`
`STATES DISTRICT
`
`COURT
`
`FOR THE DISTRICT OF NEW JERSEY
`
`Civil Action No. 114-cv-00667-JBS-KMW
`CONSOLIDATED 0449 05144
`and 03240
`
`00335
`
`06893
`
`SENJU PHARMACEUTICAL CO. LTD.
`LOMB
`BAUSCH
`INCORPORATED and
`PHARMA HOLDINGS CORP.
`BAUSCH
`LOMB
`
`Plaintiffs
`
`vs.
`
`LUPIN LTD.
`and LUPIN
`INC.
`PHARMACEUTICALS
`
`Defendants
`
`INNOPHARMA LICENSING INC.
`INNOPHARMA LICENSING LLC
`INC.
`INNOPHARMA LLC
`INNOPHARMA
`
`Defendants.
`
`Videotaped Deposition of
`
`STEPHEN G. DAVIES. D.PHIL.
`
`Washington D.C.
`
`February 22 2016
`
`Reported by Michele E. Eddy RPR CRR CLR
`
`The Little Reporting Company
`646 650-5055
`I www.littlereporting.com
`
`InnoPharma EX1061
`I P R2015-00903
`
`I P R2015-00902
`
`
`
`2
`
`February 22 2016
`
`904 a.m.
`
`Deposition of STEPHEN G. DAVIES D.PHIL.
`
`held at
`
`the offices of Finnegan Henderson 901
`
`New York Avenue Northwest Washington D.C.
`
`pursuant
`
`to Notice before Michele E. Eddy
`
`Nationally Certified Realtime Reporter
`
`and Notary
`
`Public of
`
`the District of Columbia Commonwealth
`
`of Virginia and State of Maryland.
`
`The Little Reporting Company
`646 650-5055
`www.littlereporting.com
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`A P P E A R A N C E S
`
`ON BEHALF OF THE PLAINTIFFS
`
`JESSICA M. LEBEIS ESQUIRE
`
`FINNEGAN HENDERSON
`
`FARABOW GARRETT
`
`DUNNER
`
`LLP
`
`303 Peachtree Street Northeast
`
`Atlanta Georgia
`404 653-6400
`
`30308
`
`jessica.lebeis@finnegan.com
`
`ON BEHALF OF THE DEFENDANTS LUPIN LTD. and LUPIN
`
`PHARMACEUTICALS
`
`INC.
`
`EMILY I. RAPALINO ESQUIRE
`
`GOODWIN
`
`PROCTER
`
`LLP
`
`Exchange Place
`
`53 State Street
`
`Boston Massachusetts
`617 570-1000
`
`02109
`
`erapalino@goodwinprocter.com
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 3
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`ATTENDANCE Continued
`
`ON BEHALF OF THE INNOPHARMA DEFENDANTS
`
`H.
`
`JAMES ABE ESQUIRE
`
`ALSTON
`
`BIRD LLP
`
`333 South Hope Street
`
`Sixteenth Floor
`
`Los Angeles California 90071
`
`213 576-1000
`
`james.abe@alston.com
`
`- AND -
`
`JITENDRA DITTY MALIK PH.D.
`
`ALSTON
`
`BIRD LLP
`
`4721 Emperor Boulevard Suite 400
`
`Durham North Carolina 27703
`
`919 862-2200
`
`jitty.malik@alston.com
`
`ALSO PRESENT
`
`Jason Levin Videographer
`
`The Little Reporting Company
`646 650-5055
`www.littlereporting.com
`
`Page 4
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`PAGE
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`10
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`303
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`PAGE
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`14
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`87
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`117
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`129
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`154
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`184
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`195
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`203
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`214
`
`EXAMINATION INDEX
`
`EXAMINATION BY MS. RAPALINO
`
`EXAMINATION BY MS.
`
`LEBEIS
`
`E X H I B I
`
`T
`
`S
`
`Attached to the Transcript
`
`DEPOSITION EXHIBIT
`
`Exhibit
`
`1 Responsive Expert Report of
`
`Stephen G. Davies D.Phil.
