Patent
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` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
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` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` 3 BAXTER INTERNATIONAL, ) Case IPR2015-00883
` INC., ) Patent 8,374,887 B2
` 4 )
` Petitioner, )
` 5 )
` VS. )
` 6 )
` BECTON, DICKINSON AND )
` 7 COMPANY, )
` )
` 8 Respondent. )
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` 9
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`10
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`11
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`12 The deposition of CHARLES F. SEIFERT, PharmD, FCCP, BCPS
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`13 Taken at 308 Avenue V,
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`14 Lubbock, Texas
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`15 Commencing at 10:18 a.m.,
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`16 Friday, December 4, 2015
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`17 Before Elaine Fowler, CSR 5881
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`1
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`CHARLES F. SEIFERT
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`
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` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
`
` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` 3 BAXTER INTERNATIONAL, ) Case IPR2015-00883
` INC., ) Patent 8,374,887 B2
` 4 )
` Petitioner, )
` 5 )
` VS. )
` 6 )
` BECTON, DICKINSON AND )
` 7 COMPANY, )
` )
` 8 Respondent. )
`
` 9
`
`10
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`11
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`12 The deposition of CHARLES F. SEIFERT, PharmD, FCCP, BCPS
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`13 Taken at 308 Avenue V,
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`14 Lubbock, Texas
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`15 Commencing at 10:18 a.m.,
`
`16 Friday, December 4, 2015
`
`17 Before Elaine Fowler, CSR 5881
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`1
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`CHARLES F. SEIFERT
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`Patent
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` 1 APPEARANCES:
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` 2
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` 3 For the Petitioner Baxter International, Inc.:
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` 4 K&L GATES, LLP
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` 5 BENJAMIN E. WEED
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` 6 KACY L. DICKE
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` 7 70 W. Madison Street, Suite 3100
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` 8 Chicago, IL 60602
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` 9 (312) 807-7166
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`10 benjamin.weed@klgates.com
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`11 kacy.dicke@klgates.com
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`12
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`13 For the Respondent Becton, Dickinson and Company:
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`14 THE WEBB LAW FIRM
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`15 CHRISTIAN D. EHRET
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`16 One Gateway Center
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`17 420 Ft. Duquesne Blvd., Suite 1200
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`18 Pittsburg, Pennsylvania 15222
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`19 (412) 471-8815
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`20 cehret@webblaw.com
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`21
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`22
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`23
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`24
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`25
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`2
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`CHARLES F. SEIFERT
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`Patent
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` 1 I N D E X
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` 2
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` 3 Examination Page
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` 4 BY MR. WEED 4
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` 5 BY MR. EHRET 131
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` 6
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` 7
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` 8 E X H I B I T S
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` 9 No. Description Page
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`10 1027 Photograph 86
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`11
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`12 INFORMATION REQUESTED
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`13 (None)
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`14
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`15 QUESTIONS INSTRUCTED NOT TO ANSWER
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`16 (None)
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`3
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`CHARLES F. SEIFERT
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`Patent
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` 1 Lubbock, Texas
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` 2 Friday, December 4, 2015
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` 3 10:18 a.m.
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` 4 CHARLES F. SEIFERT, PharmD, FCCP, BCPS,
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` 5 called as a witness by the Petitioner, and after having
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` 6 been first duly sworn to testify to the truth, the whole
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` 7 truth and nothing but the truth, was examined and
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` 8 testified as follows:
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` 9 EXAMINATION
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`10 BY MR. WEED:
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`11 Q. Good morning, Dr. Seifert.
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`12 A. Good morning.
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`13 Q. Thank you very much for sitting for this
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`14 deposition. We really appreciate the time and thank you
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`15 for coming because the scheduled changed.
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`16 Have you been deposed before?
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`17 A. Yes, sir.
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`18 Q. Approximately how many times?
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`19 A. About three or four.
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`20 Q. Okay. Were any of those prior depositions
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`21 given in patent cases?
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`22 A. No.
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`23 Q. Do you have any patents where you are named
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`24 inventor?
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`25 A. No.
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`4
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`CHARLES F. SEIFERT
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`Patent
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` 1 Q. Have you had any professional experience with
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` 2 patents prior to this case?
