PLANET DEPOS
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`>> happ en.
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`Transcript of RICHARD BRUCE VAN BREEMEN, PH.D.
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`Date: October 10, 2013
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`Case: ITMO: CERTAIN OMEGA-3 EXTRACTS FROM MARINE OR
`(cid:36)(cid:52)(cid:56)(cid:36)(cid:55)(cid:44)(cid:38)(cid:3)(cid:37)(cid:44)(cid:50)(cid:48)(cid:36)(cid:54)(cid:54)(cid:3)(cid:36)(cid:49)(cid:39)(cid:3)(cid:51)(cid:53)(cid:50)(cid:39)(cid:56)(cid:38)(cid:55)(cid:54)(cid:3)(cid:38)(cid:50)(cid:49)(cid:55)(cid:36)(cid:44)(cid:49)(cid:44)(cid:49)(cid:42)(cid:3)(cid:55)(cid:43)(cid:40)(cid:3)(cid:54)(cid:36)(cid:48)(cid:40)
`AQUATIC BIOMASS AND PRODUCTS CONTAINING THE SAME
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`(cid:51)(cid:79)(cid:68)(cid:81)(cid:72)(cid:87)(cid:3)(cid:39)(cid:72)(cid:83)(cid:82)(cid:86)(cid:15)(cid:3)(cid:47)(cid:47)(cid:38)
`Planet Depos, LLC
`(cid:51)(cid:75)(cid:82)(cid:81)(cid:72)(cid:29)(cid:3)(cid:27)(cid:27)(cid:27)(cid:16)(cid:23)(cid:22)(cid:22)(cid:16)(cid:22)(cid:26)(cid:25)(cid:26)
`Phone: 888-433-3767
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`Fax: 888-503-3767
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`Email: transcripts@p|anetdepos.com
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`Internet: www.p|anetdepos.com
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`Court Reporting | Videography | Videoconferencing | Interpretation | Transcription
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`I
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`AKBM 1102
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`AKBM 1102
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`

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`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
`
` UNITED STATES INTERNATIONAL TRADE COMMISSION
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`1
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` Washington, D.C.
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`- - - - - - - - - - - - - - - - -x
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` In the Matter of :
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` CERTAIN OMEGA-3 EXTRACTS FROM : Inv. No.
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` MARINE OR AQUATIC BIOMASS AND : 337-TA-877
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` PRODUCTS CONTAINING THE SAME :
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`- - - - - - - - - - - - - - - - -x
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` Videotaped Deposition of
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` RICHARD BRUCE van BREEMEN, Ph.D.
`
` Washington, DC
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` Thursday, October 10, 2013
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` 9:11 a.m.
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`1 (Pages 1 to 4)
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` A P P E A R A N C E S
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` ON BEHALF OF COMPLAINANTS NEPTUNE TECHNOLOGIES &
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` BIORESOURCES INC. and ACASTI PHARMA INC.:
`
` SCOTT A. SUKENICK, ESQUIRE
`
` COOLEY LLP
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` 1114 Avenue of the Americas
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` New York, New York 10036
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` (212) 479-6000
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` ON BEHALF OF COMPLAINANTS NEPTUNE TECHNOLOGIES &
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` BIORESOURCES INC. and ACASTI PHARMA INC.:
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` J. ADAM SUPPES, ESQUIRE
`
` COOLEY LLP
`
` One Freedom Square
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` Reston Town Center
`
` 11951 Freedom Drive
`
`Job No.: 45891
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`Pages: 1 - 211
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`Reported By: Lee Bursten, RMR, CRR
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` Videotaped Deposition of RICHARD BRUCE van
`BREEMEN, Ph.D., held at the offices of:
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` KIRKLAND & ELLIS LLP
` 655 Fifteenth Street, NW
` Washington, DC 20005
` (202) 879-5000
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` Pursuant to notice, before Lee Bursten,
`Registered Merit Reporter, Certified Realtime
`Reporter, and Notary Public in and for the District
`of Columbia, who officiated in administering the oath
`to the witness.
