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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`-----------------------------------x
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`AKER BIOMARINE AS, :
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` Petitioner, : IPR Case
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` vs. : No. 2014-00003
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`Patent of NEPTUNE TECHNOLOGIES : Patent 8,278,351
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`AND BIORESSOURCES, INC., :
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` Patent Owner. :
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`-----------------------------------x
`
` Videotaped Deposition of DR. JAMES THOMAS BRENNA
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` Chicago, Illinois
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` Wednesday, June 4, 2014
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` 9:04 a.m.
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`Job No.: 59581
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`Pages: 1 - 294
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`Reported by: Melanie L. Humphrey-Sonntag,
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` CSR, RDR, CRR, FAPR
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`NEPN Ex. 2037
`Aker v. Neptune
`IPR2014-00003
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`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`1
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`-----------------------------------x
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`AKER BIOMARINE AS, :
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` Petitioner, : IPR Case
`
` vs. : No. 2014-00003
`
`Patent of NEPTUNE TECHNOLOGIES : Patent 8,278,351
`
`AND BIORESSOURCES, INC., :
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` Patent Owner. :
`
`-----------------------------------x
`
` Videotaped Deposition of DR. JAMES THOMAS BRENNA
`
` Chicago, Illinois
`
` Wednesday, June 4, 2014
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` 9:04 a.m.
`
`Job No.: 59581
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`Pages: 1 - 294
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`Reported by: Melanie L. Humphrey-Sonntag,
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` CSR, RDR, CRR, FAPR
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`NEPN Ex. 2037
`Aker v. Neptune
`IPR2014-00003
`
`
`
`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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` Videotaped Deposition of DR. JAMES THOMAS BRENNA, held at
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`2
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`the location of:
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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 agreement, before Melanie L. Humphrey-Sonntag,
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`a Certified Shorthand Reporter, Registered Diplomate
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`Reporter, Certified Realtime Reporter, and a Notary Public in
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`and for the State of Illinois.
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 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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`
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` ON BEHALF OF THE PATENT OWNER:
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` LAURA CUNNINGHAM, ESQUIRE
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` JON GRAVES, 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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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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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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` ALSO PRESENT:
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` DANIEL P. MARGOLIS, PhD, ESQUIRE
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`4
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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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` PETER PREZZANO, Videographer
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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` C O N T E N T S
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`EXAMINATION OF DR. JAMES THOMAS BRENNA PAGE
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` By Ms. Cunningham 7
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` By Ms. Hollis 259
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` By Ms. Cunningham 270
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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 EXHIBIT PAGE
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`Exhibit 1 Brenna Declaration 19
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`Exhibit 2 Beaudoin I Patent 20
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`Exhibit 3 Beaudoin II Patent 20
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`Exhibit 4 US Patent No. 8,278,351 B1 22
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`Exhibit 5 Fricke Reference 155
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`Exhibit 6 Le Grandois Article 159
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`Exhibit 7 Itano Bio & High Technology 227
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` Announcement Paper
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`Exhibit 8 WHO Bulletin 236
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` Marked question appears on page 286, line 3
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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` CHICAGO, ILLINOIS; WEDNESDAY, JUNE 4, 2014
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` 9:04 A.M.
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` DR. JAMES THOMAS BRENNA
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` - - -
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` THE VIDEOGRAPHER: This begins Disk No. 1
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`in the video-recorded deposition of Dr. Thomas Brenna in
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`the matter of Aker Biomarine versus Neptune Technologies
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`and Bioressources, Incorporated, in the United States
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`Patent and Trademark Office.
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` Today's date is June 4th, 2014. The time on the
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`video monitor is 9:04 a.m.
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` The videographer today is Peter Prezzano,
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`representing Planet Depos. The -- this video deposition
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`is taking place at 300 North LaSalle Street in Chicago,
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`Illinois.
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` Would counsel please identify themselves and
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`state whom they represent.
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` MS. CUNNINGHAM: This is Laura Cunningham
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`of Cooley, LLP, on behalf of the patent owner, Neptune.
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` MR. GRAVES: Jon Graves, also from Cooley,
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`LLP, for the patent owner, Neptune.
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` MS. HOLLIS: Amanda Hollis from Kirkland &
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`7
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`Ellis on behalf of Petitioner Aker.
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` MR. MARGOLIS: Dan Margolis from Kenyon &
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`Kenyon for Enzymotec.