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` 3 A. No.
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` 4 Q. Okay. I am going to go over a couple of the
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` 5 deposition rules which will probably sound familiar to
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` 6 you, but I want to make sure we are on the same page.
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` 7 It is important that we try not to talk over
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` 8 one another. And you can see the court reporter is
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` 9 writing what we are saying and it is hard for her to
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`10 write what two people are saying at the same time. So
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`11 let's try not to talk over one another, if that is all
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`12 right.
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`13 A. Okay.
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`14 Q. The other things is your counsel may make
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`15 objections from time to time, so you may want to pause
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`16 after my questions to give him a chance so that you are
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`17 not talking over him. Is that fair?
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`18 A. Yes, sir.
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`19 Q. This is not an endurance contest. If at any
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`20 point you want to break, let me know and we will stop
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`21 and take a break. I am fine with that.
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`22 It is also important for you to answer
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`23 questions verbally. Because, again, she is writing down
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`24 what we are saying, so she is -- it is difficult to
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`25 write down nods and head shakes. Is that fair?
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`5
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`CHARLES F. SEIFERT
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`Patent
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` 1 A. Okay.
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` 2 Q. And, last, if you don't understand a question I
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` 3 ask, I would request that you please let me know. I
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` 4 really want to make sure you understand what I am asking
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` 5 you. So if you don't ask for clarification, I am going
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` 6 to assume you have understood the question. Is that
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` 7 fair?
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` 8 A. Yes.
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` 9 Q. Okay. Are you presently employed?
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`10 A. Yes.
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`11 Q. And by whom?
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`12 A. Texas Tech University Health Sciences Center.
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`13 Q. What is your current title at Texas Tech?
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`14 A. I am a professor of pharmacy practice and
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`15 regional dean for Lubbock programs.
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`16 Q. Are you currently involved in any other expert
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`17 witness work as we sit here today?
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`18 A. No.
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`19 Q. But have you been in the past?
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`20 A. Yes.
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`21 Q. And was the expert witness work you did in the
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`22 past the source for those depositions you mentioned?
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`23 A. Yes.
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`24 Q. Okay. So you have always given depositions as
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`25 an expert witness. Is that fair?
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`6
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`CHARLES F. SEIFERT
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`Patent
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` 1 A. Yes.
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` 2 Q. Okay. Are you being compensated differently
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` 3 for your work in this case?
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` 4 A. No.
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` 5 Q. So are you being paid by the hour for your work
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` 6 on this case?
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` 7 A. Yes.
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` 8 Q. And how much are you being paid per hour?
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` 9 A. $500 an hour for time that is spent in
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`10 preparation for the case or the declaration. And a
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`11 thousand dollars an hour for time spent in deposition.
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`12 Q. Okay. Do you have any estimate about the
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`13 number of hours at the lower rate, in preparation?
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`14 A. Probably five hours or so.
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`15 Q. Okay.
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`16 A. Five or six hours.
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`17 Q. And that includes time spent on the declaration
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`18 and time spent preparing for the deposition?
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`19 A. Yes.
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`20 Q. Okay. Can you give me a breakdown of the time
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`21 spent on the declaration versus the time spent preparing
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`22 for the deposition?
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`23 A. The time spent on the declaration was probably
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`24 about four hours or so, four or five hours. And then
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`25 probably an hour, an hour and a half on deposition.
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`7
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`CHARLES F. SEIFERT
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`Patent
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` 1 Q. Okay. Let's talk a little bit about the
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` 2 preparation of the declaration.
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` 3 And for the record, I have placed the
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` 4 declaration in front of you there. So feel free to
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` 5 refer to it as much as you would like. I tried to give
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` 6 you, I think, all the documents you relied on, but let
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` 7 me know if there is something else you would like to see
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` 8 and I will get it for you.
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` 9 Do you recall approximately when you began
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`10 working on the declaration?
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`11 A. I remember that I was contacted by The Webb Law
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`12 Firm before this time period. But I do remember that I
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`13 was out of town in Las Vegas at a horse show. So it was
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`14 September 30th.
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`15 So when we came back was actually when we
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`16 started working on the declaration. So I want to say
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`17 probably that first week of October.
