROER:

A. I'd describe it by saying maybe what it's not.
Typically.cards are produced separately and they're

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Q. Do I now understand that you toid John that they made
generic cards?

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A. A generic card is what I call -Q. Please, just...
Is that -- was that the discussion with him, they

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attached to the top of a form. An integrated card utilzes the form to make the card, so laminates are applied to the form and you die cut through the form into the laminate and
you peel off the card.
Q. And I'm showing you what's been marked Defendant's
Exhibit 16.

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A. Yes.

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made something that you called generic cards?

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MR. SCHROER: Thank you. That's alL.

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Is this the type of integrated card that you just

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THE COURT; Okay. You may step down, sir.

1020:25 18 defined?
10:2032 19 A. Yes, it is.

THE WITNESS: Okay.
(Witness leaves the stand.)
THE COURT: And you can call your next witness.
(Witness takes the. stand.)

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10:20:36 20 Q. When did you leave USA?
10.20:39 21 A. June of '95.

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10:20:41 22 Q. And then what did you do?
10.20.44 23 A. Went to a company called Stratatek -- well, at the time

THE COURT: Ms. Criswell, there's exhibits up here on

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the stand. Excuse my voice, sir.

10:20:4B 24 was Precision Coated Products.
10:20:53 25 Q. And Precision Coated Products is in the same business as

Piease raise your right hand.

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Q. Now, looking at Exhibits 28 and 29, does this confirm your

The witness has just testified these came from binders, and we
know from the record there are binders.
THE COURT: Do you have --

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recollection that your sales call on John was in 1996?

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A. Yes, it does.
Q. Where did you meet with John during your sales call at
Tri-Graphics?

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MR. SCHROER: I object that the entire binder is

relevant.
THE COURT: Okay. Do you have the original?
MS. CRISWELL: Your Honor, the sample book that

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A. In the front office. I can -- I have a distinct image.
remember stil. It's in the front. As you walk in to the

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left, there were several desks and we stood over some desks

Mr. Casagrande used at his deposition, we also brought to the
summary judgment hearing. And it's our recollection that we submitted that -- those to the Court with our demonstrative
exhibits, and your clerk was not able to find them.
Mr. Casagrande has another binder that is similar,

there.
Q. Did you show him any samples?

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A. Yes.
Q. What did you show him?

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A. Our -- all types of different samples and examples of
integrated cards.
Q. Did you have a sample book that you used?

but the best evidence we have is that other binder, because we
believe it was -THE COURT: The binder went to me and I don't have
it?

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A. I did.
Q. And tell me how you reviewed it with John?

MS. CRISWELL: Yeah.

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A. We stood there at the desk. We opened it and we went
through it page by page and took samples out and peeled them

THE COURT: Well, my staff is saying that they don't

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recall them being submitted to the Court, so -- that it was

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out and talked about them.
Q. Did John seem familiar with these types of products?

used in the hearing but not submitted to the Court. I don't
know.

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A. Yes, he was familar with integrated cards.
Q. Did your sample book contain USA integrated cards?

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MS. CRISWELL: Well, we have a -- he has another --

he can testify to this. But in his deposition he said that he
couldn't be sure if that sample book was identical to the
one -- was the same one he showed John, but it would have had
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A. Yes. All our sample books did in the early years.
Q. Do you specifically recall showing John samples of USA
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integrated cards in your sample book?

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the same promotional materials. And he has another binder

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A. I don't specifically recall any sample specifically now,
but they would have been there and we would have shown USA

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that's not quite the same, but it's the best evidence we have
now, because that sample book is no longer here.

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cards.
MR. SCHROER: Objection, move to strike.
THE COURT: Sustained as speculative.
BY MS. CRISWELL:

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THE COURT: All right. I'LL admit it, but it'll go
to the weight. You'i1 have to cross him on it.
MR. SCHROER: Can we lodge another objection under

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Rule 106?
THE COURT: Okay.

Q. Showing you what's been marked as Defendant's Exhibit 31.
MR. SCHROER: May I examine that, please? The

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MR. SCHROER: Based upon the statements just made in

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original exhibit that the witness has.
MS. CRISWELL: The original exhibit -MR. SCHROER: Oh, I apoiogize. Did he receive a

the testimony, the remainder of what's in these binders is

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highly relevant, and the failure to produce means that this
writing shouldn't be admitted under Rule 106.
THE COURT: Did you have it at the deposition? You

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binder or just one piece of paper?
MS. CRISWELL: Just this.
MR. SCHROER: May I approach?

