`796
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 1 of 75 PageID #:5836
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`Docket Nos. 16 C 651
` 17 C 7903
`
`Chicago, Illinois
`July 20, 2018
`9:45 a.m.
`
`)))))))))
`
`HOSPIRA, INC.,
`
`Plaintiff,
`
`vs.
`
`FRESENIUS KABI USA, LLC,
`
`Defendant.
`
`VOLUME 5
`TRANSCRIPT OF PROCEEDINGS - Bench Trial
`BEFORE THE HONORABLE REBECCA R. PALLMEYER
`
`APPEARANCES:
`
`For the Plaintiff:
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`For the Defendant:
`
`Also Present:
`
`JENNER & BLOCK LLP
`BY: MR. BRADFORD P. LYERLA
`MR. YUSUF ESAT
`MR. AARON A. BARLOW
`MR. REN-HOW H. HARN
`MS. SARA T. HORTON
`353 North Clark Street
`Chicago, Illinois 60654
`
`SCHIFF HARDIN LLP
`BY: MR. IMRON T. ALY
`MR. JOEL M. WALLACE
`MS. TARA L. KURTIS
`MR. KEVIN M. NELSON
`233 South Wacker Drive, Suite 6600
`Chicago, Illinois 60606
`
`SCHIFF HARDIN LLP
`BY: MR. AHMED M.T. RIAZ
`666 Fifth Avenue, 17th Floor
`New York, New York 10103
`
`Mr. Michael P. Bauer, Hospira
`Mr. Ryan Daniel, Fresenius Kabi
`Mr. Ali Ahmed, Fresenius Kabi
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`797
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 2 of 75 PageID #:5837
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`Court Reporter:
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`FRANCES WARD, CSR, RPR, RMR, FCRR
`Official Court Reporter
`219 S. Dearborn Street, Suite 2144D
`Chicago, Illinois 60604
`(312) 435-5561
`frances_ward@ilnd.uscourts.gov
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`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 3 of 75 PageID #:5838
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`THE CLERK: 16 C 651, Hospira versus Fresenius
`
`Kabi; and 17 C 7903, Hospira versus Fresenius Kabi, for a
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`bench trial.
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`MS. HORTON: Good morning, your Honor.
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`We have one more witness.
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`THE COURT: Okay.
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`MS. HORTON: Hospira would call to the stand
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`Dr. Robert Linhardt.
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`THE COURT: Okay. Now, before -- I see more
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`binders. I have got a comment about the binders.
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`When you handed them up initially, I assumed that
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`many of the documents would be overlapping and so forth. I
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`assume that they are.
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`MS. HORTON: Yes.
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`THE COURT: I think you will recognize that I won't
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`be looking at every page in these binders. I am confident
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`you will not be looking at every page in these binders.
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`So I am going to ask that all the binders be
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`retrieved. It's way too much. I can't manage it back here.
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`Instead I am going to ask that you give me an
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`agreed binder or two that includes only the documents we
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`actually looked at.
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`MS. HORTON: Yes.
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`MR. ALY: Understood.
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`THE COURT: All right. Thank you.
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`Linhardt - direct by Horton
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`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 4 of 75 PageID #:5839
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`So no need for this binder right now. I am
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`confident it's in here somewhere. I will just look at it on
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`the screen.
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`Again, later I will get one or two binders max that
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`include all the documents that we actually need to consider.
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`All right. Thank you.
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`MS. HORTON: Your Honor, may we proceed with
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`calling Dr. Linhardt?
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`THE COURT: Can I ask the witness to step forward.
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`Can I ask you to raise your right hand, sir.
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`(Witness sworn.)
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`MS. HORTON: Your Honor, may I approach to give him
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`some water?
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`THE COURT: Sure.
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`THE WITNESS: Thank you.
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`THE COURT: There is also some water in that
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`pitcher.
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`ROBERT LINHARDT, PLAINTIFF'S WITNESS, SWORN
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`DIRECT EXAMINATION
`
`BY MS. HORTON:
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`Q.