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`18 Q. Okay. And then if you want to flip to the last
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`19 page of the declaration, which is Exhibit 2002. I
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`20 believe that that is your signature on the last page.
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`21 Is that right?
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`22 A. Yes.
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`23 Q. And the date there is October 22nd of '15?
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`24 A. Yes.
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`25 Q. And so that is the date you signed this
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`8
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`CHARLES F. SEIFERT
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`Patent
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` 1 document, obviously?
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` 2 A. Yes.
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` 3 Q. Do you remember if the Webb firm had contacted
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` 4 you prior to that September 30th horse show date you
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` 5 mentioned?
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` 6 A. No.
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` 7 Q. Okay. So you hadn't heard from anybody on
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` 8 behalf of Becton Dickinson prior to that contact?
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` 9 A. No.
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`10 Q. But you had heard from somebody from Baxter
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`11 before that, right?
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`12 A. Yes.
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`13 Q. And that was Mr. Murphy (phonetic)?
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`14 A. I don't remember who it was.
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`15 Q. Can you tell me the first time you recall
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`16 receiving any contact from someone on behalf of Baxter?
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`17 A. I don't remember the exact time. It was
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`18 obviously before The Webb Law Firm contacted me.
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`19 Q. Uh-huh.
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`20 A. It was quite a while ago. Probably a year ago,
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`21 maybe.
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`22 Q. Okay. Do you remember what you talked to the
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`23 Baxter person --
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`24 A. I don't think I ever talked to them on the
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`25 phone. I think it was an email request.
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`9
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`CHARLES F. SEIFERT
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`Patent
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` 1 Q. Did you ever respond to that email request?
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` 2 A. Yes. I declined to testify.
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` 3 Q. And why did you decline to testify?
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` 4 A. Because I wasn't going to testify against
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` 5 Emily.
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` 6 Q. Okay. Did you have an understanding at the
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` 7 point when you were contacted about whether -- and let
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` 8 me take a step back.
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` 9 When you say "Emily", who do you mean?
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`10 A. I am blanking on her last name. Emily --
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`11 Q. Alexander?
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`12 A. Alexander, yes.
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`13 Q. And what is your understanding Ms. Alexander's
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`14 role to be in the case when you were contacted on behalf
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`15 of Baxter?
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`16 A. They had asked me to testify against -- they
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`17 didn't identify that it was a patent anything. They
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`18 just asked me to testify about telepharmacy, as a
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`19 telepharmacy expert.
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`20 Q. Okay. So how did you find out that
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`21 Ms. Alexander was involved?
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`22 A. I -- I honestly don't know. I think it was
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`23 probably they had said it was -- part of it was against
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`24 her or she was involved. I don't remember them ever
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`25 saying patent infringement or any of that.
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`10
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`CHARLES F. SEIFERT
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`Patent
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` 1 Q. Okay. Do you know if maybe -- and I don't
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` 2 know, but I am just -- perhaps did they suggest that
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` 3 Ms. Alexander was -- would be adverse to the
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` 4 representation you would be giving?
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` 5 A. No. No, that never came up.
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` 6 Q. Okay. So when was the first time that you
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` 7 found out that this was a patent case?
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` 8 A. Actually when the folks from The Webb Law Firm
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` 9 contacted me.
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`10 Q. And that was sometime in September of this
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`11 year-ish?
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`12 A. Around, yes.
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`13 Q. Okay. Do you know if you were aware -- well,
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`14 are you aware that Ms. Alexander is the named inventor
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`15 of the patent at issue in this case?
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`16 A. Yes.
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`17 Q. And did you become aware of that through your
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`18 conversations with the Webb firm?
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`19 A. Yes.
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`20 Q. Were you aware that Ms. Alexander had a patent
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`21 in the telepharmacy space (sic) prior to your
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`22 conversations with the Webb firm?
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`23 A. No.
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`24 Q. So during your conversations with Baxter's
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`25 representative, you didn't discuss the existence of a
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`11
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`CHARLES F. SEIFERT
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`Patent
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` 1 patent at all?
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` 2 A. Huh-uh, no.