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moment.

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all saw it at the deposition?
MR. SCHROER: The -- weil, that's part of the issue.

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THE COURT: You may.

The witness testified -THE COURT: You're not answering my question.

MR. SCHROER: Thank you, your Honor.

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MS. CRISWELL: Your Honor, forgive me. Just one

Was it available -MR. SCHROER: -- binder, we had a binder that had
contents, yes.

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BY MS. CRISWELL:
(' ,.'0:30:12 21 _. 10:30:12 20
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Q. Can you identify these USA samples?
A. Yes. They're integrated USA samp'les that were in our

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The context of this individual document within that

is at issue, and I'm not concerned about what was at the
deposition. I'm concerned about what's going into evidence at
this triai.
THE COURT: Well, I'm concerned about whether it ever

binders.
Q. Were these USA samples --

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MR. SCHROER: Objection, your Honor, best evidence.

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THE COURT: I can't make it any clearer. Overruled.
MS. CRISWELL: And for the record, I'm not submitting

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Q. Okay. And the sample books that you used with customers
that you've just testified about, were they -- was that the -one of those books shown to John McKillip during your visit?

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the rest of any -- or asking to submit the rest of any other

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sample books into evidence.

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A. A book like that, yes.
Q. Okay. And did that-MR. SCHROER: Objection, move to strike,

If I can approach the witness?
THE COURT; You don't have to ask.

This is a photocopy of the exhibit that was used at

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nonresponsive.
THE COURT: Overruled.
BY MS. CRISWELL:
Q. Did that sample book that you showed John McKillip have
these two USA sam

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the hearing that Mr. Birmingham objected to that I observed

and is attached to the summary judgment This exhibit that
I'm holding, there's a photocopy attached -- and, no, there's

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actually an original -MS, CRISWELL: No, this is an originaL.

pie integrated cards in it?

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A. They would have been in there, yes.
Q. And since -MR. SCHROER: Objection, move to strike,

THE COURT: -- attached to the summary judgment.
MS. CRISWELL: I'm sorry, Mr. Casagrande.

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THE COURT: Don't you want to become a lawyer?

nonresponsive.
THE COURT: Overruled.
BY MS. CRISWELL:

(Laughter.)
BY MS. CRISWELL:

11:27:14
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Q. You have what's been marked as Defendant's Exhibit 31,

Q. And to just go back to your earlier testimony.
And you testified that you went through the book with
John page by page, correct?
A. Yes.

correct?
A. Yes.

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11:27:22 11:27:26
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Q. Go to the second page of that exhibit.
What I just handed you, is that the original of the
second page of Defendant's Exhibit 31?

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Q. And you pulled out integrated card samples, correct?

A. Yes, we did, peeled them apart, yeah.
Q. And you and John peeled them apart?

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A. Ask it again. I'm sorry?
Q. Is the document I just handed you an original of the
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second page of Exhibit 31?

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,,'

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\,
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A. Mm-hmm (nodding).
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MS. CRISWELL: I move to admit Defendant's

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A. Yes. Okay. Now I see that. Okay. Sorry.
Q. And you should have that also, Do you have that?

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Exhibit 31.
MR. SCHROER: For the multiple reasons stated, we

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A. Oh, yeah. Now, I understand. Yes, it is.
Q. And what is the second page of Exhibit 31 and the originai

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object. Do you wish me to reiterate or ...
THE COURT: No, they're all on the record.

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I handed you?
A. It's an integrated card with our Lite Lift Dry material on

It will be admitted.
MS. CRISWELL: And shall we -- why don't we also make

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the back.

the original card Defendant's Exhibit 31-A?

Q. Made by who?

THE COURT: All right. You can move for the

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11:2B:20 11:28:21

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A. Precision Coated Products or Stratatek.
Q. And--

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admission.
MS. CRISWELL: And we'd move to admit it.
THE COURT: Okay. Same objections?
MR. SCHROER: Yes. Thank you.

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A. Oh, yeah, the material was.
Q. Yeah.

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Okay. The integrated card is a sample of what
company's card?

