Loggerhead Tools, LLC v. Sears Holdings Corporation

Filing 456

MOTION by Defendants Apex Tool Group, LLC, Sears Holdings Corporation, Counter Claimants Apex Tool Group, LLC, Sears Holdings Corporation for judgment as a Matter of Law (Attachments: # 1 Table of Appendices, # 2 Appendix 1, # 3 Appe ndix 2-1, # 4 Appendix 2-2, # 5 Appendix 2-3, # 6 Appendix 2-4, # 7 Appendix 2-5, # 8 Appendix 2-6, # 9 Appendix 2-7, # 10 Appendix 2-8, # 11 Appendix 2-9, # 12 Appendix 2-10, # 13 Appendix 3 - PTX 1, # 14 Appendix 3 - PTX 3, # 15 Appendix 3 - PTX 4, # 16 Appendix 3 - PTX 51, # 17 Appendix 3 - PTX 119, # 18 Appendix 3 - PTX 157, # 19 Appendix 3 - PTX 175, # 20 Appendix 3 - PTX 467, # 21 Appendix 3 - PTX 503, # 22 Appendix 4 - DTX 1, # 23 Appendix 4 - DTX 2 , # 24 Appendix 4 - DTX 3, # 25 Appendix 4 - DTX 5, # 26 Appendix 4 - DTX 7, # 27 Appendix 4 - DTX 8R, # 28 Appendix 4 - DTX 9, # 29 Appendix 4 - DTX 9R, # 30 Appendix 4 - DTX 11, # 31 Appendix 4 - DTX 11R, # 32 Appendix 4 - DTX 23, # 33 Appendix 4 - DTX 24, # 34 Appendix 4 - DTX 74, # 35 Appendix 4 - DTX 75, # 36 Appendix 4 - DTX 212, # 37 Appendix 4 - DTX 213, # 38 Appendix 5)(Sernel, Marcus)

APPENDIX 2-1

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Li P PLAYED on 5 _4 20151204 PA PC DC on 5-4-17
Scene

1

Designation
7:25 -8:3

Source

Tx Duration Elapsed

Li, Peng 2015-12-04

00:00:10

00:00:00

7:25

2

10:9 -10:15

Li, Peng 2015-12-04

00:00:39

00:00:10

Li_P-120415-1of4.M

M2.3

00:29:15

Li_P-120415-1of4.M

M2.4

A. It's 14600, York Road, Sparks,

10:15

Maryland 21152.

Li, Peng 2015-12-04

00:00:38

00:00:49

10:16

Q. Where did you get your undergraduate

10:17

degree from?

10:18

A. I got my undergraduate degree from

10:19

University of Science and Technology in China.

10:20

Q. What year was that?

10:21

A. 1992.

10:22

Q. Which degree was that?

10:23

A. It was a bachelor degree.

10:24

Q. Does the University of Science in

10:25

China have a specific subset, a major for your

11:1

bachelor?

11:2

A. It's in mechanical engineering.

Li, Peng 2015-12-04

00:00:45

11:17

A. I do have a graduate degree.

11:19

Q. And what is that?

11:20

00:01:27

Q. And do you have a graduate degree?

11:18

A. I have a master and a Ph.D in

11:21

mechanical engineering.

11:22

Q. All right. And starting with your

11:23

master, where did you get that from?

11:24

A. I got my master degree from University

11:25

of Notre Dame.

12:1

Q. And your Ph.D. in mechanical

12:2

engineering?

12:3

A. Correct. From -- also from University

12:4

of Notre Dame.

12:5

11:13:12PM

00:29:53

Q. And what is your business address?

10:14

5/4/2017

M2.2

word, Maryland, 21163.

10:13

Printed:

Li_P-120415-1of4.M

D-o-r-c-h-e-s-t-e-r; Woodstock, Woodstock one

10:12

11:17 -12:8

00:30:32

A. It's 10775 Dorchester Way,

10:11

4

M2.1

Q. What's your home address?

10:10

10:16 -11:2

Li_P-120415-1of4.M

L-i. First name P-e-n-g.

10:9

3

00:30:42

A. Yes. My name is Peng Li. Last name

8:3

Barcode

full name for the record?

8:2

Media File

Q. Would you please state and spell your

8:1

Remains

Q. Okay. And what years were those

Page 1 of 14

Li P PLAYED on 5 _4 20151204 PA PC DC on 5-4-17
12:6
12:7

17:4 -17:11

A. That was 1997 for master and 1998 for

12:8
5

achieved?
Ph.D.