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` 3 Q. What is your understanding of who the current
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` 4 owner of the patent at issue in this case is?
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` 5 A. My understanding is that she sold the patent to
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` 6 Becton Dickinson.
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` 7 Q. And did that understanding come from the Webb
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` 8 firm as well?
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` 9 A. Yes.
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`10 MR. EHRET: Objection, privileged.
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`11 Q. (BY MR. WEED) I will ask it a different way.
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`12 Did Ms. Alexander tell you that she sold the
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`13 patent?
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`14 A. No, I haven't -- I haven't been in contact with
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`15 her for years, several years.
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`16 Q. Okay. But as you can see from the front page
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`17 of your declaration, the party in the case at this point
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`18 is Becton Dickinson, correct?
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`19 A. Yes.
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`20 Q. And you are working for Becton Dickinson?
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`21 A. Yes.
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`22 Q. And they are paying your bills?
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`23 A. Well, through the law firm, yes.
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`24 Q. Okay. But Ms. Alexander is not?
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`25 A. No.
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`12
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`CHARLES F. SEIFERT
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`Patent
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` 1 Q. Okay. Did you look at Ms. Alexander's patent
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` 2 at all in preparation of your declaration?
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` 3 A. No.
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` 4 Q. Have you ever seen it?
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` 5 A. No.
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` 6 Q. Have you ever seen any patents before?
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` 7 A. No.
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` 8 Q. I can show you what the face of one looks like.
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` 9 I will just hand you what is marked as
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`10 Exhibit 1001. That is just -- that is the front of a
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`11 patent. Does that refresh your memory about whether you
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`12 have seen any patents before?
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`13 A. Yeah, I never seen one.
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`14 Q. Okay. And you have never seen that particular
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`15 one?
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`16 A. No.
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`17 Q. All right. So let's take a look now
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`18 specifically at Exhibit 2002, which is your declaration.
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`19 Flip to the first page, if you wouldn't mind.
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`20 Would it be fair to characterize Paragraphs 3
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`21 through 5 as a summary of what you were asked to do in
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`22 this declaration?
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`23 A. Yes.
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`24 Q. Okay. If you look specifically at Paragraph
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`25 Number 3 on Page 1, there is a reference in that
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`13
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`CHARLES F. SEIFERT
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`Patent
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` 1 paragraph to what says an article entitled "The Training
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` 2 of a Telepharmacist: Addressing the Needs of Rural West
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` 3 Texas." Do you see that?
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` 4 A. Yes.
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` 5 Q. And it says you are the named author of that
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` 6 article?
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` 7 A. Yes.
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` 8 Q. If you flip over to the document that I also
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` 9 handed you, which has been marked as Exhibit 1012, that
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`10 is the article referred to in Paragraph 3?
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`11 A. Yes.
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`12 Q. Okay. You can put that aside. I just wanted
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`13 to make sure that that was the same thing.
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`14 In Paragraph 4, it says, "I have been asked to
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`15 describe the scope of the Texas Tech University Health
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`16 Sciences Center telepharmacy project." Do you see that?
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`17 A. Yes.
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`18 Q. And what is that? What were you referring to
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`19 there?
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`20 A. That is our project that we were involved with
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`21 with Dr. Sid Ontai from Plainview, providing
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`22 telepharmacy services to cities that he had telemedicine
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`23 clinics in.
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`24 Q. Okay. So when you talk in Paragraph 4 about
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`25 what you were asked to do, you are talking about
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`14
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`CHARLES F. SEIFERT
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`Patent
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` 1 describing activities you engaged in; is that right?
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` 2 A. Yes.
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` 3 Q. There is not a particular document that is
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` 4 being referred to here in Paragraph 4?
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` 5 A. No.
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` 6 Q. Okay. Was Ms. Alexander involved at all in the
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` 7 project --
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` 8 A. No.
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` 9 Q. -- what you call the telepharmacy project?
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`10 A. No.
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`11 Q. Can you give me the time -- and I think it is
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`12 in here some place, but can you give me the time frame
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`13 for the telepharmacy project, from start to finish?
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`14 A. I think it is later on here.
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`15 Q. It may be Paragraph 18.