`
`A.
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`Q.
`
`A.
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`Q.
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`Good morning, Dr. Linhardt.
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`Good morning.
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`Can you please state your name for the record.
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`Robert Linhardt.
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`Have you prepared a slide of your professional
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`Linhardt - direct by Horton
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`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 5 of 75 PageID #:5840
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`positions?
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`A.
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`Yes, I have.
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`MS. HORTON: Can we please see that slide.
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`BY MS. HORTON:
`
`Q.
`
`Dr. Linhardt, what are your current professional
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`positions?
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`A.
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`Currently, I'm a professor at Rensselaer Polytechnic
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`Institute. I'm a professor in the departments of chemistry,
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`biology, chemical engineering, and biomedical engineering.
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`Q.
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`A.
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`And where was that? I'm sorry.
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`Rensselaer Polytechnic Institute.
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`I also hold adjunct appointments at Albany College
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`of Pharmacy in Albany and also at Mount Sinai medical school
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`in New York City.
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`THE COURT: Hold on just a second. I want to make
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`sure that we have got the slides popping up here.
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`All right. Here we go. We are good. Thanks.
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`And you just identified some of these positions.
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`THE WITNESS: Yes, your Honor. Rensselaer is the
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`current appointment. Albany College of Pharmacy and the
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`Icahn School of Medicine at Mount Sinai.
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`BY MS. HORTON:
`
`Q.
`
`And Previous to those positions, where were you a
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`professor?
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`A.
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`So I have been at Rensselaer for 15 years.
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`Linhardt - direct by Horton
`801
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 6 of 75 PageID #:5841
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`Before that I was at the University of Iowa College
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`of Pharmacy for 21 years.
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`Q.
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`A.
`
`And what was your role at the Iowa College of Pharmacy?
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`I was a professor of pharmacy. My role was as a
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`pharmaceutical chemistry, medicinal chemistry professor.
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`And I taught there, and I also did research there
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`for 21 years from -- it was my first professional opinion
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`independent -- my first professional independent position.
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`Q.
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`A.
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`Can you please describe your educational background.
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`Yes. I have my bachelor's of science degree in
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`chemistry. I then went on to get my graduate master's degree
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`and doctoral degree in organic chemistry at Johns Hopkins
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`University.
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`From there, I moved to MIT as a postdoctoral
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`fellow, working in bioengineering and drug removal systems,
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`where I was from 1979 to 1982.
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`And then from there, I went to the University of
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`Iowa College of Pharmacy.
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`Q.
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`Dr. Linhardt, have you published any peer-reviewed
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`papers in your field?
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`Yes, I have.
`
`About how many?
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`Over 800 peer-reviewed publications in my field.
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`That's a lot. How does that happen?
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`Well, I have a fairly large research group. I have been
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`a faculty member for 36 or so years. And my research group
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`may average about 25 people. And each of those people would
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`publish maybe a paper a year with me. And so if you do the
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`math, that's close to 800 papers.
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`Q.
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`Are you on any editorial boards for peer-reviewed
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`publications?
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`A.
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`I am on a number of editorial boards, several right now.
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`They change every few years. There is usually a four- to
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`five-year appointment period. But those editorial boards
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`would vary from boards like the Journal of Biological
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`Chemistry, analytical biochemistry, some pharmaceutical
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`journals as well. So they are variable, but they come and
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`they go.
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`Q.
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`And has your work related to pharmaceutical product
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`formulation?
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`A.
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`Essentially all of my work has related to pharmaceutical
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`products. We do more than just formulation in my laboratory.
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`So we do discovery, new drug discovery. We also do
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`structural characterization of drugs. We also do analysis of
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`drugs, including stability-determining assays that are
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`important, as you heard -- or as the Court has heard in
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`formulation, and formulation.
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`And finally, we do mechanism of action, both
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`biochemically and in animal studies.
