UNITED STATES PATENT AND TRADEMARK OFFICE
`
` 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
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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. IVAR STORRO
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` Chicago, Illinois
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` Thursday, June 5, 2014
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` 8:37 a.m.
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`Job No.: 59582
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`Pages: 1 - 255
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`Reported by: Melanie L. Humphrey-Sonntag,
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` CSR, RDR, CRR, FAPR
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`NEPN Ex. 2038
`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. IVAR STORRO
`
` Chicago, Illinois
`
` Thursday, June 5, 2014
`
` 8:37 a.m.
`
`Job No.: 59582
`
`Pages: 1 - 255
`
`Reported by: Melanie L. Humphrey-Sonntag,
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` CSR, RDR, CRR, FAPR
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`NEPN Ex. 2038
`Aker v. Neptune
`IPR2014-00003
`
`
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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` Videotaped Deposition of DR. IVAR STORRO, held
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`2
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`at 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.
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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 DR. IVAR STORRO
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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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` MICHAEL W. DE VRIES, ESQUIRE
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` KIRKLAND & ELLIS, LLP
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` 333 South Hope Street
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` Los Angeles, California 90071
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` 213.680.8400
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` ON BEHALF OF THE PATENT OWNER:
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` JONATHAN GRAVES, ESQUIRE
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` LAURA CUNNINGHAM, ESQUIRE
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` COOLEY, LLP
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` One Freedom Square
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` Reston Town Center
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` 11951 Freedom Drive
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` Reston, Virginia 20190
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` 703.456.8000
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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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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` CYNTHIA HARDMAN, ESQUIRE
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` KENYON & KENYON, LLP
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` One Broadway
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` New York, New York 10004
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` 212.425.7200
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` PETER PREZZANO, Videographer.
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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` C O N T E N T S
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`EXAMINATION OF DR. IVAR STORRO PAGE
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` By Mr. Graves 8
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` By Mr. De Vries 220
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` By Mr. Graves 243
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` E X H I B I T S
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` (Attached to transcript)
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`STORRO DEPOSITION EXHIBIT PAGE
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`Exhibit 1 Storro Declaration 58
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`Exhibit 2 Beaudoin I Patent 88
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`Exhibit 3 Beaudoin II Patent 88
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`Exhibit 4 US Patent No. 8,278,351 B1 174
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`Exhibit 5 "A Better Life With Seafood" 198
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` Article
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`Exhibit 6 US Patent No. 4,714,571 201
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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` CHICAGO, ILLINOIS; THURSDAY, JUNE 5, 2014
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`6
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` 8:37 A.M.
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` DR. IVAR STORRO
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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. Ivar Storro in
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` the matter of Aker BioMarine versus Neptune Technologies
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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 June 5th, 2014. The time on the
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` video monitor is 8:37 a.m.
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` The videographer today is Peter Prezzano,
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` representing Planet Depos. This 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 identify themselves and
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` state who they represent.
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` MR. GRAVES: Jonathan Graves from Cooley,
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` LLP, for the patent owner, Neptune Technologies and
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` Bioressources, Inc.
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` MS. CUNNINGHAM: Laura Cunningham of
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` Cooley, LLP, for the patent owner, Neptune.
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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`7
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` MR. DE VRIES: This is Mike DeVries from
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` the law firm of Kirkland & Ellis, LLP, counsel for the
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` petitioner, Aker BioMarine AS.
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` MS. HARDMAN: Cynthia Hardman from Kenyon &
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` Kenyon, LLP, for Enzymotec, Ltd.
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` THE WITNESS: My name is Ivar Storro
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` representing myself.
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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 court reporter please administer the
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` oaths.
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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: Thank you. And would
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` you swear the witness, please.
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` Raise your right hand.
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` (Witness duly sworn.)
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` THE COURT REPORTER: Thank you.
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` MR. GRAVES: Good morning, Dr. Storro.
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` THE WITNESS: Good morning.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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`8
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` IVAR STORRO,
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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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`///
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`///
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` E X A M I N A T I O N
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`BY MR. GRAVES:
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`Q Could you please state your full name for the record.
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`A My name is Ivar Storro.