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`16 A. Yes. Yes, that looks right. Because the first
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`17 prescription, I think, I elude to later on was dispensed
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`18 in September of 2002, September 18th of 2002. And so we
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`19 would have started it probably, you know, the first part
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`20 of 2002 or the latter part of 2001, when we actually
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`21 started looking at, you know, the money and the
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`22 equipment and, you know, working with Dr. Ontai and
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`23 whether he was game with that.
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`24 Q. Okay. Were you involved in the telepharmacy
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`25 project since the beginning?
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`15
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`CHARLES F. SEIFERT
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`Patent
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` 1 A. Yes.
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` 2 Q. Okay. Now, in Paragraph 18 it says that the
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` 3 end of at least your involvement was 2009, right?
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` 4 A. That is correct.
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` 5 Q. Did the project end in 2009?
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` 6 A. Yes.
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` 7 Q. Why did it end?
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` 8 MR. EHRET: Outside of the scope,
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` 9 objection.
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`10 Q. (BY MR. WEED) You can answer it, though.
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`11 A. We just couldn't afford it anymore.
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`12 Q. Okay.
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`13 A. We -- it just wasn't profitable. We didn't
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`14 have enough prescriptions.
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`15 Q. Okay. Do you know if after 2009 there were any
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`16 other telepharmacy projects going on in the state of
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`17 Texas?
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`18 A. I think there was one other one. And actually
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`19 I looked into that, and it was in a little town called
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`20 Throckmorton, sort of by Abilene. And then what Emily
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`21 was doing.
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`22 Other than that -- I don't even know if Emily
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`23 was still doing hers after 2009. But those are the only
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`24 two I am aware of.
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`25 Q. Do you think the first one you mentioned near
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`16
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`CHARLES F. SEIFERT
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`Patent
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` 1 Abilene was going on in 2009?
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` 2 A. No -- oh, 2009?
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` 3 Q. Yeah.
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` 4 A. Yes, it was.
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` 5 Q. So as far as you know today, there aren't --
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` 6 Texas does not have a telepharmarcy program in place?
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` 7 A. I don't know if the one down there is still
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` 8 going on or not. I don't think so, but I don't know.
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` 9 Q. Have you had involvement personally with
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`10 telepharmacy programs, aside from the one referenced in
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`11 your declaration as the "telepharmacy project"?
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`12 A. No.
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`13 Q. Were you aware that there was telepharmacy work
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`14 going on in North Dakota at about the same time?
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`15 A. Yes.
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`16 Q. So you were aware about her project, you just
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`17 weren't personally involved?
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`18 A. Right.
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`19 Q. How did you become aware of other telepharmacy
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`20 programs that were going on in the 2002 to 2009
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`21 timeframe?
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`22 MR. EHRET: Objection, outside the scope.
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`23 A. You know, just doing literature research. The
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`24 North Dakota project -- actually, we started our
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`25 projects about the same time. And we had thought about
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`17
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`CHARLES F. SEIFERT
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`Patent
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` 1 submitting for funding to the Office of Telehealth,
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` 2 federal funding.
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` 3 But then the Office of Telehealth wasn't
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` 4 funding any more telepharmacy projects because they had
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` 5 just funded the North Dakota project. And I think it
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` 6 was like a million dollars a year for five years. And
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` 7 so their project went (indicated) and our project went
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` 8 (indicated). I know, hand signals aren't allowed.
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` 9 Q. I think the context will show.
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`10 Okay. So you were asked -- getting back to
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`11 Paragraph 4, you were asked to describe some of the
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`12 aspects of the telepharmacy project, right?
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`13 A. Yes.
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`14 Q. And when you gave that description in the
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`15 declaration, was that based on your personal knowledge?
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`16 A. Yes.
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`17 Q. Was it also based, in part, on the article that
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`18 we marked as Exhibit 1012?
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`19 A. Yes.
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`20 Q. Was there anything in preparing the declaration
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`21 that you had your memory refreshed on when you read
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`22 Exhibit 1012?
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`23 A. My memory refreshed? Oh, yes, the dates.
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`24 Q. Okay.