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` THE VIDEOGRAPHER: Will the court
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` reporter -- excuse me.
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` The court reporter today is Melanie Sonntag,
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` Certified Realtime Reporter, representing Planet Depos.
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` Would the court reporter please administer
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` the oath.
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` THE COURT REPORTER: Would you raise your
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` right hand, please.
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` (Witness duly sworn.)
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` THE COURT REPORTER: Thank you.
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` MS. CUNNINGHAM: Good morning.
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` THE WITNESS: Good morning.
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` DR. JAMES THOMAS BRENNA,
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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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`09:04:59
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`Q Would you please state your name.
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`09:05:31
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`8
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`A My name is James Thomas Brenna.
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`Q It's nice to see you again, Dr. Brenna, especially
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` without the cast.
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` Have you gone through any depositions since we
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` did the ITC deposition last October?
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`A In other matters I have, yes.
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`Q Could you identify those matters?
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`A One matter was a few weeks ago. It was a -- it's a
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` class-action case involving WhiteWave organic milk. And
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` I can get details of that case if you're interested.
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` I think that's the only deposition I've done,
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` although it's possible I've done another one. I think
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` that's the only one.
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`Q Okay. So I know you've been through this before, so
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` I won't spend a lot of time talking about procedure.
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` But just usual ground rules, you know your
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` counsel may object. You need to respond unless she
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` instructs you not to do so. And I just ask that, if you
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` want a break, we finish any pending questions before we
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` take a break.
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`A Okay.
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`Q Sound okay?
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`9
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`A It is.
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`Q What did you do to prepare for today's deposition?
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`A I reviewed my statement that I drafted and signed back
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` when it was submitted.
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` I reviewed many of the -- most of -- all of the
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` documents that are referred to in that statement.
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` I discussed with counsel the status of the case in
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` general.
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` And what else?
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` Those are the major things I did to prepare for
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` the case.
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`Q To prepare for today's deposition, did you talk to
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` anyone besides counsel?
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`A In preparation for this case, no, I don't believe I have
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` spoken to anyone beside counsel.
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`Q For example, any of Aker's other declarants who, like
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` you, submitted a declaration in support of their
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` petition.
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`A Not specifically for this case.
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` There was an ITC case. And in preparing for
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` that, I spoke to one -- I spoke to Dr. Budge, but that
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` was for that case. You asked about this case.
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`10
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`Q When did you speak to Dr. Budge?
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`A It was a few weeks ago.
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`Q Before the ITC case ended?
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`A Yes.
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`Q Okay. What did you and Dr. -- Dr. Budge discuss?
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`A We discussed, generally, lipid extractions and some of
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` the things that she had done, primarily things that we
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` had discussed previously.
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`Q So what was the purpose of that additional conversation?
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`A She and I were in the same place, and I suppose it was
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` to refresh our memories and clarify our recollections
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` for the ITC case, which was going to begin in a day or
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` two. I don't remember if it was the day before or
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` two days before.
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`Q Did Dr. Budge talk to you about any krill extractions
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` she's done other than those reported in the declaration
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` that she submitted in this proceeding or the statement
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` in the ITC case?
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`A I don't recall anything specifically along those lines;
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` for instance, general krill extractions that she might
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` have done in some other context. I don't remember her
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` mentioning having experienced any particular krill
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`11
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` extractions -- I know she has experience with krill
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` extractions other than in the context of this -- of
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` this case.
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`Q What about specific experiments to repeat the Beaudoin
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` patents? Did Dr. Budge describe any other iterations or
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` additional Beaudoin extractions besides the one reported
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` in her ITC statement or this declaration?
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`A I think primarily those are the ones we discussed.
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` I don't remember any other extractions that
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` were -- that were discussed.
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`Q You don't recall her mentioning doing multiple attempts
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` to repeat the Beaudoin patent?
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`A Other than what has been reported, I don't remember her
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` saying -- I don't, for instance, remember her saying,
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` "I -- I tried to do it and I couldn't and I did it again
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` and I did it again."
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` No. I just -- I just recall this one discussion
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` about -- about what's been reported.
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`Q Did Dr. Budge provide you any details about her Beaudoin
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` extraction beyond what is reported in her ITC witness
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` statement?
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`A Just let me think for a moment about what we discussed
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`12
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` and what's in the statement to my best recollection.