11:30:43 14 THE COURT: Okay. And it will be admitted.
11:31:10 15 BY MS. CRISWELL:

A. Oh, yeah, USA/Docufinish, United Stencil and Affixing.
Q. And was this card in the sample books that you routinely
used with customers in 1996?
A. Yes.

113110 16 Q. During your saies call at Tri-Graphics that we've been
11:31:12 17 discussing, did you talk to anyone else at Tri-Graphics aside

11:28:25 11:28:30 11:28:33
1:28:38

1131:16 18 from John J. McKillip?

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1131:1B 19 A. Yes, Brian Wooley and Mike McKilip.
1131:23 20 Q. Where did you talk to Brian Wooley?

(,

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Q. Looking at the first page of Defendant's Exhibit 31, is

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this -- can you identify what that is?

113126 21 A. At the press, at the flexible press they had there.

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A. It's also a promotional integrated card.
Q. Was this promotional integrated card routinely used by you
in the sample books you used with customers in 1996?

11:31:28 22 Q. And you knew Brian Wooley because?
11:3130 23 A. He used to work at USA when I did.
11:31:42 24 Q. When you were talking to Brian at the press, did you
11:31:53 25 see -- let me strike that. Let me rephrase.

11:29:02

A. Yes, it was.

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produced in '96 or '97. That's an expiration date of '98, so

THE WITNESS: No, I did show samples. There were
samples in there from USA. All our books had USA samples in

11:44:59 2 11:45:01 3

it would have been produced much before that.
Q. Thank you for that careful answer.
You don't know, however, when it was produced, do

11:47.44 2
11:47:4B 3

them that year.
BY MR. SCHROER:

c

11:45:03 4

11:47:51 4 11:47:53 5

1H5:0B 5
11:45:0B 6

you?

Q. Could I direct your attention to page 17 of your
deposition, when you're asked the following question:
Do you know if you showed John J. McKillip any

A. I'd have to look at the specific samples and try to
remember, but it was a long time ago.
Q. And that would be true for all of the samples in this

11:4755 6
11:47:5B 7 11:4B:01 8 11:4B:04 9
11:4B:07 10
11:4B:11 11

11:45:11 7
11:45:13 8 11:45:17 9
11:45:17 10
11:45:1B 11

integrated card products that were made by Docufinish or its
predecessor, United Stencil and Affixing?

book, correct?

A. What would be true?
Q. That you'd have to -- that you wouldn't know exactly when

Answer: I don't recall specifically now.
And then you go on to say: But I'm sure I did

11:45:24 12 11:45:26 13 11:45:39 14
11:45:4B 15
11:45:4B 16

specific documents were created, unless they bore a date?

11:4B:15 12 11:4B:19 13

-because the sample books contained them, and so on.
Do you see that?
A. Yes.

A. A specific date, no. But a time period, I might have.
Q. You have sample books that evolve over years; isn't that
correct?
A. i don't understand by evolve.

11:4B:20 14
11:4B:20 15 11:4B:24 16
11:4B:2B 17

Q. SO you have no specific memory of showing John McKillip

any specific integrated card products; is that correct?

11:45:50 17 11:45:56 18 11:46:00 19 11:46:05 20
11:46:06 21

Q. You don't have the same samples in 1997 that you had in
1996, necessarily, do you?

A. The actual card, no, but the promotional sample I remember
having USA on it and showing him that.
Q. Oh, let me --

11:4B:34 18

A. Might. I don't remember now when one would stop at an
exact date, no.

11:4B:37 19
11:4B:3B 20
11:4B.40 21

A. But not specific.
Q. USA is a shorthand for the United States of America,
correct?
A. Yes.

Q. But they did change over time, the content?

11:46:0B 22

A. Over the period of ten years, sure.
Q. SO new products wouid be added, and then you might add
something new to the sample book, correct?
A. Might add something new, yeah.

11:4B:46 22 11:4B:47 23
11:4B:4B 24

11:46:11 23

11:46:15 24

Q. And someone looking at a document that had USA on it
wouldn't necessarily conclude that that's a product coming
287

(

11:46:17 25

11:4B:52 25

285
11:46:19
11:46:23 11:46:24 11:46:28 11:46:29

1

Q. And other products might be discontinued so you'd pull
that out, correct?

11:48:55 11:4B:57 11:49:00 11:49:15 11:49:20 11:49:26 11:49:31 11:49:39 11:49:43 11:49:45 11:49:50 11:49:51 11:49:55 11:49:59

1

from any individual company, would it?