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`25 A. I mean, I knew the date of the first
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`18
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`CHARLES F. SEIFERT
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`Patent
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` 1 prescription. But, you know, other dates, like when we
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` 2 started -- when we opened the Earth pharmacy and those
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` 3 sort of things were refreshed. Not from reading the
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` 4 article, but from going back and looking to prepare.
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` 5 Q. Okay. So what else did you look at to prepare
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` 6 to describe the scope of the telepharmacy project, other
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` 7 than Exhibit 1012?
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` 8 A. There were other -- other documents that I had
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` 9 in my personal possession that I reviewed, other reports
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`10 on utilization, things like that, on how many
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`11 prescriptions we had and that kind of thing.
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`12 Q. Okay. Are those Texas Tech documents that you
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`13 happened to be the custodian of or are they personal --
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`14 A. Yes.
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`15 Q. Okay. Do you know if the computer hardware
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`16 that was used in the telepharmacy project still exists?
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`17 A. I don't think so. I know that the one in Earth
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`18 does not exist. And Dr. Ontai is gone, so I would
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`19 assume the one in Turkey doesn't exist anymore either.
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`20 Q. Okay. In Paragraph 4 you say you were asked to
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`21 describe the scope of the project.
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`22 Was that as detailed a request as you were
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`23 given by the lawyers or were you asked to do -- kind of
`
`24 focus on certain aspects of it?
`
`25 MR. EHRET: Objection, privileged. But you
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`19
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`CHARLES F. SEIFERT
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`Patent
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` 1 can answer to the extent that it doesn't reveal
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` 2 privileged communications.
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` 3 A. This was pretty much the extent that I was
`
` 4 asked to do. And there was no restrictions put on me as
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` 5 far as describing the project at all, that I have to go
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` 6 this way or that way.
`
` 7 Q. Sure. So did you actually sit down and type up
`
` 8 the paragraphs that relate to the telepharmacy project?
`
` 9 A. Yes.
`
`10 Q. Okay. The next paragraph that we talked about
`
`11 is Paragraph 5. Do you see that? It spans from Page 1
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`12 to Page 2 of the declaration.
`
`13 A. Uh-huh.
`
`14 Q. It says, "I have been asked to review portions
`
`15 of the deposition transcript of Mr. Bryant T. Hart." Do
`
`16 you see that?
`
`17 A. Uh-huh.
`
`18 Q. Is the document that I put in front of you that
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`19 is marked as Exhibit 2003 the deposition transcript of
`
`20 Mr. Bryant T. Hart that you are referring to here?
`
`21 A. I was not given the whole transcript, just
`
`22 excerpts of the transcript.
`
`23 Q. Okay.
`
`24 A. But yes.
`
`25 Q. It looks like excerpts of that document?
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`20
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`CHARLES F. SEIFERT
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`Patent
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` 1 A. Yes.
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` 2 Q. Okay. And you are familiar with deposition
`
` 3 transcripts?
`
` 4 A. Yes.
`
` 5 Q. Okay. Were you given a static set of -- of the
`
` 6 deposition transcript or did you go back and ask for
`
` 7 additional portions of it?
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` 8 A. Static.
`
` 9 Q. Do you remember approximately how much you were
`
`10 given?
`
`11 A. There were four or five sections, I think.
`
`12 Q. Okay. And do you remember what they generally
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`13 dealt with?
`
`14 A. They were, if I recall, pretty much questions
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`15 that were asked of Mr. Hart relating to our project. I
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`16 don't -- you know, for example the first section when he
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`17 describes his credentials, I didn't see any of that.
`
`18 Q. Well, the reason why I ask is it says in
`
`19 Paragraph 5 that you were asked "to provide information
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`20 concerning the interactions between various parties and
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`21 entities, including the telepharmacy project, myself,
`
`22 Dr. Alexander and Mr. Hart." Do you see that?
`
`23 A. Yes.
`
`24 Q. Do you recall whether you saw any portions of
`
`25 the transcript that dealt with Mr. Hart's opinions that
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`21
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`CHARLES F. SEIFERT
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`
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`Patent
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` 1 he gave in this case?
`
` 2 A. Yes. There were a few portions.
`
` 3 Q. And which portions did you look at that dealt
`
` 4 with his opinions?
