UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`1
`
` WASHINGTON, D.C.
`
` Before The Honorable David P. Shaw
`
` Administrative Law Judge
`
`------------------------------x
`
`In the Matter of :
`
`Certain Omega-3 Extracts from : Investigation No.
`
`Marine or Aquatic Biomass and : 337-TA-877
`
`Products Containing the Same :
`
`------------------------------x
`
`
`
`
`
` Videotaped Deposition of JAMES THOMAS BRENNA, Ph.D.
`
` Washington, DC
`
` Friday, October 11, 2013
`
` 9:16 a.m.
`
`Job No.: 45577
`
`Pages: 1 - 327
`
`Reported By: Dawn M. Hart, RPR, RMR, CRR
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`NEPN Ex. 2029
`Aker v. Neptune
`IPR2014-00003
`
`
`
`1
`
` WASHINGTON, D.C.
`
` Before The Honorable David P. Shaw
`
` Administrative Law Judge
`
`------------------------------x
`
`In the Matter of :
`
`Certain Omega-3 Extracts from : Investigation No.
`
`Marine or Aquatic Biomass and : 337-TA-877
`
`Products Containing the Same :
`
`------------------------------x
`
`
`
`
`
` Videotaped Deposition of JAMES THOMAS BRENNA, Ph.D.
`
` Washington, DC
`
` Friday, October 11, 2013
`
` 9:16 a.m.
`
`Job No.: 45577
`
`Pages: 1 - 327
`
`Reported By: Dawn M. Hart, RPR, RMR, CRR
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`NEPN Ex. 2029
`Aker v. Neptune
`IPR2014-00003
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` Videotaped deposition of James Thomas Brenna,
`
`Ph.D., held at the law offices of:
`
`2
`
` KIRKLAND & ELLIS LLP
`
` 655 Fifteenth Street, Northwest
`
` Washington, DC 20005
`
` (202) 879-5000
`
` Pursuant to Notice, before Dawn M. Hart,
`
`RPR/RMR/CRR and Notary Public in and for the
`
`District of Columbia.
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3 4 5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` A P P E A R A N C E S
`
` ON BEHALF OF THE COMPLAINANTS NEPTUNE AND ACASTI:
`
`3
`
` SCOTT A. SUKENIK, ESQUIRE
`
` COOLEY LLP
`
` The Grace Building
`
` 1114 Avenue of the Americas
`
` New York, New York 10036
`
` (212) 479-6000
`
` LAURA J. CUNNINGHAM, ESQUIRE
`
` COOLEY LLP
`
` One Freedom Square
`
` Reston Town Center
`
` 11951 Freedom Drive
`
` Reston, Virginia 20190
`
` (703) 456-8000
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`4
`
` A P P E A R A N C E S C O N T I N U E D
`
` ON BEHALF OF THE ENZYMOTEC RESPONDENTS:
`
` CYNTHIA LAMBERT HARDMAN, ESQUIRE
`
` KENYON & KENYON LLP
`
` One Broadway
`
` New York, New York 10004
`
` (212) 425-7200
`
` ON BEHALF OF THE AKER RESPONDENTS:
`
` WILLIAM E. DEVITT, ESQUIRE
`
` KIRKLAND & ELLIS LLP
`
` 300 North LaSalle
`
` Chicago, Illinois 60654
`
` (312) 862-2000
`
` ALSO PRESENT:
`
` ADVOKAT EDVARD BRAEKKE
`
` Member of the Norwegian Bar Association
`
` ELVIS CENTENO, Videographer
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` C O N T E N T S
`
`EXAMINATION OF JAMES THOMAS BRENNA, Ph.D. PAGE
`
` By Mr. Sukenik 8
`
`5
`
` E X H I B I T S
`
` (Attached to transcript)
`
`BRENNA DEPOSITION EXHIBITS PAGE
`
` Exhibit 1 Joint List of Claim Terms and 26
`
` Proposed Constructions
`
` Exhibit 2 Expert Witness Report of 27
`
` J. Thomas Brenna, Ph.D., 9/16/13
`
` Exhibit 3 Rebuttal Expert Witness Report of 28
`
` J. Thomas Brenna, Ph.D., 9/30/13
`
` Exhibit 4 U.S. Patent No. 8,278,351 B2 38
`
` Exhibit 5 Beaudoin 1 74
`
