Flint Hills Scientific v. Davidchack

Full title: FLINT HILLS SCIENTIFIC, LLC, Plaintiff, V., RUSLAN L. DAVIDCHACK…

Court: United States District Court, D. Kansas

Date published: Dec 3, 2001

No. 00-2334-KHV (D. Kan. Dec. 3, 2001)

Opinion

No. 00-2334-KHV

December 3, 2001

Scott J. Bloch, Webster L. Golden and Bradley R. Finkeldei, STEVENS BRAND, L.L.P., Lawrence, KS for Plaintiff

Sam L. Colville, Kelly J.H. Clark, and Stephen B. Homer, Overland Park, Kansas for Defendant

Floyd R. Finch, Jr., George A. Hanson and Julie R. Somora, Blackwell Sanders Peper Martin LLP, Kansas City for Defendant Intervenor

ORDER

DAVID WAXSE, Magistrate Judge

During a telephone status conference held on August 30, 2001, the Court notified the parties of its intention to appoint an expert to assist the Court in this matter. In an Order dated August 31, 2001 (doc. 93), the Court thereafter ordered the parties to submit two nominations for such appointment. Upon review of the nominations submitted, the Court hereby notifies the parties of its intention to appoint Professor Alan Conrad Bovik as a technical advisor to the Court in this matter.

To that end, the Court attaches to this Order Dr. Bovik's curriculum vitae, a proposed Memorandum and Order for the Engagement of Dr. Alan Conrad Bovik as Technical Advisor and a proposed Affidavit of Engagement to be signed by Professor Bovik. The Court invites the parties to submit written comments regarding Dr. Bovik's curriculum vitae, the proposed Memorandum and Order and the proposed Affidavit of Engagement. Any such comments shall be submitted directly to chambers on or before Monday, December 10, 2001 If no comments are received by this deadline, the Court will submit the Affidavit of Engagement to Dr. Bovik for execution and thereafter enter the Memorandum and Order appointing Professor Bovik as technical advisor.

IT IS SO ORDERED.

CURRICULUM VITAE PROFESSOR ALAN CONRAD BOVIK

Biographical Sketch Alan Conrad Bovik received the B.S. degree in Computer Engineering in 1980, and the M.S. and Ph.D. degrees in Electrical and Computer Engineering in 1982 and 1984, respectively, all from the University of Illinois, Urbana — Champaign.

He is currently the Robert Parker Centennial Professor in the Department of Electrical and Computer Engineering, the Department of Computer Sciences, and the Biomedical Engineering Program at the University of Texas at Austin, where he is the Associate Director of the Center for Vision and Image Sciences. During the Spring of 1992, he held a visiting position in the Division of Applied Sciences, Harvard University, Cambridge, Massachusetts. His current research interests include digital video, image processing, computer vision, wavelets, three — dimensional microscopy, and computational aspects of biological visual perception. He has published over 300 technical articles in these areas and holds two U.S. patents. He is also the editor/author of the Handbook of Image and Video Processing, published by Academic Press in April of 2000.

Dr. Bovik was named Distinguished Lecturer of the IEEE Signal Processing Society in 2000, received the IEEE Signal Processing Society Meritorious Service Award in 1998, the IEEE Third Millennium Medal in 2000, the University of Texas Engineering Foundation Halliburton Award and is a two — time Honorable Mention winner of the international Pattern Recognition Society Award for Outstanding Contribution (1988 and 1993). He is a Fellow of the IEEE and has been involved in numerous professional society activities, including: Board of Governors, IEEE Signal Processing Society, 1996-1998, Editor — in — Chief, IEEE Transactions on Image Processing, 1996 — present; Editorial Board, The Proceedings of the IEEE, 1998 — present, Editorial Board, Real — Time Imaging, 2000 — present, Editorial Board, Pattern Analysis and Applications, 1997-1998; Area Editor, Graphical Models and Image Processing, 1995-1998; Associate Editor, IEEE Signal Processing Letters, 1993-1995; Associate Editor, IEEE Transactions on Signal Processing, 1989-1993; Editorial Board, Pattern Recognition, 1988 — present; Editorial Board, Journal of Visual Communication and Image Representation, 1992-1995; Steering Committee, IEEE Transactions on Image Processing, 1991-1995; and Founding General Chairman, First IEEE International Conference on Image Processing, held in Austin, Texas, in November, 1994,

Dr. Bovik is a registered Professional Engineer in the State of Texas and is a frequent consultant t industry and academic institutions.

Journal Publications

1. A.C. Bovik, T.S. Huang and D.C. Munson, "A generalization of median filtering using linear combinations of order statistics," IEEE Transactions on Acoustics, Speech, and Signal Processing, vol. ASSP-31, no. 6, pp. 1342-1350, December 1983.

2. A.C. Bovik, T.S. Huang and D.C. Munson, "Edge — sensitive image restoration using order — constrained least — squares methods," IEEE Transactions on Acoustics, Speech, and Signal Processing, vol. ASSP-33, no. 4, pp. 1253-1263, October 1985.

3. A.C. Bovik and D.C. Munson, "Edge detection using median comparisons," Computer Vision, Graphics, and Image Processing, vol. 33, pp. 377-389, March 1986.

4. A.C. Bovik, T.S. Huang and D.C. Munson, "Nonparametric tests for edge detection in noise," Pattern Recognition, vol. 19, No. 3, pp. 209-219, 1986.

5. A.C. Bovik and D.C. Munson, "Optimal detection of object boundaries in uncorrelated speckle," Optical Engineering, vol. 25, no. 11, pp. 1246-1252, November 1986.

6. J.K. Aggarwal, K.R. Diller and A.C. Bovik, "Computer vision and image processing research at the University of Texas at Austin," Image and Vision Computing, vol. 4, no. 4, pp. 219-222, November 1986.

7. A.C. Bovik, T.S. Huang and D.C. Munson, "The effect of median filtering on edge estimation and detection," IEEE Transactions on Pattern Analysis and Machine Intelligence, vol. PAMI-9, no. 2, pp. 181-194, March 1987.

8. A.C. Bovik, "Streaking in median filtered images," IEEE Transactions on Acoustics, Speech, and Signal Processing, vol. ASSP-35, no. 4, pp. 493-503, April 1987.

9. N.H. Kim, A.B. Wysocki, A.C. Bovik and K.R. Diller, "A microcomputer — based vision system for area measurement," Computers in Biology and Medicine, vol. 17, no. 3, pp. 173-183, June 1987.

10. A.C. Bovik and A. Restrepo, "Spectral properties of moving L — estimates of independent data sequences," Journal of the Franklin Institute, vol. 324, no. 1, pp. 125-137, 1987.

11. M. Clark, A.C. Bovik and W.S. Geisler, "Texture segmentation using Gabor modulation/ demodulation," Pattern Recognition Letters, vol. 6, pp. 261-267, September 1987.

12. J.R. Jordan and A.C. Bovik, "Computational stereo using color," Cover Paper of Special Issue on Machine Vision and Image Understanding, IEEE Control Systems Magazine, vol. 8, no. 3, pp. 31-36, June 1988.

13. F. Maci as — Garza, A.C. Bovik and K.R. Diller, "Missing cone of frequencies and low — pass distortion in 3-D microscopic images," Optical Engineering, vol. 27, no. 6, pp. 461-465, June 1988.

14. S.H. Kim, K.T. Park and A.C. Bovik, "Recognition of Korean isolated digits using a pole — zer model, " Journal of the Korean Acoustical Society, vol. 25, no. 4, pp. 356-365, June 1988.

15. F. Macias — Garza, A.C. Bovik, K.R. Diller, S.J. Aggarwal and J.K. Aggarwal, "Digital reconstruction of three — dimensional serially sectioned optical images," IEEE Transactions on Acoustics, Speech, and Signal Processing, vol. ASSP-36, no. 7, pp. 1067-1075, July 1988.

16. A. Restrepo, and A.C. Bovik, "On the generation of random numbers from heavy — tailed distributions," Proceedings of the IEEE, vol. 76, no. 7, pp. 838-840, July 1988.

17. A. Restrepo and A.C. Bovik, "Adaptive trimmed mean filters for image restoration," IEEE Transactions on Acoustics, Speech, and Signal Processing, vol. ASSP-36, no. 8, pp. 1326-1337 August 1988.

18. C.C. Chu and A.C. Bovik, "Visible surface reconstruction via local minimax approximation," Pattern Recognition, vol. 21, no. 4, pp. 303-312, 1988.

19. A.C. Bovik, "On detecting edges in speckle imagery," IEEE Transactions on Acoustics, Speech, and Signal Processing, vol. ASSP-36, no. 10, pp. 1618-1627, October 1988.

20. N.H. Kim and A.C. Bovik, "A contour — based stereo matching algorithm using disparity continuity," Pattern Recognition, vol. 21, no. 5, pp. 505-514, 1988.

21. D.D. Kerrick and A.C. Bovik, "Microprocessor — based recognition of handprinted characters from a tablet input," Pattern Recognition, vol. 21, no. 5, pp. 525-537, 1988.

22. H.G. Longbotham and A.C. Bovik, "Theory of order statistic filters and their relationship to linear FIR filters," IEEE Transactions on Acoustics, Speech, and Signal Processing, vol. ASSP-37, no. 2, pp. 275-287, February 1989.

23. H.G. Longbotham and A.C. Bovik, "Comments on The analog median filter'," IEEE Transactions on Circuits and Systems, vol. CAS-36, no. 2, p. 310, February 1989.

24. N.H. Kim, SJ. Aggarwal, A.C. Bovik, K.R. Diller and J.K. Aggarwal, "Stereoscopic analysis of shape changes in solanum tuberosa slices under osmotic shock," European Journal of Cell Biology, vol. 48, pp. 21-24, 1989.

25. F. Macias — Garza, K.R. Diller, A.C. Bovik, S.J. Aggarwal and J.K. Aggarwal, "Improvement in the resolution of 3D data sets collected using optical serial sectioning," Journal of Microscopy, Special Issue on 3-D Microscopy, vol. 153, no. 2, pp. 205-221, February 1989.

26. J.Y. Jou and A.C. Bovik, "Improved initial approximation and intensity — guided discontinuity detection in visible — surface reconstruction," Computer Vision, Graphics, and Image Processing, vol. 47, pp. 292-326, August 1989.

27. L. Naaman and A.C. Bovik, "Least — squares order statistic filters with coefficient censoring," Signal Processing, vol. 18, no. 2, pp. 139-152, October 1989.

28. F. Maci as — Garza, K.R. Diller, A.C. Bovik, S.J. Aggarwal and J.K. Aggarwal, "Obtaining a solid model from optical serial sections," Pattern Recognition, vol. 22, no. 5, pp. 577-586, 1989.

29. M. Clark and A.C. Bovik, "Experiments in segmenting texton patterns using localized spatial filters," Pattern Recognition, vol. 22, no. 6, pp. 707-717, 1989.