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`And all of those, we would say, would form the
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`Linhardt - direct by Horton
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`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 8 of 75 PageID #:5843
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`portfolio of our work. Most of our work is on parenteral
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`drugs.
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`Q.
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`A.
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`What's a parenteral drug?
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`A parenteral drug is a drug that's administered through
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`injection. That injection could be an intravenous injection,
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`as discussed for dexmedetomidine hydrochloride, or it could
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`be through subcutaneous injection or some other injection
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`route.
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`Q.
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`Have you supervised students who have entered the
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`pharmaceutical field?
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`A.
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`Yes, I have, many, both while at the University of Iowa
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`and also at Rensselaer Polytechnic Institute.
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`I supervise -- at Iowa, I supervise many
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`professional students. A professional student would be one
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`that would get a Pharm.D., or doctor of pharmacy degree.
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`It's like a medical degree but in pharmacy. So it's a
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`professional degree.
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`I also supervised research by graduate students who
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`would get doctoral degrees in pharmacy, like the inventor,
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`Priyanka, on the patent, had a doctor of pharmacy degree from
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`the University of Iowa, where she was a student while I was
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`there.
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`And I also supervise postdoctoral fellows.
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`So of my doctoral degrees, 69 people have gotten
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`Ph.D.s from my laboratory over the course of my career.
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`Linhardt - direct by Horton
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`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 9 of 75 PageID #:5844
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`Q.
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`Are you proud of the fact that 69 Ph.D. students have
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`come through your laboratory?
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`A.
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`Yes, I am. They have done some really wonderful work
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`with me, on their own, of course, because it's their
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`research. But they have gone on to relatively high-level
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`positions. I have people who are expert chemists at the FDA.
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`I have people who are -- someone who headed Abbott
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`formulation. I have had students who have been professors.
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`Maybe about 20 are now professors, teaching, mentoring their
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`own students and creating POSAs in the field.
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`Q.
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`Has your work related to stability of pharmaceutical
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`products?
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`A.
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`Q.
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`A.
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`Yes, it has.
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`Tell me about that.
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`So we work -- primarily, most of my work has been with
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`heparin, which you have heard about, is a polysaccharide. So
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`it's a larger pharmaceutical entity.
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`But we also work with low-molecular-weight heparins
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`and ultra-low-molecular-weight heparins, which are small and
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`very well-defined molecules, much like dexmedetomidine
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`hydrochloride.
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`And we have worked on their formulation in either
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`syringes as ready-to-use or in bags as -- for instance, we
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`have worked on heparin flush solutions, which are 1 unit
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`per-ml, 6 micrograms-per-ml concentrations that are
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`Linhardt - direct by Horton
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`ready-to-use and they are used to flush out catheters,
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`indwelling catheters to make sure they maintain their
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`patency.
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`Q.
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`A.
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`During your career, have you ever worked with FDA?
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`Yes, I have. I have had the opportunity to work with
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`the FDA on their side of the table and across the table from
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`them.
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`So on their side of the table, since I'm an expert
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`on heparin, as well as pharmaceutical chemistry, we were
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`involved with the FDA as part of a team that solved the
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`heparin crisis in 2007. That is certainly a team effort. I
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`don't want to claim any special credit for that. But the FDA
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`was a member of that team.
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`And that crisis was a result of contaminated
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`heparin coming from China that had an adulterant in it. It
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`killed over 100 American patients. And we were part of the
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`team that identified the adulterant, the contaminant, in the
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`heparin.
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`We also developed an assay for that adulterant in
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`the API, as well as in formulated product.
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`We also went in and revised the USP monograph in
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`order to make certain that the drug going forward was safe
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`and wouldn't be recontaminated.
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`And we received -- as a team, we received an award
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`from the U.S. Pharmacopeia for that effort.
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`Linhardt - direct by Horton
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`I have also worked across the table from the FDA.
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`Q.
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`A.
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`What do you mean by that?