Li, Peng 2015-12-04
17:4

00:00:22

00:02:12

Li_P-120415-1of4.M

M2.7

my training and my strong -- my strongest

17:11

background.

Li, Peng 2015-12-04

00:01:32

00:02:34

17:12

Q. And your last position listed here

17:13

is vice president engineering and program

17:14

management at Apex Tool Group LLC, formerly

17:15

Danaher Tool Group, and is this the position

17:16

you currently hold?

17:17

A. It is.

17:18

Q. And tell me about your

17:19

responsibilities in this role.

17:20

A. It's managing engineering design,

17:21

prototype, testing and timeline, as well,

17:22

for -- for Apex Tool Group's hand tool brands,

17:23

including -- including private-label brands and

17:24

Apex Tool Group's own brands.

17:25

Q. How many people do you supervise in

18:1

this role?

18:2

A. I have seven direct reports, and total

18:3

team size is roughly about 30.

18:4

Q. Okay. And who is your supervisor?

18:5

A. Mr. John Constantine. He is the

18:6

president for North American Hand Tool for Apex

18:7

Tool Group.

18:8

Q. How much time do you devote to working

18:9

on hand tools?

18:10

A. I would say a hundred percent.

Li, Peng 2015-12-04

00:01:07

00:04:06

28:6

Q. And what was your involvement with the

28:7

Max Axess Locking Wrench development?

28:8

A. My involvement, it was on a high

28:9

level. Basically, make sure this product,

28:10

it's developed in a way that we offer

28:11

11:13:12PM

00:26:36

aerospace. That was my -- I would say that's

17:10

5/4/2017

M2.6

CFD. That was what I was doing in engineering

17:9

Printed:

Li_P-120415-1of4.M

engineering analysis, more, like, FEA and

17:8

28:6 -28:18

00:28:08

A. It was more engineer analy --

17:7

7

M2.5

more detailed experience was in?

17:6

17:12 -18:10

Li_P-120415-1of4.M

Q. All right. What would you say your

17:5

6

00:28:30

competitive product, has Craftsman advantage,

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28:12

while not infringe any other -- any other

28:13

patent, has different look, and ship on time.

28:14

That was my -- my -- I would say my

28:15
28:16

product without infringing on any other people's

28:18
28:19 -29:1

is that the -- we need to make -- ship this

28:17

8

biggest objective at that time on this project,

patent and ship it on time.

Li, Peng 2015-12-04

00:00:31

00:05:13

28:19

Li, Peng 2015-12-04

00:00:25

00:05:44

Li, Peng 2015-12-04

00:00:38

00:06:09

Q. When did you first learn of the Max

29:12

Axess Locking Wrench project?

29:13

A. That was in -- in February or

29:14

March -- we -- I -- I believe Sears brought

29:15

the -- brought the idea to us. And they -- they

29:16

asked us to develop a better product, or a more

29:17

competitive product, with Craftsman advantage

29:18

than the -- than the Loggerhead Bionic wrench at

29:19

that time.

Li, Peng 2015-12-04

00:00:24

00:06:47

29:24

Q. Were you a part of the first

29:25

communication when Sears brought the project to

30:1

Apex?

30:2

A. I don't recall I was. I think I got

30:3

the information from our internal team, from our

30:4

sales team, I think it's Jill Lowe at that time.

Li, Peng 2015-12-04

00:00:54

00:07:11

31:10

Q. You testified that you believe Sears

31:11

first approached Apex with the project for the

31:12
11:13:12PM

M2.12

edges or Craftsman design language.

29:11

5/4/2017

Li_P-120415-1of4.M

appearance, and keeps the Craftsman trade

29:9

Printed:

00:23:31

in the market, especially on function, on

29:8

31:10 -31:24

M2.11

product needs to be better than -- than anything

29:7

12

Li_P-120415-1of4.M

typically means that an innovative Craftsman

29:6

29:24 -30:4

00:23:55

THE WITNESS: The Craftsman advantage

29:5

11

M2.10

advantage?

29:4

29:11 -29:19

Li_P-120415-1of4.M

Q. How would you define the Craftsman

29:1

10

00:24:33

offers Craftsman advantage.

28:25

29:4 -29:9

M2.9

than any product out there in the market and

28:24

9

Li_P-120415-1of4.M

need to develop something that look different

28:23

00:24:58

A. It -- my understanding, it's -- we

28:22

M2.8

has different look?