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`Q And I introduced myself before we began. My name is
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` Jon Graves. I represent the patent owner, Neptune, in
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` these proceedings --
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`A Okay.
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`Q -- and I'll be taking your deposition today.
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`A Uh-huh.
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`Q Have you ever been deposed before, sir?
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`A No. This is my first time.
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`Q Then I'll go over some of the ground rules to try to
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` make sure we're on the same page today.
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`A Uh-huh.
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`Q First, as you've heard, you've taken an oath to tell the
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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`9
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` truth today in response to my questions.
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` Do you understand that?
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`A Yes.
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`Q Also, for the benefit of the court reporter, you'll need
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` to give audible responses to my questions since the
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` transcript cannot record nods of the head such as
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` that --
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`A Okay. Good.
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`Q -- for example.
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`A Uh-huh.
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`Q Also, particularly for the benefit of the reporter,
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` please wait until I've completely finished my question
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` before you begin your answer even though you may
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` anticipate where the question is going before it's over.
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` Do you understand that?
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`A Yes.
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`Q In addition, your counsel from time to time may
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` interpose objections to my questions. Allow counsel to
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` do so, but then go ahead and answer my questions unless
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` you're specifically instructed by counsel not to answer.
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` Do you understand that?
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`A I understand that.
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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`Q Is there any reason why you can't give your best
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`10
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` testimony today, sir?
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`A No, except a slight jet lag.
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`Q Otherwise, you're feeling well?
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`A Yes. Yeah.
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`Q And if at any time you need to take a break, just speak
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` up and let me know --
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`A Yes.
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`Q -- and we'll try to accommodate you.
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`A Yes, that's fine.
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`Q What is your current business address, sir?
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`A My current business address is my home address. I have
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` retired from SINTEF half a year ago and took half my
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` pension, which I'm allowed to in Norway now, and
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` established my own company.
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` Translated to English that is Rest Raa
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` Material -- okay? -- and the address is Ullins vei 16 a,
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` 7033 Trondheim.
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`Q And how is the name of your company spelled?
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`A Raa Material. That's a little bit difficult. It's
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` R-a-a M-a-t-e-r-i-l [sic].
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` THE WITNESS: Is that correct?
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`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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` (Discussion off the record.)
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` THE INTERPRETER: -i-a-l.
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` THE WITNESS: -i-a-l.
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`BY MR. GRAVES:
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`Q -i-a-l, okay.
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` And does that mean "raw material"?
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`A Yeah. Uh-huh.
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`Q Okay. And is that a -- a consulting company that you
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` founded?
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`A Yeah, that's a consulting company.
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`Q Is there anyone else who -- who works for the company
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` besides yourself?
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`A No. I'm the only, yeah.
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`Q And what is the nature of the consulting business?
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`A The nature of the consulting business is -- yeah. This
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` I should know.
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` It is consulting in use of leftovers from
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` production and, also, the use of biomaterial to produce
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` high-cost products.
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`Q And you've been engaged in this consulting business for
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` about the last year and a half; is that right?
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`A With my own firm, yes. Yeah.
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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`Q And immediately prior to establishing this consulting
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` business, were you employed by SINTEF?
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`A That's right. That's correct.
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`Q And what did you do at SINTEF?
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`A It will take a long time to answer your question there,
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` I think.
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` But something was consultancy work. Something
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` was process development, biochemical research, and --
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` yeah, a lot of things.
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` But SINTEF is -- to get that straight -- is a
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` foundation. Okay? And it does contract work for
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` industry, different industry.
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`Q While you were at SINTEF, was Aker BioMarine a client of
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` SINTEF at any time?
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`A No. Well, let me rephrase that.
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` SINTEF has a business of around 200 --
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` 2,500 employees. Okay? And I have not fully overview
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` of what all of these 2,500 employees have been -- have
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` been doing.
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` So I must say, to my knowledge, there has not
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` been any big contract research for Aker BioMarine.
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`Q Are you aware of any relationship between SINTEF and
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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` Aker BioMarine?
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`A No, not to my knowledge.
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`Q While you were at SINTEF, did you ever do any work on
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` behalf of Aker BioMarine or another Aker entity?
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`A No.