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`As a consultant for pharmaceutical companies and biotech
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`companies, I have met with the FDA on either planning or
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`defending an IND or an NDA or an ANDA and discussing with the
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`FDA across the table what their expectations were, why we
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`felt we met their expectations or why we felt that we were
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`deficient in meeting their expectations.
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`Q.
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`Now, Dr. Linhardt, have you worked with a pharmaceutical
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`in this case, dexmedetomidine?
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`A.
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`Q.
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`No, I have not.
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`So why do you feel you are an expert who can opine on
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`this case?
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`A.
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`Well, first of all, it's a parenteral agent, and I'm
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`certainly an expert on parenteral pharmaceutical agents.
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`Secondly, while at the University of Iowa College
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`of Pharmacy, it has a unique facility, actually, in its
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`basement. It's an FDA-approved manufacturing facility that
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`makes parenteral drugs for clinical studies, for like IND
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`studies. So not for sale, not for profit, but for
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`investigaton.
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`And as part of the College of Pharmacy, I worked on
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`a drug called Depranil, and Depranil is in this class of
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`drugs. It's a sedative and hypnotic. It's also a
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`hydrochloride salt. And it was a skill set that I developed
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`Linhardt - direct by Horton
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`in working on the formulation of that drug and the stability
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`of that drug that I had particular experience with.
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`Also, at Iowa, for 21 years I taught pharmacy
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`students, also some medical students as well, in a class
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`called medicinal chemistry. That was a team-taught course.
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`But I taught a set of -- series of lectures on sedatives and
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`hypnotics. And that's -- those are CNS, central nervous
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`system, drugs. And that's the class that dexmedetomidine
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`fits into. So I'm well aware of this drug class.
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`MS. HORTON: At this point, your Honor, we would
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`tender Dr. Linhardt as an expert in pharmaceutical chemistry
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`and drug formulation.
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`MR. ALY: No objection.
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`THE COURT: So noted.
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`BY MS. HORTON:
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`Q.
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`Dr. Linhardt, you understand that Fresenius asserts that
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`the patent claims in this case are invalid; is that right?
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`A.
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`Q.
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`Yes, I do.
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`What is your understanding of the standard for
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`invalidating a patent claim?
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`A.
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`I believe I have a slide on that.
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`MS. HORTON: Can we see PDX72, please.
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`BY THE WITNESS:
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`A.
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`So I believe that the legal standard for invalidity that
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`I used was that invalidity must be proven by clear and
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`Linhardt - direct by Horton
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`convincing evidence, evidence that produces a firm conviction
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`that it is highly probable that the patent office incorrectly
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`issued the patent, and also that invalidity is assessed on a
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`claim-by-claim basis.
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`BY MS. HORTON:
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`Q.
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`Dr. Linhardt, for purposes of your analysis, what is the
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`invention date, or priority date, here?
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`A.
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`Q.
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`A.
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`Q.
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`January 2012.
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`Do you understand what the term "POSA" means?
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`Yes, I do. A person of ordinary skill in the art.
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`Have you done -- have you undertaken the analysis of
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`what you believe a POSA would be?
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`A.
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`Yes, I do. And that definition came from my experience
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`educating students at the University of Iowa College of
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`Pharmacy.
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`And based on my experience, I view a POSA, or
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`person of ordinary skill in the art, would have an advanced
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`degree, such as a Ph.D. or a Pharm.D. in chemistry,
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`pharmacology, biology, pharmaceutical development, or a
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`related science and would, in this case, also be familiar
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`with the principles of stereochemistry.
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`Q.
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`Now, do you understand that Dr. Kipp, Fresenius' expert,
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`has provided a different standard for what a POSA would be?
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`A.
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`Yes, I do.
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`MS. HORTON: Let's put up his definition. That is
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`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 14 of 75 PageID #:5849
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`DDX202.
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`BY MS. HORTON:
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`Q.
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`A.
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`Now, do you agree with that definition?