`
`Exhibit
`
`2 U.S. Patent Number 5558876
`
`Exhibit
`
`3 U.S. Patent Number 5603929
`
`Exhibit
`
`4 European Patent Application
`
`88114804.3
`
`Exhibit
`
`5
`
`International Publication
`
`Number WO 94/15597
`
`Exhibit
`
`6 U.S. Patent Number 5110493
`
`Exhibit
`
`7 U.S. Patent Number 5504113
`
`Exhibit
`
`8 U.S. Patent Number 6265444
`
`Exhibit
`
`9 U.S. Patent Number 5597560
`
`The Little Reporting Company
`646 650-5055
`www.littlereporting.com
`
`Page 5
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`EXHIBIT INDEX CONTINUED
`
`6
`
`DEPOSITION EXHIBIT
`
`Exhibit
`
`10 Excerpt of Remington
`
`The
`
`Science and Practice of
`
`Pharmacy
`
`20th Edition
`
`Exhibit
`
`11 Affidavit of Translation
`
`Exhibit
`
`12
`
`U.S. Patent Number 4910225
`
`Exhibit
`
`13 Article titled Comparing the
`
`PAGE
`
`229
`
`233
`
`247
`
`260
`
`Surface Chemical Properties and
`
`the Effect of Salts on the Cloud
`
`Point of a Conventional Nonionic
`
`Surfactant Octoxynol
`
`9 Triton
`
`X-100 and of
`
`Its Oligomer
`
`Tyloxapol Triton WR-1339
`
`Exhibit
`
`14 Article titled Acid Catalysed
`
`279
`
`Hydrolysis of Substituted
`Acetanilides - Part II
`PROL0332616-19
`
`Exhibit
`
`15 Article titled Kinetics of
`
`the
`
`286
`
`Hydrolysis of Anilides by D.D.
`
`Karve and B.W. Kelkar
`
`PROL0332620-626
`
`The Little Reporting Company
`646 650-5055 I www.littlereporting.com
`
`Page 6
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`EXHIBIT INDEX CONTINUED
`
`7
`
`DEPOSITION EXHIBIT
`
`Exhibit 16 Article titled Equilibrium
`
`PAGE
`
`287
`
`Formation of Anilides from
`
`Carboxylic Acids and Anilines
`
`in Aqueous Acidic Media by
`
`Ahmed M. Aman and R.S. Brown
`
`PROL0332635-44
`
`Exhibit
`
`17 Article titled Acid Hydrolysis
`
`288
`
`of Benzylpenicillin Anilides by
`
`E.F. Panarin and M.V. Solovskii
`
`PROL0332645-47
`
`Exhibit
`
`18 Article titled The
`
`289
`
`Acid-catalysed Hydrolysis of
`
`Acetanilide by J.W. Barnett
`
`and J. OConnor PROL0332648-50
`
`Exhibit
`
`19 Excerpt of
`
`Introduction to
`
`291
`
`Organic Chemistry Third
`
`Edition by Andrew Streitwieser
`
`Jr. and Clayton H. Heathcock
`
`PROL0332187-191
`
`The Little Reporting Company
`646 650-5055
`www.littlereporting.com
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`Page 7
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`EXHIBIT INDEX CONTINUED
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`8
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`DEPOSITION EXHIBIT
`
`Exhibit 20 Article titled Selective
`
`PAGE
`
`296
`
`Aromatic Substitution within
`
`a Cyclodextrin Mixed Complex
`
`PROL0332298
`
`Exhibit 21 Article titled Measurement of
`
`297
`
`Chiral Amino Acid Discrimination
`
`by Cyclic Oligosaccharides
`
`A
`
`direct FAB mass spectrometric
`
`approach PROL0332299-300
`
`Exhibit
`
`22 Article titled Crystal
`
`298
`
`Structure of b-cyclodextrin -
`
`benzoic acid inclusion complex
`
`by Thammarat Aree and Narongsak
`
`Chaichit Received 20 August
`
`2002 Accepted 27 October 2002
`
`Carbohydrate Research 338 2003
`
`439-446 Science Direct
`
`PROL0333336-43
`
`The Little Reporting Company
`646 650-5055
`www.littlereporting.com
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`Page 8
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`9
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`STEPHEN G. DAVIES D.PHIL.