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` Would you like me to answer generally, or should
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` I have a look at what's in her statement or -- actually,
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` I don't have her ITC statement so I can't have a look,
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` so I'll answer you generally.
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` I can recall two things, and I don't remember
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` whether they were included in those statements, so
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` I'll -- so the answer to your question is yes.
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`Q Please describe those two things.
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`A Okay. One was a discussion of how she knew that acetone
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` was -- it ceased to evaporate from an extract. And
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` describing what the condenser liquid appears like when
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` there's a transition, let's say, from acetone to -- to
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` water.
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` And there was a second one. It was a . . . it
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` was a general appearance of -- I think it would have
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` been the Superba 1 sample, the first superba sample that
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` was extracted, and that it had a less viscous look and
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` feel compared to the -- the first pacifica. And I don't
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` remember whether those were included in -- in her
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` statements. Those are the two that come to mind.
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`Q What is the significance of her description that the --
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` the sample had a less viscous look?
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`A Could you be more specific? "Significance" in what way?
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` I mean, it's a descriptive thing. She noticed
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` that it's less viscous.
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` And just to be responsive, at that time I -- my
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` understanding is she knew nothing of the purpose of the
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` extraction, purpose for which she was asked to conduct
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` this. She was -- just noticed that it was different.
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` That's really -- that's really the significance, from
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` her perspective at the time, to my understanding.
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`Q Well, as someone who was relying on her work to form
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` your opinions, what significance did that have to you?
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`A Only that, in the course of extracting that first
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` sample, that she had observed that it was not acting
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` like the other sample.
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` There was something different about it. What was
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` different about it? Well, something was analyzed and it
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` was found that there was something different about it.
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` But she had observed that in the laboratory prior to
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` sending it off.
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` I mean, she . . . and to my understanding, she
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` doesn't know if there's a right answer or a wrong answer
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`14
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` or what she's looking for at that time, so she was just
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` answering it. She was just telling me what she had
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` observed, and I was interpreting it knowing what I knew
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` at the time. And, of course, she knew more.
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`Q When she described to you, that this -- these oil
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` samples were less viscous, did that suggest to you that
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` perhaps those samples had more water than the other
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` samples?
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`A No, it didn't.
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`Q Did it suggest to you any other compositional difference
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` between those samples and the other samples she
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` extracted?
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`A One would have to speculate on the significance of that
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` viscosity difference. Having handled phospholipid
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` solutions in the past -- that is, phospholipids
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` dissolved in -- as a molecular dispersion in liquids --
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` it's known to me that they are generally quite viscous.
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` So that sounded like there may be an issue with the
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` phospholipids or the expected phospholipids in the
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` starting material but that's speculation.
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`Q Were you discussing this with Dr. Budge because you were
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` trying to understand why you had low phospholipid
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`15
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` concentrations in a few of the samples?
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`A I think we started out by simply saying "How did the
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` extractions go?" So that would -- would have been a --
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` something in the back of our minds.
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` I don't remember whether I specifically said,
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` "Hey, did you notice something different about these
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` samples in the course of analysis?" I may have said
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` that, but I don't remember having said it.
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`Q And, Dr. Brenna, you, yourself, have never performed a
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` krill extraction; right?
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`A Right.
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`Q Have you ever worked with krill in a laboratory in
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` any way?
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`A Not to my recollection, though I've worked with
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` similar -- similar marine material.
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`Q Have you ever published anything that involves krill?
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`A Not to my recollection.
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`Q When you were hired for the ITC case by Aker's counsel,
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` were they aware that you had never performed a krill
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` extraction?
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`A When I was hired --
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` MS. HOLLIS: Objection.
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
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` Are you asking for communications with counsel?
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` MS. CUNNINGHAM: I'm asking for, initially,
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`16
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` a yes-or-no answer.
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` MS. HOLLIS: I'll allow it if you agree
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` there's no waiver of any privilege by the answer to that
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` question.
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` MS. CUNNINGHAM: We agree.
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`A (Continuing.) I don't know what they knew before they
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` hired me or when -- so whatever you mean by "when."
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` So I'm not aware.
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`BY MS. CUNNINGHAM:
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`Q Now, other experts involved in this proceeding in the
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` ITC case, like Dr. Budge, they -- they did do krill
`
` extractions; right?
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`A Yes.
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`Q And so you're relying on their work; right?