` Exhibit 6 Beaudoin 2 74
`
` Exhibit 7 Aker GRAS Notice, 12/14/10 113
`
` Exhibit 8 Maruyama reference 173
`
` Exhibit 9 Research Department - Research 192
`
` Division of Japan
`
` Exhibit 10 Rogozhin reference 201
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4 5 6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`6
`
` E X H I B I T S C O N T I N U E D
`
`BRENNA DEPOSITION EXHIBITS PAGE
`
` Exhibit 11 Mayzaud reference 224
`
` Exhibit 12 U.S. Patent No. 8,383,675 236
`
` Exhibit 13 Bergelson reference 260
`
` Exhibit 14 Respondent Aker BioMarine 282
`
` Antarctic AS's Third Supplemental
`
` Response to Complainant Neptune
`
` Technologies & Bioresources, Inc.,
`
` First Set of Interrogatories to
`
` Respondent Aker BioMarine Antarctic
`
` AS (Nos. 1 through 36)
`
` Exhibit 15 Enzymotec USA, Inc., Interrogatory 286
`
` Responses, 7/18/13
`
` Exhibit 16 Not identified 288
`
` Exhibit 17 Neptune Prospectus (2001) 320
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`7
`
` P R O C E E D I N G S
`
`09:15:34
`
` VIDEOGRAPHER: Here begins Tape No. 1 in the
`
`09:15:35
`
`videotaped deposition of Thomas Brenna, Ph.D., in the
`
`09:15:46
`
`matter of Certain Omega-3 Extracts from Marine or
`
`Aquatic Biomass and Products, Investigation No.
`
`337-TA-877.
`
`09:15:50
`
`09:15:55
`
`09:16:00
`
` Today's date is October 11, 2013. The time
`
`09:16:05
`
`on the video monitor is 9:16. The videographer today
`
`09:16:09
`
`is Elvis Centeno, representing Planet Depos. This
`
`video deposition is taking place at 655 15th Street,
`
`Northwest, Washington, D.C.
`
` Will counsel please voice-identify
`
`themselves and state who they represent.
`
`09:16:13
`
`09:16:17
`
`09:16:19
`
`09:16:23
`
`09:16:24
`
` MR. SUKENIK: Sure. I'm Scott Sukenik, from
`
`09:16:27
`
`Cooley LLP, representing the Complainants, and with me
`
`09:16:29
`
`is Laura Cunningham, also from Cooley LLP.
`
` MR. DEVITT: Bill Devitt, from
`
`Kirkland & Ellis, representing the Aker Respondents.
`
`That's A-K-E-R.
`
`09:16:33
`
`09:16:36
`
`09:16:37
`
`09:16:41
`
` MS. HARDMAN: Cynthia Lambert Hardman, from
`
`09:16:43
`
`Kenyon & Kenyon, representing the Enzymotec
`
`Respondent.
`
`09:16:46
`
`09:16:49
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` MR. BRAEKKE: Edvard Braekke, Norwegian
`
`09:16:50
`
`8
`
`legal counsel to the Aker Respondents.
`
` VIDEOGRAPHER: Thank you, counsel.
`
` The Court Reporter today is Dawn Hart,
`
`representing Planet Depos.
`
` Would the Reporter please swear in the
`
`witness.
`
` Thereupon ---
`
` JAMES THOMAS BRENNA, Ph.D.
`
` having been duly sworn/affirmed to tell the
`
`truth, testified as follows:
`
` EXAMINATION BY COUNSEL FOR THE COMPLAINANTS
`
`BY MR. SUKENIK:
`
` Q Good morning.
`
` A Good morning.
`
` Q How are you?
`
` A I'm just fine, thanks, how are you?
`
` Q Okay. Is your wrist okay?
`
` A Well, it will be.
`
` Q Good.
`
`09:16:50
`
`09:16:56
`
`09:16:56
`
`09:16:57
`
`09:16:59
`
`09:17:01
`
`09:17:01
`
`09:17:01
`
`09:17:01
`
`09:17:01
`
`09:17:01
`
`09:17:01
`
`09:17:16
`
`09:17:16
`
`09:17:17
`
`09:17:17
`
`09:17:20
`
`09:17:23
`
`09:17:25
`
` Would you please state and spell your name
`
`09:17:26
`
`for the record.
`
`09:17:28
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` A My full name is James Thomas Brenna.