28:21

Li_P-120415-1of4.M

Q. And what did you mean when you said

28:20

00:25:29

Max Axess Adjustable Locking Wrench?
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31:13
31:14

than the Loggerhead's Bionic wrench, that's

31:16

correct.

31:17

Q. And what was your understanding of the

31:18

concept at that time?

31:19

A. It was an interesting product or

31:20

concept. We -- we -- what -- what I re -- when

31:21

we -- when we -- I recall when we had some

31:22

engineering discussions, we were thinking

31:23

it's -- it's some sort of combination of

31:24
32:10 -32:16

Apex to develop a bett -- a competitive product

31:15

13

A. I believe Sears brought this idea to

adjustable wrench and plier.

Li, Peng 2015-12-04
32:10

00:00:36

00:08:05

00:22:37

Li_P-120415-1of4.M

M2.13

00:22:01

Li_P-120415-1of4.M

M2.14

00:09:13

00:21:29

Li_P-120415-1of4.M

M2.15

00:09:20

00:21:22

Li_P-120415-1of4.M

M2.16

When the concept as we were

32:11
32:12

have any product from Sears or Apex at which

32:14

you were looking that helped you identify the

32:15

concept of the, I believe you said, adjustable

32:16
32:21 -33:6

Locking Wrench was presented to you, did you

32:13

14

discussing, the initial concept of the Max Axess

pliers and wrench combination?

Li, Peng 2015-12-04
32:21

00:00:32

00:08:41

It's -- what I said was adjustable

32:22

wrench and plier combination. But, yes, to

32:23

answer your question, we did have a product

32:24

looking at -- that was the Loggerhead's Bionic

32:25

wrench we were looking at and we -- to

33:1

understand how the -- the Loggerhead wrench

33:2

works, yes.

33:3

Link > P64.1

were looking at a Loggerhead Bi -- Bionic

33:6
35:11 -35:12

where we got that -- that product, but, yes, we

33:5

15

I don't recall what -- I don't recall

33:4

wrench.

Li, Peng 2015-12-04

00:00:07

35:22 -36:5

Q. I'm introducing Li Exhibit 3, which is

35:12
16

35:11

Apex 722.

Li, Peng 2015-12-04

00:00:37

35:22

Q. I'm asking, do you understand this to

36:1

be an analysis of the Loggerhead Bionic wrench?

36:2

A. I would call this a test report of the

36:3

Bionic wrench.

36:4

11:13:12PM

A. Okay.

35:25

5/4/2017

is an analysis of the Loggerhead Bionic wrench?

35:24

Printed:

Q. Looking at Li Exhibit 3, Mr. Li, this

35:23

Q. A task report?

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36:5
17

36:21 -36:25

Link > Hide

A. A test report.

Li, Peng 2015-12-04

00:00:18

00:09:57

00:20:45

Li_P-120415-1of4.M

M2.17

00:20:27

Li_P-120415-1of4.M

M2.18

00:11:17

00:19:25

Li_P-120415-1of4.M

M2.19

00:11:27

00:19:15

Li_P-120415-1of4.M

M2.20

have created this report?

36:23

A. I do. It's probably our test lab

36:24

in Sparks, and the tech -- the lab technician's

36:25
37:4 -37:18

Q. Do you have any knowledge of who may

36:22

18

36:21

name is Tim Parson.

Li, Peng 2015-12-04
37:4

00:01:02

00:10:15

Do you have any knowledge of why a

37:5

Bionic wrench test report may have been created?

37:6

A. I think so.

37:7

We -- we -- one of the -- one

37:8

of the -- this is to try show a Craftsman

37:9

advantage. Like I mentioned a moment ago,

37:10

we would normally test the product in the

37:14

market, see where they are, and the Craftsman

37:15

product needs to be better than that. Like,

37:16

in this case, we test the torque performance of

37:17

Bionic wrench, and the Craftsman spec needs to

37:18

Link > P105.1

develop a new innovation product for Craftsman,

37:13

49:7 -49:8

any retail product in the market. So when we

37:12

19

Craftsman product needs to be better than

37:11

be higher than the Bionic wrench.

Li, Peng 2015-12-04

00:00:10

58:2 -58:20

Q. I'm introducing Li Exhibit 5, which is

49:8
20

49:7

Apex 4271 through 4278.

Li, Peng 2015-12-04
58:2

Link > P105.1.1

00:01:03

Question: If you'll go back to

58:3

time is from Yongsheng Xu, and it attaches the

58:5

testing report for the Bionic wrench, if you

58:6

look at the first line of the e-mail; is that

58:7

correct?