`
` Reston, Virginia 20190
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` (703) 456-8000
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`4
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` A P P E A R A N C E S C O N T I N U E D
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` ON BEHALF OF RESPONDENTS AKER BIOMARINE AS, AKER
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` BIOMARINE ANTARCTIC AS, AKER BIOMARINE ANTARCTIC
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` USA, INC., OLYMPIC SEAFOOD AS, OLYMPIC BIOTEC
`
` LTD., AVOCA, INC., RIMFROST USA, LLC, and
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` BIORIGINAL FOOD & SCIENCE CORP.:
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` MARK A. PALS, ESQUIRE
`
` JARED BARCENAS, ESQUIRE
`
` KIRKLAND & ELLIS LLP
`
` 300 North LaSalle
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` Chicago, Illinois 60654
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` (312) 862-2000
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` ALSO PRESENT:
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` EDVARD BRAEKKE, ESQUIRE
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` DAVID ANDRE, Videographer
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`PLANET DEPOS
`2
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`

`
`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
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`2 (Pages 5 to 8)
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` THE VIDEOGRAPHER: The court reporter today
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`is Lee Bursten, representing Planet Depos. Would you
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`please swear in the witness.
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` RICHARD BRUCE van BREEMEN, Ph.D.
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` having been duly sworn, testified as follows:
`
` EXAMINATION BY COUNSEL FOR COMPLAINANTS
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` NEPTUNE TECHNOLOGIES & BIORESOURCES INC. and ACASTI
`
` PHARMA INC.
`
`BY MR. SUKENICK:
`
` Q Good morning.
`
` A Good morning.
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` Q How are you today?
`
` A I'm fine, thank you.
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` Q Okay. Good. Would you please state and
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`spell your name for the record.
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` A Richard Bruce van Breemen. My last name is
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`spelled V, lower case V-A-N, space, capital B like
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`boy, R, double E, M-E-N.
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` Q Have you ever been deposed before?
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` A Yes.
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` Q How many times?
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` A I'm not certain. I think it's more than
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`8
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`five but less than ten times.
` Q Okay. Approximately when?
` A Between 1999 and the present.
` Q Spaced out fairly evenly?
` A Fairly evenly.
` Q How about in the past few years?
` A In the past few years, yes, I was deposed.
` Q How many times in the past four years?
` A In the past four years, I believe it's
`twice.
` Q Do you recall what types of cases, what was
`the subject matter of the cases in which you were
`deposed?
` A You mean in the last four years?
` Q Yes.
` A One concerned dietary supplements. The
`other concerned a pharmaceutical patent.
` Q Did the dietary supplements case involve a
`question of patent validity?
` A That's more of a legal question, and I'm
`not entirely certain. In the way I understood it, it
`was a case of a generics maker and a brand name
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` C O N T E N T S
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`EXAMINATION OF RICHARD BRUCE van BREEMEN, Ph.D. PAGE
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` By Mr. Sukenick 7
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`5
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` E X H I B I T S
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` (Attached to transcript)
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`VAN BREEMEN DEPOSITION EXHIBITS PAGE
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` Exhibit 1 Expert Witness Report of 27
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` Richard B. van Breemen, Ph.D.
`
` Regarding Invalidity of United
`
` States Patent Numbers
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` 8,278,351 and 8,383,675
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` Exhibit 2 Fujita reference 76
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` Exhibit 3 Rogozhin reference 109
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` Exhibit 4 US Patent 8,278,351 148
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` P R O C E E D I N G S
`2
` THE VIDEOGRAPHER: Here begins disk number
`3
`1 in the videotaped deposition of Richard van
`4
`Breemen, Ph.D., in the matter of Certain Omega-3
`5
`Extracts from Marine or Aquatic Biomass and Products
`6
`Containing Same, pending in the United States
`7
`International Trade Commission, investigation number
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`337-TA-887.