`
`THE VIDEOGRAPHER
`
`We are going on
`
`the record at 904 a.m. on February 22nd
`
`2016.
`
`This is DVD number
`
`1 of
`
`the video
`
`deposition of Stephen Davies in the matter
`
`of Senju Pharmaceutical Company Limited
`
`et al. versus Lupin Limited et al.
`
`filed in the United States District Court
`
`for the District of New Jersey Case Number
`
`114-cv-00667-JBSKMW consolidated
`
`cases.
`
`This deposition is being held at
`
`the
`
`offices of Finnegan
`
`located at 901 New
`
`York Avenue Northwest Washington D.C.
`
`My name is Jason Levin from the firm
`
`The Little Reporting Company with offices
`in New York and Im the videographer.
`
`The
`
`court
`
`reporter today is Michele Eddy also
`
`from The Little Reporting Company.
`
`Will counsel
`
`now please state their
`
`appearances
`
`for the record.
`
`MS. RAPALINO
`
`Emily Rapalino of
`
`Goodwin Procter
`
`on behalf of
`
`the Lupin
`
`defendants.
`
`DR. MALIK
`
`Jitendra Malik of
`
`the law
`
`The Little Reporting Company
`646 650-5055
`1 www.littlereporting.com
`
`Page 9
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`STEPHEN G. DAVIES D.PHIL.
`
`firm of Alston
`
`Bird. With me though not
`
`in the room right now will be James Abe
`
`representing InnoPharma defendants in
`
`connection with the litigation only.
`
`Per
`
`my e-mail with Senjus counsel we have an
`
`agreement
`
`that Dr. Davies will be produced
`
`separately in connection with the IPR.
`
`MS. LEBEIS
`
`Jessica Lebeis of
`
`Finnegan
`
`on behalf of plaintiffs Senju and
`
`Bausch
`
`Lomb.
`
`-
`
`-
`
`-
`
`STEPHEN G. DAVIES D.PHIL.
`
`having been duly sworn testified as
`
`follows
`
`EXAMINATION BY COUNSEL
`
`FOR THE LUPIN DEFENDANTS
`
`BY MS. RAPALINO
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`Good morning Dr. Davies.
`
`Good morning.
`
`Youve been deposed before correct
`
`I have yes.
`
`So without belaboring it
`
`I would
`
`just
`
`like to go over
`
`the basic rules for the
`
`deposition.
`
`You understand that Ill
`
`be asking
`
`you questions
`
`today and youll be giving me
`
`answers and that your answers are under oath as
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 10
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`STEPHEN G. DAVIES D.PHIL.
`
`if
`
`you were testifying in court
`
`A
`
`Q
`
`Yes.
`
`We can
`
`take breaks
`
`from time to time.
`
`I would ask that
`
`if
`
`you need a break you ask
`
`for one but not while a question is pending.
`
`Is that
`
`fair
`
`A
`
`Q
`
`Okay.
`
`We should try not
`
`to talk over each
`
`other.
`
`We have a court reporter
`
`trying to take
`
`down what we say so we should just
`
`let each
`
`other
`
`finish before we begin to respond or ask
`
`the next question. Okay
`
`A
`
`Q
`
`Okay.
`
`If
`
`you dont understand one of my
`
`questions please ask me to clarify.
`
`If
`
`you
`
`answer a question Ill
`Is that fair
`
`understood it.
`
`assume that youve
`
`A
`
`Q
`
`Okay.
`Is there any reason that you cant
`
`testify completely and truthfully today
`
`A
`
`Q
`
`No.
`
`How did you prepare for todays
`
`deposition
`
`A
`
`I
`
`read through my reports and the
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 11
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`12
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`STEPHEN G. DAVIES D.PHIL.
`
`references therein.
`
`Q
`
`Did you review any materials besides
`
`the reports and the materials cited in those
`
`reports
`
`A
`
`Q
`
`Not
`
`that
`
`I recall.
`
`Did you meet with anybody in
`
`preparation for your deposition
`
`A
`
`Q
`
`A
`
`I met with Ms. Lebeis.
`
`Did you meet with anybody else
`
`I said hello to a couple of people
`
`but
`
`that was all.