`
`J-A-M-E-S, T-H-O-M-A-S, B-R-E-N-N-A.
`
` Q Have you ever been deposed before?
`
` A I have, yes.
`
` Q How many times?
`
` A I believe three.
`
` Q When were they, approximately?
`
` A The most recent was I believe in September
`
`9
`
`09:17:30
`
`09:17:33
`
`09:17:40
`
`09:17:41
`
`09:17:42
`
`09:17:47
`
`09:17:48
`
`09:17:49
`
`of this year, and there are two other occasions I can
`
`09:17:55
`
`recall approximately a year or maybe a little longer
`
`09:18:01
`
`than that, and -- ago -- and then three or four years
`
`09:18:08
`
`ago, something like that, yeah.
`
`09:18:13
`
` Q What was the nature of the case for the one
`
`09:18:15
`
`in September?
`
`09:18:18
`
` A The case in September is a case involving --
`
`09:18:19
`
` MR. DEVITT: I just want to caution the
`
`witness, if you're under a Protective Order in that
`
`case, as far as keeping certain information
`
`09:18:27
`
`09:18:30
`
`09:18:32
`
`confidential pursuant to that Protective Order, if you
`
`09:18:35
`
`have to.
`
` THE WITNESS: Thank you.
`
`09:18:37
`
`09:18:38
`
` A That case involves dietary supplements and a
`
`09:18:39
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`10
`
`settlement agreement -- language in a settlement
`
`09:18:45
`
`agreement that one party alleges has been violated by
`
`09:18:47
`
`another, and that is -- okay, so dietary supplements.
`
`09:18:52
`
` Energy shots, actually, is the general area.
`
`09:18:56
`
` Q And what about the other two cases?
`
`09:19:03
`
` A Another case was a case on prenatal vitamins
`
`09:19:07
`
`that was a generic versus a name brand vitamin
`
`manufacturer, and involved the composition of
`
`vitamins, including EPA and DHA.
`
`09:19:17
`
`09:19:26
`
`09:19:33
`
` And I believe another -- sorry, did you want
`
`09:19:40
`
`me to tell you about all of them?
`
` Q Yes.
`
`09:19:42
`
`09:19:44
`
` A And another case -- I believe I was deposed
`
`09:19:44
`
`in a case -- yes, I'm sure I was deposed in another
`
`case involving infant formula, and that was an
`
`advertising case about infant formula.
`
`09:19:47
`
`09:19:52
`
`09:19:56
`
` Q Okay. Did any of these three cases involve
`
`09:19:59
`
`patents? To your knowledge?
`
` A The most recent one does -- at least the
`
`material -- the material given -- the material given
`
`to me did not involve patents. I think there were
`
`patents in the background, but that's not what I was
`
`09:20:02
`
`09:20:07
`
`09:20:13
`
`09:20:15
`
`09:20:17
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`asked to opine on.
`
` Q Okay.
`
` A One of the cases did, yes.
`
` I think I've recalled another case. Was
`
`I -- I can't remember if I was deposed -- I may be
`
`remembering a fourth case in which I was deposed.
`
`This was in my -- one of my reports, as to whether I
`
`was deposed or not, or at least the cases were.
`
`11
`
`09:20:20
`
`09:20:21
`
`09:20:26
`
`09:20:30
`
`09:20:32
`
`09:20:35
`
`09:20:36
`
`09:20:41
`
` Right, there was a fourth case that I didn't
`
`09:20:55
`
`mention, and that was a -- that, I think, was a
`
`deposition. I'm trying to remember if I was deposed
`
`or not; I don't remember. Well, I'll tell you the
`
`case anyway.
`
` Q Okay.
`
`09:20:57
`
`09:20:59
`
`09:21:02
`
`09:21:03
`
`09:21:04
`
` A And that was -- that did -- that was about a
`
`09:21:05
`
`patent, actually. Yeah.
`
` Q In any of these cases, did you provide an
`
`opinion as to the validity or infringement of a
`
`patent?
`
` A In one case I did.
`
` Q Which case was that?
`
` A That was a case of Sanofi-Aventis and
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`09:21:07
`
`09:21:11
`
`09:21:13
`
`09:21:18
`
`09:21:19
`
`09:21:20
`
`09:21:22
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`12
`
`Albany Molecular Research was -- were Plaintiffs in
`
`09:21:26
`
`that case.
