Transcript continued pages 31 to 38 this is the balance ot Mr. Cumming's testimony and cross examination. The balance otf the transcript will be posted later. I'm a pooped Trooper.
31
1 Q Okay. So this, in this application, specifically
2 sets out improvements of the process of the
3 present invention over previously-known
4 processes, correct?
5 A That is defined by patent regulations, yes.
6 Q Okay. And included -- the previously-known
7 processes that you referred to are the Bellamy
8 process? Is that one?
9 A That's one.
10 Q And the Coulthard process, that's another?
11 A Yes.
12 Q All right. And this -- you haven't produced the
13 patent application for the U.S., for some reason,
14 but this is the one that was filed in Canada and
15 the same time; is that correct?
16 A No.
17 Q Within a few days?
18 A Yes. And they were not the same.
19 Q Well, they didn't end up the same, I think.
20 A They were not the same at the time. They were
21 different claims.
22 Q Well, why can't you produce the one that you say
23 is a new process here?
24 A It --. As I said previously, it has not been
25 published.
26 Q Okay.
27 A We are --
28 Q You say --
29 A We are protecting our interests for further
30 filings of continuations on that patent.
31 Q Okay. You say this new process was, I think you
32 say, commenced in the Corinth -- developed in
33 the -- at the Corinth plant and further developed
34 at the Brampton and Hamilton plant. That's
35 paragraph 8.
36 A Yes. I'm sorry, I --. In my affidavit, yes.
37 Q Okay. And it's a totally distinct process from
38 the earlier process; is that right? Paragraph 8.
39 A Yes. Yes, that's correct.
40 Q Have you read Mr. Branconnier's affidavit?
41 A I said I had not earlier.
42 Q I was just going to refer you to the date of 16th
43 of January. I take it you haven't?
44 A I said I had not, --
45 Q All right.
46 A -- that's correct, yes.
47 Q That's fine. May you have a look at that,
48 please.
32
1 MR. LUNNY: I hand that up to your lordship.
2 Q Now, in paragraph 5, at the foot of the page, --.
3 Oh, let me just ask you. You're aware that
4 Thermo Master TM, the term Thermo Master TM, is a
5 trademark which is licensed to Trooper
6 Technologies Inc. under the European licensing
7 agreement? You're aware of that, aren't you?
8 A That --. The trademarking of that term, yes.
9 I'm aware of that.
10 Q Okay. So we have no problem, do we, with the
11 fact that Trooper may call its plants Thermo
12 Master TM plants or its process Thermo Master TM
13 process, correct? It's licensed to do so.
14 A It's licensed to use those terms.
15 Q Right. Okay. So --
16 A Not --
17 Q So look at paragraph 5 of Mr. Branconnier's
18 affidavit. He says, "The Thermo Master TM
19 process has remained essentially unchanged since
20 the first decision was taken to proceed on a
21 commercial scale with the development of Thermo
22 Master TM plants, and the process which was
23 contracted to be provided to the plaintiffs
24 pursuant to the Eastern European Licensing
25 Agreement has been fully and completely
26 satisfied."
27 Do you see that?
28 A I see it. Yes.
29 THE COURT: Which paragraph, Mr. Lunny?
30 MR. LUNNY: Paragraph 5, at the foot of page -- the
31 first page of tab 5, my lord.
32 THE COURT: Oh, tab 5? I'm sorry. Thank you.
33 MR. LUNNY:
34 Q So you say it's a new process, distinct from the
35 original process, and Mr. Branconnier says it's
36 essentially unchanged. Which is it?
37 MR. BOWES: Well, my lord, --
38 A The --
39 MR. BOWES: -- I must object to that question, because
40 my friend is putting a paragraph of
41 Mr. Branconnier's affidavit to him in the context
42 of his own cross-examination and is --
43 MR. LUNNY: What's wrong with that?
44 MR. BOWES: -- and is misleading this witness as to
45 the reference to the word "process" in
46 Mr. Branconnier's affidavit, which is a specific
47 reference to a specific process, and attempting
48 to confuse this witness by that question as a
33
1 result of his last evidence on the last
2 cross-examination regarding a different process.
3 I think that's unfair, and I object.
4 THE COURT: Proceed, Mr. Lunny.
5 MR. LUNNY: Thank you.
6 Q Let's go to, if I might, paragraph 12. Please
7 read that.
8 A I'm sorry, where are you?
9 Q Page 2 of --
10 A Of?
11 Q Of Mr. Branconnier's affidavit, paragraph 12. He
12 says that, in further response to paragraph 6(a),
13 "Although, there have been some significant
14 engineering upgrades to the standard Thermo
15 Master TM plant, the heart of the system, namely
16 the aerobic thermophilic microbial fermentation
17 or Thermo Master TM process is totally reliable
18 and has remained essentially unchanged since the
19 decision was taken to proceed to commercial scale
20 with this process."