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` Today's date is October 10th, 2013. The
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`time on the video monitor is 9:11 a.m. My name is
`11
`David Andre, representing Planet Depos. This video
`12
`deposition is taking place at 655 15th Street,
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`Northwest, Washington, DC.
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` Will counsel please voice identify
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`themselves and state whom they represent.
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` MR. SUKENICK: This is Scott Sukenick from
`17
`Cooley LLP, representing the complainants, and with
`18 me is Adam Suppes, also from Cooley LLP.
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` MR. PALS: Mark Pals from Kirkland & Ellis,
`20
`representing the Aker respondents.
`21
` MR. BARCENAS: Jared Barcenas from Kirkland
`22 & Ellis, representing the Aker respondents.
`
`PLANET DEPOS
`3
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`

`
`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
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`legal issues and you're not sure, but you did submit
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`a report in this case in which you opined that the
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`asserted patents are invalid, correct?
` A Which case do you mean?
`4
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` Q Our current case.
` A Okay. In the current case, I have
`6
`expressed opinions about several issues of the
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`conception of the patent, the written description of
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`the patent. That I have done.
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` Q And do you understand those opinions as
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`having to do with the validity of the asserted
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`patents?
` A I've received some education during this
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`process about the legal terms, and I have put in my
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`report what I understand some of these legal terms to
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`16 mean, and how I implied them in my report. So I
`don't recall exactly if I used the word "validity."
`17
`But I can check the report, or you can point out to
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`19 me where I talked about it in the report if it's
`there. I just don't remember.
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` Q Okay. We'll get to the report in a moment.
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`I'll just note that the title of the report, "Expert
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`1 maker, and the brand name company wanted the generic
`product not on the market. So I'm not sure if that's
`2
`a validity case or not. I don't think so, but...
` Q Which side did you provide testimony on
`behalf of?
` A I was asked to provide testimony on behalf
`of the generics maker.
` Q And do you recall testifying as to whether
`the brand name company's patent was invalid?
` A I'm not sure there even was a patent in
`that case. There was a patent in the pharmaceutical
`case. This was a marketing question, whether or not
`a generics maker could claim that their product was
`similar to the brand name or not.
` Q Okay. And in the pharmaceutical case, did
`you provide testimony -- well, what was the
`pharmaceutical case about?
` A Pharmaceutical case was a situation where a
`patented pharmaceutical company -- a company with a
`patented pharmaceutical didn't -- was suing a
`generics maker so that they weren't able to market
`their product, that was the -- as I recall.
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` Q And do you recall that the brand name
`company accused the generic company of infringing a
`patent?
` A Yes, that is what I recall.
` Q Did you opine on questions of patent
`infringement or patent validity?
` A Again, those are legal terms. I'm not
`exactly certain. But what I was asked to comment on
`was about the composition of matter of the products.
`I'm not sure if that was validity or infringement,
`exactly how. My opinion had to do with the
`composition of matter of the products in question.
` Q Okay. But you don't recall whether your
`opinion had anything to do with whether those
`products infringed or did not infringe the asserted
`patent or patents?
` A I'm not -- I don't recall exactly.
` Q Okay. And you don't recall whether you
`examined the asserted patent or patents to opine on
`whether they were valid?
` A I don't remember.
` Q Okay. Now, you said before, those are
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`1 Witness Report of Richard van Breemen, Ph.D.,
`2
`Regarding Invalidity of United States Patent Numbers
`3
`8,278,351 and 8,383,675," does that refresh your
`4
`recollection as to whether your report touched on the
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`validity or invalidity of the asserted patents?
` A Okay. Okay. Yes. Invalidity I discussed
`6
`in my report, and I expressed my opinions about it in
`7
`the report.