30. A.C. Bovik, M. Clark and W.S. Geisler, "Multichannel texture analysis using localized spatial filters," IEEE Transactions on Pattern Analysis and Machine Intelligence, vol. PAMI-12, no. 1, pp 55-73, January 1990.

31. N.H. Kim, A.C. Bovik and S.J. Aggarwal, "Shape description of biological objects via stereo light microscopy," IEEE Transactions on Systems, Man, and Cybernetics, vol. SMC-20, no. 2, pp. 475-489, March/April 1990.

32. N.H. Kim, S.J. Aggarwal, A.C. Bovik and K.R. Diller, "3-D model of vascular network in rat skin obtained by stereo vision techniques," Journal of Microscopy, Special Issue on 3-D Microscopy, vol. 154, no. 4, pp. 275-284, May 1990.

33. R.A. Brooks and A.C. Bovik, "Robust techniques for edge detection in multiplicative Weibull image noise," Pattern Recognition, vol. 23, no. 10, pp. 1047-1057, October 1990.

34. J.R. Jordan, W.S. Geisler and A.C. Bovik, "Color as a source of information in the stere correspondence process," Vision Research, vol. 30, no. 12, pp. 1955-1970, December 1990.

35. D. Chen and A.C. Bovik, "Visual pattern image coding," IEEE Transactions on Communications, vol. COM-38, no. 12, pp. 2137-2146, December 1990 (winner of 1990 MCC Award for Excellence in Computer Science and Electrical Computer Engineering).

36. S.T. Acton and A.C. Bovik, "Feature classification techniques in model — based object recognition," International Journal of Imaging Systems and Technology, vol. 2, no. 4, pp. 329-344, Winter 1990.

37. C.Y.J. Yip, SJ. Aggarwal, K.R. Diller and A.C. Bovik, "Multiple sites arteriolar vasomotion measurement using digital image analysis," Microvascular Research, vol. 41, pp. 73-83, 1991.

38. L. Naaman and A.C. Bovik, "Least — squares order statistic filters for signal restoration," IEEE Transactions on Circuits and Systems, vol. CAS-38, no. 3, pp. 244-257, March 1991.

39. B.J. Super and A.C. Bovik, "Localized measurement of image fractal dimension using Gabor filters," Journal of Visual Communication and Image Representation, vol. 2, no. 2, pp. 114-128 June 1991.

40. J.R. Jordan and A.C. Bovik, "Using chromatic information in edge — based stereo correspondence," Computer Vision, Graphics, and Image Processing: Image Understanding, vol. 54, no. 1, pp. 98-188, July 1991.

41. A.C. Bovik, "Analysis of multichannel narrowband filters for image texture segmentation," IEEE Transactions on Signal Processing, vol. SP-39, no. 9, pp. 2025-2043, September 1991.

42. A.C. Bovik, "A bound involving n — dimensional instantaneous frequency," IEEE Transactions on Circuits and Systems, vol. CAS-38, no. 11, pp. 1389-1390, November 1991.

43. A. Lee, D.O Wipf, A.J. Bard, K.A. Bartels and A.C. Bovik, "Scanning electrochemical microscopy. 11. Improvement of image resolution by digital processing techniques," Analytic Chemistry, vol. 63, no. 21, pp. 2442-2447, November 1991.

44. A.C. Bovik, "Three — dimensional microscopy," Machine Vision and Applications, volume 4, no. 4, pp. 211-213, Fall 1991.

45. A.C. Bovik, N. Gopal, T. Emmoth and A. Restrepo, "Localized measurement of emergent image frequencies by Gabor wavelets," Special Issue on Wavelet Transforms and Multiresolution Signal Analysis, IEEE Transactions on Information Theory, vol. IT-38, no. 3, pp. 691-712, March 1992.

46. A.C. Bovik, "Integral inequality bounding the weighted absolute deviation of an n — dimensional function," IEEE Transactions on Signal Processing, vol. SP-40, no. 4, pp. 973-975, April 1992.

47. D. Chen and A.C. Bovik, "Hierarchical visual pattern image coding," IEEE Transactions on Communications, vol. COM-40, no. 4, pp. 671-675, April 1992.

48. J.R. Jordan and A.C. Bovik, "Using chromatic information in dense stereo correspondence," Pattern Recognition, vol. 25, no. 4, pp. 367-383, April 1992.

49. K.A. Bartels, R.H. Crawford, S. Das, S. Guduri, A.C. Bovik, K.R. Diller and SJ. Aggarwal, "Fabricating macroscopic solid models of microscopic data by selective laser sintering," Journal o Microscopy, Special Issue on 3-D Microscopy, vol. 169, no. 3, pp. 383-389, March 1993.

50. F.A. Merchant, S.J. Aggarwal, K.R. Diller, K.A. Bartels, and A.C. Bovik, "3-D distribution of damaged cells in cryopreserved pancreatic islets as determined by laser scanning confocal microscopy," Journal of Microscopy, Special Issue on 3-D Microscopy, vol. 169, no. 3, pp. 329-338, March 1993.

51. K.A. Bartels, A.C. Bovik, S.J. Aggarwal and K.R. Diller, "The analysis of biological shape changes from multi — dimensional dynamic images," Journal of Computerized Medical Imaging and Graphics, 50. vol. 17, no. 2, pp. 89-99, May 1993.

52. P.L. Silsbee, A.C. Bovik and D. Chen, "Visual pattern image sequence coding," IEEE Transactions on Circuits and Systems for Video Technology, vol. CAS-VT-3, no. 4, pp. 291-301, August 1993.

53. A. Restrepo and A.C. Bovik, "Locally monotonic regression," IEEE Transactions on Signal Processing, vol. ASSP-41, no. 9, pp. 2796-2810, September 1993.

54. A.C Bovik, P. Maragos and T.F. Quatieri, "AM — FM energy detection and separation in noise using multiband energy operators," IEEE Transactions on Signal Processing, Special Issue on Wavelets and Signal Processing, vol. ASSP-41, no. 12, pp. 3245-3265, December 1993.

55. A.C. Bovik and P. Maragos, "Conditions for positivity of an energy operator," IEEE Transactions on Signal Processing, vol. ASSP-42, no. 2, pp. 469-471, February 1994.

56. A. Restrepo and A.C. Bovik, "On the statistical optimality of locally monotonic regression," IEEE Transactions on Signal Processing, vol. ASSP-42, no. 6, pp. 1548-1550, June 1994.

57. F.A. Merchant, S.J. Aggarwal, K.R. Diller and A.C. Bovik, "In vivo analysis of angiogenesis and revascularization of transplanted pancreatic islets using confocal microscopy," Journal o Microscopy, Special Issue on 3-D Microscopy, vol. 176, no. 3, pp. 262-275, December 1994.

58. B.J. Super and A.C. Bovik, "Shape from texture using local spectral moments," IEEE Transactions on Pattern Analysis and Machine Intelligence, vol. P AMI-17, no. 4, pp. 333-343, April 1995.

59. B.J. Super and A.C. Bovik, "Planar surface orientation from texture spatial frequencies," Pattern Recognition, vol. 28, no. 5, pp. 729-743, May 1995.

60. P. Maragos and A.C. Bovik, "Image amplitude and frequency demodulation using multidimensional energy separation," Journal of the Optical Society of America, vol. 12, no. 9, pp. 1867-1876 September 1995.

61. S.T. Acton and A.C. Bovik, "Generalized deterministic annealing," IEEE Transactions on Neural Networks, vol. 7, no. 3, pp. 686-699, May 1996.

62. J.P. Havlicek, D.S. Harding and A.C. Bovik, "The multicomponent AM-FM image representation," IEEE Transactions on Image Processing, Special Issue on Nonlinear Image Processing, vol. 6, no. 5, pp. 1094-1100, June 1996.

63. P.L. Silsbee and A.C. Bovik, "Computer lipreading for improved accuracy in automatic speech recognition," IEEE Transactions on Speech and Audio Processing, vol. 4, no. 5, pp. 337-351 September 1996.

64. F.A. Merchant, S.J. Aggarwal, K.R. Diller and A.C. Bovik, "Viability analysis of cryopreserved ra pancreas islets using laser scanning confocal microscopy," Cryobiology, vol. 33, pp. 236-252, 1996.

65. B.S. Barnett and A.C. Bovik, "Motion compensated visual pattern image sequence coding for full motion multisession videoconferencing on multimedia workstations," Journal of Electronic Imaging, Special Issue on Multimedia Systems, vol. 5, no. 2, pp. 129-143, April 1996.

66. A.C. Bovik, J.P. Havlicek, M.D. Desai and D.S. Harding, "Limits on discrete modulated signals," IEEE Transactions on Signal Processing, vol. 45, no. 4, pp. 867-879, April 1997.

67. F.A. Merchant, K.R. Diller, S.J. Aggarwal, and A.C. Bovik, "Angiogenesis in cultured and cryopreserved pancreatic islet grafts," Transplantation, vol. 63, no. 11, pp. 1652-1660, June 1997.

68. H.T. Pai and A.C. Bovik, "Exact multi — channel blind image restoration," IEEE Signal Processing Letters, vol. 4, no. 8, pp. 217-220, August 1997.

69. D. Wei, B.L. Evans and A.C. Bovik, "Loss of perfect reconstruction in multidimensional filter banks and wavelets designed via extended McClellan transformations," IEEE Signal Processing Letters, 68. vol. 4, no. 10, pp. 295-297, October 1997.

70. D. Wei and A.C. Bovik, "On asymptotic convergence of the dual filters associated with two families of biorthogonal wavelets," IEEE Transactions on Signal Processing, vol. 45, no. 12, pp. 2928-2940 December 1997.

71. H.T. Pai, A.C. Bovik and B.L. Evans, "Multichannel blind image restoration," Elektrik, Special Issue on Image Processing, vol. 5, no. 1, pp. 79-97, 1997.

72. D. Wei and A.C. Bovik, "Enhancement of compressed images by optimal shift — invariant wavele packet basis," Journal of Visual Communication and Image Representation, Special issue on High — Fidelity Media Processing, vol. 9, no. 1, pp. 15-24, March 1998.

73. A.C. Bovik and R. Chellappa, "Image analysis and recognition," IEEE Signal Processing Magazine, pp. 33-34, March 1998.

74. D. Wei and A.C. Bovik, "Sampling approximation of smooth functions via generalized coiflets," IEEE Transactions on Signal Processing, Special Issue on Theory and Applications of Filter Banks and Wavelets, vol. 46, no. 4, pp. 1133-1998, April 1998.

75. D. Wei and A.C. Bovik, "On the instantaneous frequencies of multi — component AM — FM signals," IEEE Signal Processing Letters, vol. 5, no. 4, pp. 84-86, April 1998.

76. S.T. Acton and A.C. Bovik, "Nonlinear image estimation using piecewise and local image models," IEEE Transactions on Image Processing, vol 7, no. 7, pp. 979-991, July 1998.

