UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`1
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`AKER BIOMARINE AS, :
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` Petitioner, :
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` v. : IPR Case
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`NEPTUNE TECHNOLOGIES AND : No. 2014-00003
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`BIORESSOURCES, INC., : Patent 8,278,351
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` Patent Owner. :
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`---------------------------x
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` Videotaped Deposition of BJORN OLE HAUGSGJERD
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` Chicago, Illinois
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` Wednesday, May 21, 2014
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` 8:38 a.m.
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`Job No.: 58727
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`Pages: 1 - 231
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`Reported by: Melanie L. Humphrey-Sonntag,
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`NEPN Ex. 2035
`Aker v. Neptune
`IPR2014-00003
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`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`1
`
`---------------------------x
`
`AKER BIOMARINE AS, :
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` Petitioner, :
`
` v. : IPR Case
`
`NEPTUNE TECHNOLOGIES AND : No. 2014-00003
`
`BIORESSOURCES, INC., : Patent 8,278,351
`
` Patent Owner. :
`
`---------------------------x
`
` Videotaped Deposition of BJORN OLE HAUGSGJERD
`
` Chicago, Illinois
`
` Wednesday, May 21, 2014
`
` 8:38 a.m.
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`Job No.: 58727
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`Pages: 1 - 231
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`Reported by: Melanie L. Humphrey-Sonntag,
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`NEPN Ex. 2035
`Aker v. Neptune
`IPR2014-00003
`
`
`
`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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` Videotaped Deposition of BJORN OLE HAUGSGJERD,
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`held at the location of:
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`2
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` KIRKLAND & ELLIS LLP
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` 300 North LaSalle Street
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` Chicago, Illinois 60654
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` (312) 862-2000
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` Pursuant to Notice, before Melanie L.
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`Humphrey-Sonntag, a Certified Shorthand Reporter,
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`Registered Diplomate Reporter, Certified Realtime
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`Reporter, and a Notary Public in and for the State of
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`Illinois.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`3
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` A P P E A R A N C E S
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` ON BEHALF OF THE Petitioner:
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` AMANDA HOLLIS, ESQUIRE
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` KIRKLAND & ELLIS, LLP
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` 300 North LaSalle Street
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` Chicago, Illinois 60654
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` (312) 862-2000
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`
`
` ON BEHALF OF THE PATENT OWNER:
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` LAURA CUNNINGHAM, ESQUIRE, and
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` JON GRAVES, ESQUIRE
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` COOLEY, LLP
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` One Freedom Square, 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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` ALSO PRESENT:
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` DANIEL P. MARGOLIS, PhD, ESQUIRE
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` KENYON & KENYON, LLP
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` VIRGINIA RYKER, Interpreter; and
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` PETER PREZZANO, Videographer.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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` C O N T E N T S
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`EXAMINATION OF BJORN OLE HAUGSGJERD PAGE
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` By Ms. Cunningham 7
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`4
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` E X H I B I T S
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` (Attached to transcript)
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`HAUGSGJERD DEPOSITION EXHIBIT PAGE
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`Exhibit 1 Haugsgjerd Declaration Re Patent 28
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` No. 8,030,348, 10/4/11
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`Exhibit 2 Haugsgjerd First Supplemental 28
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` Declaration Re Patent No. 8,030,348,
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` 4/16/12
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`Exhibit 3 Haugsgjerd Declaration Re Patent 28
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` No. 8,278,351, 4/16/12
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`Exhibit 4 Article on Efficiencies by Xiao, 56
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` Mjos, and Haugsgjerd
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`Exhibit 5 Beaudoin I Patent 169
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`Exhibit 6 Beaudoin II Patent 169
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`PLANET DEPOS
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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` CHICAGO, ILLINOIS; WEDNESDAY, MAY 21, 2014
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`5
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` 8:38 A.M.
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` BJORN OLE HAUGSGJERD
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` - - -
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` THE VIDEOGRAPHER: Here begins Disk No. 1
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` in the video recorded deposition of Bjorn Haugsgjerd, in
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` the matter of Aker Biomarine versus Neptune Technology
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` and Bioressources in the United States Patent and
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` Trademark Office.
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` Today's date is May 21st, 2014. The time on the
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` video monitor is 8:38 a.m.
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` The videographer today is Peter Prezzano,
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` representing Planet Depos. The video deposition is
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` taking place at 300 North LaSalle Street in Chicago,
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` Illinois.
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` Would counsel please voice-identify themselves
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` and state who they represent.