`
` Q Did you represent the Plaintiffs?
`
`09:21:33
`
`09:21:34
`
` A I was engaged by Sanofi and -- Sanofi and
`
`09:21:38
`
`Albany Molecular Research, I believe, yes. I think
`
`09:21:43
`
`they were the Plaintiffs. Or were -- or
`
`Complainants/Plaintiffs.
`
` Q Sure.
`
` A Okay.
`
`09:21:46
`
`09:21:51
`
`09:21:53
`
`09:21:53
`
` Q Do you recall your opinion as to the patent
`
`09:21:56
`
`at issue in that case? And not really looking into
`
`09:21:59
`
`details, but whether you found -- whether you felt it
`
`09:22:02
`
`was valid or invalid, infringe/non-infringe.
`
` MR. DEVITT: Objection to form.
`
`09:22:04
`
`09:22:09
`
` A It's going back a while, but I believe that
`
`09:22:15
`
`it was an opinion that the patent was infringed --
`
`09:22:18
`
`that the particular claim was infringed, I believe.
`
`09:22:31
`
` Q Did you provide an opinion as to the
`
`validity of the patent?
`
` A I don't believe I did, no. No. I don't
`
`remember that coming up.
`
`09:22:37
`
`09:22:40
`
`09:22:41
`
`09:22:43
`
` Q And do you recall what the patent related
`
`09:22:47
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`to?
`
` A It related to the synthesis of a drug.
`
` The particular claim that was -- that
`
`13
`
`09:22:49
`
`09:22:50
`
`09:22:53
`
`occupied most of my time related to a organic chemical
`
`09:22:55
`
`synthesis of a drug, a route to a drug.
`
` Q A method of synthesizing?
`
`09:23:03
`
`09:23:08
`
` A I guess that's what you would call it, yeah.
`
`09:23:10
`
`It was a reaction A plus B goes to C, that was at the
`
`09:23:12
`
`issue -- that was at issue, so if that's a method,
`
`that's what it was.
`
` Q Okay. Let me just go through a couple of
`
`ground rules for today's deposition.
`
` I'm going to ask questions, and you'll
`
`09:23:15
`
`09:23:19
`
`09:23:20
`
`09:23:28
`
`09:23:30
`
`provide answers. I hope you've been sworn to provide
`
`09:23:31
`
`truthful testimony.
`
` Is there any reason you won't be able to
`
`provide full and truthful testimony here today?
`
` A There's no reason.
`
`09:23:35
`
`09:23:36
`
`09:23:38
`
`09:23:41
`
` Q Okay. We have a Court Reporter here who is
`
`09:23:42
`
`writing down everything that we say. I promise to do
`
`09:23:44
`
`my best to allow you to finish your answers before I
`
`ask my next question, and I ask that you allow me to
`
`09:23:47
`
`09:23:51
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`finish my question before you start your answer; is
`
`14
`
`that okay?
`
` A Fair enough.
`
` Q Since she is in fact typing everything we
`
`say, it's hard to transcribe nods or other body
`
`movements, so please provide your answers verbally,
`
`okay?
`
` A Okay.
`
`09:23:54
`
`09:23:56
`
`09:23:57
`
`09:23:58
`
`09:24:00
`
`09:24:03
`
`09:24:06
`
`09:24:06
`
` Q We'll take breaks from time to time. If you
`
`09:24:08
`
`need a break for some reason, let me know and we'll
`
`all be reasonable, I hope. I'll certainly be
`
`reasonable.
`
` If you don't understand a question, please
`
`09:24:10
`
`09:24:14
`
`09:24:18
`
`09:24:20
`
`ask for clarification, and I'll do my best to clarify.
`
`09:24:24
`
`If you don't ask for clarification as to my question,
`
`09:24:27
`
`I'll assume that you've understood it; is that okay?
`
` A Yes.
`
`09:24:30
`
`09:24:32
`
` Q From time to time, counsel may object to the
`
`09:24:37
`
`form of my question. There may be other times when
`
`they object and instruct you not to answer my
`
`question.
`
`09:24:40
`
`09:24:45
`
`09:24:48
`
` Unless you are instructed not to answer, you
`
`09:24:48
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`are still to provide an answer even after they object;
`
`09:24:51
`
`15
`
`is that understood?