77. D. Wei and A.C. Bovik, "Generalized coiflets with nonzero — centered vanishing moments," IEEE Transactions on Circuits and Systems II: Analog and Digital Signal Processing, Special Issue on Multirate Systems, Filter Banks, Wavelets, and Applications, vol. 45, no. 8, pp. 988-1001, August 1998.

78. C. Yim and A.C. Bovik, "Multiresolution 3-D range segmentation using focus cues," IEEE Transactions on Image Processing, vol. 7, no. 9, pp. 1283-1299, September 1998.

79. W.N. Klarquist and A.C. Bovik, "FOVEA: A foveated, multi — fixation, vergent active stereo system for dynamic three — dimensional scene recovery," IEEE Transactions on Robotics and Automation, vol. 14, no. 5, pp. 755-770, October 1998.

80. J.P. Havlicek, D.S. Harding and A.C. Bovik, "Multicomponent multidimensional signals," Multidimensional Systems and Signal Processing, vol. 9, pp. 391-398, 1998.

81. D. Wei and A.C. Bovik, "Comments on `Subband coding of images using asymmetrical filter banks'," IEEE Transactions on Image Processing, vol. 8, no. 1, pp. 122-124, January 1999.

82. S.T. Acton and A.C. Bovik, "Piecewise and local image models for regularized image restoration using cross — validation," IEEE Transactions on Image Processing, vol. 8, no. 5, pp. 652-665, May 1999.

83. T.Y. Chen, A.C. Bovik and L.K. Cormack, "Stereoscopic ranging by matching image modulations," IEEE Transactions on Image Processing, vol. 8, no. 6, pp. 785-797, June 1999.

84. N. Sidiropoulos, M.S. Pattichis, A.C. Bovik and J.W. Havlicek, "COPERM: Transform — domain energy compaction by optimal permutation," IEEE Transactions on Signal Processing, vol. 47, no. 6, pp. 1679-1688, June 1999.

85. D. Craievich, B.S. Barnett and A.C. Bovik, "A stereo visual pattern image coding system," Image and Vision Computing, vol. 18, pp. 21-37, 1999.

86. S.T. Acton and A.C. Bovik, "Image segmentation by nonlinear locally monotonic reduction," Journal of Applied Signal Processing, vol. 6, pp. 42-54, 1999.

87. J.P. Havlicek, D.S. Harding and A.C. Bovik, "Multidimensional quasi — eigenfunction approximations and multicomponent AM — FM models," IEEE Transactions on Image Processing, vol. 9, no. 2, pp. 227-242, February 2000.

88. N. Damera — Venkata, T.D. Kite, W.S. Geisler, B.L. Evans and A.C. Bovik, "Image quality assessment based on a degradation model," IEEE Transactions on Image Processing, vol. 9, no. 4 pp. 636-650, April 2000.

89. T.D. Kite, B.L. Evans and A.C. Bovik, "Modeling and quality assessment of halftoning by error diffusion," IEEE Transactions on Image Processing, vol. 9, no. 5, pp. 909-922, May 2000.

90. J. Kim, A.C. Bovik and B.L. Evans, "Generalized predictive binary shape coding using polygonal approximation," Signal Processing: Image Communication, vol. 15, no. 7-8, pp. 643-663, May

91. T.D. Kite, B.L. Evans and A.C. Bovik, "A Fast, High — Quality Inverse Halftoning Algorithm for Error Diffused Halftones," IEEE Transactions on Image Processing, vol. 9, no. 9, pp. 1583-1592 September 2000.

92. S. Lee and A.C. Bovik, "Optimal rate control for real — time, low bitrate foveated video coding," IEEE Transactions on Image Processing, 2001.

93. S. Lee, M.S. Pattichis and A.C. Bovik, "Foveated video quality assessment," IEEE Transactions on Multimedia, 2001.

94. M.S. Pattichis, A.C. Bovik, J.W. Havlicek and N.D. Sidiropoulos, "Multidimensional orthogonal FM transforms," IEEE Transactions on Image Processing, 2001.

95. M. Pattichis, C. Pattichis, M. Avraam, A.C. Bovik and K. Kyriacou "AM — FM Texture segmentation in electron microscopic muscle imaging," IEEE Transactions on Medical Imaging, 2001.

96. M.S. Pattichis, G. Panayi, A.C. Bovik and S. — P. Hsu, "Fingerprint classification using an AM — FM model," IEEE Transactions on Image Processing, 2001.

97. ST. Acton, D.P. Mukherjee, J.P. Havlicek and A.C. Bovik, "Oriented texture completion by AM — FM reaction — diffusion," IEEE Transactions on Image Processing, 2001.

98. Z Wang and A.C. Bovik, "Embedded foveation image coding," IEEE Transactions on Image Processing, 2001.

99. H. — T. Pai and A.C. Bovik, "On eigenstructure — based direct multichannel blind image restoration," IEEE Transactions on Image Processing, 2001.

Book Chapters

1. NH. Kim, A.B. Wysocki, SJ. Aggarwal, A.C. Bovik and K.R. Diller, "PC based computer vision for analysis of complex biomedical shapes: the pancreas islet," in Biomedical Engineering: Recent Developments, S. Saha, (Ed.), New York: Pergamon Press, pp. 172-178, 1986.

2. A.C. Bovik, SJ. Aggarwal, N.H. Kim and K.R. Diller, "Quantitative area determination by image analysis," Chapter 3 in Image Analysis in Biology, D.P. Hader, (Ed.), Boca Raton, Florida: CRC Press, pp. 29-53, 1991.

3. J. Ghosh and A.C. Bovik, "Neural networks for textured image processing," in Artificial Neural Networks and Statistical Pattern Recognition: Old and New Connections, I. Sethi and A. Jain (Ed.), New York: Elsevier Science Publishers, pp. 133-154, 1991.

4. A.C. Bovik and S.T. Acton, "The impact of order statistics on signal processing," in Statistical Theory and Applications — Papers in Honor of Herbert A. David, H.N. Nagaraja, P.K. Sen, and D.F. Morrison (Eds.), New York, Springer — Verlag, pp. 153-176, 1996.

5. S.T. Acton and A.C. Bovik, "Order statistics in signal and image processing," Chapter 22 in Handbook of Statistics 17 — Order Statistics and their Applications, N. Balakrishnan and C.R. Rao (Eds.), North — Holland, pp. 603-641, 1998.

6. IP. Havlicek, A.C. Bovik and D. Chen, "AM — FM image modeling and gabor analysis," in Visual Communications and Image Processing, C.W. Chen and Y.Q. Zhang (Eds.), Optical Engineering Series, Marcel Dekker, Inc., pp. 343-385, 1999.

7. S.T. Acton, D. Wei and A.C. Bovik, "Image enhancement," in Encyclopedia of Electrical and Electronics Engineering, J.G. Webster (Ed.), John Wiley and Sons, pp. 550-559, 1999.

8. K.A. Bartels and A.C. Bovik, "The analysis of shape — change from biological images," in Image Analysis: Methods and Applications, D.P. Hader, (Ed.), Boca Raton, Florida: CRC Press, to appear, 2000.

9. A.C. Bovik, SJ. Aggarwal, F.A. Merchant, N.H. Kim and K.R. Diller, "Automatic area and volume measurement from digital biomedical images," in Image Analysis: Methods and Applications, D.P. Hader, (Ed.), Boca Raton, Florida: CRC Press, to appear, 2000.

10. A.C. Bovik, "Preface" to the Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

11. A.C. Bovik, "Introduction to image and video processing," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

12. A.C. Bovik, "Basic gray — level image processing," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

13. A.C. Bovik and M.D. Desai, "Basic binary image processing," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

14. A.C. Bovik, "Basic image Fourier analysis and convolution," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

15. A.C. Bovik and S.T. Acton, "Basic linear filtering for image enhancement," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

16. D. Wei and A.C. Bovik, "Wavelet denoising for image enhancement," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

17. J.P. Havlicek and A.C. Bovik, "Image modulation models," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

18. F. Merchant, K.A. Bartels, K.R. Diller and A.C. Bovik, "Confocal microscopy," in The Handbook of Image and Video Processing, A.C. Bovik, (Ed.), New York: Academic Press, 2000.

19. M.S. Pattichis, J.P. Havlicek, S.T. Acton, and A.C. Bovik, "Multidimensional AM — FM models with image processing applications," in Advances in Image Processing and Understanding: A Festschrift for Thomas S Huang, Singapore: World Scientific Publishing, 2001.

Patents

1. A.C. Bovik and D. Chen, "Method and Apparatus for Visual Pattern Image Coding," U.S. Patent Number 5,144,688, September 1, 1992.

2. A.C. Bovik, D. Chen and P.L. Silsbee, "Method and Apparatus for Coding Both Still and Moving Visual Pattern Images," U.S. Patent Number 5,282,255, January 25, 1994.

PhD Graduates

1. Longbotham, Harold (1988) "Deterministic Theory of Order Statistic Filters" (Former Professor a University of Texas at San Antonio; recently deceased)

2. Macias — Garza, Fernando (1988) "Implementation and Limitations of Scanning Light Microscopy for the Determination of Three — Dimensional Structure from Optical Serial Sections" (Chairman and CEO of Validata, Inc., Mexico City)

3. Kim, Nak (1989) "Computation of Shape from Stereo Images with Application to Biological Shape Analysis" (Professor at Hankuk University of Foreign Studies, Seoul, Korea)

4. Naaman, Laith (1990) "Design of Least — Squares Order Statistic Filters"

5. Chen, Dapang (1990) "Visual Pattern Image Coding" (Team Leader Research Engineer at National Instruments, Austin)

6. Jordan, John (1990) "On Using Chromatic Information in Stereo Correspondence" (Team Leader Research Engineer at KLA — Tencor Instruments, San Jose, California)

7. Restrepo, Alfredo (1990) "Locally Monotonic Regression and Related Techniques for Signal Smoothing and Shaping" (Professor at the University of the Andes, Bogota)

8. Super, Boaz (1992) "Understanding Images of Textured Surfaces" (Professor at University of Illinois, Chicago)

9. Bartels, Keith (1993) "The Analysis of Biological Shape and Shape — Change from Multi — Dimensional Image Sequences" (Research Engineer at Southwest Research Institute, San Antonio, Texas)

10. Silsbee, Peter (1993) "Computer Lipreading for Improved Accuracy in Automatic Speech Recognition" (Professor at Old Dominion University, Norfolk, Virginia)

11. Acton, Scott (1993) "Generalized Deterministic Annealing with Application to Nonconvex Optimization Problems in Image Processing" (Professor at Oklahoma State University, Stillwater OK)

12. Chen, Tieh — Yuh (Terry) (1995) "Stereo Disparity from Local Image Phase: New Models for Image Modulation, Coarse — to — Fine Processing, and Disparity Channels" (Associate Scientist at Chung — Shan Institute of Science and Technology, Taiwan)

13. Klarquist, William (1995) "FOVEA: A Foveated Vergent Active Stereo Vision System for Dynamic Three — Dimensional Scene Recovery" (Research Engineer at Lockheed — Martin Corporation, Denver Colorado)

14. Yim, Changhoon (1996) "Multiresolution 3 — D Range Segmentation Using Focus Cues" (Research Engineer at David Sarnoff Research Center, Princeton, New Jersey)

15. Havlicek, Joseph (1996) "AM — FM Image Models" (Professor at University of Oklahoma, Norman OK)

16. Pattichis, Marios (1998) "AM — FM Transforms and Applications"

17. Wei, Dong (1998) "Theory and Applications of Coiflet — Type Wavelets" (Professor at Drexel University, Philadelphia PA)

18. Kite, Thomas (1998) "Design and Quality Assessment of Forward and Inverse Error Diffusion Halftoning Algorithms" (DSP Engineer at Audio Precision, Beaverton, OR)

19. Pai, Hung — Ta (1999) "Multichannel Blind Image Restoration" (Currently Research Engineer a Silicon Integrated Systems Corporation, Taiwan)

20. Lee, Sanghoon (2000) "Foveated Video Compression and Visual Communications Over Wireless and Wireline Networks" (Currently Research Engineer at Lucent Technology's Bell Laboratories)

21. Barnett, Barry (2000) "Multiparty Videoconferencing Using Motion Compensated Visual Pattern Image Sequence Coding" (Currently Consultant for International Business Machines, Inc.)

