Heartland Recreational Vehicles LLC v. Forest River Inc

Filing 82

MOTION for Extension of Time to File Opposition to Expert by Defendant Forest River Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Fountain, Ryan)

Heartland Recreational Vehicles LLC v. Forest River Inc

Doc. 82 Att. 2

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59 A. Um, Mike Elkind at Fulwider, Patton in LA. Q. Uh-huh. You provided a report in that case, didn't you? A. Yeah. Q. Do you still have a copy of that report? A. I don't think so. Q. Did you -- did you prepare that report on a computer? A. Yes, but it was -- that was while I was still at Ice, Miller. Q. You didn't keep a copy of that? A. No. Q. Was that report used at trial? A. No. Q. Was that report filed with the court? A. No. Q. Was that report given to the opposing party? A. Yes. Q. Who was the opposing party? A. Barnes & Thornburg, Don Knebel. Q. Uh-huh. And in that case, who is the attorney accused of inequitable conduct? A. Um, the attorneys -- trying to remember their names. Um, two of the Indianapolis attorneys and one in DC, and their names escape me right now. Q. For which firm? 60 A. Barnes & Thornburg. Q. Did you find that they had committed inequitable conduct in that case, in your opinion? A. I found there was sufficient evidence to support it, yeah. Q. Okay. But you don't remember the names of the Barnes & Thornburg attorneys? A. If you showed me a list of the attorneys, I could pick them out. I think, um -- one was no longer there. I have -- I believe that was, um, oh, what is his name? Trevor -Q. Trevor Carter? A. Trevor Carter was an associate. Then there were two partners, um, involved. And basically, as I recall, I concluded that Trevor was merely the scrivener. And neither of the other two attorneys could remember a thing about it. And, um, so it wasn't quite clear

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Dockets.Justia.com

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exactly who had done what from the deposition testimony. All you had was the results of what had happened. Q. Now, what had happened? A. Um, they had misrepresented a prior art product that they had. Q. When you say misrepresented a prior art product they had, what do you mean? 61 A. Well, they provided incomplete information and misrepresented the content of what was there. Q. To the Patent Office? A. Yeah. 61 Q. Did you believe that the attorneys had that missing information? A. I -- it was a very complicated case. I think it was an instance where, yeah, I think they knew what the prior art really disclosed. They only disclosed a portion. It was a, what they called a -- a printed publication, which was really a blueprint of the prior product, that only showed one aspect of the product, and that was a favorable aspect. And testimony at trial was that when they developed these products, they had a full set of drawings that would have shown all views and everything, but that was not disclosed to the Patent Office.

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-------------93 Q. Okay. Now, this case that you were an expert on, where you found, in your opinion, there was inequitable conduct, right -A. Uh-huh. Q. -- did you find there was any deceptive intent there? A. I -- that was the weakness of the case. There was -there was circumstantial evidence to suggest that they knew, or should have known, and -- and withheld it intentionally, particularly after the testimony at trial. Q. But you concluded it was inequitable conduct, right? A. I reached that conclusion, yes. Q. Even if you didn't have evidence of deceptive intent?

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A. I had evidence of deceptive intent. Q. What evidence of deceptive intent did you have in that case? A. I forget all the exact circumstances at this point in time, but you know, as is always the case, you have to look at all the evidence, and -- and, um, the inferences to be drawn from that evidence and arrive at a conclusion. Q. To the best of your ability, what evidence did you have of deceptive intent in that case? 94 A. Best that I can recall, um, there were statements made with respect to the -- what the prior art was, and, um, they had had the opportunity to discuss it with their clients and review precisely what they were going to say. And you know, ultimately that turned out not to be, um, accurate, um, so the conclusion was that -- that they had discussed it with their client, they had misrepresented to the Patent Office, and there was no other logical explanation, other than they had intentionally done so. Q. No other logical explanation for that omission? A. Uh-huh.

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