2
3

2
3

A. It depends on the individual.
Q. Thank you.

A. Might, not discontinued, might use them up and they might

4
5
6 7 8 9

not be there anymore.

4
5 6 7 8 9

And you, in fact, don't know whether Exhibits 31 and
31-A come from Docufinish just because they have that USA on

Q. All right. It's correct that at the meeting you described
with John McKillip at his office you don't recaii whether you

11:46:43 11:46:53
11:46:58

there; isn't that correct?
A. I do know these came from USA.
Q. SO your view on that has changed since your deposition?

showed him any integrated card products that were made by
Docufinish or its predecessor, United Stencil and Affixing? MS. CRISWELL: Objection, mischaracterization of his

11:47:02

A. I'm sorry?

11.47:04
11:47:04 11:47:09
11:47:11

10
11

testimony.
THE COURT: Okay. Overruled. You can answer.
THE WITNESS: I don't have a specific sample, but I
know I showed him documents with USA in it.
BY MR. SCHROER:
Q. You don't recall specifically that you

10
11

Q. You recall at page 17, line 24 of your deposition being
asked the following question:

12
13

12

Could I ask you to take a look through this book?
And do you know if any of the products in here were made by
USA/Docufinish or United Stencil and Affixing?

13

11:47:15 11:47:16
11:47:21

14 15
16 17
18

14
15
16 17

showed him

11:50:03 11:50:0B 11:50:10 11:50:11 11:50:14 11:50:17 11:50:22 11:50:24 11:50:27 11:50:33 11:50:35

Answer: I'm quite sure a few are, but a lot of them

documents that were made by Docufinish or its predecessor,

aren't marked now. I mean --

11:47:25
11:47:27

United Stencil, correct?
A. Can you say that one more time? Sorry.

A. Correct.
Q. -- these could be them, ones that are actually the
customer samples. I don't recall now who made that specific

18
19

11:47:29

19

Q. You do not know whether you showed John McKillip any
integrated card products that were made by Docufinish or its
predecessor, United Stencil -MS. CRISWELL: Same objection.
BY MR. SCHROER:

20
( .11:4733 21 ,,__ 11:47.36
11:47:38 11:47:39 11:47:40 11:47:40

20
21

sample. So I'm sure many of these are United Stencil, but
specifically there are always samples of their promotional
samples that were in these books.

22 23

22 23

Question: Do you know if this -- pointing to --

24
25

Q. -- correct?
THE COURT: Overruled.

24 25

Answer: I would have shown this.
Question: And just for the record, we're referring

288
11:50:3B 11:50:41 11'50:46 11:50:49 11:50:53 11:50:5B 11:51:00 11:51:04 11:51:10 11:51:12 11:51:17 11:51:18 11:51:18 11:51:23 11:51:29 11:51:33

290
11:53:44 11:53:52 11:53:57 11:54:00 11:54:01 11:54:05 11:54:06 11:54:12 11:54:14

1

to a sheet of paper that has line holes punched In the side.

1

Q. And the -- the product that you claim in there is

2 3

It says USA and it has some red and blue printing on it.

2
3

different from the types of integrated cards that had gone
before?
A. Yes.

Well, you don't specifically recall whether this document I
just described was shown to John McKillip in 1996?

4
5
6 7 8

4
5

Answer: I don't recall any specific document from
1996, because that's a long time ago.

Q. So not all integrated cards are the same, correct?

6 7
8 9

A. Correct.
Q. And you can make integrated cards that use -- that conform
to you r patent, correct?
A. Yes.

Question: Do you recall whether you discussed or
said the name -- or said the name US (sic) Docufinish or USA

9

Stencil and Affixing when you met with John in 1996?

10
11

Answer: I do not recall.

11:54:15 10 Q. Well, you can also make integrated cards that don't,

A. Correct.
Q. That was your testimony?

11:5':1B 11 correct?
11:54:19 12 MS. CRISWELL: Your Honor, I object. This is beyond
11:54:20 13 the scope of the cross -- of the direct.

12
13

A. That's the testimony here, yes.
Q. And in that same meeting with Mr. McKillip you remember
that there was another person present, Michael McKiilip?

14
15 16 17 18 19

11:54:23 14 THE COURT: Overruled.