Teaching

Professor Bovik teaches or has taught the following graduate and undergraduate courses at the University of Texas at Austin:

Graduate

EE 3SOL — Computer Vision

EE 38IK — Digital Signal Processing

EE 38 IK — Introduction to Stochastic Processes

Undergraduate

EE 35IK — Probability Random Processes

EE 371R — Digital Image Processing

MEMORANDUM AND ORDER

Pending before the Court is the Motion for Order Appointing Court Expert filed jointly by Defendant Davidchack ("Davidchack") and Defendant Intervenor Nikitin ("Nikitin") (collectively "Defendants") (doc. 68). More specifically, Defendants request the Court "appoint its own expert witness (a) to advise the Court on scientific issues in this case, including the reliability of both sides' retained experts and the validity of the opinions they express; (b) to assist the Court in ruling on disputed issues in discovery; and (c) to assist in mediation of this case." Defendants' Motion to Appoint Court Expert at p. 1 (doc. 68). Upon consideration of the arguments presented by the parties in their briefs, the Court finds Defendants' Motion should be granted and grants the Motion as specifically set forth below.

Relevant Factual Background

Although set forth in prior opinions issued by the Court, the Court finds it necessary to briefly review the relevant factual background in this matter.

Founded in 1995, Flint Hills Scientific, LLC ("Flint Hills" or "Plaintiff') is a company that specializes in real — time advanced signal processing, analysis and control methods. Davidchack began working for FHS as a consultant in 1996. Nikitin, a friend of Davidchack's, began employment with FHS in September 1998. Nikitin attended the University of Kansas from 1992 to 1998 and ultimately was awarded a Ph.D. in physics in December 1998. Nikitin asserts that from 1996 to August 1998, he and Davidchack developed a general method of signal analysis ("the Method" or "the Invention"), the underlying methodology of which is contained within Nikitin's doctoral research and dissertation.

Nikitin resigned from his employment with FHS on February 9, 2000. After Nikitin's resignation, a dispute arose between Nikitin and FHS regarding who owned intellectual property rights to the Method." On April 3, 2000, Nikitin and Davidchack filed a provisional patent application for "the Method" and both Nikitin and Davidchack signed the provisional patent application as co — inventors.¹

1 On August 3, 2000, Nikitin and Davidchack filed another provisional patent application! regarding what they state is a refined version of "the Method." Again, Nikitin and Davidchack signed; the provisional patent application as co — inventors.

On May 5, 2000, FHS filed a Petition for monetary and injunctive relief against Nikitin in the District Court of Douglas County, Kansas alleging (1) Nikitn breached his fiduciary duty to FHS; (2) Nikitin misappropriated trade secrets belonging to FHS; (3) Nikitin engaged in unfair competition with FHS; and (4) Nikitin breached his consulting agreement with FHS. Nikitin retained the law firm of Blackwell Sanders Peper Martin, LLP ("Blackwell Sanders") to represent him in the Douglas County lawsuit. On July 25, 2000, FHS initiated this federal lawsuit alleging claims against Davidchack almost identical to those alleged against Nikitin in the state court petition. At the heart of both causes of action is whether Davidchack and Nikitin relied on intellectual property formulated in the course and scope of their employment with FHS in developing "the Method."

On November 15, 2000, the Court granted Nikitin's request to intervene in this federal lawsuit as a defendant pursuant to Fed.R.Civ.P. 24(a)(2) (intervention as a matter of right) and a Scheduling Order subsequently was entered by the Court as to all parties on January 2, 2001. Early in the discovery process, numerous disputes arose between the parties regarding disclosure of information and documents pursuant to Fed.R.Civ.P. 26(c)(7), and the parties subsequently filed a barrage of discovery motions dealing with the disputed issues Relevant to the pending motion to appoint court expert, one of the discovery disputes presets as a Motion for Protective Order filed by Davidchack seeking to protect alt information and documents related to "the Method," In support of such protection, I Davidchack and Nikitin aver by affidavit that "the Method" does not rely on any information acquired by them while working for FHS. In response to Davidchack's request for protection from disclosure, Plaintiff filed a Motion to Compel the documents and information Davidchack seeks to protect, asserting that detailed analysis of the technical data within the documents sought would allow them to establish that Defendants developed "the Method" in the course and scope of their work duties with FHS.

Also pending before the Court is Plaintiff's Motion to Disqualify Blackwell Sanders from serving as Nikitin's attorney. In its motion, FHS asserts it recently became aware of a conflict of interest regarding Blackwell Sanders' representation of Nikitin, in that Kyle Elliott ("Elliott"), an attorney employed by Blackwell Sanders, previously represented FHS and its operating manager Mark Frei ("Frei") in a matter substantially related to the one currently pending in this lawsuit. Notably, disqualification of an attorney under Kansas Rule of Professional Conduct 1.10(b) requires a finding that the current and former matters are the same or substantially related and, if such a finding is made, the court must then hold a full evidentiary hearing to determine whether the attorney in question actually acquired material and confidential information during his or her former employment. Lansing — Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, Syl. 1, 808 P.2d 1369 (1991).

Discussion

Upon detailed review of the pending discovery motions set forth above, the Court reluctantly acknowledges that it does not have the requisite knowledge or skills to make the intricate and technical comparisons of complex scientific issues that will be necessary to draw a definitive conclusion regarding similarities between patent applications and/or other intellectual property created by the parties Simply put, the Court would be remiss to impose its lay understanding of the technical Scientific data presented without the benefit of expert guidance Particularly, the Court needs a detailed explanation of (I) the scientific data that forms the basis for "the Method", (2) the scientific data that forms the basis for each patent and provisional patent application at issue in this lawsuit; and (3) the scientific data that forms the basis of the intellectual property created Defendants in the course and scope of their employment with FHS.

Based on the facts outlined above, the parties were notified that the Court intended to grant! Defendants' Motion to Appoint Court Expert. In an Order dated August 31, 2001 (doc. 93), the Court thereafter ordered the parties to submit two nominations for such appointment. Upon review of the nominations submitted, the Court notified the parties of its intention to appoint Professor Alan Conrad Bovik as a technical advisor to the Court in this matter. In conjunction with such notification, the Court provided the parties with Dr. Bovik's curriculum vitae and invited their written comments. Having considered the comments of the parties, the Court, pursuant to its inherent authority, appoints Dr. Bovik as its technical advisor in this action according to the terms and conditions set forth below.² The Court does so because of its conviction that this case in its scientific complexity is one of those rare "extraordinary cases where the introduction of outside skills and expertise, not possessed by the judge, will hasten the just adjudication of a dispute without dislodging the delicate balance of the juristic role." Reilly v. United States, 863 F.2d 149, 156 (1st Cir. 1988). See, also, Mediacom Corp. v. Rates Technology, Inc., 4 F. Supp.2d 17, 35-37 App. A (D. Mass. 1998).

2 Although not explicit, courts and commentators agree that a trial judge has the inherent authority to appoint a technical advisor with specialized skills to assist the trial judge in performing his or her responsibilities. Reilly v. United States, 863 F.2d 149, 158 (1st Cir. 1988) ("[T]he advisor's role is to act as a sounding board for the judge — helping the jurist to educate himself in the jargon and theory disclosed by the testimony and to think through the critical technical problems."); Note, Improving Judicial Gatekeeping: Technical Advisors and Scientific Evidence, 110 Harv. L.Rev. 941, 949-50 (1997); see, also, General Electric Co. v. Joiner, 522 U.S. 136, 149-150 (1997) (Breyer, J., concurring) (acknowledging courts are increasingly taking advantage of inherent authority to appoint "special masters and specially trained law clerks" to assist in making determinations about complicated scientific or otherwise technical evidence.); cf. Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1392 n. 8 (D. Or. 1996) (appointing technical advisor under "inherent authority" of Fed.R.Evid. 104).

Dr. Bovik shall, as the Court's technical advisor, assist the Court in educating itself in the terminology and theory disclosed by the evidence as the Court deems necessary. He will act as a sounding board for the Court's assessment of the scientific significance of the evidence, and he wilt assist the Court in determining the validity of any scientific evidence, hypothesis or theory on which the experts base their testimony. In so doing, Dr Bovik will function as a confidential advisor to the Court analogous to the role performed by a judicial clerk Dr. Bovik will not be called upon to testify, He will not act as a finder of fact nor will he attempt to advise the Court on any matter of law.

In accepting this engagement, Dr. Bovik has affirmed to the Court that he is a neutral third party in regard to this action, that he has no ideological, financial or professional interest in the outcome of the litigation, and that he will respond to questions concerning technical or scientific terminology or theory in a manner consistent with his best understanding of relevant, generally accepted scientific knowledge. Dr. Bovik further has affirmed that he has never had, does not presently have, and does not anticipate entering into, any future financial, business or personal relationship with any of the litigants, including stock ownership, grant money, consulting contracts or employment, and will not do so while this action is pending. Nor will he use or seek to benefit from any confidential information that he may acquire in the course of this employment. Dr. Bovik also has affirmed that he has no financial, business or personal relationship with any of the witnesses identified in the Rule 26(a)(1) initial disclosures of the parties, which are attached to this Order.

Should Dr Bovik become aware of any conflict or potential conflict, he has agreed to inform the court immediately, In such event, the Court will inform the parties, and either seek their comments or terminate Dr Bovik's engagement sua sponte

Dr Bovik has agreed that his communications with the Court and any information shown or provided to him by the Court in connection with this litigation are to be treated as confidential. This

requirement of confidentiality shall not apply to the fact of his engagement, the amount of any compensation he is paid, information available in public records, or any other matter specified in writing by the Court. Dr. Bovik further has agreed that he will not engage in any independent investigation of the underlying litigation, provide evidence to the Court, or contact any party or witness in this action.