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` MS. CUNNINGHAM: This is Laura Cunningham
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` of Cooley, LLP, on behalf of Patent Owner Neptune
`
` Technologies.
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` MR. GRAVES: Jon Graves, also Cooley, LLP,
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` on behalf of the patent owner.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`08:37:56
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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` MS. HOLLIS: This is Amanda Hollis on
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` behalf of the petitioner, Aker Biomarine AS.
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` MR. MARGOLIS: Dan Margolis from Kenyon &
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` Kenyon representing Enzymotec, Limited.
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` THE VIDEOGRAPHER: The court reporter today
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` is Melanie Sonntag, Certified Realtime Reporter,
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` representing Planet Depos.
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` Would the -- would the reporter please administer
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` the oath to the interpreter and witness.
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` THE COURT REPORTER: Would you raise your
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` right hand, please.
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` (Interpreter duly sworn.)
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` THE COURT REPORTER: And would you also
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`6
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`08:38:49
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` swear the witness.
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` Would you raise your right hand, please.
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` (Witness duly sworn.)
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` THE COURT REPORTER: Thank you.
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` THE VIDEOGRAPHER: Please proceed.
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` MS. CUNNINGHAM: Thank you.
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` Good morning.
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` THE WITNESS: Good morning.
`
` BJORN OLE HAUGSGJERD,
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`7
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`called as a witness by the patent owner, pursuant to the
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`rules pertaining to the taking of depositions, having been
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`duly sworn, was examined and testified as follows:
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` E X A M I N A T I O N
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`BY MS. CUNNINGHAM:
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`Q Please state your full name.
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`A My name is Bjorn Ole Haugsgjerd.
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`Q Thank you, Mr. Haugsgjerd, for being here. I apologize
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` if my pronunciation is a little off.
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`A Okay.
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`Q I'll do the best that I can this morning.
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` Tell me, have you ever been deposed before?
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`A No. This is my first time.
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`Q Okay. So I'll just go over a few ground rules for
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` today.
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` I'll be asking questions and you'll provide a
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` response. Your counsel may object from time to time to
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` my questions, but as long as your counsel instructs --
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` does not instruct you not to answer, you should go ahead
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` and answer once your counsel is finished.
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` We'll also be taking breaks throughout the day
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` from time to time. If you would like a break, just let
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`8
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` me know. I just ask that you don't -- that we do not
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` break while I have a question pending.
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` Also, please make sure that your answers are
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` audible so that the court reporter can record them as
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` opposed to nodding or shaking your head --
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`A Okay.
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`Q -- an audible answer.
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` Do you have any questions?
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`A Not at this point, no.
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`Q Okay.
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` Well, I'd also like to say that we appreciate you
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` traveling here today. We appreciate that you made a
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` long trip.
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` Can you tell me, have you -- what did you do to
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` prepare for your deposition today?
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`A Today? I have looked through my statements and the
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` patent documents that my work was based on.
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`Q Which statements are you referring to?
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`A I don't know how to describe them by name, but there are
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` two statements regarding work I did in two different
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` times.
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`Q You also mentioned some patent documents.
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`9
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` Can you tell me which documents you're
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` referring to?
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`A I'm referring to what has been described as -- as
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` Sherbrooke 1 and Sherbrooke 2 and, also, a Japanese
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` patent, Taiyo or Maruyama.
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`Q I notice you have some documents in front of you.
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` Are those the documents that you're referring to?
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`A Yes.
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`Q Where do you currently work?
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`A I work in Bergen, Norway.
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`Q Is that near where you live?
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`A Yes.
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`Q And for what organization do you currently work for?
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`A I work for Nofima.
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`Q What is Nofima?
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`A Nofima is a research institute working in -- in food.
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`Q Any particular type of food, area of food?
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`A No. Food in the broadest sense. A sort of medium-sized
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` to large, by Norwegian standards, company working both
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` in agriculture and, also, seafood, which I am mostly
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` involved with.
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`Q What is your current job title?
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`A My current job title -- it was very recently changed,
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`10
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` after this work.
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` So my . . . in -- my current title is res- --
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` just let me think of the English word.
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` Research scientist, I think, is the correct
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` title.
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`Q Could you summarize what your job duties are?
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`A It's related to matter developments in the laboratory
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` where I work and quality control.
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` And project work in food chemistry.
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`Q Do you work in the lab a lot in connection with
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` your job?
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`A I work in the lab, and I also work in my office.
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`Q What was your previous position at Nofima lab?
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` What was the title?
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`A The title was -- I'm not quite sure about the English
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` title. It's written in the report if I can check it --
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` in the -- in the statement.