`
` A Yes.
`
` Q Okay. Now, generally, what did you do to
`
`prepare for today's deposition?
`
` A To prepare for today's deposition
`
`09:24:55
`
`09:24:56
`
`09:24:56
`
`09:25:09
`
`09:25:13
`
`specifically, I reviewed my -- my reports and spoke to
`
`09:25:15
`
`counsel at -- about various interpretations of legal
`
`issues.
`
`09:25:28
`
`09:25:37
`
` Q Okay. Did you meet with counsel in person?
`
`09:25:38
`
` A I did, yes.
`
` Q How many times?
`
` A I believe I met --
`
` MR. DEVITT: Objection. Form.
`
` A -- three times.
`
` Q Approximately when?
`
` A This week.
`
` Q Okay. And aside from those three meetings
`
`this week, did you meet with counsel otherwise to
`
`prepare for your deposition today?
`
` A To prepare for my deposition, no.
`
` Q Did you speak with counsel on the phone in
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`09:25:41
`
`09:25:42
`
`09:25:46
`
`09:25:47
`
`09:25:48
`
`09:25:57
`
`09:25:59
`
`09:26:00
`
`09:26:07
`
`09:26:10
`
`09:26:13
`
`09:26:15
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`preparation for your deposition?
`
` A I may have. I may have. I --
`
` Q You're not sure?
`
` A I'm not sure. I -- possibly, yes.
`
`16
`
`09:26:18
`
`09:26:19
`
`09:26:25
`
`09:26:26
`
` Q If so, do you remember approximately when?
`
`09:26:29
`
` A It would have been preceding this week. In
`
`09:26:34
`
`the preceding couple of weeks --
`
` Q Okay.
`
` A -- probably.
`
` Q Did you talk with anybody other than
`
`Respondents and their attorneys in preparation for
`
`today's deposition?
`
` A Well, I'll -- I'm not sure if it would
`
`define as in preparation for today's deposition,
`
`09:26:37
`
`09:26:38
`
`09:26:39
`
`09:26:44
`
`09:26:48
`
`09:26:51
`
`09:26:58
`
`09:27:01
`
`but -- it may have been for a report -- but I'll just
`
`09:27:05
`
`say that I did speak to a number of individuals
`
`associated with various Respondent companies about
`
`processes.
`
` Q Okay. Outside of Respondents and their
`
`employees?
`
` A No.
`
`09:27:07
`
`09:27:13
`
`09:27:20
`
`09:27:21
`
`09:27:28
`
`09:27:29
`
` Q Okay. Did you review documents to prepare
`
`09:27:30
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`for your deposition?
`
` A I did, yes.
`
` Q I believe you mentioned your reports. Did
`
`you review documents other than your reports?
`
` A My reports and the -- a list of documents
`
`17
`
`09:27:35
`
`09:27:36
`
`09:27:37
`
`09:27:40
`
`09:27:43
`
`relied upon. There was a very large list of documents
`
`09:27:47
`
`that were put before me, and that I then tried to go
`
`09:27:50
`
`through and refresh my memory in preparation for this
`
`09:27:56
`
`event.
`
` Q Did you review them all?
`
` A I certainly laid eyes on every one of them
`
`at one time or another. I may or may not have
`
`reviewed every one of them this week, although I
`
`think -- I think I tried to.
`
`09:28:00
`
`09:28:00
`
`09:28:03
`
`09:28:07
`
`09:28:09
`
`09:28:12
`
` Q Did you review any documents outside of the
`
`09:28:18
`
`presence of counsel?
`
` MR. DEVITT: Objection. Form.
`
`09:28:21
`
`09:28:25
`
` Q Let me clarify. Other than your reports and
`
`09:28:28
`
`the documents cited in them.
`
`09:28:29
`
` A Other than refreshing my recollection with,
`
`09:28:35
`
`for instance, technical dictionaries and that sort of
`
`09:28:38
`
`thing, no.
`
`09:28:43
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` I also reviewed my -- some of my
`
`09:28:48
`
`publications, if that counts. But, of course, I wrote
`
`09:28:49
`
`18
`
`much of that, so ...
`
` Q Do you know if those dictionaries and
`
`publications have been produced to Complainants in
`
`this case?
`
` A Don't know.