58:8

A. Yes.

58:9

Q. And then if you will please scroll to

58:10

the attachment beginning on Apex 4273, --

58:11

A. Okay.

58:12

Link > P105.3

Page 1, Apex 4271, the most recent e-mail in

58:4

Q. -- which is Page 3 of your

58:13

document, --

58:14

A. Mm-hmm.

58:15

Q. -- do you agree this is a testing

58:16

5/4/2017

11:13:12PM

A. It looks a little different, but I

58:18

Printed:

report for the Loggerhead Bionic wrench?

58:17

would think, yes, it probably is. I would say,

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58:19
58:20
21

59:8 -59:15

looking at this, it probably is the Bionic
wrench product.

Li, Peng 2015-12-04

00:00:21

00:12:30

00:18:12

Li_P-120415-1of4.M

M2.21

00:17:51

Li_P-120415-1of4.M

M2.22

00:17:27

Li_P-120415-1of4.M

M2.23

00:13:29

00:17:13

Li_P-120415-1of4.M

M2.24

00:13:36

00:17:06

Li_P-120415-1of4.M

M2.25

59:8
59:9

A. I do not know, but if you look at

59:11

the samples, there's one, two, three, four,

59:12

so there may be four samples there. There may

59:13

be two sizes, so -- so that's probably four

59:14

samples, by looking at this report, if you look

59:15
60:17 -60:24

were tested?

59:10

22

Q. Do you know how many Bionic wrenches

at Column A.

Li, Peng 2015-12-04

00:00:24

00:12:51

60:17

A. If you look at the report, the -- the

60:20

-- the torque -- this would be a torque testing,

60:21

but it was using the quarter-inch mandrel and

60:22

the nine -- nine-sixteenths mandrel. I believe

60:23

that's the smallest size that this tool can be

60:24
64:15 -64:19

on the Loggerhead Bionic wrenches?

60:19

23

Q. Do you know what testing was performed

60:18

used and the maximum size this tool can be used.

Li, Peng 2015-12-04

00:00:14

00:13:15

64:15

Q. Was the testing that was being done

64:16

on the Bionic wrench used as a baseline for

64:17

designing a superior Craftsman advantage

64:18

24

70:7 -70:8

Link > P495.1

Craftsman Max Access Locking Wrench?

64:19

Link > Hide

A. I would say yes.

Li, Peng 2015-12-04

00:00:07

70:18 -71:20

Link > P495.1.1

Q. I'm introducing Li Exhibit 7, which is

70:8
25

70:7

Apex 2293.

Li, Peng 2015-12-04

00:01:54

70:18

Q. The second e-mail on the first page is

70:19

from Mr. Broadaway, dated March 23rd, 2012.

70:20

A. Yes.

70:21

Q. In the second sentence he writes, "We

70:22

have been focused now on the Eclipse and Bionic

70:23

replacement -- completing those design intents

70:24

so we can try and make Q4."

70:25

What did you understand Mr. Broadaway

71:1
71:2

Bionic replacement? I don't know what Eclipse

71:5

-- I can't recall what Eclipse wrench is about

71:6
11:13:12PM

a little confusing. What is the Eclipse and

71:4

5/4/2017

A. I don't -- this -- this e-mail's

71:3

Printed:

to mean by a Bionic replacement?

at that time, because -- was it a different
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71:7
71:8

would suspect this bionic replacement means

71:9

Craftsman version with Craftsman advantage as

71:10

a competitive product, yes.

71:11

Q. A Craftsman version of what?

71:12

A. Of a -- a Craftsman version of a -- a

71:13

competitive Craftsman version of product, I

71:14

guess is what I should say.

71:15

Link > Hide

product? I can't remember. But I would -- I

Q. Yes. And what I'm asking is, a

71:16

meant is the competitive product with Craftsman

71:19

brand name tool product in the market, including

71:20
71:23 -71:25

A. Let me rephrase this. I think what I

71:18

26

Craftsman version of what competitive product?

71:17

Bionic wrench.