`
`A Well, I've done extractions of many sorts of animal
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` samples, including many sorts of marine samples, and
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` I've handled phospholipid mixtures extensively. So to
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` say that I'm relying on their work is -- I'm relying on
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` what they did that I didn't do, but I'm not relying
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` entirely or even mostly on their descriptions of what
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
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` they did or what they -- or their interpretations of
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` their observations.
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` I'm relying on my sense from knowing something of
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`17
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` lipid extractions.
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`Q You're not relying on, for example, Dr. Budge's
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` description of what she did in order to opine on the
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` extent to which those experiments demonstrate
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` anticipation, for example?
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`A I -- I think I just said that I am relying on what she
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` said she did, yes, because I wasn't in the laboratory
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` with her at the time.
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` But I have a -- a -- a fair amount of experience
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` with lipid samples that are very similar to krill
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` extracts.
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`Q So the ITC case has come up a few times today, but just
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` to be clear, you were a testifying expert in an ITC
`
` proceeding involving Neptune and Aker this past year;
`
` right?
`
` MS. HOLLIS: Objection to form.
`
`A I believe that's correct. The case didn't go to trial,
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` and it -- there were . . . it almost happened twice but
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` yes -- it's this year, yes. So, yes, that's correct.
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
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`18
`
`BY MS. CUNNINGHAM:
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`Q You submitted a witness statement?
`
`A I did.
`
`Q And an expert report?
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`A Yes.
`
`Q And you were deposed in connection with the --
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`A Yes.
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`Q -- ITC case?
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`A Yes, as -- as you know.
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`Q Have you changed any of your opinions, from the time you
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` submitted your witness statement in the ITC late last
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` year, up to this point?
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` MS. HOLLIS: Objection to form.
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`A There are a very large number of opinions and a lot of
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` documents in the material I covered in the ITC case
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` so -- and I do not have an accounting of every opinion
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` that I have. So if you have something specific in mind,
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` I'll be glad to review what I said in that case and --
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` and the story in this case. I generally think my
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` opinions are consistent.
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`BY MS. CUNNINGHAM:
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`Q Do any inconsistencies or changes come to mind?
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
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`19
`
` MS. HOLLIS: Objection to form.
`
`A None come to mind sitting here right now.
`
` MS. CUNNINGHAM: Okay. I'm going to mark
`
` as Brenna Exhibit 1 the declaration of Dr. Brenna
`
` submitted in this proceeding, which was previously
`
` marked as AKBM Exhibit 1042.
`
` And just for the record, I note that this
`
` declaration was submitted in five parts, so we have all
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` five parts collated here in Brenna Exhibit 1.
`
` (Exhibit 1 marked for identification.)
`
`BY MS. CUNNINGHAM:
`
`Q Dr. Brenna, this is the declaration you submitted in
`
` this proceeding; right?
`
`A It appears to be. Yes, it appears to be.
`
`Q Was this declaration created by using parts of your ITC
`
` expert report?
`
`A I think probably that is the case, that some bits were
`
` used.
`
`Q Can you estimate how long you spent in reviewing and
`
` drafting this declaration?
`
` MS. HOLLIS: Objection to form.
`
`A It's -- it's difficult to estimate because there was a
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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` lot of things going on at the time when we were doing
`
` this because the ITC case was -- was also proceeding
`
` and . . . it would just be a guess at 10 or 20 hours but
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`20
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` just a guess.
`
` MS. CUNNINGHAM: I'm going to mark as the
`
` next two exhibits the Beaudoin I and the Beaudoin II
`
` patents. So Beaudoin I will be Brenna Exhibit 2 and was
`
` previously marked as AKBM Exhibit 1002.
`
` (Exhibit 2 marked for identification.)
`
` MS. CUNNINGHAM: And the Beaudoin II patent
`
` will be Brenna Exhibit 3, and it was previously marked
`
` as AKBM Exhibit 1003.
`
` (Exhibit 3 marked for identification.)
`
`BY MS. CUNNINGHAM:
`
`Q Now, Dr. Brenna, you're familiar with the Beaudoin I and
`
` the Beaudoin II patents; right?
`
`A Yes.
`
`Q You opined on them in the ITC; right?
`
`A Yes.
`
`Q And you're opining on them here?
`
`A Yes.