`8
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` Q Okay. You've been deposed several times,
`10
`but let me now just take a moment and just run
`11
`through some of the ground rules for today. I'm
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`going to ask you questions, and you're going to
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`provide the answers. At times, counsel may object to
`14 my question, may object to the form of my question.
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`In these situations, you're still required to answer
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`them.
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` Do you understand that?
` A I understand.
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` Q There may be occasions when counsel objects
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`and instructs you not to answer, and counsel and I
`21 may have some discussion about that, but unless you
`22
`are instructed not to answer, you understand that
`
`PLANET DEPOS
`4
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`

`
`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
`
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`you'll be providing honest answers, correct?
` A I understand.
` Q Okay. The court reporter here is writing
`down everything we say, so two things about that:
`First, when I'm asking the question, please allow me
`to finish asking my question before you start
`answering, and I will likewise allow you to finish
`answering before I ask my next question. Okay?
` A Thank you.
` Q Okay. And secondly, nods and other
`gestures obviously can't be easily transcribed, so
`please provide your answers in words. Okay?
` A I will.
` Q All right. We'll be taking breaks from
`time to time. If you need a break for any reason,
`just let me know, and, you know, we'll be reasonable
`about breaks. Okay?
` A Okay.
` Q Now, you were sworn in at the start of this
`deposition. And do you understand that you are
`required to provide honest answers to the best of
`your ability?
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` A I met with counsel last week to prepare for
`today's meeting, yes.
` Q Okay. Any other meetings or phone calls to
`prepare for today's deposition?
` A The week before last, I met with counsel as
`well. And we did talk about this deposition.
` Q Okay. Every time I ask this question, we
`come up with another instance.
` MR. PALS: Objection.
`BY MR. SUKENICK:
` Q So are there any other times that you can
`think of that you met with counsel or spoke with
`counsel on the phone with the idea of preparing for
`today's deposition?
` MR. PALS: Objection to form and the
`characterization.
` A I met with counsel several times over the
`last several weeks. At these meetings, we have
`discussed the case, discussed reports that I have
`written, and of course, it comes up that I will be
`deposed at some point. So in that sense, I have
`prepared for this deposition on several occasions.
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` A I understand.
` Q Is there any reason as you sit here today
`that you may be unable to provide honest answers?
` A I know of no reason why I should not be
`able to provide honest answers. I will provide
`honest answers.
` Q Okay. If I ask a question and you don't
`understand my question, please ask for clarification.
`If you don't ask for clarification, I'll assume that
`you understood the question, okay?
` MR. PALS: Objection to form.
` A I will ask for clarification of questions
`as necessary.
`BY MR. SUKENICK:
` Q What did you do to prepare for today's
`deposition?
` A I met with counsel yesterday to prepare for
`today's deposition. I met with counsel on other
`occasions to prepare reports as well.
` Q Okay. Aside from yesterday's meeting, did
`you have any other meetings or phone calls with
`counsel to prepare for today's deposition?
`
` But yesterday was the first -- was a day,
`1
`the most recent day that I prepared for this
`2
`deposition. And last week was another day that I
`3
`prepared for this deposition. Those meetings were
`4
`specifically with this deposition in mind. At other
`5
`times, there was other matters that we discussed,
`6
`such as my reports.
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`BY MR. SUKENICK:
`9
` Q Okay. I understand. Last week's meeting,
`10
`was that also a single day?
` A I met on a single day with counsel in the
`11
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`were other discussions on phone calls last week as
`13
`well.
`14
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` Q And who was present in those meetings and
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`who was on the line on the phone calls?
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` MR. PALS: Objection to form.
` A Well, yesterday I met with Mark Pals and
`18
`Jared Barcenas here in Washington, DC. Last week I
`19
`20 met with Mark Pals and Jared Barcenas and others.
`There were others present last week, and I talked
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`PLANET DEPOS
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`

`
`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
`
`17
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`5 (Pages 17 to 20)
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`was -- and here it's a test of memories -- I believe
`1
`her name is Leslie Schmidt.
