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