The Court will identify for the parties any materials used by Dr. Bovik in providing advice to the Court other than those submitted by the parties or those upon which a person versed in the relevant field of knowledge would be reasonably expected to rely. The parties, including their experts and consultants, are ordered not to have any communication with Dr. Bovik except in the presence of the Court. Should any party contact Dr. Bovik (except to provide payment as set forth below), or should any person seek to communicate with him about the substantive issues involved in this litigation, he will inform the Court immediately of all facts and circumstances concerning such contact.

The parties have been advised that, consistent with the nature of his engagement, the Court anticipates having direct ex parte communications with Dr. Bovik. Should the Court, however, ask Dr. Bovik to prepare any written submission for the Court, a copy of any such submission will be provided to the parties (except written comments by Dr. Bovik on drafts of the Court's own opinions). Should either party believe that any such written submission contains errors of fact, that party may so advise the Court in writing.

Dr. Bovik shall keep track of his time and submit a monthly statement to the Court showing the hours expended The parties are each directed to pay one — third of Dr. Bovik's compensation, at a total rate of $250.00 per hour for time spent either reviewing materials at the Court's requester providing direct consultation to the Court Payments shall be made within 45 days after receipt by the parties of copies of Dr. Bovik's billing statements approved by the Court. The Court taxes such costs to the parties pursuant to its inherent power to do so in the interest of promoting the efficient conduct of this complex litigation. See Mediacom Corp. v. Rates Technology, Inc., 4 F. Supp.2d at 35-37, App. A (citing Two Appeals (San Juan Dupont Plaza Hotel Fire Litig.), 994 F.2d 956 (1st Cir. 1993)).

Dr. Bovik will execute an affidavit indicating his understanding of this Order prior to beginning his engagement. He will at the conclusion of his employment file an affidavit attesting to his compliance with the terms of this Order.

Conclusion

Based on the discussion above, Defendants' Motion to Appoint Court Expert is granted to the extent that the Court, pursuant to its inherent authority, hereby appoints Professor Alan Conrad Bovik as its technical advisor in this action according to the terms and conditions set forth above.

IT IS SO ORDERED.

PLAINTIFF'S PRELIMINARY LIST OF WITNESSES AND EXHIBITS

Comes now plaintiff, Flint Hills Scientific (FHS), by and through counsel Scott J. Bloch, P. A. of Stevens Brand LLP, and files herewith its preliminary list of witnesses and exhibits.

A. WITNESSES

1. Flint Hills Scientific, LLC Mark Frei, operating manager Ivan Osorio, presiding manager C/o plaintiffs counsel

Drs. Frei and Osorio will testify concerning the facts contained in the complaint herein, and the counterclaims, their damages, the intellectual property in dispute, and the relationship between the parties.

2. Alexei Nikitin C/o intervenor's counsel

Dr. Nikitin will testify concerning his employment with FHS, his interactions and employment with Thomas Armstrong and Fundamental Technologies, the intellectual property in dispute, and the facts of the complaint and counterclaims.

3. Muriel Cowgill C/o FHS

Ms. Cowgill will testify to the circumstances surrounding Nikitin's execution of the employment agreement and his employment at FHS, along with his request to see and obtain copies of the employment agreement.

4. Thomas Armstrong, Ph.D. University of Kansas Dept. of Physics and Astronomy Lawrence, KS 66045

This witness has knowledge regarding Nikitin's prior intellectual pursuits as a student and research assistant, Nikitin's papers on pulse pileup and Nikitin's dissertation, and Nikitin's post — dissertation research reasonably related to his dissertation, the circumstances surrounding Nikitin's departure from FHS, his signing a nondisclosure agreement with Nikitin to view a provisional patent, Nikitin signing a consulting agreement with Fundamental Technologies, and a potential association between FHS and Fundamental Technologies Armstrong explored in 1999.

5. Ruslan Davidchack C/o defendant's counsel

This witness has knowledge regarding the claims of the complaint, the counterclaim of Nikitin, and FHS's counterclaims, the intellectual property in dispute, his agreement with Nikitin regarding the provisional patents, his collaboration with Nikitin for FHS.

6. Frank Flink, Esq. C/o counsel for intervenor

This witness has knowledge regarding the circumstances of the meeting with Thomas Armstrong and Nikitin, his affidavit filed in the state court case, the circumstances of his obtaining the court file, the timing of Nikitin's departure from FHS, the letter written by Hank Griffin in April of 2000, and attempts to commercialize or market the IP through the letter of Hank Griffin, and in other ways.

7. Hank Griffin C/o counsel for intervenor

This witness has knowledge regarding the circumstances of the meeting with Thomas Armstrong and Nikitin, the timing of Nikitin's departure from FHS, and the letter written he wrote to FHS in April of 2000, attempts to commercialize or market the IP through the letter, and in other ways.

8. Plamen Doynov 810W. 54 ^th St. KC MO 64112

This witness may have knowledge regarding Nikitin's plans to depart from FHS, Nikitin's employment in January of 2000, the intellectual property in dispute, attempts to market the IP, confidentiality at FHS, and understanding of provisions of the employment agreement.

9. Suzanna Curatolo 613 Arrowhead Dr. Lawrence, KS 66049

This witness has knowledge regarding Nikitin's employment at FHS, tests and work he did, signing a nondisclosure with Nikitin after leaving FHS, and viewing Nikitin's provisional patent, e mails she sent back and forth with Nikitin, attempts to market the IP, confidentiality at FHS, and understanding of provisions of the employment agreement.

10. Aaron Johnson C/o counsel for plaintiff.

This witness has knowledge regarding the employment of Nikitin, his computer security codes, back up, the Y2K backup CD and the circumstances of recalling it being in his safety deposit box, confidentiality at FHS, and the circumstances surrounding the presentation and signing of the employment agreement at FHS.

11. Other employees of FHS C/o counsel for FHS

These employees may be called to testify concerning the type of work performed by defendants at FHS, the policies and procedures of FHS, employment agreements, confidentiality, and computer security.

12. All witnesses listed by either defendant.

Plaintiff reserves the right to amend this list as discovery reveals additional witnesses.

B. EXHIBITS

1. Exhibit "B", the February, 2000 draft patent application

2. Affidavits of Mark Frei filed in the state court case

3. Employment Agreement of Nikitin with FHS

4. Consulting Agreement of Ruslan Davidchack with FHS

5. All exhibits entered in the deposition of Rusland Davidchack in the state Court case.

6. E mails between Nikitin and FHS personnel

7. E mails between Ruslan Davidchack and FHS personnel

8. Provisional Patent Applications filed by Nikitin in April, 2000 and August, 2000.

9. E mails between Ruslan Davidchack and Nikitin

10. Staff meeting notes of Mark Frei

11. Staff meeting notes of Alexei Nikitin

12. Memoranda of Nikitin during his employment with FHS

13. Copies of cancelled checks for consulting with Dr. Davidchack.

14. Deposition of Dr. Davidchack taken in the state court case, and that is scheduled to be taken in this case, and exhibits thereto.

15. Deposition of Dr. Nikitin taken in state court case and that may be taken in this case, and exhibits thereto.

16. All exhibits necessary to lay foundation.

17. Blow ups and diagrams of all of the above.

18. Diagrams, blow ups and charts demonstrating or explaining the IP in this case.

19. All exhibits listed by either defendant.

Discovery is ongoing, and plaintiff reserves the right to update this list as documents become known or available. Documents will be provided upon request and signing of appropriate protective order by the court.

DEFENDANT DAVIDCHACK'S PRELIMINARY WITNESS AND EXHIBIT LISTS

Defendant Ruslan L. Davidchack, ("Defendant Davidchack"), by and through his counsel, Sam L. Colville and Kelly J.H. Clark of Holman Hansen Colville Coates, P.C., files these, his Preliminary Witness and Exhibit Lists, pursuant to this courts Scheduling Order of January 2, 2001.

WITNESSES

1. Dr. Ruslan L. Davidchack 29 Knighton Fields Rd. West Leicester LE2 6LH United Kingdom

Defendant Davidchack will testify about the allegations contained in the Complaint and the facts presented in his Answer. He has information regarding the intellectual property at issue and information regarding the Consulting Agreement he signed with plaintiff.

2. Mrs. Alice F. Davidchack 29 Knighton Fields Rd. West Leicester LE26LH United Kingdom

Mrs. Davidchack will testify about her knowledge regarding the allegations contained in plaintiff's Complaint. She has knowledge of circumstances surrounding the signing of the Consulting Agreement by defendant Ruslan L. Davidchack.

3. Flint Hills Scientific, LLC Dr. Mark Frei Dr. Ivan Osorio 5020 W. 15^th Street, #A Lawrence, KS Phone Number (785) 838-3715

Drs. Frei and Osorio will testify concerning the allegations in plaintiffs Complaint. They have knowledge of defendant Davidchack's relationship with plaintiff as well as information relating to the intellectual property at issue and the Consulting Agreement between defendant Davidchack and plaintiff.

4. Dr. Alexei V. Nikitin 2124 Vermont St. Lawrence, KS 66046

Dr. Nikitin will testify as to the allegations listed in plaintiffs pleadings and the facts alleged in Dr. Nikitin's responses to those pleadings. Dr. Nikitin also has information regarding the intellectual property at issue.

Defendant Davidchack reserves the right to amend this list and supplement this disclosure pursuant to information gained during discovery.

EXHIBITS

1. Electronic mails exchanged between defendant Davidchack and Alexei Nikitin;

2. Electronic mails exchanged between defendant Davidchack and personnel of plaintiff;

3. Consulting Agreement, signed by defendant Davidchack and plaintiff;

4. Mail exchanged between defendant Davidchack and counsel for plaintiff;

5. Copy of article authored by Thomas P. Armstrong and defendants Davidchack and Nikitin, reprinted from the periodical Nuclear Instruments Methods in Physics Research, and entitled "Many — fold coincidence pileup in silicon detectors: Solar X — ray response of charged particle detector systems for space". This article was originally received on January 29, 1996, and was then received in revised form on August 19, 1996;

6. Copy of article authored by Thomas P. Armstrong and defendants Davidchack and Nikitin, reprinted from the periodical Nuclear Instruments Methods in Physics Research, and entitled "The effect of pulse pile — up on threshold crossing rates in a system with a known impulse response". This article was originally received on May 9, 1997, and was then received in revised form on November 21, 1997; Defendant Davidchack reserves the right to amend this list and supplement this disclosure pursuant to information gained during discovery.

DEFENDANT INTERVENOR ALEXEI V. NIKITIN'S PRELIMINARY WITNESS AND EXHIBIT LISTS

Pursuant to this Court's Scheduling Order of January 2, 2001, Defendant Intervenor, Alexei V. Nikitin ("Dr. Nikitin"), hereby submits his Preliminary Witness and Exhibit Lists.