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`Well, so it's certainly not my definition, and experts
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`draw on their experience in order to define what a POSA would
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`be. I understand that Dr. Kipp's experience is different
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`from my experience.
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`So, for instance, I was in a college of pharmacy
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`that had formulation capability. So many of our students
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`learned that while they got their advanced degrees, hands-on.
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`So they learned how to formulate products.
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`Dr. Kipp came from a chemistry-only background. So
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`the experience that -- the POSAs that he recognized got their
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`experience primarily from working in industry.
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`So he added this two- to three-year experience
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`requirement, I think, just because he saw a different set of
`
`POSAs in his background than I saw in my background.
`
`Also, he suggests a master's degree in
`
`pharmaceutical sciences, and I specified a Ph.D.
`
`But, you know, coming -- looking at this
`
`definition, I understand where he is coming from as well.
`
`Many master's level people and bachelor's level people in the
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`pharmaceutical industry serve as technicians. But there are
`
`master's degree pharmaceutical scientists who are really
`
`good, and they learn from their experience in the industry to
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`810
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 15 of 75 PageID #:5850
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`become POSAs, and they become inventive.
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`So I would accept, certainly, this definition to
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`include master's level people, and the experience would
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`certainly be reasonable as a definition.
`
`Q.
`
`So let me see if I understand, Dr. Linhardt.
`
`For purposes of your testimony today, it sounds
`
`like you can apply Dr. Kipp's definition?
`
`A.
`
`Yes. In fact, for purposes of my testimony today, I
`
`have applied his definition. So I will accept his definition
`
`and use his definition in my testimony today.
`
`Q.
`
`A.
`
`And what were you asked to opine on today, Dr. Linhardt?
`
`So today I was asked to discuss the chemical structure
`
`of dexmedetomidine and to discuss it as it relates to
`
`Dr. Kipp's opinion on inherency.
`
`Q.
`
`Now, you are aware that Dr. Kipp analyzes certain
`
`stability data to support his allegation that the 2 percent
`
`limitation is inherent, correct?
`
`A.
`
`Q.
`
`Yes, I am.
`
`And did you hear Dr. Ogenstad testify regarding analysis
`
`of stability data as it relates to that inherency theory?
`
`A.
`
`Q.
`
`Yes, I did.
`
`Will you be providing opinions on the analysis of
`
`stability data today?
`
`A.
`
`Q.
`
`No, I will not.
`
`What is your understanding of the meaning of "inherency"
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`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 16 of 75 PageID #:5851
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`in patent law?
`
`A.
`
`I think I have a slide on inherency in patent law.
`
`MS. HORTON: It's PDX77, please.
`
`BY THE WITNESS:
`
`A.
`
`Yes, that's correct.
`
`BY MS. HORTON:
`
`Q.
`
`A.
`
`What are we seeing here?
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`So to be inherent, the limitation must necessarily be
`
`present in the prior art combination. A probability that is
`
`present is not sufficient.
`
`Q.
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`Now, for purposes of your opinions, Dr. Linhardt, can we
`
`assume that Dr. Ogenstad's opinions are valid and true for
`
`purposes of my questions?
`
`A.
`
`Yes. So for purposes of this testimony, I have assumed
`
`that Dr. Ogenstad's positions are correct.
`
`Q.
`
`Making that assumption and in combination with your
`
`knowledge about the dexmedetomidine molecule, can you
`
`conclude that the "not more than about 2 percent loss"
`
`limitation has been shown to be inherent by clear and
`
`convincing evidence?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`No, I do not conclude that.
`
`Is that your opinion as a pharmaceutical chemist?
`
`Yes, it is.
`
`Is that your opinion as a POSA, using Dr. Kipp's
`
`definition?
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`Linhardt - direct by Horton
`812
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 17 of 75 PageID #:5852
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`A.
`
`Q.
`
`Yes, it is.
