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. 5

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40 Q. And is Cooper Exhibit 3 the list of the patents that were included in your file? A. That we wrote out, correct. Q. Yeah. Where did those patents come from? A. I don't recall where these patents actually came from. Q. What are the potential sources? A. The potential sources are either from the client, Mr. Tuttle, or there could be a -- a search that was -- that could have been performed, either a formal search, which I don't think I saw any notification, or reporting out letter that one was done, so that's unlikely, or an informal search, where we were having a discussion, and we looked something up. Those would be the -- the sources, I think, in this case. Q. Do you have any recollection of receiving any prior art from the client? A. I don't have a specific recollection. We have some,

41 1 but I don't have a specific recollection. 2 Q. And I want to be fair to you, but I want to make sure 3 I understand. You're saying to me, I don't know 4 where these patents that are in the file came from, 5 and these are the sources that are possible; is that 6 -- is that what you're saying? 7 A. What I said I don't know is I don't recall, being so 8 many years later, I think is a more fair statement. 9 Q. And they could have come from the client, from a 10 search, or from an informal search? 11 A. Right. 54 Q. Okay. Now, you said you're not the billing attorney for Heartland. Who is the billing attorney? A. I think it's Scott Troeger. Q. Who was the billing attorney when you started working with Heartland? A. Well, that's what I mean. I think it was Scott Troeger. Q. He's in the Elkhart office of Barnes & Thornburg, right? 55

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A. I believe so. Q. How did Heartland come to you for work? MR. LADUE: Objection, lack of personal knowledge. BY MR. FOUNTAIN: Q. Well, let me -- let me rephrase that then. How was it that you yourself started doing work with Heartland? A. I think I was asked by Mr. Troeger to do the work. Q. Do you know why he came to you? A. No, other than I draft patents. I don't think we had a patent attorney in the Elkhart office at that time.

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102 Q. Okay. Did you advise Heartland to have a formal search conducted? A. I don't recall specific discussions, but usually that would be something that I would advise them of. Q. Did Heartland have that done in this case? MR. LADUE: You're asking about during the time he was working on the file, correct? BY MR. FOUNTAIN: Q. At any time that you're aware of. A. Well, there is -- apparently, there was some done by another attorney, um, prior to my representation. 103 During the course of my representation, I don't recall -Q. Okay. A. -- them ever asking me for a formal search. Q. You say apparently there was a formal search prior to your representation; is that right? A. Apparently. Q. Why do you think a formal search was done prior to your representation? A. Well, I should back up. I don't know a formal search, but a search, as represented in these -- in these documents. Q. When a formal search is done that you request to have done by these professional searchers, where do they look for the prior art? A. That would be up to the searcher. Q. You have no idea?

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A. I didn't say that. I said that would be up to the searcher. Q. I understand. But do you know where they look? A. Depending on the searcher, they would look -- yeah. Depending on the searcher, they would look at the USPTO records, possibly PCT records, some have been known to talk to an examiner or two back before computer searching was so prevalent, and now a lot 104 more in foreign databases, in addition to U.S. databases. Q. Professional searchers send you a report, don't they? A. Correct. Q. And they indicate in that report the databases they examine, don't they? A. Correct.

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