Witnesses

1. Alexei V. Nikitin 2124 Vermont Street Lawrence, Kansas 66046

Dr. Nikitin has information regarding his claims against Flint Hills Scientific, LLC ("FHS"), the claims made by FHS against Dr. Davidchack and Dr. Nikitin, and the facts presented in his Answer(s). Dr. Nikitin also has information regarding the intellectual property in dispute.

2. Dr. Thomas Armstrong Fundamental Technologies, Inc. 2411 Ponderosa Drive Lawrence, Kansas 66044

Dr. Armstrong has information regarding the relationship between his company, Fundamental Technologies, Inc., and Dr. Nikitin. Dr. Armstrong also has knowledge regarding Dr. Nikitin' s academic and technical background, his doctoral dissertation and intellectual property developed by Dr. Nikitin prior to his employment with FHS.

3. Dr. Ruslan L, Davidchack 29 Knightonfields Road West Leicester LE2 6LH United Kingdom

Dr. Davidchack has information regarding his relationship with Dr. Nikitin and FHS. Dr. Davidchack also has knowledge regarding his and Dr. Nikitin's academic and technical background, as well as intellectual property in dispute.

4. Dr. Mark Frei Flint Hills Scientific, Inc. 5020 W 15 ^th Street, Suite A Lawrence, Kansas 66049

Dr. Frei has information regarding FHS and the employment of Dr. Nikitin. Dr. Frei also has information regarding the claims and defenses asserted in this litigation, as well as intellectual property in dispute.

5. Dr. Ivan Osorio Flint Hills Scientific, Inc. 5020 W 15 ^th Street, Suite A Lawrence, Kansas 66049

Dr. Osorio has information regarding FHS and the employment of Dr. Nikitin. Dr. Osorio also has information regarding the claims and defenses asserted in this litigation, as well as intellectual property in dispute.

6. Plamen Doynov 810W 54 ^th Street Kansas City, Missouri 64112

Mr. Doynov has information regarding his and Dr. Nikitin's employment with FHS.

7. Muriel Crider — Cowgill 3835 Milton Circle St. George, Kansas 66535

Ms. Crider has information regarding her and Dr. Nikitin's employment with FHS.

8. Aaron Johnson Flint Hills Scientific, Inc. 5020 W 15 ^th Street, Suite A Lawrence, Kansas 66049

Mr. Johnson has information regarding his and Dr. Nikitin's employment with FHS.

9. Ms. Susana Curatolo Flint Hills Scientific, Inc. 613 Arrowhead Drive Lawrence, Kansas 66049

Ms. Curatolo has information regarding her and Dr. Nikitin's employment with FHS.

10. Frank Flink 8347 Fontana Leawood, Kansas 66207

Mr. Flink has information regarding Dr. Nikitin's intellectual property and employment with FHS. Mr. Flink also has knowledge regarding the facts contained within his Affidavit.

Exhibits

1. Article entitled "Many — fold Coincidence Pileup in Silicon Detectors: Solar X — Ray Response of Charged Particle Detector Systems for Space," authored by Dr. Armstrong, Dr. Davidchack and Dr. Nikitin, reprinted from the periodical Nuclear Instruments Methods in Physics Research.

2. Article entitled `The Effect of Pulse Pile — Up on Threshold Crossing Rates in a System with a Known Impulse Response," authored by Dr. Armstrong, Dr. Nikitin and Dr. Davidchack, reprinted from the periodical Nuclear Instruments Methods in Physics Research.

3. Consulting Agreement between Flint Hills and Dr. Davidchack, dated September 22, 1998.

4. Employment Agreement between Flint Hills and Dr. Nikitin, dated September 22, 1998.

5. E-mail from Dr. Frei to Dr. Davidchack dated February 24, 2000.

6. E-mail from Dr. Frei to Dr. Davidchack dated November 5, 1999.

7. Abstract of article entitled, "Pulse Pileup Effects in Counting Detectors," authored by Dr. Nikitin.

8. Article entitled, "Pulse Pileup Effects in Counting Detectors," authored by Dr. Nikitin and submitted to Department of Physics and Astronomy, University of Kansas.

9. E-mails from Dr. Davidchack to Dr. Frei dated July 2, 1998 to February 28, 2000.

10. FHS draft patent application, "System for Automated Real — Time Signal Analysis and for Detection and Quantification of Signal Changes," dated February 2, 2000.

11. E-mail from Dr. Osorio to Dr. Davidchack dated January 26, 2000.

12. Letter from Henry "Hank" Griffin to Dr. Frei dated April 14, 2000.

13. Fax of draft patent application from Dr. Nikitin to Dr. Schoonover, dated August 21, 1999.

14. FHS draft patent application, "System for Automated Real — Time Signal Analysis and for Detection and Quantification of Signal Changes," dated November 22, 1999.

15. Article entitled "Analog Implementation of Seizure Detection Algorithm," authored by Dr. Nikitin, Plamen Doynov, Dr. Davidchack, Dr. Frei and Dr. Osorio.

16. E-mail from Dr. Davidchack to Dr. Nikitin dated July 12, 2000.

17. Police reports and correspondence between Dr. Frei and FBI.

18. Excerpt from Chapter 10, Minimization or Maximization of Functions, Numerical Recipes in C: the Art of Scientific Computing.

19. Excerpt from Chapter 14, Minimization or Maximization of Functions, Numerical Recipes in C: the Art of Scientific Computing.

20. Affidavits of Dr. Frei filed in Case No, OOC170, in the District Court of Douglas County, Kansas.

21. Employment Agreement between FHS and Susana Curatolo, dated January 3, 2000.

22. E-mail from Susana Curatolo to Dr. Nikitin dated December 9, 1999.

23. E-mail from George W. Fleming to Dr. Nikitin dated December 11, 1999.

24. E-mail from Magaly Spector to Dr. Nikitin dated December 16, 1999.

25. E-mail from Dr. Nikitin to Susana Curatolo dated December 24, 1999,

26. E-mail from Dr. Nikitin to Susana Curatolo dated December 30, 1999.

27. E-mail from Dr. Nikitin to Monica Davis dated January 22, 2000.

28. E-mails from Susan Curatolo to Dr. Nikitin dated January 30, 2000.

29. E-mail from Susana Curatolo to Dr. Nikitin dated March 19, 2000.

30. E-mail from Susana Curatolo to Dr. Nikitin dated April 12, 2000.

31. E-mail from Susan Curatolo to Dr. Nikitin dated April 28, 2000.

32. E-mail from Dr. Frei to Plamen Doynov dated January 3, 2000.

33. E-mail from Dr. Frei to Susana Curatolo dated December 30, 1999.

34. E-mail from Dr. Frei to Susana Curatolo dated March 10, 2000.

35. E-mail from Dr. Frei to Susana Curatolo dated February 2, 2000.

36. Post card from Dr. Nikitin and Monica Davis to FHS.

37. E-mail from Dr. Nikitin to Susana Curatolo dated April 19, 2000.

38. E-mail from Dr. Nikitin to Plamen Doynov dated February 7, 2000.

39. E-mail from Plamen Doynov to Dr. Nikitin dated February 8, 2000

40. Affidavit of Muriel Crider, dated June 8, 2000.

41. Employment Agreement between FHS and Muriel Crider, dated October 5, 1998.

42. Handwritten confidential notes of Dr. Frei regarding Analysis of a Density.

43. Resume of Dr. Nikitin.

44. E-mail from Dr. Nikitin to Roman Korobov dated March 8, 2000, and attachment,

45. Affidavit of Dr. Thomas P. Armstrong, dated May 30, 2000.

46. Fundamental Technologies, LLC. Appointment Form for Dr. Nikitin, dated August 3, 1998 and attached policies.

47. Proprietary Information Agreement and Non — Disclosure Agreement for use of Confidential Information between Dr. Nikitin and Fundamental Technologies, LLC, dated March 14, 2000.

48. Consulting Agreement between Fundamental Technologies, LLC. and Dr. Nikitin, dated February 18, 2000.

49. Handwritten note from Dr. Nikitin to Dr. Armstrong, dated February 18, 2000.

50. Article entitled "Multi — Dimensional Weighted Savitzky — Golay Filters and their Application for Identifying Epileptic Activity in ECoG Recordings," authored by Dr. Nikitin, Dr. Frei and Dr. Osorio, submitted to Medical Engineering and Physics, dated April 19, 2000.

51. E-mail from Dr. Armstrong to Dr. Nikitin dated March 13, 2000.

52. E-mail from Dr. Armstrong to Dr. Nikitin dated June 16, 2000.

53. Article entitled "Multi — Dimensional Weighted Savitzky — Golay Filters and their Application for Identifying Epileptic Activity in ECoG Recordings," authored by Dr. Nikitin, Dr. Frei and Dr. Osorio, submitted to Medical Engineering and Physics, dated May 7, 1999.

54. Memo from Dr. Frei to Dr. Osorio dated February 11, 1999.

55. E-mail from Dr. Frei to Dr. Nikitin dated September 3, 1998.

56. Resume of Dr. Nikitin, dated April 20, 2000.

57. Resume of Dr. Nikitin, dated February 7, 2000.

58. Employment Agreement between FHS and Aaron Johnson, dated June 13, 1998.

59. E-mail from Aaron Johnson to Muriel Crider dated March 24, 1999.

60. E-mail from Aaron Johnson to Tim Buller dated May 14, 1999.

61. E-mail from Aaron Johnson to Dr. Frei dated June 15, 2000.

62. E-mail from Aaron Johnson to Dr. Frei dated August 23, 2000.

63. E-mail from Aaron Johnson to Dr. Frei dated February 9, 2000.

64. Handwritten notes regarding Business Idea, dated October 29, 1998.

65. Handwritten notes regarding Outline of Business Plan for Calculation of Worst Outcomes, dated November 6, 1998.

66. Abstract of article entitled, "Counting Rate of a Detector with a Known Transfer Function (? Impulse Response)," authored by Dr. Nikitin, Dr. Davidchack and Dr. Armstrong and attached notes.

67. U.S. Provisional Patent Application entitled "Methods for Signal Analysis, Order Statistic Signal Normalization and Analog Implementation of Order Statistic Filters," submitted by Dr. Nikitin, dated April 3, 2000.

68. Draft confidential article entitled, "Methods for Analysis and Comparison of Continuous Variables," authored by Dr. Nikitin and Dr. Davidchack, dated July 26, 2000.

69. Employment Agreement between Plamen Doynov and FHS, dated March 10.

70. E-mail from Plamen Doynov to Dr. Nikitin dated February 3, 2000.

71. E-mail from Dr. Nikitin to Plamen Doynov dated November 26, 1999.

72. E-mail from Dr. Nikitin to Dr. Osorio dated July 8, 1999.

73. E-mail from Dr. Nikitin to Palmen Doynov dated May 4, 2000.

74. E-mail from Plamen Doynov to Dr. Nikitin dated March 8, 2000.

75. E-mail from Dr. Frei to Plamen Doynov dated January 3, 2000.

76. Letters from Scott Bloch regarding Flint Hills lawsuit against Dr. Nikitin.

77. All documents filed in Case No. OOC170, in the District Court of Douglas County, Kansas.

78. All documents filed in Case No. 00-2334-KHV, in the United States District Court, District of Kansas.

79. All documents identified in depositions conducted during the course of discovery in Case No. OOC170, in the District Court of Douglas County, Kansas, and Case No. 00-2334-KHV, in the United States District Court, District of Kansas.