`
`Now, before he testified on Tuesday, had you ever heard
`
`Fresenius' theory that the 2 percent limitation is met
`
`because a POSA would have had a reasonable expectation of
`
`success in achieving the 2 percent limitation at the time of
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`the invention?
`
`A.
`
`Q.
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`No, I had never heard of that theory.
`
`Now, applying Dr. Kipp's definition of POSA, do you
`
`agree with that theory?
`
`A.
`
`Q.
`
`A.
`
`No, I do not.
`
`Why not?
`
`Because I looked at the structure of the compound,
`
`dexmedetomidine, as a POSA would, and I decided that claim of
`
`inherency is not correct.
`
`Q.
`
`Now, did you hear Dr. Kipp characterize the stability of
`
`the dexmedetomidine molecule?
`
`A.
`
`Q.
`
`A.
`
`Yes, I did.
`
`How did he characterize it?
`
`He showed the structure of the molecule, and he
`
`discussed the structure at the screen.
`
`Q.
`
`A.
`
`Did he say that it was rock stable?
`
`Yes, he did. He said it was rock stable or rock-hard
`
`stable, yes.
`
`Q.
`
`A.
`
`What does that mean to a POSA?
`
`Well, first of all, I don't believe that's a scientific
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`Linhardt - direct by Horton
`813
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 18 of 75 PageID #:5853
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`term, and I don't believe a POSA would use that term.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Had you ever heard it before in relation to --
`
`Not -- go ahead, please.
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`Had you ever heard that term before?
`
`Not in relation -- not with respect to a pharmaceutical
`
`product.
`
`Q.
`
`Now, based on its structure, do you agree that dex is
`
`rock stable?
`
`A.
`
`Q.
`
`No, I do not.
`
`Does the chemical structure of dex show that the claimed
`
`stability is inherent?
`
`A.
`
`No, it does not.
`
`MS. HORTON: Okay. I would like to look at the
`
`structure, using Dr. Kipp's slide, which was DDX218.
`
`BY THE WITNESS:
`
`A.
`
`Okay.
`
`BY MS. HORTON:
`
`Q.
`
`A.
`
`Q.
`
`Do you see that?
`
`Yes, I do.
`
`Okay. And you were here when Dr. Kipp came down to the
`
`screen and provided his analysis of the stability of the
`
`molecule?
`
`A.
`
`Q.
`
`A.
`
`Yes, I was.
`
`Okay. Did you agree with that discussion?
`
`As far as it went, I agreed with some aspects of that
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`Linhardt - direct by Horton
`814
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 19 of 75 PageID #:5854
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`discussion.
`
`Q.
`
`Okay. Well, using the structure, can you explain your
`
`view of the stability of the dex molecule.
`
`A.
`
`Yes, I believe I can.
`
`I saw that Dr. Ogenstad was able to use a pencil,
`
`and I am going to try to do the same thing. So I think I
`
`called the pencil icon here. And I haven't tried this
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`before, but I am going to give it a try.
`
`So I would like to discuss first, with respect to
`
`the structure, the questions that Dr. Kipp addressed, and
`
`then I would like to go beyond those questions.
`
`Q.
`
`Okay. So let's start with -- I think he started talking
`
`about the structure in certain pieces.
`
`A.
`
`Q.
`
`A.
`
`That's right.
`
`Which piece would you like to start with?
`
`I would like to first draw your Honor's attention to the
`
`structure having four components. Basically, there is the
`
`hydrochloride, salt, HCl. It's part of dexmedetomidine
`
`hydrochloride.
`
`There is what I believe your Honor referred to as
`
`the hexagon, which we would say is a benzene-type ring, on
`
`the right, six-membered hexagon.
`
`Then, on the left there is a five-member ring, the
`
`pentagon structure, that has 2 nitrogens. Nitrogen is
`
`abbreviated with N.
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`Linhardt - direct by Horton
`815
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 20 of 75 PageID #:5855
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`And then there is a connecting bridge between those
`
`two -- between the pentagon and the hexagon with a methyl
`
`group, which is CH3, and an H in that bridge.