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`Q Before being engaged for proceedings relating to
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` Neptune's --
`
`A Uh-huh.
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`Q -- patents, had you done any work for Aker BioMarine or
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` any related entity?
`
`A No.
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`Q What do you consider your areas of expertise to be?
`
`A That's . . . well, I'll -- go back.
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` I'm trained as a biochemist. Okay?
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` Microbiologist, process engineering. And I have been
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` working in SINTEF for 15 years with bacteria mostly and
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` then using bacteria for a positive purpose for
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` production, like fermentation, different kinds of
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` fermentation.
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` During the last 5 years of this 15-year stay
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` in -- in SINTEF chemistry as -- or industrial chemistry,
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` as the region was called -- I worked more and more for
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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`14
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` food-producing firms. Okay?
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` The Norwegian Dairy Association was one of our
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` big clients. They have almost a mon -- monopoly in
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` Norway for dairy production -- dairy products.
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` Later I started to work with a company in Norway
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` called Mills. It has nothing to do with milling to do,
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` but it's a company that produced products mainly based
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` on lipids or fat.
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` So they have around 90 percent of the Norwegian
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` market for margarine. They have 95 percent of the
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` Norwegian market for mayonnaise. They have other
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` products which are big over in Norway like the cod roe
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` paste in Norway, which is a mayonnaise based on cod
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` eggs.
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` And most of the products in this firm was, in
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` fact, lipid based, based on, usually, emulsions, both
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` emulsions where you have water as the continuous phase,
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` like in mayonnaise, or fat as the continuous phase, as
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` we have in margarine.
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` We're starting in SINTEF to develop processes for
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` Mills, and at some time we felt that this processes has
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` to be transformed or industrialized and the best way
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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`15
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` that we can do that is that they . . . the people who
`
` has developed this process go to industry and work with
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` industry, so I worked with Mills for 4 1/2 years --
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` okay? -- working on these lipid-containing products.
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` Okay?
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` After that, after four years, I was then
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` commuting from Trondheim to Oslo -- well . . . back
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` and -- while working in Oslo for three days and then
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` two days in Trondheim. And my children left home, my
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` wife was sitting there alone in the evening, so
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` I decided to go back again to Trondheim.
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` Working for Mills, I found out there was a lot of
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` things in lipid chemistry I didn't know, and I decided
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` to go back again to SINTEF where they had a very good
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` research unit in lipid chemistry and lipid analysis, and
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` I started to work with them. And I worked with them
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` from roughly 2002 until 2013 -- okay? -- doing different
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` work with lipids and lipids-related processes and
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` products.
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` So to really say what is my background is very
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` difficult. It's a broad background, going from bacteria
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` to lipids, going from basic chemical research into
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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` applied chemical research and applied chemical and food
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`16
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` processes.
`
`Q Thank you.
`
`A I guess I have forgotten something, too, but I think I
`
` will stop there and -- if you have more specific
`
` question, we can take that later.
`
`Q Now, you said you went back to SINTEF from 2002 to 2013;
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` is that correct?
`
`A Yeah, roughly. I'm . . . I'm not interested in -- in
`
` the years exactly but roughly. Okay?
`
` You will find that in my CV and in my
`
` declaration.
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`Q And before you went back to SINTEF, you were at that
`
` time employed by Mills?
`
`A Yes.
`
`Q And when you went back to SINTEF in approximately
`
` 2002 --
`
`A Uh-huh.
`
`Q -- at that time had you, in your career, performed lipid
`
` extractions?
`
`A There was -- yeah. Before that time, yes. Especially
`
` as a student, both in courses in organic chemistry and,
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
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`17
`
` also, courses in biotechnology.
`
`Q And --
`
`A And, also, later on in the lab we were working with
`
` solvents. Okay?
`
` And I had to go back again to, let's say, very
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` early when I studied my PhD.
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`Q Have you ever performed lipid extractions from marine
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` biomasses?
`
`A Yes, I have.
`
`Q When was the first time you did that?
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`A That's a little bit difficult to remember on the first
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` time, but what I'm totally sure about was when I came
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` back to SINTEF, let's say in 2002. I did it because
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` that was the standard procedure of the lab.