`2
` And there was one other person, I don't
`3
`remember her name at the moment, that I recall
`4
`talking with yesterday. So I don't remember the
`5
`other names at this moment. But there were some
`6
`other people last week.
`7
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`BY MR. SUKENICK:
`9
` Q Okay. Are you aware of whether any of the
`10
`other people in the meetings were not attorneys?
` A Yesterday, everyone I met I understood was
`11
`or is an attorney. Last week, people with whom I
`12
`13 met, as I recall, they were all attorneys as well.
`14
` Q And did you review documents to prepare for
`15
`today's deposition?
` A Yes, I did.
`16
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` Q What documents are they?
` A The documents included my reports, and
`18
`documents that I have relied upon for my reports that
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`are listed in my reports.
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` Q Do those documents refresh your
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`recollection about any of the topics in your reports?
`
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` A Well, my purpose in reviewing these
`documents was to refresh my recollection.
` Q And did the documents accomplish that
`purpose?
` A Of course.
` Q Do you know if there were any documents
`that you reviewed that have not been produced to
`complainants in this case?
` A To the best of my recollection, all of the
`documents I reviewed have been produced for you and
`your team to read.
` Q Did you review any documents outside of the
`presence of counsel?
` A Outside of the presence of counsel, I did
`reread my reports and some of the documents on which
`I relied when preparing those reports.
` Q And did you take any notes or draft any
`other documents to prepare for today's deposition?
` A To prepare for today's deposition, I did
`not prepare any notes.
` Q And did you bring any documents with you to
`today's deposition?
`
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` A The only document I brought today was my
`business card to give to the clerks.
` Q Okay. All right. I would like to run
`through your educational and employment background.
`Can you tell me about your education after high
`school? Where did you go to college, and the years
`you graduated, the degrees you obtained?
` A After high school, I attended Oberlin
`College in Oberlin, Ohio. I majored in chemistry
`with honors and a minor in German. After college, I
`went to Johns Hopkins University School of Medicine
`and obtained a Ph.D. in pharmacology. Johns Hopkins
`University is in Baltimore, Maryland.
` I did a post-doc for a year after my
`graduate work. That was also at Johns Hopkins
`University. And that was specifically with a focus
`on mass spectrometry working with Robert Cotter. My
`Ph.D. was with Catherine Fenselau at Johns Hopkins
`University.
` Q And then what was your first job after
`Johns Hopkins?
` A My first job after Johns Hopkins was at
`
`20
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`North Carolina State University chemistry department
`in Raleigh, North Carolina.
` Q What was your position?
` A Initially while I was still a postdoctoral
`research associate at Johns Hopkins, I was appointed
`as a visiting assistant professor in chemistry. And
`then at NC State, after my post-doc, I became
`assistant professor of chemistry and biotechnology.
` Q And how long were you at NC State?
` A I was at NC State approximately six years.
` Q And why did you leave?
` A I was offered a promotion with double
`salary at the School of Pharmacy at the University of
`Illinois. So I was promoted to associate professor
`upon going to Illinois, and my salary was doubled. I
`was given a new startup package so I could buy new
`equipment as well to set up my lab.
` Q Sounds like a good reason.
` THE VIDEOGRAPHER: Can we go off the record
`for just a second? We'll go off the record. The
`time is 9:32.
` (Discussion off the record.)
`
`PLANET DEPOS
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`
`

`
`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
`
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`6 (Pages 21 to 24)
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` THE VIDEOGRAPHER: We're back on the
`2
`record. The time is 9:33.
`3
`BY MR. SUKENICK:
`4
` Q And after the associate professor position,
`5
`what was your next position?
` A At the University of Illinois College of
`6
`Pharmacy, I was promoted to full professor in 2000.
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` Q And is that your position now?
` A I am currently professor of medicinal
`9
`chemistry and pharmacognosy. And I hold an
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`administrative appointment as assistant to the
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`director of the Research Resources Center, where I'm
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`the academic director of the Mass spectrometry,
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`14 Metabolomics and Proteomics Facility.