21 Well, is it unchanged or is it totally
22 distinct?
23 A I can't answer for precisely what Mr. Branconnier
24 meant in this statement. I can tell you what our
25 new patented -- what we call Thermo Master TM
26 Mark II process actually consists of and how
27 that's different.
28 Q No, but your evidence is it's completely changed;
29 it's --
30 A Yes.
31 Q All right. Now, you say, sir, do you not, -- and
32 this is paragraph 14, of your affidavit, --
33 A Yes.
34 Q -- that the Dick Engineering drawings referred to
35 in the 1997 SE filing and the recent company's
36 executive summary are drawings that specifically
37 relate to the new process, now approved for
38 patent. Do you see that?
39 A Yes.
40 Q Have you reviewed those drawings --
41 A I have --
42 Q -- yourself?
43 A I have reviewed the drawings as we've gone. I
44 have been involved in the process of advising the
45 engineer what was required.
46 Q Did you review them prior to swearing this
47 affidavit?
48 A I did not review them prior to that, no.
34
1 Q Well, you have reviewed them in order to form
2 this opinion?
3 A I have been party to the entire process, yes.
4 Q You have reviewed them to form this opinion,
5 obviously, correct?
6 A Yes.
7 Q Right. Would you produce them, please?
8 A No. I don't have them with me.
9 Q All right. Now, the design criteria manual
10 that's been referred to -- and those are these
11 two booklets here, these two thick booklets. Are
12 you familiar with those?
13 A Yes, I am.
14 Q Which process do they describe in terms of what
15 the plaintiff is entitled to get? Do they
16 describe the Coulthard process or some other
17 process? What is it?
18 A They describe, as listed in the licence, the
19 Coulthard process relating to the four patents,
20 the four patents named -- named by number.
21 Q Are they named in here? In these booklets?
22 You've read the design criteria manual?
23 A Yes. I don't recall whether they are precisely
24 named, but that is the process that's described.
25 Q Well, how is it that they have heating coils as
26 part of the equipment?
27 A To maintain the temperature.
28 Q That's not described in the Coulthard process.
29 That's excluded in the Coulthard process, is it
30 not?
31 A I don't understand your point. It's in one of
32 the patents.
33 Q All right. Now, is it the case that from your
34 evidence, Corinth, Brampton and these other
35 plants turned out not to have been constructed
36 pursuant to the design criteria manual?
37 A The design criteria manual refers specifically to
38 the process.
39 Q Okay. Let me just repeat my question: Is it
40 your evidence that the Corinth, Brampton and
41 Hamilton plants were not constructed pursuant to
42 this design criteria manual?
43 A That would be correct, yes.
44 Q Okay. Maybe you can look at paragraph 22 of
45 Mr. Branconnier's affidavit, the bottom of the
46 page, because he says, "The Corinth, Brampton and
47 Hamilton plants were all constructed pursuant to
48 the design criteria manual prepared by Stothert
35
1 Engineering."
2 Do you see that, sir?
3 A I do.
4 Q Which one is it? Is it your version or his?
5 Which one's the case?
6 A Well, as I've previously said, first, I have not
7 seen this, and secondly, I do not know precisely
8 what Mr. Branconnier was referring to. This is a
9 complex issue, and I will simply make my own
10 statement.
11 Q All right. Is there any plant now employing the
12 patented processes previously owned by the
13 company that you have described as the ones under
14 the European licence agreement?
15 A No.
16 Q All right. So you're saying that Thermo Tech is
17 now operating plants without utilizing any of the
18 patented processes; is that correct?
19 A Well, I'll answer that, if you will specifically
20 define what you mean by "the patented processes."
21 Because I think we have a difference of opinion
22 there.
23 Q Okay. Well, leaving aside May 8th, when this
24 letter from your patent attorney appeared, let's
25 say that I'm asking this question on January 20th
26 or earlier. Are you saying that Thermo Tech's
27 plants were operating without utilizing any of
28 the patented processes?
29 A The previously patented? I want to be clear
30 because --
31 Q I understand.
32 A -- it is a very specific technical point.
33 Q The previously --
34 MR. BOWES: Well, let him answer it.
35 MR. LUNNY:
36 Q Okay. What is the problem you have, sir? I just
37 want to clarify that. Either you have a patent
38 or you don't, or there's a patent pending.