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` Extracted lipid in organic courses and -- yeah,
`
` when I was a student back in the late '60s, beginning of
`
` the '70s.
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` And it might be that I've been into that, also,
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` in between, but I cannot give you the exact year and
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` exactly what I was doing that -- but I don't --
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` (Discussion off the record.)
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`08:53:15
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` THE INTERPRETER: "Remember, recall."
`
`08:53:24
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`18
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`A (Continuing.) -- I don't remember, recall.
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` THE INTERPRETER: Yeah.
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` THE WITNESS: Okay.
`
`BY MR. GRAVES:
`
`Q Have you ever done lipid extractions from krill?
`
`A I have personally not done lipid extraction from
`
` krill, no.
`
`Q On what marine biomasses have you performed lipid
`
` extractions?
`
`A Well, that's -- a lot of different fish. Okay?
`
` Especially rest raw material from fish when you
`
` eviscerate.
`
` THE WITNESS: Is that the correct word?
`
` (Discussion off the record.)
`
` THE WITNESS: To open the fish and take out
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` the guts and so on.
`
` THE INTERPRETER: "Gut a fish."
`
`A (Continuing.) That's something we have been working a
`
` lot with.
`
` We have done a lot of extraction from fish eggs.
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` We have -- from different types of fish, mainly cod and
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` herring.
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`19
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` And we have, of course, extracted lipids from
`
` liver, intestines, different components of the rest raw
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` material that you have in fish, so it's a lot of
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` different kind of compounds that we have extracted
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` lipids from.
`
`BY MR. GRAVES:
`
`Q Do you recall performing any lipid extractions on marine
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` biomasses prior to your return to SINTEF in
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` approximately 2002?
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` MR. DE VRIES: Objection; form.
`
`A I would say working in industry we had different
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` projects with research organizations, both going back to
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` SINTEF and to a lot of Europe or -- European research
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` organization based in Norway -- I'm sorry; that's
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` obvious -- Iceland, Sweden, Denmark, and Spain. Okay?
`
` They did lipid extractions -- okay? -- which we
`
` discussed in meetings, but I was not in the lab doing
`
` the lipid extraction myself.
`
`BY MR. GRAVES:
`
`Q Okay. So before you returned to SINTEF in approximately
`
` 2002, had you, personally, ever done a lipid extraction
`
` from a marine biomass?
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` MR. DE VRIES: Objection; form.
`
`A It's difficult to go back to the '60s, '70s to really
`
` recall which starting material we were using. But we
`
` had an extensive course in natural organic chemistry
`
` where we extracted a lot of different things with
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` different solvents to get the specific compounds that we
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` were looking for out from the biomass.
`
`BY MR. GRAVES:
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`Q So that's when you were a student, in the '60s and '70s?
`
`A Yes.
`
`Q And you just don't recall what the -- what the organisms
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` were that you were performing lipid extractions on
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` during that coursework; is that right?
`
`A No.
`
`Q You don't?
`
`A I cannot give you specific that "I did this and this
`
` experiment." Sorry.
`
`Q And after your return to SINTEF in approximately 2002,
`
` did you personally conduct any extractions of lipids
`
` from marine biomasses?
`
`A Yeah. We had -- or -- it is . . . I have done that,
`
` yes.
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`21
`
`Q And on how many occasions did you, personally, conduct
`
` lipid -- lipid extractions from marine biomasses after
`
` you returned to SINTEF?
`
` MR. DE VRIES: Objection; form.
`
`A Difficult to answer because it was . . . there was a
`
` lot, in fact, because we had been discussing this
`
` analysis of lipids -- okay? -- which you do by
`
` extraction, which is really a complicated matter. So to
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` give you a fixed number would be difficult.
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` Or at least I have to go back and really think
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` about it and calculate how many extractions I have been
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` doing and have been involved in.
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`BY MR. GRAVES:
`
`Q So you're unable to give me an approximation of the
`
` number of lipid extractions that you, personally,
`
` performed at SINTEF after your return there in 2002 on
`
` marine biomasses?
`
` MR. DE VRIES: Objection; form.
