Selected transcript passage by Micki_Mouse on Yahoo! from the TTRIF-TPP battles. Just a reminder that Mr. Lunny is Trooper's counsel, while it is Dr. Cumming who answers. Mr. Bowes is Thermo Tech's counsel. It's a long read, but a fun one at the same time.
I wonder what he meant by "truth" and "facts" in his post on Yahoo! -- since the transcripts show that he and Rene couldn't even agree on one set of "truths".
With this testimony, I do not understand how he can even talk with any sense of moral authority on issues of the "truth" since contradicts Thermo Tech's fundamental stance in the issue under oath. Also within this testimony, Dr. Cumming notes that heating is used within in the Thermo Tech process -- hence the belief by many that Thermo Tech's process is nothing more than a glorfied rendering facility.
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MR. LUNNY: The nature of the cross-examination, my lord, will be such that I will be delving into matters where I will suggest will show that the evidence of Mr. Cumming is not consistent with the evidence given by Mr. Lewis already in his affidavit and, therefore, is a very strong basis for suggesting that exclusion is appropriate in those circumstances.
Q Do you have standard certified engineering specifications, including drawings, prepared for you by Dick Engineering?
A Not in respect to this particular process described, no.
Q All right. Regarding thermophilic plants?
A Regarding the Thermo Master TM Mark II plant, yes, sir, we do.
Q Is that a thermophilic plant?
A It is a Thermo Master TM Mark II plant.
Q Is the Thermo Master TM Mark II plant a thermophilic plant?
A It is a comprehensive package of technologies that we market under that term, in which we conduct a form of thermophilic processing.
Q Which means it's a thermophilic plant, isn't it?
A If that's what you wish to describe it as, you may do so. We describe it very specifically for very specific reasons, which I also have filed an affidavit to explain.
Q And we'll get to your other affidavit in a moment.
A Fine. I'm sure.
Q Okay. So if I may call a thermophilic plant, you'll understand what I'm referring to?
A I will understand what you're referring to.
Q Okay. So you've got the Dick Engineering drawings. You have drawings from Stanley Engineering, do you not?
A We do.
Q You have drawings from other engineers, also, do you not?
A Yes. Yes.
Q What other engineers?
Q Okay. Sandwell Inc., did you get engineering -- standard certified engineering specifications from Sandwell Inc.?
A I don't know, and I don't understand.
Q What is the difference between this process and the old process?
A There are at least five --
Q Well, what's the main one?
A -- major differences. It's not a matter of the main one. It's a body of information that is judged to be significantly different.
Q Okay. Well, let's just take -- let's go perhaps to the core. Are you saying -- this is the company you --
A Yes.
Q -- that all that Trooper got was the process as claimed in the patents that are referred to in the European licensing agreement?
A As described in the patents.
Q Okay. You know the difference between claimed and described?
A I certainly do, and that's why I used the term described.
Q And described is much broader than claimed, is it not?
A It's different.
Q Okay.
A I would not say it's broader.
Q All right. Let me suggest to you, and you tell me if I'm wrong, because you're familiar with these patents, in the -- if you take the two patents that are described in the licensing agreement, they refer to a thermophilic digestion process which may or may not have inoculation and may or may not have external heat sources, correct?
A There --. There are broad references in that way. Those are specifically areas that are different.
Q Okay. What's the difference?
A Different between now and then?
Q Yes. Because there need not be inoculation in the earlier ones and there could be a heat source, right?
A The earlier ones refer to heating only in the sense of bringing the original mass to a temperature -- they specifically speak of weather, and they talk of bringing it to a temperature where a sequence of bacterial fermentations can begin. So our new approach is quite different from that. It bypasses that entire process.
Q Okay. But --
A And that was found to be different.
Q -- the second patent doesn't -- the second patent of 1992 doesn't talk about that at all. It simply says external heat may be applied and used, correct?
A I don't --. What are you referring to in the second patent? What --
Q Well, have you read them?
A Yes. Not cover to cover in the last few days, but I don't know what you mean by the second patent.
Q Okay.
A There are four patents.