`
`And as Dr. Kipp correctly pointed out -- I think
`
`somebody asked him what the bold wedge and what the dashed
`
`wedge meant, and he correctly pointed out that the bold wedge
`
`is coming directly out at us. That's CH3. And the dashed
`
`wedge is behind the screen.
`
`So this molecule is often drawn without showing
`
`that dashed wedge and the hydrogen, because you really can't
`
`see it. It's behind the molecule when you look at it. So
`
`often that's omitted.
`
`Q.
`
`Why don't you tell us about the six-membered ring
`
`structure on the right there.
`
`A.
`
`Okay.
`
`THE COURT: I want to interrupt for a second.
`
`THE WITNESS: Yes.
`
`THE COURT: When you say that section is omitted,
`
`are you talking about the wedge, the divided wedge, hydrogen,
`
`and then -- is that right?
`
`THE WITNESS: I'm talking about the hydrogen
`
`itself, with the dashed wedge. Often --
`
`THE COURT: And then the solid wedge on top.
`
`THE WITNESS: The wedge on top is always shown,
`
`because it tells you the stereochemistry.
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`Linhardt - direct by Horton
`816
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 21 of 75 PageID #:5856
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`When you see the wedge coming out, you know that --
`
`since there are always four bonds to that central bridge, you
`
`know that there must be a hydrogen bound, but it's behind the
`
`plane that can't be seen. So often --
`
`THE COURT: It's always assumed that it's there.
`
`THE WITNESS: It's always assumed that it's there.
`
`So often that dashed wedge and the H is not shown.
`
`THE COURT: Got it.
`
`THE WITNESS: And so you will see structures, your
`
`Honor, in different expositions, probably even the patent,
`
`that does not show this dashed wedge and the hydrogen,
`
`because it's behind the plane.
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`And it's assumed by the chemist looking at it that
`
`it's there. It's just not shown because it can't be seen
`
`from the perspective.
`
`THE COURT: Okay.
`
`THE WITNESS: Okay?
`
`BY THE WITNESS:
`
`A.
`
`So I would like to start with Dr. Kipp's argument about
`
`aromaticity.
`
`MS. HORTON:
`
`Q.
`
`A.
`
`Okay.
`
`And so I thought he did a very good job, but I would
`
`like to repeat it, because I know it's been a long trial, and
`
`I know chemistry is hard. So I would like to repeat it. And
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`Linhardt - direct by Horton
`817
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 22 of 75 PageID #:5857
`
`I am not going to disagree with what he said. I'm just going
`
`to give a clear indication of how I would explain this to,
`
`say, a first-year chemistry student.
`
`Q.
`
`Okay. So tell me about the aromaticity of that benzene
`
`ring.
`
`A.
`
`So this is a very famous structure, this hexagon, this
`
`benzene ring structure. This was actually a discovery that
`
`was made in 1865. So it's one of the most important
`
`discoveries in chemistry. And it was discovered by a
`
`chemist -- a German chemist named August Kekulé.
`
`And August Kekulé was trying to solve the structure
`
`for years. And he just couldn't figure out these three
`
`double bonds that are shown as the double lines, the parallel
`
`double lines, how they were arranged and how they made this
`
`benzene ring stable.
`
`And he went home one night, and he had -- I don't
`
`believe this is apocryphal, because there are many reports of
`
`this. He sat in front of the fireplace, and he fell asleep,
`
`and he had a dream. And he started by dreaming that these
`
`bonds were moving around the inside of this hexagon, and they
`
`were moving faster and faster.
`
`And then he dreamed of a snake. The bonds all
`
`connected like a snake. And then the snake bit its tail, and
`
`it formed this type of ring system (indicating).
`
`And he drew a circle inside this, in place of the
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`Linhardt - direct by Horton
`818
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 23 of 75 PageID #:5858
`
`bonds. And this is actually today how chemists draw this
`
`structure. So they would eliminate those three double bonds
`
`and draw a circle.