Li, Peng 2015-12-04

00:00:04

00:15:30

00:15:12

Li_P-120415-1of4.M

M2.26

00:15:08

Li_P-120415-1of4.M

M2.27

00:14:40

Li_P-120415-1of4.M

M2.28

00:16:14

00:14:28

Li_P-120415-2of4.M

M2.29

00:16:21

00:14:21

Li_P-120415-2of4.M

M2.30

71:23
71:24

72:1 -72:7

A. The Loggerhead Bionic wrench, I would

71:25
27

Q. The Loggerhead Bionic wrench?
say, yes.

Li, Peng 2015-12-04
72:1

00:00:28

00:15:34

Q. What did you understand Mr. Broadaway

72:2

never simply try to design some replacement. So

72:5

I would -- I would say that's the -- that's the

72:6

compet -- competitive product with Craftsman

72:7
73:18 -73:22

A. Like I said a moment ago, we would

72:4

28

to mean by the word replacement?

72:3

brand and Craftsman advantage.

Li, Peng 2015-12-04

00:00:12

00:16:02

73:18
73:19

wrench?

73:22

Link > P125.1

that was better than the Loggerhead Bionic

73:21

87:5 -87:6

this project was to create a competitive product

73:20

29

Q. Your understanding of the scope of

A. Yes.

Li, Peng 2015-12-04

00:00:07

87:18 -88:6

Q. I'm going to introduce Li Exhibit 9,

87:6
30

87:5

Apex 9034.

Li, Peng 2015-12-04

00:00:44

87:18
87:19

A. Yes. He states it that way, yes.

87:23

Q. What do you understand Mr. Fu to be

87:24

explaining in this e-mail?

87:25
11:13:12PM

correct?

87:22

5/4/2017

of 30 degrees and a similar length of handle,

87:21

Printed:

that Loggerhead's and ours have a similar stroke

87:20

Link > P125.1.1

Q. In that top e-mail, Zhihong Fu states

A. Loggerhead and ours have similar
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88:1
88:2

remember or I don't know what he meant by

88:5

similar stroke of 30 degrees. No, I'm sorry.

88:6

93:9 -93:14

I understand that part. But I don't really

88:4

31

handles. I can see similar lengths of handles.

88:3

Link > Hide

stroke -- similar stroke and similar length of

I don't know.

Li, Peng 2015-12-04
93:9

00:00:15

00:17:05

00:13:37

Li_P-120415-2of4.M

M2.31

00:17:20

00:13:22

Li_P-120415-2of4.M

M2.32

00:17:30

00:13:12

Li_P-120415-2of4.M

M2.33

00:12:54

Li_P-120415-2of4.M

M2.34

Q. Is it your testimony that you had

93:10

not -- I did not have a lot of input into the

93:14

Link > P88.1

A. I would say, yes. I would say I do

93:13

116:1 -116:2

Adjustable?

93:12

32

little input into the design of the Max Axess

93:11

design.

Li, Peng 2015-12-04

00:00:10

116:5 -116:10

Q. I'm introducing Li Exhibit 13, which

116:2
33

116:1

is Apex 2357 through 2376.

Li, Peng 2015-12-04

00:00:18

116:5
116:6

rather, dated October 1st, 2013, from to you

116:7

Mr. Broadaway and others. The subject appears

116:8

Link > P88.1.1

Q. This is an e-mail chain, or an e-mail,

to be MA, standing for Max Axess, Locking Wrench

116:9

34

116:14 -117:15

2014 forecast.

116:10

A. Yes.

Li, Peng 2015-12-04
116:14

Link > P88.1.3

00:01:36

00:17:48

Q. And can you decipher the acronyms in

116:15

the attachment for me?

116:16

A. Okay. KPI stands for Key Performance

116:17

Index. CFT stands for Craftsman. MA means Max

116:18

Axess. And AW, Adjustable Wrench.

116:19

Q. Did you send the e-mail and attachment

116:20

you see that?

116:25

A. I do.

117:1

Q. And would you please explain what you

117:2

meant by that?

117:3

A. I think on this project what we -- I

117:4

think at that time, I still believe so, that

117:5

it's a -- it's a great product. It offered

117:6

great feature and benefits for end users as a

117:7

Craftsman innovation, and it generate -- I think

117:8

11:13:12PM

an amazing project the MA Locking Wrench is. Do

116:24

5/4/2017

Q. You write, it just occurred to me what

116:23

Printed:

A. Yes.

116:22

Link > P88.1.2

in the Exhibit 13?

116:21

it is very profitable for ATG, as well. So I

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117:9
117:10

patent search and patent clearance to make sure

117:12

we do not infringe anybody's patent. So I feel

117:13

like this project from a -- it's a great product

117:14

for -- from both technical side and the business

117:15
117:19 -118:11

And, also, we -- we were very thorough in our

117:11

35

feel like this is a -- this is a good product.

side.