`
`A Uh-huh. Usually I think SINTEF, because we are in this
`
` group -- which I am working on lately -- we have a lot
`
` of analysis of lipids, characterizing lipids and, also,
`
` quantifying lipids. And whenever you are quantifying
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`
` lipids, you have to extract them. Okay?
`
` And, also, if you're going to characterize them,
`
`22
`
` you have to -- for most techniques I must say -- you
`
` have to isolate the lipids. So that we, in the lab,
`
` roughly extracted 10 samples per week year-round.
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` That will give you some rough estimation of
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` how -- that's also the work of lipid extraction that was
`
` done in the lab.
`
`BY MR. GRAVES:
`
`Q I take it, though, prior to your return to SINTEF in
`
` approximately 2002 --
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`A Uh-huh.
`
`Q -- you would not have considered yourself an expert in
`
` lipid extractions. Is that fair?
`
` MR. DE VRIES: Objection; form.
`
`A I have a basic knowledge in chemistry -- okay? -- and in
`
` which lipid extraction is a part of that. Okay? But it
`
` really boils down to what you mean by a "lipid expert."
`
` But most of this lipid extraction is based on
`
` general rules taken from chemistry -- okay? --
`
` partitioning and so on.
`
` So if you have a good knowledge on partitioning
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`23
`
` and solubility and so on, how these solvents are able to
`
` solubilize lipid compounds -- okay? -- you can do really
`
` a lot of work, theoretically, before you go to the lab.
`
` So in this case, I feel that my knowledge and --
`
` call it theoretical extraction -- is very good.
`
`BY MR. GRAVES:
`
`Q Well, to be clear, I want to go back to, say, 2001 --
`
`A Yeah.
`
`Q -- before you returned to SINTEF. You would not have
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` held yourself out as an expert at that time in
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` extraction of lipids, would you?
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` MR. DE VRIES: Objection; form.
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`A Uh-huh. I held by that time because of the cooperation
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` we had with different labs -- okay? -- during my stay in
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` SINTEF. Okay?
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` And that . . . and the projects that we were
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` running with different research organization because
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` then I was -- what should I say? -- I was a project
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` leader for all these projects -- okay? -- in which they
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` also did a lot of lipid extraction, so we had to discuss
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` these lipid extractions on meetings in a project.
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` I did not do this extraction myself, but we had
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`VIDEOTAPED DEPOSITION OF DR. IVAR STORRO
`CONDUCTED ON THURSDAY, JUNE 5, 2014
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`24
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` discussions in -- shall I say? -- in -- in -- in the
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` projects where we discussed different ways of extraction
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` and whether we got the right answers or not.
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` So . . . I just recalled one thing, just as an
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` example.
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` We just wanted once to figure out the lipid
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` content of a project -- or one lipid content of a
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` product, sent this sample to a governmental analysis lab
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` in Norway, and then the answer came back "What
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` percentage do you want?"
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` Okay? That's telling you a little bit.
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` Then I have to go back again and discuss with
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` this governmental analysis laboratory about the flows
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` and which they also knew about discussion about -- and
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` the extraction. So I was able to discuss with people
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` about extraction of lipids from different products or --
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` or material before I came into SINTEF again -- okay? --
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` based on general common knowledge and discussion with --
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` with those who have done this for years.
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`BY MR. GRAVES:
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`Q Before your engagement for proceedings relating to
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` Neptune's patents in the patent office, had you done any
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` sort of work involving krill?
`
` MR. DE VRIES: Objection; form.
`
`A You said, if I recall your question correctly,
`
` "involved in." Okay?
`
` I . . . I was a student at the Technical
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` University of Norway, as it was called at that time, in
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` the beginning of the '70s, and that's where the krill
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` story really started in Norway and was headed by a
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` professor called Viggo Mohr, who had several PhD
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` students that were starting to look at krill.
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` And the most, let's say, well-known krill student
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` was Trond Ellingsen, who went on to Antarctic to do work
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` on krill. To work on a boat in the '70s were very
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` difficult. You don't have the equipment which you have
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` today, so we had a lot of discussions how to perform the
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` work on krill while he was on board.
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` So I participated in these discussions, but all
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` experimental work was done by Trond Ellingsen.
`
`BY MR. GRAVES:
`
`Q Before you
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