11:54:25 15 THE WITNESS: Yes.
11:5'26 16 BY MR. SCHROER:

A. Yes, he was in the room, yes.
Q. When these things happened?

11:51:36
11:51:39 11:51:42 11:51:49 11:51:51 11:51:54 11:51:55 11:52:12 11:52:17

11:54:27 17 Q. Okay. And you don't know whether a product falls under

A. Showing the sample book, I think he was in the room.

1154:36 18 your patent without examining it and testing it, right?

I'm -- I think I remember that, yes. It was mostly with John,
because John was the one I was meeting with.
Q. But it is your memory that McKillip -- Michaei McKillip

11.54:41 19 A. Yes.
11:5452 20 Q. And so merely by showing someone a sample in a sample
1154:59 21 book, you couldn't immediately tell whether the product
11:55:03 22 specifically fell under your patent or not, correct?

20
21

22
23

was also present?
A. Yes.

11:55.06 23 MS. CRISWELL: The same objection. This is beyond
11:55:0B 24 the scope.

24 25

Q. And in terms of the document -- the sales books that you
used, including the one that you say you used with -- in the
289

(

11:550B 25 THE WITNESS: I don't know -291
11:55:08 11:55:12 11:55:18 11:55:21 11:55:23 11:55:24 11:55:26 11:55:26 11:55:29 11:55:30

'-'-11:52:21 11:52:25 11:52:26 11:52:35

1

meeting with Mr. McKillip, other people used the same sales books, right?
A. No, these were my sales books. Other people had sample

1

THE COURT: Hold on. It's overruled. It's not

2
3

2 3

beyond the scope.
MS. CRISWELL: I just want to make clear that he's

4
5 6 7 8

books, but these are from my sample books.
Q. Directing your attention to page 25 of your deposition,

4
5
6 7 8 9

asking him questions about his patent for adhesive not the
patent at issue.

11:52:38
11.52:44
11:52:47 11:52:51 11:52:57

line 19, you're asked the question:
Did anyone else use the book of PX 62 -- and that's
now DX 31, 31-A -- to make sales calls?

THE COURT: I understand.
BY MR. SCHROER:

Q. And you know there's a patent involved in this case,
right, where you're testifying?
A. Yes.

9

Answer: I don't know. I don't recall.
Was that your testimony?
A. Yes.

11:52:59 11:53:00
11:53:04 11:53:11 11:53:16

10
11

10

11:55:32 11 Q. And have you seen integrated cards that you believe fall

12 13

Q. Now, you gave some testimony earlier about the products of
your present company. And you don't sell integrated cards, do

11:5539 12 within the scope of that patent?

11:55:42 13 MS. CRISWELL: (Indicating.)

14 15
16 17 18 19
21

you?
A. No.

11:55:42 14 THE COURT: Are you objecting?
11:55:43 15 MS. CRISWELL: Yes, I'm objecting.

11:53:16 11:53:20
11:53:21 11:53:21

Q. And you said you had a patent -A. Yes.

11:55:44 16 THE COURT: Sustained.
11:55:45 17 THE WITNESS: Probably. I just--

Q. -- I think?
A. Yes.

1155:46 18 THE COURT: You don't answer the question if I
11:55:49 19 sustain the objection.

11:53:22

'1:53:22 20

Q. And that's not a patent for integrated cards per se, is
it?

11:55:49 20 THE WITNESS: Oh, sorry.
11:55.53 21 BY MR. SCHROER:
11:55:54 22 Q. Well, let me ask you a question from your own point of

(~,

11:53:28

11:53:28
11:53:31

22
23

A. It is a patent for an integrated card, yes.
Q. It's for a part of a process that can be used relative to
integrated cards, correct?

11:55:56 23 view.

11:53:37 24
11:53:3B 25

11:56:02 24 Taking, for example, one of your sample binders, you
1156:06 25 wouldn't expect someone looking at samples out of your sample

A. I think it's a product patent actually, not a process.

304
Q. Did John McKillip approach you about making this type of
12:21:41 12:21:43

306
1

prior to the thumb notch card?
A. Yes, because as you can see, even from this, we had.on

thumb notch card?