Li, Peng 2015-12-04

00:01:01

00:19:24

117:19

message that it was a great product. But, you

118:5

know, not -- I'm not a businessperson, so those

118:6

numbers was -- I don't know how I got the

118:7

number. I think I must have calculated a little

118:8

bit, but I did not -- when I wrote it, I did

118:9

not have a -- I did not have a number -- a final

118:10

119:16 -120:6

number. I think I was using a forecast, for the

118:11
36

most part.

Li, Peng 2015-12-04
119:16

00:00:38

00:20:25

Q. Who were you referring to when you

119:17

said we?

119:18

A. I know it's not me, because I don't

119:19

do forecasts. So I really do not know who was

119:20

making a forecast in that case.

119:21

Q. And your concern is that it's not very

119:22

accurate?

119:23

A. No. That wasn't my concern. What

119:24

I'm trying to -- what I'm trying to say is that

119:25

this message, it was -- was the purpose -- I

120:1

tried to kind of boost the -- the spirit for the

120:2

team. That's all.

120:3

Q. You testified earlier that you

120:4

were mainly on the technical side, not the

120:5

Printed:

122:2 -123:10

5/4/2017

11:13:12PM

profitability side, money side?

120:6
37

M2.37

remember, was trying to kind of communicate a

118:4

Li_P-120415-2of4.M

that time, but my -- it was -- that e-mail, I

118:3

00:09:39

A. I mean, I -- I wrote that at

118:2

M2.36

this product in three years was 5.7 million?

118:1

Li_P-120415-2of4.M

Q. Was that because the pure profit on

117:25

00:10:17

A. Correct.

117:24

Link > Hide

it is very profitable for ATG, as well.

117:23
Link > P88.1.4

Craftsman innovation and it generates -- I think

117:22

M2.35

great feature and benefits for end users as a

117:21

Li_P-120415-2of4.M

You stated the product offered a

117:20

00:11:18

A. Correct.

Li, Peng 2015-12-04

00:01:43

00:21:03

Page 9 of 14

Li P PLAYED on 5 _4 20151204 PA PC DC on 5-4-17
122:2

All right. Let's look at that. If

Link > P88.3

122:3

you'll turn to Page 3, which is Apex 2359, I'd

Link > P88.3.1

122:4

like to look at Rows 5 and 7. They reference a

122:5

six and eight-inch Bionic wrench.

122:6

A. Yeah.

122:7

Q. The graphics in the lower right of the

122:8

page appear to be the Craftsman Bionic wrench;

122:9

is that correct?

122:10

A. I -- I would say the lower right is

122:11

the -- the Craftsman Max Axess Locking Wrench,

122:12

and then, I'm sorry, what was your question.

122:13

Q. No. You answered my -- my question.

Link > P88.3.2

Link > P88.3.1

122:14

A. Yes.

122:16

Q. -- does reference Bionic wrench; is

122:17

that correct?

122:18

A. No. The -- the Row 5 really meant

122:19

they are -- that's the -- that should be Max --

122:20

Max Axess Locking Wrench, and Row 7 should be

122:21

the eight-inch Max Axess Lock -- Lock -- I mean,

122:22

Max Axess Locking Wrench. What happened was,

122:23

this KPI probably was generated at the very

122:24

beginning of the -- this sheet may have been

122:25

generated very early in the -- in the project,

123:1

we did not have a name for it. But you look at

123:2

the size, you know, that Row 6 and Row 8,

123:3

because of the specific size of that, those

123:4

sizes are -- I think they're specifically to the

123:5

Max Axess Locking Wrench. And you also look at

123:6

Link > P88.3.3

But Row 5 and 7 --

122:15

the bottom right picture, they do not have a

123:7

of that, the top right, Row 1, it also says

123:10
172:12 -172:21

Access Locking Wrench. If you look at the top

123:9

39

bend handle, so that's -- that's a Craftsman

123:8

Craftsman Max Axess Adjustable Wrench.

Li, Peng 2015-12-04

00:00:29

00:22:46

172:12
172:13

A. One more time, please.

172:16

Q. Was Apex offering to provide the Max

172:17

Axess wrench for sale in the United States?

172:18

A. Yes. Yes.

172:19

Q. Was Apex offering to provide the Max

172:20

Axess wrench for sale in any other country?

172:21

11:13:12PM

M2.39

United States?