` I'm also the leader of the Mass
`15
`spectrometry, Metabolomics and Proteomics core
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`laboratory for the University of Illinois Cancer
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`Center. And I'm the director of the UIC NIH
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`Botanical Center for Dietary Supplements Research.
`19
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` Q Has your employment at UIC been continuous?
` A Yes.
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` Q Do you have any other current employers?
`
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` A I am a full-time employee at the University
`of Illinois. I have no other employers.
` Q Have you done any consulting work in the
`past several years?
` A Yes. I have done consulting work.
` Q How many times?
` MR. PALS: Objection to form.
` A I have consulted for several groups. I
`have in my CV listed companies and entities for whom
`I consult, and I have listed some examples within the
`last four years of cases in which I have provided
`expert testimony with deposition. But I can't
`remember the exact number at any one year for, you
`know, companies and entities for whom I consult.
`BY MR. SUKENICK:
` Q Have you done any consulting for any of the
`respondents in this case?
` A I am consulting now.
` Q Aside from your current engagement, any
`other consulting work?
` A To the best of my knowledge, my consulting
`that I'm doing now is part of a continuous process of
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`consulting for this group. And this has been going
`on for many months. But many years ago, no, I don't
`recall having consulted for them on a previous case.
` Q Aside from consulting on a previous case,
`have you done any consulting work otherwise for the
`companies involved in this case?
` A I consider all the work I've done the same
`case for this group with -- I'm representing now. I
`did some patent reexamination consulting work and
`filed some reports, and they are listed in my report
`as documents that I did cite. So perhaps that
`answers your question.
` Q Well, what I'm getting at is, apart from
`the litigation-type consulting work that you are
`currently engaged in and that you have been engaged
`in, have you done any other consulting work for the
`companies involved in this case?
` A To the best of my knowledge, I have not
`consulted for the companies in this case before.
` Q Okay. And you said that your consulting
`now is part of a continuous process of consulting for
`this group. What do you mean by that?
`
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` A My present consulting has involved writing
`expert reports, doing some testing, about which we're
`talking right now. And previously, not this year but
`in 2012, I did some work as well about patent
`reexamination. So that's what I've done for this
`group.
` Q Do you anticipate consulting for them in
`the future?
` A If asked to do so, I would consider it.
` Q But as part of this, as you put it,
`continuous process of consulting, do you expect to
`consult for them in the future?
` A The next step, as I understand it, might be
`testifying in patent court. I believe the court is
`the ITC, International Trade Commission, court. So
`that's what I expect to happen next in this case.
` Q Do you have an expectation of future
`consulting for any of the respondents apart from or
`beyond the conclusion of the ITC case?
` A I have no expectation of doing that. If
`asked to do so, I would consider it. There has been
`no discussion of that.
`
`PLANET DEPOS
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`

`
`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
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` Q And you submitted a CV as part of your
`2
`reports in this case, right?
` A I did.
`3
`4
` Q Is that current?
` A I update my CV frequently, and the copy
`5
`that is currently in my report is out-of-date.
`6
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` Q I'm sorry. Out-of-date?
` A I believe that was a September version of
`8
`9 my CV that is the latest one in my report. And now
`is October, so I have an updated one I could provide.
`10
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` Q Okay. What reports have you submitted as
`12
`part of this case?
` A I have submitted several reports. I
`13
`have -- viewing the case broadly over several years,
`14
`I submitted some reports regarding patent
`15
`reexamination. I submitted an expert report for this
`16
`case. I submitted a supplemental report for this
`17
`case. I submitted a rebuttal report for this case.
`18
` And there might have been more, but those
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`are the ones I remember at this moment.
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` Q Okay. And did you write those reports?
` A Yes.
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` Q Did you write them by yourself?
` A I wrote those reports with the help of
`2
`counsel.