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`Q Sure.
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` You know --
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`A But something like deputy manager of the lab.
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`Q Deputy manager? Okay.
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
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`A I think that's what's in the statement, as well.
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`Q How were your duties different as deputy manager than
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` what they are now?
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`A My duties are -- are the same. So it was a decision in
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` the company to restructure the use of titles, which
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` happened just very recently.
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`Q About when did you become a deputy manager at Nofima?
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`A That was in 2008.
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`Q Is that when you started working at Nofima?
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`A Yes.
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`Q Where did you work prior to Nofima?
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`A Prior to Nofima, I was a student, so I finished my
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` master.
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`Q So no -- is it correct that Nofima is your only
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` professional job that you've had?
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` MS. HOLLIS: Objection; form.
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`A Nofima is my first job after graduation.
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`///
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`BY MS. CUNNINGHAM:
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`Q Would you tell me what your master's degree is in.
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`A My master's degree is in -- in nutrition, which is from
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` the department of biology in the University of Bergen.
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`Q Did you have any emphasis on marine studies in your --
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`12
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` in your master's program?
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`A Yes, I did.
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`Q And what related to marine studies did you do?
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`A My -- my master thesis was done on extraction of
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` lipids containing phospholipids from herring eggs or
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` herring roe.
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`Q Did you actually perform lipid extractions in connection
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` with your master's program?
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`A Yes, I did.
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`Q About how many extractions did you perform?
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`A The exact number I cannot quite recall, but I extracted
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` the lipids using various different solvents.
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` Yes.
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`Q Was it more than 10 extractions, do you think?
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`A Yes, it was more than 10 extractions.
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`Q More than 20?
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`A I cannot remember the exact design of my study, but,
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` from memory, it was just for the -- the design of the
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` master thesis, it was between 10 and 20, based on
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` memory.
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`Q Thank you.
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` Why were you interested specifically in
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` extraction of phospholipids?
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`A This was -- this was a thesis that became available to
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` me on -- in the master's program, and it was related to
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` work on the raw material that I mentioned, herring eggs.
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` And this -- this material does contain large
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` amounts of phospholipids so . . .
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`Q Was part of your thesis to design an extraction
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` procedure that would be -- that would maximize
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` efficiency specifically for phospholipids?
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` MS. HOLLIS: Objection to form.
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` THE WITNESS: Could you rephrase that,
`
` please?
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` MS. CUNNINGHAM: Sure.
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`BY MS. CUNNINGHAM:
`
`Q What -- were you investigating how you could develop an
`
` extraction procedure in order to extract phospholipids
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` more efficiently?
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`A I made a design to investigate how the yield of lipids,
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` including phospholipids, was affected by the choice of
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` solvent.
`
`Q What different solvents did you test?
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`14
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`A I will try to remember.
`
` I used methanol, ethanol, isopropanol or also
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` called 2-propanol.
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` I used acetone, methyl ethyl ketone, ethyl
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` acetate, and hexane.
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`Q What did you conclude about what a good solvent choice
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` was to extract phospholipids?
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`A Among the most efficient solvents, methanol and
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` ethanol were -- yeah -- were among the most efficient
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` solvents --
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`Q In --
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`A -- in this -- in this setting, which was on -- on one
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` particular set of samples -- or one particular type of
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` samples, which was freeze-dried herring roe.
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`Q So am I understanding correctly that you found using
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` different solvents would affect the composition of your
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` extract?
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`A Yes, I did.
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`Q Did you experiment with any other parameters of the
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` extraction technique besides solvent choice?
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`A My focus was on choice of solvent and, also, mixtures of
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` the mentioned solvents.
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`Q Any other aspect of the extraction procedure?
`
` MS. HOLLIS: Objection; form.
`
`A The solvent and solvent mixtures were the main design
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`15
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` parameters in my design.
`
`///
`
`BY MS. CUNNINGHAM:
`
`Q What was the extraction procedure -- could you summarize
`
` it for me? -- that you used in your master's thesis
`
` experiments?
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`A Yes, I can try.
`
` I may not remember the full details. It's a
`
` while ago.
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` But a portion of the dried herring eggs were
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` extracted with a defined volume of solvent for a given
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` time. The solvent was separated from the solid material
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` by filtration.
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` And the solvent containing extracted lipids was
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` evaporated using a rotary evaporator, which left me with
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` a lipid material after evaporation.
`
`Q Under what temperature was the rotary evaporation
`
` performed?
`
`A As far as I can remember, it was in the range of
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`16
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` 40 degrees.
`
`Q Celsius?