80. All documents produced by Dr. Davidchack, Dr. Nikitin and Flint Hills Scientific, LLC during the course of discovery in Case No. 00C170, in the District Court of Douglas County, Kansas, and Case No, 00-2334-KHV, in the United States District Court, District of Kansas.

81. All documents identified by Flint Hills Scientific, LLC in its Fed.R.Civ.P. Rule 26 disclosures.

82. All documents identified by Flint Hills Scientific, LLC in its Preliminary Exhibit List.

AFFIDAVIT OF ALAN CONRAD BOVIK

I, Dr Alan Conrad Bovik, declare under penalty of perjury under the laws of the United States AS follows:

1. I agree to act as the Court's technical advisor in this action. I will assist the Court in educating itself in the terminology and theory disclosed by the evidence as the Court deems necessary. I will act as a sounding board for the Court to think through the scientific significance of the evidence, and will assist the Court in determining the validity of any scientific evidence, hypothesis or theory on which the experts base their testimony. In so doing, I will to the best of my ability respond in a manner consistent with generally accepted knowledge in the relevant area.

2. I understand and agree that I am not to engage in any independent investigation of the litigation, provide evidence to the Court, or contact any party or witness in this action.

3. I hereby certify that I have read and that I understand the terms of the April 19, 2001 Stipulated Protective Order (doc. 41) ("Protective Order") (attached to this Affidavit) between the parties and agree to be bound by its terms. I understand and agree that my communications with the Court on this matter and any information shown or provided to me by the Court are to be treated as confidential. I understand that this requirement of confidentiality shall not apply to the fact of my engagement, the amount of compensation I receive, information available to me from public records, or any matter otherwise specified in writing by the Court.

4 I affirm that the Curriculum Vitae provided by me to the Court was accurate and complete in all material respects,

5 I affirm that I am a neutral third party in regard to this action, with no ideological, financial or professional interest the outcome of the litigation

6. I affirm that I have never had, nor presently have, nor anticipate in the future having, any financial, business or personal relationship with either party, including stock ownership, grant money, consulting or employment.

7. I affirm that I have no financial, business or personal relationship with any of the witnesses identified in the Rule 26(a)(1) initial disclosures of the parties.

8. I agree that I will not acquire any stock in either party until final resolution of this action, nor use or seek to benefit from any confidential information I may acquire in the course of this engagement.

9. I understand and agree that if I become aware of any conflict or potential conflict with either party, that I am to inform the Court immediately.

10. I understand and agree that should any party contact me (except to provide payment as set forth in the Order), or should any person seek to communicate with me about any substantive issue in this litigation, I will inform the Court immediately of all facts and circumstances concerning such contact.

11. I agree to keep accurate records of my time and submit a monthly statement for the Court's approval showing the hours I have expended on matters referred to me by the Court.

My appointment expires:

COMBINED STIPULATION AND PROTECTIVE ORDER

Plaintiff Flint Hills Scientific, LLC ("FHS"), defendant Ruslan L. Davidchack, and defendant intervenor Alexei V. Nikitin ("Nikitin"), by their respective counsel of record, hereby stipulate and agree, and this Court hereby orders the following:

1. The purpose of this Order is to facilitate the production and exchange among the parties of documents and other information concerning this lawsuit while protecting the trade secrets and confidential information of the parties to this lawsuit.

2. This Order shall be without prejudice to the right of any party:

a. to have determined by motion, at any time, whether any information has been improperly designated as either "CONFIDENTIAL," "CONFIDENTIAL TRADE SECRET' (hereinafter "TRADE SECRET"), or "CONFIDENTIAL — ATTORNEY'S EYES ONLY" (hereinafter "ATTORNEY'S EYES ONLY") as those terms are used herein. In any — such motion, the party challenging the assertion of confidentiality or trade secret status shall have the burden of establishing the same; and

b. to apply to the Court for relief from any requirements hereof, for good cause.

3.

a. Information designated with the legend "CONFIDENTIAL" or "TRADE SECRET" shall be available only to "qualified persons" as defined in Paragraph 4(a).

b. To be designated "ATTORNEY'S EYES ONLY," the document sought to be protected by this designation must have such sensitivity to the designating party, that revealing it to the opposing party may cause substantial harm to the party' so designating by revelation of protected work product, trade secrets, or confidential information. The designating party must specify the subset of documents within larger groupings of documents that are attorneys eyes only, and may not blanket designate documents as attorneys eyes only unless each document so identified is, in good faith, considered to be actually worthy of the attorneys eyes only designation. When necessary, a party shall designate as attorneys eyes only such parts of documents that are so sensitive they may harm the party if disclosed, and redact only such portion as may fit within this designation, leaving the rest of such documents redacted and designated as "confidential" or "trade secret."

4.

a. "Qualified person" shall mean:

i) The parties;

ii) The Court and court personnel, including stenographic reporters engaged in such proceedings as are necessarily incident to the preparation for trial and/or trial of this action, including deposition reporters and their transcribers;

iii) Outside counsel for the parties, including all partners, members and associate attorneys of such counsel's law firms, and all paralegal assistants, stenographic, clerical and other employees thereof when operating under the direct or indirect supervision of such partners, members, or associate attorneys; and

iv) Independent experts or consultants retained in connection with the trial preparation and/or presentation of this case. For such an expert or consultant to be qualified to receive "CONFIDENTIAL" or "TRADE SECRET" information, counsel for the party retaining such person shall obtain a Written Assurance from said person in the form attached hereto as Exhibit "A" prior to disclosing confidential information to such person or within ten (10) days of the entry of this Order, whichever is later.

v) With regard to materials produced by defendant Alexei Nikitin or Flint Hills Scientific only, the Federal Bureau of Investigation and the Department of Justice, Computer Crimes Division, and United States Attorney's Office.

b. "Qualified" attorneys and staff shall mean:

i) The Court and Court personnel, including stenographic reporters engaged in such proceedings as are necessarily incident to the preparation for trial and/or trial of this action, including deposition reporters and their transcribers;

ii) Outside counsel for the parties, including all partners, members and associate attorneys of such counsel's law firms, and all paralegal assistants, stenographic, clerical and other employees thereof when operating under the direct or indirect supervision of such partners, members, or associate attorneys;

iii) Independent experts or consultants who are retained in connection with the trial preparation and/or presentation of this case. Counsel for the party retaining such expert or consultant shall obtain a Written Assurance from said person in the form attached hereto as Exhibit A prior to disclosing "ATTORNEY'S EYES ONLY" information to such person or within ten (10) days of the entry of this Order, whichever is later,

iv) Under no circumstances shall documents marked "ATTORNEY'S EYES ONLY" be provided to opposing parties or competitors of the party producing the material without the prior written consent of the parties producing said documents. Counsel may discuss with their clients in general terms the significance of such documents without disclosing particular numbers, calculations, or detailed information.

v) With regard to materials exchanged between Nikitin and Flint Hills Scientific only, the Federal Bureau of Investigation and the Department of Justice, Computer Crimes Division, and United States Attorney's Office.

5. Except for use by the producing party, "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" information shall be used only in the preparation for trial and trial of this action, or appeal therefrom, and shall not be used for any other purpose, except for the state court litigation, Flint Hills Scientific, LLC v. Alexei V Nikitin, pending in the District Court of Douglas County, Kansas, or (concerning information produced by Flint Hills Scientific or Alexei Nikitin only) for use by the Federal Bureau of Investigation and the Department of Justice. Computer Crimes Division, and United States Attorney's Office, or any related criminal investigations.

6. If a "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" document or any such information is used in a deposition, the party who has designated the document as "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" may identify any discussion of the document in the deposition transcript as "CONFIDENTIAL." "TRADE SECRET," or "ATTORNEY'S EYES ONLY" within ten (10) days of receipt: of the deposition transcript. Under no circumstances does the use of a "CONFIDENTIAL," "TRADE "SECRET," or "ATTORNEY'S EYES ONLY" document, in a deposition or any other proceeding, waive the document's confidentiality or trade secret designation.

7. All depositions in this case shall be deemed confidential, and not to be used by any party or witness except for this litigation, or for the state court litigation, Flint Hills Scientific, LLC v. Alexei V. Nikitin pending in the District Court of Douglas County, Kansas, or (concerning Flint Hills Scientific or Alexei Nikitin only) for use by the Federal Bureau of Investigation and the Department of Justice, Computer Crimes Division, and United States Attorney's Office, or any related criminal investigations.

8. Upon final termination of this litigation, each party, attorney, expert, or other person subject to the terms of this Order, with the exception of the Clerk of the Court, and except as provided in paragraph 9, shall be under obligation to return to the producing party all items designated as "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" and all copies thereof within ninety (90) days after such final termination, or in the alternative, to certify in writing that all documents designated "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" have been destroyed or recycled.

9. Whenever any document designated as "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" or any pleading containing "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" information is filed with the Court, such document or pleading shall be filed under seal and shall display a bold heading on its first page stating substantially the following: "FILED UNDER SEAL — SUBJECT TO COURT ORDER PROHIBITING PUBLIC DISCLOSURE." Whenever any documents or information designated as "CONFIDENTIAL" "TRADE SECRET," or "ATTORNEY'S EYES ONLY" are to be used in any court proceeding, the party intending to use such documents or information shall advise the Court to allow the Court to take appropriate steps to preserve the confidentiality of such documents or information.

10. Nothing herein should be interpreted as a waiver of any objection to the admissibility at trial of any document produced hereunder. The parties agree that the production of a document in discovery does not render that document admissible at trial, and the determination of trial admissibility must be made according to the applicable rules of evidence.

11. The Court shall retain jurisdiction to make such amendments, modifications, or additions to this Order as the Court may from time to time deem appropriate, and any party may apply to the Court at any time for an amendment, modification or addition to the Order.

12. Nothing herein is intended to suggest or imply that discovery obtained in connection with Flint Hills Scientific v. Nikitin may, without the concurrence of defendant Davidchack, be used as though conducted in this action.

STIPULATION

The parties stipulate to entry of this Protective Order without hearing or argument.

ORDER

The Court, pursuant to stipulation, hereby orders the parties to abide by the terms and conditions of this Protective Order.

EXHIBIT "A'

I, ___________________, currently employed by ________________________ (Full name) (Current Employer) as an ______________________________, have been retained as an expert or (Occupation or position) consultant on behalf of _______________. I have reviewed the Stipulation (Party) and Protective Order entered in this case. I understand its terms and agree to fully abide by the limitations as set out therein. I hereby swear or affirm that I am not a competitor, nor am I employed by a competitor, of any party whose confidential information may be disclosed to me in this matter.