`
` 5 A. I don't recall.
`
` 6 Q. Do you remember -- that is a bad question.
`
` 7 Do you remember what opinions he was giving in
`
` 8 the portions you looked at?
`
` 9 A. There were the opinions about whether we were
`
`10 doing sterile compounding in our project or not.
`
`11 Q. Uh-huh.
`
`12 A. I remember specifically that one. And then
`
`13 also opinions about whether Dr. Alexander was involved
`
`14 in our project or not. Those are the two that I
`
`15 explicitly remember.
`
`16 Q. Okay. And this may be -- I may be making too
`
`17 much of a lawyer issue out of this. But the reason why
`
`18 I ask is because to me, those are more like facts.
`
`19 In order, what -- as a matter of fact, was he
`
`20 or was he not talking to Dr. Alexander at the time,
`
`21 something like that, versus, you know, it is my opinion
`
`22 that X, Y, Z.
`
`23 So do you view the parts that you just
`
`24 mentioned to be his opinions about whether you were
`
`25 doing sterile compounding and whether Dr. Alexander was
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`22
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`CHARLES F. SEIFERT
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`
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`Patent
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` 1 involved?
`
` 2 MR. EHRET: Objection, form.
`
` 3 Q. (BY MR. WEED) Do you see the distinction I am
`
` 4 drawing? It is kind of a legal one.
`
` 5 A. Yes, I do. When, in fact, I don't think his
`
` 6 facts were correct.
`
` 7 Q. Okay.
`
` 8 A. So --
`
` 9 Q. So are you saying --
`
`10 A. If that is an opinion or it is not.
`
`11 Q. I understand. So are you saying that he was
`
`12 giving opinions because you don't believe he is correct?
`
`13 In other words, it is an opinion and not a fact?
`
`14 A. Yes.
`
`15 MR. EHRET: Objection, it mischaracterizes.
`
`16 Q. (BY MR. WEED) You also -- let's look again at
`
`17 Page 1 of your declaration, Paragraph 1. It talks about
`
`18 "the facts and opinions listed below". Do you see that?
`
`19 A. Uh-huh, yes.
`
`20 Q. Can you break down for me what are facts and
`
`21 what are opinions, just at a high level?
`
`22 A. Well, I think that facts would be things such
`
`23 as the fact that we -- the dates I think are factual, as
`
`24 to what I can remember. I think that the fact is that
`
`25 Dr. Alexander was not involved in our project at all. I
`
`23
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`CHARLES F. SEIFERT
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`
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`Patent
`
` 1 think another fact is that we did not ever do sterile
`
` 2 compounding out in our telepharmacies.
`
` 3 Q. Would it be a fact that Mr. Hart was incorrect
`
` 4 about some of his testimony, in your view, those would
`
` 5 be facts as well?
`
` 6 A. Yes.
`
` 7 Q. Okay. Well, can you give me an example of any
`
` 8 opinions that are contained in this declaration? And,
`
` 9 again, feel free to look through it as much as you would
`
`10 like.
`
`11 A. I would say most of it is fact.
`
`12 Q. Okay. Did you see any opinions in your review
`
`13 just there?
`
`14 A. No.
`
`15 Q. As you sit here, do you know if there are any
`
`16 opinions given in here?
`
`17 A. I think it is mostly facts.
`
`18 Q. Okay. Let me just show you a document that is
`
`19 already previously marked as Exhibit 1005 in this case
`
`20 and just -- my question is just, do you recognize this
`
`21 document?
`
`22 A. This looks like Texas law, pharmacy law.
`
`23 Q. Okay. Did you see this document as part of
`
`24 your work on your declaration?
`
`25 A. No.
`
`24
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`CHARLES F. SEIFERT
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`
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`Patent
`
` 1 Q. But you are familiar generally what the Texas
`
` 2 Administrative Code is?
`
` 3 A. Yes.
`
` 4 Q. Do you know if you ever -- if you flip to the
`
` 5 page that is labeled as II, the seventh page. This is
`
` 6 the cover page. The back page.
`
` 7 A. Uh-huh.
`
` 8 Q. It says, "Texas Administrative Code Title 22
`
` 9 Examining Boards". Do you see that?