`
`09:28:53
`
`09:28:56
`
`09:28:58
`
`09:29:02
`
`09:29:03
`
` MR. DEVITT: I believe they're all listed on
`
`09:29:07
`
`his CV.
`
` Q Did those references that you reviewed
`
`09:29:08
`
`09:29:12
`
`refresh your recollection about the topics at issue in
`
`09:29:16
`
`this case?
`
` A I didn't learn anything that I didn't
`
`already know, let's put it that way.
`
` Q Okay. Did you draft any notes or other
`
`materials in preparation for your deposition?
`
` A No notes that -- just say no, I did not.
`
` Q You sounded hesitant. What was the reason
`
`for that?
`
`09:29:20
`
`09:29:21
`
`09:29:23
`
`09:29:28
`
`09:29:57
`
`09:29:59
`
`09:30:08
`
`09:30:10
`
` A Well, I marked up my -- I marked up various
`
`09:30:11
`
`drafts of depositions with highlighters, for instance,
`
`09:30:14
`
`I -- that may or may not be considered a note. If you
`
`09:30:18
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`consider that a note, then perhaps I did.
`
` Q I'm sorry, you said drafts of depositions.
`
` A I drafted depositions and edited them for
`
`clarity.
`
` Sorry, depositions is not the right word,
`
`reports.
`
` Q Okay.
`
` A Excuse me.
`
` Q That's a little clearer.
`
`19
`
`09:30:21
`
`09:30:24
`
`09:30:27
`
`09:30:31
`
`09:30:35
`
`09:30:37
`
`09:30:38
`
`09:30:38
`
`09:30:40
`
` A Depositions is the wrong word; report is the
`
`09:30:42
`
`correct word.
`
` Q I understand.
`
` A Okay.
`
` MR. DEVITT: Yeah, I was just going to --
`
`the question that related to what he did to prepare
`
`for his deposition, I think there's some confusion
`
`09:30:44
`
`09:30:45
`
`09:30:46
`
`09:30:47
`
`09:30:48
`
`09:30:50
`
`because Dr. Brenna prepared a supplemental report this
`
`09:30:53
`
`week. I believe that's what he's referring to.
`
` MR. SUKENIK: I don't know if that's what
`
`he's referring to.
`
` Q Are you referring exclusively to your
`
`preparation of a supplemental report?
`
`09:30:57
`
`09:31:00
`
`09:31:01
`
`09:31:03
`
`09:31:06
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` A I -- well, I was -- perhaps my responses
`
`have been broader than simply preparing for this
`
`deposition, so let me be clearer about it.
`
` In preparation for this deposition, I
`
`reviewed my reports, I reviewed them -- materials
`
`relied upon in the reports. I didn't prepare any
`
`notes associated with -- for the -- for the -- for
`
`20
`
`09:31:09
`
`09:31:13
`
`09:31:16
`
`09:31:19
`
`09:31:21
`
`09:31:24
`
`09:31:27
`
`this deposition today, there are no notes prepared for
`
`09:31:34
`
`that.
`
` And there was the supplemental report that
`
`occurred this week that I -- by whatever definition
`
`you like, whether it is or is not a preparation for
`
`this deposition.
`
` Q Okay. But you took notes as you were
`
`reviewing your reports?
`
` MR. DEVITT: Objection. Vague.
`
`09:31:37
`
`09:31:39
`
`09:31:44
`
`09:31:48
`
`09:31:51
`
`09:31:52
`
`09:31:56
`
`09:31:59
`
` A I don't really think I did, no. Actually, I
`
`09:32:04
`
`did not take notes, in review.
`
` Q You said --
`
` A I reviewed -- I reviewed -- now we're on
`
`reports outside of the deposition preparation.
`
` Q Yes.
`
`09:32:07
`
`09:32:09
`
`09:32:09
`
`09:32:14
`
`09:32:18
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`21
`
` A And those would refer to highlighting and
`
`that sort of thing.
`
` Q Now, you said this week you drafted a
`
`supplemental report. Do you remember approximately
`
`when that was drafted?
`
` MR. DEVITT: Objection. Form.
`
` A I think it was Wednesday and Thurs- --
`
`Tuesday, Wednesday -- no, Wednesday and Thursday.
`
`Wednesday and Thursday.
`
` Q Okay. Why did you draft a supplemental
`
`report?
`
` MR. DEVITT: Objection. Form.