39 A Exactly. There was a patent pending.
40 Q All right. A patent pending is not a patented
41 process, correct? You don't have a patent for
42 it, correct?
43 A Correct. It's --
44 Q All right. So as of January 20th, 1998, you'll
45 agree with me, I think, that Thermo Tech's plants
46 were operating without any patented process in
47 the operation, because it only had the four,
48 didn't it? And they weren't being employed?
36
1 A That's correct. The four, and those that we had
2 applied for the basis of our work, yes.
3 Q All right. So the statements that the Thermo
4 Tech plants were utilizing the patented processes
5 in their operations, -- and I can refer you to
6 some of them, but -- that's not the case, is it?
7 That's not true? Your plants weren't using your
8 patents, correct?
9 A Our plants in operation were employing material
10 that was pending, and I think you'll find that
11 there's a number of references to that.
12 Q Yes. Okay. So let me get that again. That's
13 fine. You were applying the new process, which
14 had not received patent protection at that time,
15 correct?
16 A Correct. And we had to be careful, because of
17 patent rules, regulations, laws, how we referred
18 to that.
19 Q Okay. I just want to make sure that we've got it
20 clear that none of the Thermo Tech plants were
21 operating in accordance with the patents that you
22 had already obtained, correct?
23 A At January 20th, you mean?
24 Q Sure.
25 A Well, pick a date. I -- you've asked --
26 Q I've said January 20th.
27 A Yes.
28 Q You agree with that?
29 A Yes.
30 Q How come this new patent appears to be owned by
31 you and two other individuals and not the company
32 at all?
33 A Patents are filed in the name of -- of the
34 inventors.
35 Q So the company doesn't own this patent?
36 A The patents are assigned according to a later
37 process.
38 Q I'm sorry. A later process? Is that what you
39 said? I'm sorry, I just missed it. Later
40 process?
41 A Yes.
42 Q Because as of right --
43 A A patent can remain in the hands of an inventor
44 forever.
45 Q I wonder if you can go to tab 7 of the book that
46 I've given to you. And maybe you don't --.
47 You've mentioned the Corinth plant, et cetera.
48 And this is a news release of April 22, 1993. Do
37
1 you see that? Tab 7 of the --
2 A Um-hum.
3 Q -- buff book. The buff book. And that deals
4 with the Corinth plant, and it refers to a
5 licence agreement being granted to a company, and
6 the agreements include a licence for the use of
7 the company's patented thermophilic technology.
8 That would be the same technologies under the
9 Eastern European Licensing Agreement at that
10 time, wouldn't it?
11 A I can't comment. I was in Europe serving as a
12 diplomat at the time and was not part of the
13 company.
14 Q When was the proposal for the Brampton plant
15 first announced; do you know?
16 A The proposal for -- to actually construct?
17 Q Yes.
18 A No, I don't know.
19 Q Maybe --. Maybe if you'll look at tab 10, that
20 might assist you.
21 Okay.
22 A Um-hum.
23 Q That deals with a letter of intent, and I'm just
24 going to read you the second --. This is July
25 21, 1993.
26 A Correct.
27 Q And the proposal is to construct a 125-ton per
28 day plant using -- utilizing TTR -- TTR's
29 patented thermophilic digestion process. And
30 again, at that time, that would be the European
31 Licence Agreement patents, wouldn't it?
32 A I can't comment on that. As I said, I was not
33 with the company at the time, so I would be
34 speculating on what that would be.
35 Q Hamilton is another plant. Do you know which
36 engineering firm designed the Hamilton plant?
37 A I know which firm was involved.
38 Q And which --
39 A Again, you're going into the time period where I
40 was not with the company at the point of the
41 question you're asking.
42 Q Okay. Lastly, you refer in paragraph 17 -- and I
43 hate to have taken up so much of your time, but
44 in paragraph 17, you refer to the affidavit of
45 Mr. Lis sworn January 14th, 1998. Do you see
46 that in your own affidavit?
47 A Yes.
48 Q So I take it, at least, you referred to -- you
38
1 read Mr. Lis's affidavit, at least insofar as the
2 exhibit that you've referred to there; is that
3 right? The form 6 KSEC report. I think it bears
4 your signature.
5 A Yes. Yes.
6 Q Okay.
7 A I have --. My reference there is to being
8 familiar with the form. And you're quite right,
9 I believe my signature is on it.
10 Q Okay. Any of these forms with your signature,
11 the contents would be true, would they not?
12 A As --. Yes, of course.
13 Q Those are my questions, my lord.
14 MR. BOWES: I have nothing in redirect, my lord.
15 THE COURT: Thank you, Mr. Cumming.
16
17 (WITNESS EXCUSED)
18 |