`
`A Celsius.
`
`Q Did you experiment with using different temperatures for
`
` the rotary evaporation step?
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` MS. HOLLIS: I'm going to object on
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` relevance and outside the scope.
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`A I cannot recall at this point.
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`BY MS. CUNNINGHAM:
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`Q If you had used a different temperature during a rotary
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` evaporation step, would you expect that might have
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` influenced your extract?
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` MS. HOLLIS: Objection; relevance, outside
`
` the scope.
`
`A I would not expect the -- the extracted lipids to -- can
`
` you re- -- repeat your question?
`
`BY MS. CUNNINGHAM:
`
`Q Had you used a different temperature other than 40 C, do
`
` you think that may have influenced the composition of
`
` the resulting extract?
`
`A No, I do not think that would have affected the
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` composition.
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
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`Q What if the temperature had been 60 C?
`
` MS. HOLLIS: Objection; relevance, outside
`
`17
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` the scope.
`
`A As I mentioned, I did not investigate this in my thesis.
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`BY MS. CUNNINGHAM:
`
`Q Based on your knowledge, do you think a higher
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` temperature, such as 60 C, might have influenced the
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` composition of the resulting extract?
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` MS. HOLLIS: Objection; relevance, outside
`
` the scope.
`
`A I -- I would have to give that more consideration.
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`BY MS. CUNNINGHAM:
`
`Q What was the pressure that you applied when performing
`
` the rotary evaporation?
`
`A The pressure depends on which solvent is being used.
`
`Q Why?
`
`A Different solvents have different properties, which may
`
` need different pressure.
`
`Q Can you explain what you mean by they "may need
`
` different pressure"?
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` MS. HOLLIS: Objection; outside the scope.
`
`A Different solvents have different boiling temperatures,
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`18
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` for instance.
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`BY MS. CUNNINGHAM:
`
`Q Why did you select 40 C as the temperature at which to
`
` perform the rotary evaporation?
`
`A Because this is a sufficient and suitable temperature.
`
`Q Sufficient for what?
`
`A For the purpose of evaporating off the solvent.
`
`Q About how long did you have to perform that evaporation
`
` to remove the solvent?
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`A That would depend on the type of solvent and, also, the
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` volume of solvent to be -- to be evaporated.
`
`Q What was the approximate range of time across the
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` different solvents that you tested?
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`A At the moment I cannot remember the exact volume that
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` was evaporated, as I cannot also remember the time of
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` evaporation.
`
`Q Would it have been more than 30 minutes?
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` MS. HOLLIS: Objection to form, outside the
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` scope.
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`A I cannot remember at this point.
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`BY MS. CUNNINGHAM:
`
`Q Based on your knowledge, do you think -- would you
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
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` expect that it would take more than 30 minutes?
`
` MS. HOLLIS: Objection to form, outside the
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`19
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` scope.
`
`A Again, it would depend on the volume and, also, the type
`
` of solvent.
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`BY MS. CUNNINGHAM:
`
`Q When you were performing that work in the lab and
`
` you're -- you have your sample in front of you, how do
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` you know when you have performed the evaporation for
`
` long enough?
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` MS. HOLLIS: Objection to form, outside the
`
` scope.
`
` THE WITNESS: You are still referring to my
`
` master's thesis work?
`
` MS. CUNNINGHAM: Yes.
`
`A The main thing to monitor is the rate at which solvent
`
` is being condensed on the condenser side in this rotary
`
` evaporator.
`
`BY MS. CUNNINGHAM:
`
`Q What would that condensation look like when enough
`
` solvent has been evaporated?
`
`A Initially the -- the condensing -- or the condensed
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` solvent would be dripping rapidly. And towards the end
`
` the dripping of solvent would -- would slow down, and
`
` evaporation was stopped when the dripping would -- would
`
`20
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` cease.
`
`Q So when the dripping ceased, you would know that enough
`
` evaporation had occurred?
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` MS. HOLLIS: I'm going to object to form,
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` outside the scope.
`
`A I'm trying to remember exactly how this was done. It's
`
` a while ago, so I may not remember the -- the exact
`
` details.
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` But I think that was the criteria that was used.
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`BY MS. CUNNINGHAM:
`
`Q Other than condensation, were there any other visual
`
` cues that you would look for to see when enough solvent
`
` had been removed?
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` MS. HOLLIS: Objection to form, outside the
`
` scope.
`
`A As I said, I cannot remember at the moment.
`
`///
`
`BY MS. CUNNINGHAM:
`
`Q Do you remember if there were any other visual cues that
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`21
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` you looked for?