`
` A In consultation with the attorneys, it
`
`09:32:19
`
`09:32:22
`
`09:32:41
`
`09:32:44
`
`09:32:47
`
`09:32:51
`
`09:32:53
`
`09:32:56
`
`09:32:57
`
`09:32:59
`
`09:33:06
`
`09:33:07
`
`09:33:12
`
`seemed that some response to a report of -- or reports
`
`09:33:15
`
`from Complainants' experts would be useful to clarify
`
`09:33:23
`
`positions.
`
`09:33:31
`
` Q Were you instructed to draft a supplemental
`
`09:33:48
`
`report?
`
` MR. DEVITT: Objection.
`
`09:33:50
`
`09:33:50
`
` To the extent you're asking for information
`
`09:33:51
`
`that was from counsel, I'd ask the witness -- he can
`
`answer yes or no, but not to disclose any privileged
`
`09:33:54
`
`09:33:59
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`information.
`
`22
`
`09:34:02
`
` To the extent answering the question yes or
`
`09:34:03
`
`no disclose privileged information, I'd instruct you
`
`09:34:04
`
`not to answer.
`
` A Could you read back the question?
`
`09:34:07
`
`09:34:09
`
` Q Were you instructed to draft a supplemental
`
`09:34:10
`
`report?
`
` A Yes.
`
`09:34:13
`
`09:34:15
`
` Q Okay. Did you bring any documents with you
`
`09:34:18
`
`today to the deposition?
`
` A No.
`
` Q By whom are you currently employed?
`
` A Cornell University.
`
` Q And what's your position there?
`
` A I'm a Professor in the Division of
`
`Nutritional Sciences.
`
`09:34:21
`
`09:34:23
`
`09:34:55
`
`09:34:57
`
`09:34:59
`
`09:35:01
`
`09:35:03
`
` I'm also a Professor in the Department of
`
`09:35:06
`
`Food Science and Technology, and I have joint
`
`appointments at the graduate level in the graduate
`
`field of chemistry and chemical biology and of
`
`geological sciences.
`
`09:35:09
`
`09:35:13
`
`09:35:17
`
`09:35:22
`
` I have an adjunct appointment -- which is
`
`09:35:29
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`not paid, so define "employed by" as you wish -- at
`
`the University of Rochester School of Medicine and
`
`23
`
`Dentistry in Rochester, New York.
`
` Q Thank you.
`
` Do you receive any kind of payment or
`
`compensation other than the employment you listed?
`
` MR. DEVITT: Objection. Vague.
`
` A I'm sorry, listed where?
`
` Q Just now, the list of positions that you
`
`have at Cornell.
`
` A Does Cornell pay me? Or anybody else?
`
` Q Anybody else?
`
` A Do I have any other job?
`
`09:35:31
`
`09:35:36
`
`09:35:41
`
`09:35:44
`
`09:35:48
`
`09:35:52
`
`09:35:55
`
`09:36:00
`
`09:36:02
`
`09:36:04
`
`09:36:06
`
`09:36:10
`
`09:36:11
`
` Q Well, I was asking more generally than job,
`
`09:36:12
`
`but let's start there, do you have any other job?
`
` A Not that I get paid for.
`
`09:36:14
`
`09:36:17
`
` Q Okay. Do you have any work that you do that
`
`09:36:19
`
`you do get paid for?
`
` A Other than this sort of expert witness
`
`09:36:22
`
`09:36:27
`
`testimony, I think no. I'm not employed by any other
`
`09:36:34
`
`company, I'm not employed by a private -- any private
`
`09:36:38
`
`company, I don't have equity, or I'm not an officer in
`
`09:36:43
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`24
`
`any private company or -- I'm thinking through my
`
`disclosures that I do to the University and to the
`
`Department of Health and Human Services, which I'm
`
`required to disclose all those things, so ...
`
` Q That's a logical place to start.
`
` A It's no problem, it's no -- well, it's no
`
`problem. Trying to think about that. I don't think
`
`09:36:49
`
`09:36:57
`
`09:36:59
`
`09:37:03
`
`09:37:06
`
`09:37:08
`
`09:37:11
`
`so. I -- I can't think of anything that -- well, the
`
`09:37:13
`
`Government will give me 200 bucks for reviewing a
`
`stack of proposals, but other than that, yeah.