`
`Q Specifically you're opining that the Beaudoin patent --
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
`
` let's focus first on the Beaudoin I patent -- that the
`
`21
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` Beaudoin I patent anticipates Claim 2 of the
`
` '351 patent; right?
`
`A Do you have a particular section of my report that --
`
` that you have in mind? I just want to be sure I'm --
`
` I'm looking at -- and responding accurately.
`
`Q I can direct you to a paragraph in your declaration if
`
` that --
`
`A Uh-huh.
`
`Q -- is necessary.
`
` So I would direct you to start at paragraph 175,
`
` which is on page 109, where you state that the
`
` Beaudoin I "discloses each and every limitation of the
`
` claims and, therefore, anticipates these claims."
`
` MS. HOLLIS: Objection to -- it
`
` mischaracterizes. Objection; form.
`
` MS. CUNNINGHAM: That seems odd but okay.
`
` MS. HOLLIS: It's the missing words I'm
`
` referring to.
`
` MS. CUNNINGHAM: Oh, there is a
`
` parenthetical in there.
`
`BY MS. CUNNINGHAM:
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`22
`
`Q Are we at 175?
`
`A I am 175 and I have -- and -- and I see the -- the
`
` sentence.
`
`Q Does this refresh your memory that you're opining
`
` that Beaudoin I anticipates every limitation of the
`
` '351 claims?
`
`A Yes.
`
` MS. CUNNINGHAM: Okay. And just for --
`
` I'll go ahead and mark the '351 patent now as Exhibit 4.
`
` It was previously marked as AKBM Exhibit 1001.
`
` (Exhibit 4 marked for identification.)
`
`BY MS. CUNNINGHAM:
`
`Q Dr. Brenna, all of the claims of the '351 patent require
`
` an extract that is suitable for human consumption;
`
` right?
`
`A Well . . . we've -- yes.
`
`Q Does the Beaudoin I patent disclose an extract that's
`
` suitable for human consumption?
`
`A Yes, it does.
`
`Q And what is the basis for that opinion?
`
`A Well, in the Beaudoin I patent Dr. Beaudoin discusses
`
` the use of his extract for human consumption. He
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`23
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` reports having tasted it himself without having
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` experienced any "side effect profile," I believe he
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` put it.
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`Q You say in Beaudoin I Beaudoin discusses the use of his
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` extract for human consumption. But it doesn't
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` actually -- does -- well, does it disclose that
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` Dr. Beaudoin had an extract that is suitable for human
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` consumption?
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`A Yes. He consumed it himself.
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`Q So you're relying on the statement that Beaudoin tasted
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` or ingested some of his oil samples --
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` MS. HOLLIS: Objection.
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`BY MS. CUNNINGHAM:
`
`Q -- is that right?
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` MS. HOLLIS: Objection to form.
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`A I'm relying on that and his intention, his stated
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` intention, to create an extract suitable for human
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` consumption.
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`BY MS. CUNNINGHAM:
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`Q Now let's turn to page 12 of Beaudoin I just to make
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` sure we're looking at exactly what we're -- the passage
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` you're mentioning.
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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` I think you're referencing the passage that is in
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` the third paragraph on page 12, "One of the inventors,
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` Dr. Adrien Beaudoin, has ingested the different lipid
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` fractions of krill. No side effect profile was
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` observed."
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` Is that -- is that the statement that you're
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` referring to?
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`A Yes.
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`Q You don't know whether the lipid fractions that
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` Dr. Beaudoin reports having ingested were heated before
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` he ingested them; right?
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`A Well, he . . . he -- heated to what temperature are
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` we -- are we -- do -- he heated them in a -- he
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` certainly roto-vaped them. That certainly would require
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` some heating above room temperature.
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`Q We're going to come back to that, but following
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` evaporation after -- you don't know if there was any
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` heat applied to those fractions, do you?
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`A I don't know explicitly, no.
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`Q Isn't it possible that Beaudoin could have been
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` ingesting those fractions to see how -- how much solvent
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` they contained?
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`VIDEOTAPED DEPOSITION OF DR. JAMES THOMAS BRENNA
`CONDUCTED ON WEDNESDAY, JUNE 4, 2014
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`A Well, he doesn't mention that, and he does mention a
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` side effect profile that suggests, to me, that he was
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` considering some sort of a physiological effect.
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`Q You don't know how much oil Dr. Beaudoin ingested;
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` rig
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