MEMORANDUM AND ORDER

In its Memorandum and Order dated November 14, 2001 (doc. 143), this Court deferred ruling on limited portions of the Motion to Compel Discovery (doc. 125) filed by Defendant Intervenor Nikitin ("Nikitin"). For the reasons stated below, the outstanding portion of the Motion is hereby granted and Plaintiff's Motion for Protective Order permitting it to withhold from discovery alleged trade secrets and confidential information (doc. 145) is denied.

A. Relevant Background

The Court deferred ruling on those portions of the referenced motion dealing with documents requested by Nikitin that may be protected from disclosure on grounds of attorney — client privilege, work product protection and confidentiality concerns. See November 14, 2001 Memorandum and Order (doc. 143).¹ In the November 14, 2001 Memorandum and Order, the Court directed Plaintiff to provide a privilege log to Defendants — which it did on November 19, 2001 (see doc. 146) — and also allowed Plaintiff an opportunity to formally move for a Protective Order permitting it to withhold from discovery alleged trade secrets and confidential information, which it also did on November 19, 2001 (see doc. 145). Both Davidchack and Nikitin have filed briefs in opposition to entry of the requested I Protective Order.

1 Contrary to federal rule, Plaintiff failed to provide Defendants with a privilege log with respect to documents withheld. Because there was no privilege log submitted in conjunction with the motions to compel, the Court did not possess sufficient information to enable it to determine whether each element of the asserted privilege was satisfied.

B. Discussion

As a preliminary matter, this Court already held Plaintiff impliedly waived the attorney — client privilege with regard to any confidential communications within documents submitted for in camera review by Plaintiff in support of its Motion to Disqualify. See Memorandum and Order dated November 14, 2001 (doc. 143). Accordingly, Plaintiff will be required to produce any document listed on its privilege log withheld on the sole grounds that such document was protected by the attorney — client privilege.;

Notably, however, many of the documents listed in Plaintiff s privilege log reflect not only claims of protection based on the attorney — client privilege, but protection based on the highly confidential nature of the documents, as well as the trade secrets contained therein. By its Motion for Protective Order, Plaintiff seeks protection from disclosure of such documents.

Federal Rule of Civil Procedure 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment oppression, or undue burden or expense." The party seeking a protective order has the burden to demonstrate good cause. Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D. Kan. 1996). To resist disclosure under Rule 26(c)(7), a person must first establish that the information is a trade secret or other confidential research, development, or commercial information and then demonstrate that its disclosure might be harmful or create a competitive disadvantage for the party. Centurion, 665 F.2d 323, 325-26 (10th Cir. 1981), Pulsecard, Inc. v. Discover Card Servs., Inc., Civ. A. No. 94-2304-EEO, 1995 WL 526533, *6 (D. Kan. Aug. 31, 1995) (citing Georgia Television Co. v. TV News Clips of Atlanta, 718 F. Supp. 939, 953 (N.D. Ga. 1989)). If these requirements are met, the burden then shifts to the party seeking discovery to establish that disclosure of a trade secret or other confidential information is relevant and necessary to the action. Centurion, 665 F.2d at 325-26. Finally, the district court must balance the need for discovery of the trade secrets against the claim of injury resulting from disclosure. Id.

As a preliminary matter, the Court finds no serious dispute among the parties about the characterization of the requested documents as trade secrets or confidential information. A finding of confidentiality, however, does not end the inquiry; Plaintiff must demonstrate that disclosure of the information "might be harmful." Centurion, 665 F.2d at 325. In determining whether good cause exists to issue a protective order that prohibits disclosure of documents or other materials, "the initial inquiry is whether the moving party has shown that disclosure of the information will result in a `clearly defined and very serious injury.'" Zapata v. IBP, Inc., 160 F.R.D. 625, 627 (D. Kan. 1995) (quoting Koster v. Chase Manhattan Bank, 93 F.R. D. 471, 480 (S.D. N.Y. 1982)) (internal quotations omitted). The moving party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981). Moreover, "specific instances where disclosure will inflict a competitive disadvantage should be set forth j in more than the briefs or the hearsay allegations of counsel's affidavit, for a protective order should not issue on that basis alone." Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 891 (E.D. Pa. 1981) (footnote and citations omitted). With that said, however, "hard and fast rules in this j area are inappropriate. Frequently the injury that would flow from disclosure is patent, either from consideration of the documents alone or against the court's understanding of the background facts. The court's common sense is a helpful guide." Id.

In support of its contention that disclosure of the referenced documents might be harmful, Plaintiff asserts that information within the documents "could be used to try to attack the scope, identity, and validity of the original patent." See Plaintiffs Privilege and Trade Secret Log, attached to Plaintiffs Notice of Compliance (doc. 146). By way of background, Plaintiff alleges in its Motion that

plaintiff filed this action against the defendants in order to protect its intellectual property regarding the application and implementation of its algorithm which could identify "random" events. Plaintiff alleges that the defendants have misappropriated its intellectual property derived during their employment with plaintiff for their personal profit, in direct competition with plaintiff, and defendant Nikitin attempted to destroy all evidence of the misappropriation upon his self — induced departure from plaintiff. Primary issues in this case regard the exact identification of the scope of the intellectual property owned by Plaintiff in contrast to defendants, including the scope of the original patent along with the intellectual property derived from same, whether during defendants' employment with Flint Hills or after their voluntary departure.

Plaintiff's Motion and Memorandum for Protective Order at p. 2 (doc. 145).

Although Defendants vehemently disagree with Plaintiff's contention that this litigation centers around the validity, ownership or rights to the "original patent" (a/k/a the "System for the Prediction, Rapid Control of Changes in Activity States in the Brain of a Subject," Patent No. 5,995,868, issued November 30, 1999) (hereinafter "Patent No. 5,995,868"),² such disagreement is irrelevant to the Court's finding that Plaintiff has failed to demonstrate by specific and particular facts — as distinguished from stereotyped and conclusory statements — that disclosure of the documents and information contained within the privilege log will result in a "clearly defined and very serious injury," See Zapata v. IBP, Inc., 160 F.R.D. at 627. In fact, Plaintiff has failed to set forth any instance, let alone "specific instances[,] where disclosure will inflict a competitive disadvantage." See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. at 891. The only prospective harm alleged, albeit very generally, is that Defendants may use the information within the documents provided to attack the scope, identity, and validity of Patent No. 5,995,868. The Court finds this conclusory declaration of anticipated action by Defendants falls short of the particular and specific demonstration of fact required to establish that disclosure of the documents will result in a "clearly defined and very serious injury." Zapata v. IBP, Inc., 160 F.R.D. at 627.

2 Although not relevant to the pending Motion to Compel, the Court notes Defendants also; strongly disagree with many other statements set forth in Plaintiff's recitation of factual background.

Given Plaintiff s failure to provide the requisite specific factual information regarding prospective harm, the Court is not required to continue the analysis here by shifting the burden to Defendants to establish relevancy and necessity and then to ultimately balance the need for the discovery against the prospective injury. See, Centurion, 665 F.2d at 325-26. The Court finds, however, that even if the Court construed Plaintiff's allegation of impending harm to satisfy the specificity requirement, disclosure would still be required because the relevancy and need for the information exceeds any need to maintain complete confidentiality.

Significantly, there is no serious dispute among the parties that the requested documents are relevant and necessary to the pending Motion to Disqualify. In fact, it was Plaintiff who introduced the relevancy of the documents in the first place by submitting them to the Court as evidentiary support for its Motion to Disqualify. Plaintiffs actions in doing so imply that this very evidence may prove or disprove its claim that Blackwell Sanders Peper Martin LLP has a conflict of interest in representing Nikitin in this lawsuit. Consequently, the Court has no difficulty in finding the requested documents relevant and necessary to the proof of the claim Plaintiff asserts.

Once the party seeking confidential information establishes relevance and necessity, "[t]he district court must balance the need for the [confidential information] against the claim of injury resulting from disclosure." Centurion Indus., 665 F.2d at 325 (citation omitted). In balancing these two considerations, the Court finds significant that a Protective Order (doc. 41) was entered in this matter on April 19, 2001. The stated and explicit purpose of the Protective Order, to which all parties! stipulated, is "to facilitate the production and exchange among the parties of documents and other information concerning this lawsuit while protecting the trade secrets and confidential information of the parties to this lawsuit." Protective Order at p.l, ¶ l (doc. 41). Moreover, the Protective Order provides, in relevant part, that

Except for use by the producing party, "CONFIDENTIAL," "TRADE SECRET," or "ATTORNEY'S EYES ONLY" information shall be used only in the preparation for trial and trial of this action, or appeal therefrom, and shall not be used for any other purpose, except for the state court litigation, Flint Hills Scientific, LLC v. Alexei V. Nikitin, pending in the District Court of Douglas County, Kansas.

Id. at pp. 3-4, ¶ 5.

Given the only prospective harm alleged by Plaintiff is that Defendants may use the information within the documents provided to attack the scope, identity, and validity of Patent No. 5,995,868, the stipulated Protective Order previously entered by the Court at the request of the parties appears to significantly abate the import of Plaintiff's allegation of prospective harm.³ Thus, in balancing the conflicting considerations of relevancy and prospective harm if the documents are produced as "Confidential," "Trade Secret" or "Attorney's Eyes Only" pursuant to the Protective Order currently in place, the Court concludes in this case that the need for the information and documents exceeds any need to maintain absolute and complete confidentiality.

3 The Court notes that Plaintiff has neither alleged in its brief, nor presented evidence to support j a claim that Defendants have violated the protective order in this case.

C. Conclusion

Based on the discussion above, it is hereby ordered that Plaintiffs Motion for Protective Order permitting it to withhold from discovery alleged trade secrets and confidential information (doc. 145) is denied and Nikitin's Motion to Compel (doc. 125) is granted.

IT IS SO ORDERED.

ORDER

Pending before the Court is Defendants' Motion for Relief from the Protective Order (doc. 66). On November 28, 2001, Floyd Finch, attorney for Defendant Intervenor Alexei Nikitin, communicated to the Court by written letter that the pending Motion for relief is now moot. Accordingly, and without objection from Plaintiff, Defendants' Motion is hereby denied as moot.

IT IS SO ORDERED.

ORDER

Pending before the Court is Plaintiff s Motion for Leave to File Second Supplemental Response in Opposition to Defendants' Motion for Protective Order (doc. 70) Plaintiff s Motion to Submit Exhibit "A" to Plaintiff s Reply to Defendant's Response to Plaintiff s Various Motions (doc. 112). Defendants object to Plaintiff's Motion for Leave to File Second Supplemental Response but do not object to Plaintiff s Motion to Submit Exhibit" A."

Upon consideration of the pending Motions and the arguments of counsel, and for good cause shown, the Court hereby grants both Motions.

IT IS SO ORDERED.