`
` So that would actually be another thing,
`
`occasionally there will be an honorarium for
`
`something -- there might be honoraria for lectures,
`
`occasionally, there will be honoraria.
`
` I can think of one; recently a talk I gave
`
`to a conference in Florida on cardiology for women,
`
`09:37:17
`
`09:37:21
`
`09:37:25
`
`09:37:27
`
`09:37:30
`
`09:37:37
`
`09:37:41
`
`09:37:43
`
`and there was honorarium for that, that sort of thing.
`
`09:37:51
`
` Q Okay. Aside from consulting work with
`
`regard to litigation --
`
` A (Nods head.)
`
` Q -- for example, this litigation --
`
` A (Nods head.)
`
`09:37:57
`
`09:38:04
`
`09:38:06
`
`09:38:06
`
`09:38:07
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` Q -- do you do any other consulting work?
`
`25
`
` A I think no.
`
` Q Okay.
`
` A No other consulting work. Not in the last
`
`three years, let's say. I mean, I -- past three
`
`years -- and I'd like to actually answer so that I
`
`have it out there, I have been -- I have had
`
`consulting income on an honorarium for organizing a
`
`09:38:08
`
`09:38:11
`
`09:38:12
`
`09:38:12
`
`09:38:14
`
`09:38:16
`
`09:38:19
`
`09:38:23
`
`conference, for instance, on request of a company, but
`
`09:38:29
`
`those are all academic activities that are -- that I
`
`regard as very similar to a -- giving a lecture.
`
`09:38:31
`
`09:38:35
`
` Q Okay. And how long have you been providing
`
`09:38:39
`
`services to the Respondents in this case?
`
` MR. DEVITT: Objection. Form.
`
`09:38:57
`
`09:39:00
`
` A I believe it started in July. Of this year.
`
`09:39:03
`
` Q Okay. Other than the consulting work in
`
`which you are currently engaged for Respondents, do
`
`you have any other connection to the Respondents?
`
` MR. DEVITT: Objection. Vague.
`
` A None known -- no.
`
` Q You submitted a CV with your rebuttal
`
`report. Is that current?
`
`09:39:10
`
`09:39:18
`
`09:39:21
`
`09:39:25
`
`09:39:28
`
`09:39:32
`
`09:39:38
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
` A It's current as of the date on the CV.
`
` Q The date on the CV is March 2013. Does it
`
`require updating?
`
`26
`
`09:39:41
`
`09:39:44
`
`09:39:49
`
` A I don't think it requires updating. I think
`
`09:39:51
`
`it's probably fine, yeah.
`
` Q Okay. Okay. I want to talk about claim
`
`construction.
`
` Do we have the parties' proposed claim
`
`construction?
`
`09:39:53
`
`09:39:55
`
`09:40:36
`
`09:40:37
`
`09:40:40
`
` (Exhibit 1 was marked for identification and
`
`09:41:28
`
`was attached to the transcript.)
`
`BY MR. SUKENIK:
`
` Q You've been handed what's been marked as
`
`Exhibit 1, a document entitled "Joint List of Claim
`
`Terms and Proposed Constructions."
`
` Have you seen this document before?
`
`09:41:29
`
`09:41:29
`
`09:42:14
`
`09:42:16
`
`09:42:21
`
`09:42:23
`
` A I've seen a document that -- that certainly
`
`09:42:25
`
`looks like this, so yes.
`
`09:42:29
`
` Q Okay. And in this document there's a column
`
`09:42:31
`
`for the Respondents' proposed construction.
`
` Is it your opinion that you agree with the
`
`proposed construction here set forth by the
`
`09:43:08
`
`09:43:17
`
`09:43:20
`
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`
`
` VIDEOTAPED DEPOSITION OF JAMES THOMAS BRENNA, PH.D.
`CONDUCTED ON FRIDAY, OCTOBER 11, 2013
`
`Respondents for these claim terms?
`
` MR. DEVITT: I'm going to object to the
`
`extent "claim construction" calls for a legal
`
`conclusion, but you can answer.
`
` A Yes, I do.
`
`27
`
`09:43:24
`
`09:43:25
`
`09:43:27
`
`09:43:30
`
`09:43:34
`
` Q Okay. And let's introduce as exhibits your
`
`09:43:35
`
`opening report and your rebuttal report.
`
`09:44:01
`
` (Exhibit 2 was marked for identification and
`
`09:44:53
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