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` Q What do you mean by "with the help of
`5
`counsel"?
` A I did typing. Counsel did some typing. We
`6
`7 met to discuss the reports. We did some editing
`together. Much of the boilerplate style, the way the
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`report is formatted, is provided by counsel. They
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`advised me how the report should be formatted. They
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`provided some advice regarding legal terminology and
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`helped me to write the -- to address legal terms and
`12
`define them. I needed help with that because I'm not
`13
`an attorney.
`14
` And I wrote sections, and they wrote some
`15
`sections, but I approved everything they wrote. So
`16
`we wrote this, these documents, together.
`17
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` Q Yesterday we received what is described as
`19
`a supplemental report. Do you recall writing that?
` A Yes. I recall writing a supplemental
`20
`report.
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` Q When was that written?
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` A That supplemental report was completed
`yesterday. The supplemental report was also worked
`on the day before yesterday. So that report was
`written this week.
` Q Okay. So Tuesday and Wednesday?
` A I have to recall exactly when I received
`and read the report by -- there was a rebuttal report
`by Jaczynski which this addresses. And after reading
`that, I began to work on a supplement to that. So
`I'm not exactly sure of those dates, but I worked on
`this report this week.
` MR. SUKENICK: Okay. Let's mark as Exhibit
`1 the initial report of Dr. van Breemen.
` (van Breemen Exhibit 1 was marked for
`identification and attached to the deposition
`transcript.)
`BY MR. SUKENICK:
` Q Dr. van Breemen, you've been handed what's
`been marked as van Breemen Exhibit 1. Do you
`recognize this as your initial expert witness report
`for this case?
` A Yes. This is my initial expert report.
`
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` Q Let me ask you this: Do you understand
`what "inherency" means in the terms of patent law, as
`used in your report?
` A I believe I addressed inherency in the
`report and wrote about how I understand it, what I
`understand it to mean.
` Q Okay. Do you have an understanding beyond
`what is written in your report?
` A I don't have a legal education beyond what
`is written in my report. I have an understanding of
`what inherency is, and I've used that term in this
`report. I've outlined my understanding of it there.
`There's been some discussion with counsel about what
`it means. And I think I understand it.
` Q Okay. Do you understand that inherency
`requires that the undisclosed descriptive matter is
`necessarily present in a reference?
` MR. PALS: Objection to form.
` A I'm not sure I understand that. Would you
`rephrase that, please.
`BY MR. SUKENICK:
` Q Sure. In paragraph 29 of your report,
`
`PLANET DEPOS
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`
`

`
`VIDEOTAPED DEPOSITION OF RICHARD BRUCE VAN BREEMEN, PH.D.
`CONDUCTED ON THURSDAY, OCTOBER 10, 2013
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`there is a sentence that says, "I understand that a
`2
`reference that does not expressly disclose a claim
`3
`limitation may nevertheless 'inherently' disclose the
`4
`limitation if the expressly missing matter is
`5
`necessarily present in the system or method described
`6
`in the reference."
`7
` Do you see the part that I read?
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` A I see paragraph 29, yes.
`9
` Q If the expressly missing matter is possibly
`10
`present, would it satisfy the inherency requirement,
`11
`in your opinion?
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` MR. PALS: Objection, calling for legal
`13
`conclusion.
`14
` A As I understand inherency, in the context
`15
`of this case, if the claimed phospholipid is present
`16
`in an oil, a product, a system, in prior art, that --
`17
`if the claimed compound is present in the oil or the
`18
`system in prior art, it's inherently there. That's
`19 my understanding of inherency.
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` So in my context, I analyzed oils tested
`21
`for the claimed phospholipids. Oils were prepared
`22
`using prior art methods. And when I -- and I found
`
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` As I understand it, it isn't a requirement
`3
`legally for the prior art method to have carried out
`4
`the same sort of analyses that I carried out to prove
`5
`they're there. They were alrea