`
`So there is a number associated with this, as
`
`Dr. Kipp suggested.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`What's the number?
`
`The number is 6.
`
`Where do we find the 6?
`
`So I'm going to show you in a second.
`
`But if you have six pi electrons in a small ring,
`
`it imparts aromaticity or stability to that ring.
`
`So there is a double bond right here, and there is
`
`a double bond right here, and there is a double bond right
`
`here (indicating). And each one has two pi electrons. So
`
`2 plus 2 plus 2 equals 6.
`
`So those are the six electrons that allow this ring
`
`to form. And this ring means these bonds can move around the
`
`structure. And so it imparts stability to this benzene ring.
`
`Q.
`
`Okay. And is there another aromatic species on this
`
`molecule?
`
`A.
`
`Yes. And again, Dr. Kipp correctly pointed out -- and
`
`this is a little bit more subtle.
`
`So you can see a double bond here and a double bond
`
`here (indicating).
`
`Q.
`
`Just for the record, Doctor, you are looking at the
`
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`819
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 24 of 75 PageID #:5859
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`five --
`
`A.
`
`The five-membered ring, the pentagon ring.
`
`So that's 2 plus 2, and that's only 4. And
`
`remember the number is 6 that Kekulé decided.
`
`So as it turns out, that nitrogen has two electrons
`
`associated with it, called a lone pair.
`
`And so if you count those two electrons, those two
`
`little dots that I put next to the nitrogen, and the two on
`
`the double bond, and the two on the double bond -- that's 2
`
`plus 2 plus 2 equals 6.
`
`And that allows the same snake biting its tail, the
`
`same circle in the middle, and it allows the same aromatic
`
`stability for that ring.
`
`Q.
`
`A.
`
`Q.
`
`And so this is where you agree with Dr. Kipp, correct?
`
`Absolutely.
`
`Now, you said you wanted to point out some further
`
`issues.
`
`A.
`
`Q.
`
`A.
`
`Right.
`
`What are the further issues?
`
`In fact, your Honor actually asked Dr. Kipp about the
`
`methyl group, the bridging methyl group.
`
`And the bridging methyl group is certainly not part
`
`of that aromaticity. Nor is, for instance, this methyl group
`
`here (indicating) -- methyl is CH3, your Honor -- or this
`
`methyl group here (indicating).
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`Linhardt - direct by Horton
`820
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 25 of 75 PageID #:5860
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`So all three of those structures could be modified
`
`without disrupting the stability of the ring.
`
`And so the modification of these three methyl
`
`groups is possible through oxidation.
`
`Q.
`
`And what about -- is there any other place in the
`
`structure that you would like to show related to the
`
`stability or instability of the molecule?
`
`A.
`
`Yes, there is, but before I do, I would like to explain
`
`a little bit about oxidation.
`
`Q.
`
`A.
`
`Okay. Why is that relevant?
`
`So it's relevant because oxidation is a route of
`
`degradation that's possible in the dexmedetomidine
`
`hydrochloride structure and, indeed, one sees if
`
`dexmedetomidine can be oxidized to a degradant.
`
`Q.
`
`A.
`
`So what does oxidation mean?
`
`Okay. So let me clear all this mess right now. Let's
`
`see if it works. Okay. Let me start again and focus on
`
`oxidation.
`
`So oxidation is the process of -- is a process of
`
`burning. So oxygen reacts with carbon and hydrogen and it
`
`forms water and CO2. So we know like the burning of paper
`would react with carbon and hydrogen and form CO2 and water.
`So oxidation is certainly possible for oxidation of
`
`these three methyl groups (indicating). And those, when
`
`oxidized, would become a carboxylate group, or CO2H. And you
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`Linhardt - direct by Horton
`821
`Case: 1:16-cv-00651 Document #: 143 Filed: 08/07/18 Page 26 of 75 PageID #:5861
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`would also form water in that oxidation process.
`
`So that's a kind o
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