172:15

5/4/2017

Li_P-120415-3of4.M

to provide the Max Axess wrench for sale in the

172:14

Printed:

00:07:56

Q. Was, to your knowledge, Apex offering

A. I -- I do not know.

Page 10 of 14

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45

188:19 -189:7

Link > P169.1

Li, Peng 2015-12-04

00:01:01

188:19

M2.47

2,787,925 (Buchanan) PDF, do you see

189:3

that?

189:4

A. Yes.

189:5

Q. Did you send the e-mail in Li Exhibit

189:6

26?

189:7

A. Yes.

Li, Peng 2015-12-04
189:16

00:00:35

00:24:16

Q. Do you know what reverse engineering

189:17

is?

189:18

A. Yes, I do.

189:19

Q. What is it?

189:20

A. Typically, reverse engineering means

189:21

that if you have a product, you do not have a

189:22

print, you don't have a drawing, meaning you

189:23

would -- you would like to know all the

189:24

dimension information and stuff like that, then

189:25

you want to put a print together for the product

190:1

that's already there, that's general definition

190:2

of -- of reverse engineering.

Li, Peng 2015-12-04

00:00:55

00:24:51

190:3

Q. I'm afraid I don't quite understand

190:4

your definition of reverse engineering.

190:5

A. Basically, if it's a product already

190:6

there, you -- you would like to find a -- I

190:7

mean, you don't have a drawing, but you would

190:8

like to make a drawing, you would take a --

190:9

you would do -- sometimes -- well, they have a

190:10

scanner now. You can do that. So, basically,

190:11

you want to reverse a product, you -- to put

190:12

a -- a product into print, basically, or you

190:13

would -- normally -- what you normally do is,

190:14

you make a print first, and then you make a

190:15

product based on a print. That's called forward

190:16

engineering. But reverse engineering is, if you

190:17

have a product, you're trying to make a print

190:18

11:13:12PM

Li_P-120415-3of4.M

wrench.pptx and 287 -- strike that.

189:2

5/4/2017

00:05:51

And it includes two attachments, Bionic

189:1

Printed:

M2.46

is, forward, reverse engineer the Bionic wrench.

188:25

190:3 -190:19

Li_P-120415-3of4.M

Broadaway, dated March 8, 2012. The subject

188:24

47

00:06:26

President John Constantine and copying Eric

188:23

189:16 -190:2

M2.45

This is an e-mail from you to Apex

188:22

46

Li_P-120415-3of4.M

is Apex 18748.

188:21

Link > Hide

00:07:27

Q. I'm introducing Li Exhibit 26, which

188:20
Link > P169.1.1

00:23:15

out of it, that's typically called reverse

Page 11 of 14

Li P PLAYED on 5 _4 20151204 PA PC DC on 5-4-17
190:19
48

190:20 -191:4

engineering.

Li, Peng 2015-12-04

00:00:30

00:25:46

190:20

Li, Peng 2015-12-04

00:00:46

00:26:16

didn't, but I think our design engineers might

191:9

have done it.

191:10

Q. On Li Exhibit 26, you state that the

191:11

current Bionic wrench has six jaws.

191:12

A. Yeah.

191:13

Q. Did you mean the Loggerhead Bionic

191:14

wrench?

191:15

A. I think so.

191:16

Q. You then mention an expired 1957

191:17

patent with a three-jaw design that, "we can

191:18

use."

191:19

A. Right. Mm-hmm.

191:20

Q. You wrote this e-mail?

191:21

A. I did.

Li, Peng 2015-12-04
192:23

00:00:34

00:27:02

Q. What did you mean in this e-mail by

192:24

using the 95 pat -- the 1957 patent?

192:25

A. I think I -- you notice Eric's

193:1

copied on that, too. I think what happened

193:2

was, this was Eric's proposal that he was

193:3

reporting to me. So I sent this to my boss

193:4

so he's in the loop.

193:5

I think what I meant is that

193:6

Buchanan patent to avoid any kind of patent

193:8

193:9 -193:12

the -- our design could be based on the 1957

193:7

51

issue.

Li, Peng 2015-12-04
193:9

Printed:

5/4/2017

11:13:12PM

M2.51

A. I was not involved in the -- well, I

191:8

Link > Hide

Li_P-120415-3of4.M

wrench -- the Loggerhead Bionic wrench?

191:7

192:23 -193:8

00:03:06

Q. Did Apex take apart the Bionic

191:6

50

M2.50

project.

191:5

Link > P169.1.2

Li_P-120415-3of4.M

that's always been the intention of this

191:4

00:03:40

people's patent. I mean, that's -- that's --

191:3

M2.49

Craftsman advantage and not infringe on other

191:2

Li_P-120415-3of4.M

been trying to design a competitive product with

191:1

00:04:26

basically we discussed the -- we have always

190:25

191:5 -191:21

A. No. It was never that way. We

190:24

49

Wrench project?