Q Well, two of them are essentially the --. There's four patents. One is in the U.S./Canada, and the other is U.S./Canada.
A Yes. I'm not arguing that, but I don't know which one --
Q I understand.
A -- you're referring to.
Q Okay. Well, I've got a little booklet here, and I want you to have a look at that. This is a brief for cross-examination.
A Um-hum.
Q Okay. You say this new process was, I think you say, commenced in the Corinth -- developed in the -- at the Corinth plant and further developed at the Brampton and Hamilton plant. That's paragraph 8.
A Yes. I'm sorry, I --. In my affidavit, yes.
Q Okay. And it's a totally distinct process from the earlier process; is that right? Paragraph 8.
A Yes. Yes, that's correct.
Q Have you read Mr. Branconnier's affidavit?
A I said I had not earlier.
Q I was just going to refer you to the date of 16th of January. I take it you haven't?
A I said I had not, --
Q All right.
A -- that's correct, yes.
Q That's fine. May you have a look at that, please.
MR. LUNNY: I hand that up to your lordship.
Q Now, in paragraph 5, at the foot of the page, --. Oh, let me just ask you. You're aware that Thermo Master TM, the term Thermo Master TM, is a trademark which is licensed to Trooper Technologies Inc. under the European licensing agreement? You're aware of that, aren't you?
A That --. The trademarking of that term, yes. I'm aware of that.
Q Okay. So we have no problem, do we, with the fact that Trooper may call its plants Thermo Master TM plants or its process Thermo Master TM process, correct? It's licensed to do so.
A It's licensed to use those terms.
Q Right. Okay. So --
A Not --
Q So look at paragraph 5 of Mr. Branconnier's affidavit. He says, "The Thermo Master TM process has remained essentially unchanged since the first decision was taken to proceed on a commercial scale with the development of Thermo Master TM plants, and the process which was contracted to be provided to the plaintiffs pursuant to the Eastern European Licensing Agreement has been fully and completely satisfied." Do you see that?
A I see it. Yes.
Q So you say it's a new process, distinct from the
original process, and Mr. Branconnier says it's
essentially unchanged. Which is it?
MR. BOWES: Well, my lord, --
A The --
MR. BOWES: -- I must object to that question, because my friend is putting a paragraph of Mr. Branconnier's affidavit to him in the context of his own cross-examination and is --
MR. LUNNY: What's wrong with that?
MR. BOWES: -- and is misleading this witness as to the reference to the word "process" in Mr. Branconnier's affidavit, which is a specific reference to a specific process, and attempting to confuse this witness by that question as a result of his last evidence on the last cross-examination regarding a different process. I think that's unfair, and I object.
THE COURT: Proceed, Mr. Lunny.
MR. LUNNY: Thank you.
Q Let's go to, if I might, paragraph 12. Please read that.
A I'm sorry, where are you?
Q Page 2 of --
A Of?
Q Of Mr. Branconnier's affidavit, paragraph 12. He says that, in further response to paragraph 6(a), "Although, there have been some significant engineering upgrades to the standard Thermo Master TM plant, the heart of the system, namely the aerobic thermophilic microbial fermentation or Thermo Master TM process is totally reliable and has remained essentially unchanged since the decision was taken to proceed to commercial scale with this process." Well, is it unchanged or is it totally distinct?
A I can't answer for precisely what Mr. Branconnier meant in this statement. I can tell you what our new patented -- what we call Thermo Master TM Mark II process actually consists of and how that's different.
Q No, but your evidence is it's completely changed; it's --
A Yes.
Q All right. Now, you say, sir, do you not, -- and this is paragraph 14, of your affidavit, --
A Yes.
Q -- that the Dick Engineering drawings referred to in the 1997 SE filing and the recent company's executive summary are drawings that specifically relate to the new process, now approved for patent. Do you see that?
A Yes.
Q Have you reviewed those drawings --
A I have --
Q -- yourself?
A I have reviewed the drawings as we've gone. I have been involved in the process of advising the engineer what was required.
Q Did you review them prior to swearing this affidavit?
A I did not review them prior to that, no.
Q Well, you have reviewed them in order to form this opinion?