`
`10 A. Uh-huh, yes.
`
`11 Q. Do you know what Title 22 of the Texas
`
`12 Administrative Code pertains to?
`
`13 MR. EHRET: Objection, outside the scope.
`
`14 A. No, not specifically.
`
`15 Q. (BY MR. WEED) Sure.
`
`16 A. If I read it, I probably would.
`
`17 Q. Okay. But --
`
`18 A. This is for telepharmacy you are talking about,
`
`19 or Remote Pharmacy Services Title 22.
`
`20 Q. Right.
`
`21 A. Okay. Yes.
`
`22 Q. But you didn't look at this document, Exhibit
`
`23 1005, to prepare your declaration; is that fair?
`
`24 A. No.
`
`25 Q. And you didn't look at the current version of
`
`25
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`CHARLES F. SEIFERT
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`
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`Patent
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` 1 the Texas Administrative Code to prepare your
`
` 2 declaration; is that fair?
`
` 3 A. No.
`
` 4 Q. As part of your job, are you required to be
`
` 5 familiar with the constraints of the Texas
`
` 6 Administrative Code?
`
` 7 A. Not required of my job. But required of my
`
` 8 licensure, yes.
`
` 9 Q. Okay. Do you have to do continuing education
`
`10 on the Texas Administrative Code?
`
`11 A. Yes.
`
`12 Q. And are there tests given about the content of
`
`13 the code?
`
`14 A. There is an original test. But after that, no.
`
`15 Q. Okay.
`
`16 A. The -- we are required to do one hour of CE per
`
`17 year for law --
`
`18 Q. Okay.
`
`19 A. -- in the state of Texas. And that usually is
`
`20 an update of new changes or new legislative things that
`
`21 have come down. So most of the time they don't go over
`
`22 information, usually.
`
`23 Q. Do you remember when you took your original
`
`24 test on the Texas Administrative Code?
`
`25 A. Yes, I do.
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`26
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`CHARLES F. SEIFERT
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`
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`Patent
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` 1 MR. EHRET: Outside the scope.
`
` 2 Q. (BY MR. WEED) When was that?
`
` 3 A. 1982.
`
` 4 Q. Okay. Fair to say you never sat down and read
`
` 5 the whole document since then?
`
` 6 A. No.
`
` 7 Q. Do you want to?
`
` 8 A. No.
`
` 9 Q. Me either. You can put that aside.
`
`10 All right. We started, I think, before that
`
`11 your involvement in the Texas telepharmacy project was
`
`12 from 2002 to 2009, correct?
`
`13 A. Yes.
`
`14 Q. Prior to that time, had you been involved in
`
`15 telepharmacy in any way?
`
`16 A. No.
`
`17 Q. Had you been involved in telemedicine in any
`
`18 way?
`
`19 A. No.
`
`20 Q. Do you understand there to be a distinction
`
`21 between telepharmacy and telemedicine?
`
`22 A. Yes.
`
`23 Q. And what is the distinction?
`
`24 A. I don't know exactly what the definitions are.
`
`25 But with telemedicine, obviously the practitioner is
`
`27
`
`CHARLES F. SEIFERT
`
`
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`Patent
`
` 1 trying to diagnose and treat. So I would think that --
`
` 2 a lot more involved with physical assessment on the
`
` 3 sending in.
`
` 4 Q. Okay.
`
` 5 A. Those kinds of things. Whereas, telepharmacy,
`
` 6 you are really receiving a prescription from a physician
`
` 7 through various means and then involved in the
`
` 8 dispensing of that product more so on the remote end.
`
` 9 Q. Would it be fair that both concepts involve --
`
`10 or both techniques involve the concept of location
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`11 separation between the doctor and the patient?
`
`12 A. Yes.
`
`13 Q. Okay. Is that what the "tele" refers to in
`
`14 both terms?
`
`15 A. I would think so, yes.
`
`16 Q. And when you got involved in the telepharmacy
`
`17 project in 2002, was there already an existing
`
`18 telemedicine system --
`
`19 A. Yes.
`
`20 Q. -- in place?
`
`21 A. Yes.
`
`22 Q. And who was respon
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