190:23

M2.48

engineering the goal of the Max Axess Locking

190:22

Li_P-120415-3of4.M

Q. In your opinion, was reverse

190:21

00:04:56

00:00:10

00:27:36

Q. Yes. And your e-mail does state

Page 12 of 14

Li P PLAYED on 5 _4 20151204 PA PC DC on 5-4-17
193:10

that, our thought is to launch this project

193:11

52

193:20 -193:24

without any patent issue this year, correct?

193:12

A. Yes.

Li, Peng 2015-12-04
193:20

00:00:15

00:27:46

00:02:56

Li_P-120415-3of4.M

M2.52

00:02:41

Li_P-120415-3of4.M

M2.53

00:02:20

Li_P-120415-4of4.M

M2.54

00:28:36

00:02:06

Li_P-120415-4of4.M

M2.55

00:28:38

00:02:04

Li_P-120415-4of4.M

M2.56

Q. Did you see the early designs for

193:21

1957 Buchanan?

193:24
194:11 -194:17

Axess Locking Wrench that possibly resembled the

193:23

53

the Max -- the product that would become the Max

193:22

A. I can't recall.

Li, Peng 2015-12-04

00:00:21

00:28:01

194:11
194:12

A. I do not recall, no.

194:14

Q. Do you recall if any of the early

194:15

designs for the Max Axess Adjustable Locking

194:16

Wrench used cams?

194:17
211:7 -211:10

uses cams?

194:13

54

Q. Do you recall if the Buchanan patent

A. I don't.

Li, Peng 2015-12-04

00:00:14

00:28:22

211:7

out is based on that cam-based 1957 embodiment

211:10
211:15 -211:15

it your opinion that the final product Apex put

211:9

55

Q. And looking at the Buchanan patent, is

211:8

of the Buchanan patent?

Li, Peng 2015-12-04
211:15

56

213:25 -214:23

00:00:02

THE WITNESS: I do not know.

Li, Peng 2015-12-04

00:01:21

213:25

Q. All right. It is getting late, but

214:1

help me understand, you don't get into detailed

214:2

design, but you did reference earlier that you

214:3

are more into the technical aspect. I think I'm

214:4

having difficulty understanding what exactly

214:5

your wheelhouse is at Apex?

214:6

A. Okay. You know, I -- I -- like I

214:7

said, I do not get into the detailed design like

214:8

this. That's more of a design aspect. So

214:9

that's how people like make sure how the

214:10

a working manager, so, you know, I locate

214:14

resources to work on projects, I also manage

214:15

project timelines, I was pretty involved in the

214:16

timelines, make sure we don't have delays in

214:17

time. Another think I -- I'm pretty good at or,

214:18
11:13:12PM

really don't get into that. My -- you know, I'm

214:13

5/4/2017

the tolerance analysis, stuff like that. I

214:12

Printed:

mechanics works out, how the -- than how you do

214:11

like, getting pretty into deep into is testing
Page 13 of 14

Li P PLAYED on 5 _4 20151204 PA PC DC on 5-4-17
214:19
214:20

involvement. But I would say I have, you know,

214:22

much less involvement in the detailed designs

214:23
216:2 -216:3

what I list. That's where I have more

214:21

57

and specifications. That's what I -- that's

like this.

Li, Peng 2015-12-04

00:00:04

216:2
216:3

Link > P169.1.1
58

216:5 -216:16

00:29:59

00:00:43

Li_P-120415-4of4.M

M2.57

00:30:03

00:00:39

Li_P-120415-4of4.M

M2.58

Q. If you'd please return to Li Exhibit
26.

Li, Peng 2015-12-04

00:00:38

216:5

Q. All right. And, once again, this is

216:6

the e-mail from you to Eric -- to John

216:7

Constantine, the president of Apex, as well

216:8

as Eric Broadaway. The subject is reverse

216:9

engineering the Bionic wrench. And you've

216:10

explained the 1957 patent -- or you've

216:11

referenced the 1957 patent, with the three-jaw

216:12

design that you can use. And your thought is to

216:13

launch this project without any patent issue

216:14

this year, and is this an update to the

216:15

president of the company from you?

216:16

A. Yes.
Play Time for this Script:

Total time for all Scripts in this report:

Printed:

5/4/2017

00:30:42
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