A I have been party to the entire process, yes.
Q You have reviewed them to form this opinion, obviously, correct?
A Yes.
Q Right. Would you produce them, please?
A No. I don't have them with me.
Q All right. Now, the design criteria manual that's been referred to -- and those are these two booklets here, these two thick booklets. Are you familiar with those?
A Yes, I am.
Q Which process do they describe in terms of what the plaintiff is entitled to get? Do they describe the Coulthard process or some other process? What is it?
A They describe, as listed in the licence, the Coulthard process relating to the four patents, the four patents named -- named by number.
Q Are they named in here? In these booklets? You've read the design criteria manual?
A Yes. I don't recall whether they are precisely named, but that is the process that's described.
Q Well, how is it that they have heating coils as part of the equipment?
A To maintain the temperature.
Q That's not described in the Coulthard process. That's excluded in the Coulthard process, is it not?
A I don't understand your point. It's in one of the patents.
Q All right. Now, is it the case that from your evidence, Corinth, Brampton and these other plants turned out not to have been constructed pursuant to the design criteria manual?
A The design criteria manual refers specifically to the process.
Q Okay. Let me just repeat my question: Is it your evidence that the Corinth, Brampton and Hamilton plants were not constructed pursuant to this design criteria manual?
A That would be correct, yes.
Q Okay. Maybe you can look at paragraph 22 of Mr. Branconnier's affidavit, the bottom of the page, because he says, "The Corinth, Brampton and Hamilton plants were all constructed pursuant to the design criteria manual prepared by Stothert Engineering." Do you see that, sir? Which one is it? Is it your version or his? Which one's the case?
A Well, as I've previously said, first, I have not seen this, and secondly, I do not know precisely what Mr. Branconnier was referring to. This is a complex issue, and I will simply make my own statement.
Q All right. Is there any plant now employing the patented processes previously owned by the company that you have described as the ones under the European licence agreement?
A No.
Q All right. So you're saying that Thermo Tech is now operating plants without utilizing any of the patented processes; is that correct?
A Well, I'll answer that, if you will specifically define what you mean by "the patented processes." Because I think we have a difference of opinion there.
Q Okay. Well, leaving aside May 8th, when this letter from your patent attorney appeared, let's say that I'm asking this question on January 20th or earlier. Are you saying that Thermo Tech's plants were operating without utilizing any of the patented processes?
A The previously patented? I want to be clear because --
Q I understand.
A -- it is a very specific technical point.
Q The previously --
MR. BOWES: Well, let him answer it.
MR. LUNNY: Q Okay. What is the problem you have, sir? I just want to clarify that. Either you have a patent or you don't, or there's a patent pending.
A Exactly. There was a patent pending.
Q All right. A patent pending is not a patented process, correct? You don't have a patent for it, correct?
A Correct. It's --
Q All right. So as of January 20th, 1998, you'll agree with me, I think, that Thermo Tech's plants were operating without any patented process in the operation, because it only had the four, didn't it? And they weren't being employed?
A That's correct. The four, and those that we had applied for the basis of our work, yes.
Q All right. So the statements that the Thermo Tech plants were utilizing the patented processes in their operations, -- and I can refer you to some of them, but -- that's not the case, is it? That's not true? Your plants weren't using your patents, correct?
A Our plants in operation were employing material that was pending, and I think you'll find that there's a number of references to that.
Q Yes. Okay. So let me get that again. That's fine. You were applying the new process, which had not received patent protection at that time, correct?
A Correct. And we had to be careful, because of patent rules, regulations, laws, how we referred to that.
Q Okay. I just want to make sure that we've got it clear that none of the Thermo Tech plants were operating in accordance with the patents that you had already obtained, correct?
A At January 20th, you mean?
Q Sure.
A Well, pick a date. I -- you've asked --
Q I've said January 20th.
A Yes.
Q You agree with that?
A Yes.
Q How come this new patent appears to be owned by you and two other individuals and not the company at all?
A Patents are filed in the name of -- of the inventors.
Q So the company doesn't own this patent?
A The patents are assigned according to a later process. |