2

A. Yes, he did.
Q. Did he show you how to make this card?

1221:46
12:21:50 12:21:57 12:22:00 12:22:02 12:22:03 12:22:06 12:22:10 12:22:15 12:22:17 12:22:21 12:22:21 12:22:24 12:22:27 12:22:31 12:22:32 12:22:38 12:22:41 12:22:43 12:22:47 12:22:49 12:22:54 12:22:5B

3

there, Clean release cards. Even in the '01 and that we had

4
5 6 7
8 9

on there -- we -- we considered this the clean release card.
Q. Do you know when you started making that card?

A. He showed me some of his ideas. They didn't exactly work.
We had to do a lot of modifications on getting it to

A. Late '90s.
Q. In the '90s.
I'm showing you what's been marked Defendant's
Exhibit 16.

physically work, but the basic idea of the thumb notch was
his.
Q. Is this a rather special, unique card?

A. At that time it was, yes.
Q. Did John tell you he had a patent application for that
thumb notch card?

10
11

Is that card on the bottom of the same type as what
is on Defendant's Exhibit 1?

12
13

A. I would call this a clean release card.
Q. Okay.

A. He said he was going to get one.
Q. Did Specialty agree to pay John a royaity for the use of
the thumb notch cards?

14
15 16 17 18 19

A. Yeah, the only difference it's got -- where we run it all

the way across, which we do with all our stuff. We don't use
patches. We just use the webs, but, yeah, I would call this a
clean release card.

A. When we were -- when we weren't making it for one of

John's customers, yes.
Q. Okay. And you believe that you started making the thumb

Q. Okay. Now, are you aware that the cards in Defendant's
Exhibit 1 and Defendant's Exhibit 16 are called -- are also

notch cards late 1990s or--

A.. You know, '99, 2000, 2001. I think our first customer was
Express Scripts.
Q. Did Specialty make this thumb notch card with the

20
21

called integrated cards by others in the industry?

A. Well, I've heard that, you know, since then, recently -you know, since we got involved in this. But I always called

22
23

designation -- sorry.
Did Specialty mark this thumb notch card with the

it -- my idea -- the integrated card was the thumb notch, and
the other one was our clean release card. That's always the

24 25

designation patent pending or a patent number?
305

nomenclature that I used.
307

A. Boy, on the thumb notch, I don't remember if we -- if we

1223:00
12:23:04 12:23:07 12:23;09 12:23:11 12:23:12 12:23:12 12:23:14 12:23:16 12:23:17 12:23:18 12:23:20 12:23:24

1

Q. Okay. It's just confusing because you're using different
terminology than others in the industry, and I want to make
sure that we all understand today -MR. SCHROER: Objection to counsel's testimony.
BY MS. CRISWELL:

did. It didn't last long. Not for the thumb notch card. I
don't remember back then for the very first ones if we did or

2 3

not.
Q. Do you recall if John told you at some point that you

4
5 6 7 8
9

should mark it with patent pending?
A. Not the thumb notch cards. I remember him tellng me he

Q. Then what you're -THE COURT: You need to stop when there's an

had a patent pending on it, but I don't remember because 1-if I remember right, our first customer was Express Scripts

objection. It's overruled.
MS. CRISWELL: Okay.
BY MS. CRISWELL:
Q. I want to make sure that when you use the term clean

and the way their layout of the card was -- they wanted the
union -- and it didn't look right to have a patent pending on

10
11

it. But I can't remember -- if we did, like I said, it wasn't

12 13

release card today you're referring to the type of card in
Defendant's Exhibit 1 and Defendant's Exhibit 16 -A. Yes.

for more than one order.
Q. Did Specialty start making another type of integrated
card, even before this thumb notch card?
A. No.

1223:27
12:23:28 12:23:2B 12:23:29 12:23:31 12:23:31

14 15
16

Q. -- is that correct?
A. Yes.

Q. Let me ask it this way.
Did Specialty Tape start making what you refer to as

17
18

Q. That is flush with the paper?
A. Yes.

a clean release card before this thumb notch card?
A. Yes.
Q. Okay. I'm showing you what's been marked Defendant's
Exhibit 3.

19
21

Q. And I'm showing you Defendant's Exhibit 15, are you

12:23:40 20
12:23:41 12:23:44

familiar with that type of card?
A. Yeah.

22

Q. And that has a raised surface?

Is this what you called a clean release card?
A. Yes.

12:23:46 23
12:23:49

A. Yeah, this gets affixed.
Q. Okay. And are you aware --

24

Q. And is this the card that Specialty Tape started making

12:23:50 25

A. We've also made a lot of these things for customers that