`
` MS. HOLLIS: Objection to form.
`
`A As I said, I cannot remember the exact details.
`
`BY MS. CUNNINGHAM:
`
`Q For example, would you have looked to see if there was
`
` visible water on the surface of the oil?
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` MS. HOLLIS: Objection to form, outside the
`
` scope.
`
`A In this particular context, I . . . I worked with dry
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` sample material and added no water to the extraction,
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` so I would not be looking for water because there
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` were . . . little water presence.
`
`BY MS. CUNNINGHAM:
`
`Q Did you measure how much water was in the dried herring
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` egg before you performed the extraction?
`
`A Yes.
`
`Q Why?
`
`A To confirm that the freeze-drying was sufficient.
`
`Q Can you explain what you mean by "sufficient"?
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` MS. HOLLIS: Objection to form, outside the
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` scope.
`
`A By "sufficient," I mean that the material was as dry as
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` one could expect it to be using the technique of
`
`22
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` freeze-drying.
`
`BY MS. CUNNINGHAM:
`
`Q If the freeze-drying hadn't worked properly so you had
`
` more water than you would expect, how would that
`
` influence your extraction?
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` MS. HOLLIS: Objection; outside the scope,
`
` relevance.
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`A Well, my design was based on working with freeze-dried
`
` material. So as long as the material was freeze-dried,
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` that was sufficient for the purpose.
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`BY MS. CUNNINGHAM:
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`Q If the freeze-drying had not been effective and you
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` still had -- you had more water than you would expect in
`
` your sample, how would that have affected your
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` extraction?
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` MS. HOLLIS: Objection; form, outside the
`
` scope, relevance.
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`A If the sample material was not freeze-dried
`
` completely -- completely I would not have proceeded with
`
` this work.
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`BY MS. CUNNINGHAM:
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`Q Why not?
`
`A Because my -- I defined my work to be based on freeze-
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`23
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` dried material.
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`Q Why did you choose that?
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` MS. HOLLIS: Objection; outside the scope,
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` relevance.
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`A Freeze-drying is a technique of drying by electrical and
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` other materials, which is one of several techniques
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` available.
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` I chose to use this one.
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`BY MS. CUNNINGHAM:
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`Q Why?
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` MS. HOLLIS: Objection; outside the scope,
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` relevance.
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`A It removes water efficiently.
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`BY MS. CUNNINGHAM:
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`Q You didn't want to work with fresh herring egg in your
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` extraction?
`
`A No. And this -- this is -- I wanted to work with dry
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` materials.
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`Q Why?
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` MS. HOLLIS: Objection; outside the scope,
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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` form, relevance.
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` Can you explain how this line of questioning is
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`24
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` relevant and within the scope?
`
` THE WITNESS: So you asked why?
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`BY MS. CUNNINGHAM:
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`Q Yeah. Why did you prefer to start with the freeze-dried
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` material as opposed to fresh material for your -- your
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` thesis tests?
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`A Working with freeze-dried material has some benefits
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` here.
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` Then I could standardize my sample material and
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` easily make several portions to work with, which were
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` homogenous. And, also, I planned to use solvents which
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` are not readily mixable with water.
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` So those are the main considerations.
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`Q Those are the reasons why you wanted to start with a
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` sample that had low water content?
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` MS. HOLLIS: Objection; outside the scope,
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` relevance.
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`A Yes, those were the main considerations.
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`BY MS. CUNNINGHAM:
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`Q You mentioned that you tested a variety of different
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
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`VIDEOTAPED DEPOSITION OF BJORN OLE HAUGSGJERD
`CONDUCTED ON WEDNESDAY, MAY 21, 2014
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`25
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` solvents.
`
`A Uh-huh.
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`Q Did you test using chloroform as a solvent?
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`A Chloroform was not included in my study.
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`Q What about methanol?
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`A Methanol was included.
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`Q Why didn't you use chloroform?
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` MS. HOLLIS: Objection; relevance, outside
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` the scope.
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`A I chose my solvents based on the solvents that are
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` allowed for the production of fats and oils in Norway.
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`BY MS. CUNNINGHAM:
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`Q When you say "allowed," do you mean allowed for use in
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` consumer products?
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` MS. HOLLIS: Objection; outside the scope,
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` relevance.
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`A I referred to -- to Norwegian --
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` THE WITNESS: Can I ask my translator?
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` (Discussion off the record.)
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` THE INTERPRETER: "Statutes. Regulations."
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` THE WITNESS: Yes.
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`A (Continuing.) So Norwegian laws, statutes, and
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
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