`
`Q
`
`For how long did you meet with
`
`Ms. Lebeis in preparation for your deposition
`Ive been here for two days.
`
`We met
`
`A
`
`for about
`
`roughly six hours each day but both
`
`days a considerable amount of
`
`time was taken up
`
`on another matter.
`
`Q
`
`Okay.
`
`And did you speak with anybody
`
`else in preparation for your deposition
`
`A
`
`Q
`
`No.
`
`Did you review any deposition
`
`testimony in this case
`
`A
`
`Yes.
`
`So Ive read the deposition
`
`testimony of Lawrence.
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 12
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`13
`
`STEPHEN G. DAVIES D.PHIL.
`
`Q
`
`Have
`
`you reviewed
`
`any other
`
`deposition testimony in this case
`
`A
`
`Q
`
`Not
`
`that
`
`I recall no.
`
`Did you review any testimony in the
`
`parallel
`
`IPR proceedings
`
`A
`
`Q
`
`A
`
`Whats IPR
`
`Inter partes review.
`
`No I dont believe so.
`
`How many times have you -- have you
`spoken to any experts in this case
`No I havent
`
`no.
`
`Q
`
`A
`
`Q
`
`How many times have you testified at
`
`deposition
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`I dont
`
`recall.
`
`A number.
`
`Has
`
`it been more than 100
`
`No.
`
`More than 50
`
`Oh its more than ten but
`
`I dont
`
`know the exact number.
`
`Q
`
`Every time youve testified as a
`
`deposition has that been as an expert witness
`
`A
`
`Q
`
`A
`
`I believe so yes.
`
`Have you testified at trial
`
`I have yes.
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 13
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`14
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`STEPHEN G. DAVIES D.PHIL.
`
`How many times
`
`Between five and ten.
`
`Apart
`
`from those instances where
`
`Q
`
`A
`
`Q
`
`youve testified at deposition or at trial
`
`have there been other cases where youve
`
`submitted an expert report
`
`A
`
`Q
`
`There have yes.
`
`In how many cases have you submitted
`
`an expert report
`
`A
`
`Q
`
`A
`
`I dont recall.
`
`A number of cases.
`
`About how many would you say
`
`Around ten.
`
`MS. RAPALINO
`
`Lets mark as Davies
`
`Exhibit
`
`1
`
`the Responsive Expert Report of
`
`Stephen G. Davies D.Phil.
`
`Exhibit 1 was marked for identification
`
`and attached to the deposition transcript.
`
`BY MS. RAPALINO
`
`Q
`
`Is this a copy of
`
`the first expert
`
`report you submitted in this case
`
`A
`
`Q
`
`Yes it
`
`is.
`
`If
`
`you would turn to page 41 of
`
`Exhibit 1.
`
`A
`
`Yes.
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`The Little Reporting Company
`646 650-5055
`I www.littlereporting.com
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`STEPHEN G. DAVIES D.PHIL.
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`Q
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`Is that your signature in the middle
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`of
`
`the page
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`A
`
`Q
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`It
`
`is yes.
`
`And you signed this expert report on
`
`January 29th of 2016
`
`A
`
`Q
`
`Thats correct
`
`yes.
`
`Does
`
`this report accurately summarize
`
`your opinions in this case
`
`A
`
`From the material considered at
`
`that
`
`time yes.
`
`Q
`
`Are there any corrections you want
`
`to
`
`make to the report as you sit here today
`
`A
`
`Q
`
`I dont believe so no.
`
`Staying on page 41 of
`
`the expert
`
`report
`
`in paragraph 84 you list
`
`the cases
`
`in
`
`which you have testified as an expert
`
`in the
`
`last
`
`four years.
`
`Do you see that
`
`A
`
`Q
`
`Thats correct
`
`yes.
`
`Were all of
`
`these cases
`
`listed in
`
`paragraph 84 pharmaceutical
`
`patent cases
`
`A
`
`Q
`
`Yes they were.
`
`Lets talk about
`
`the first
`
`case
`
`Sunovion Pharmaceuticals
`
`Inc.
`
`v. Teva
`
`Pharmaceuticals
`
`USA.
`
`Did you testify on behalf
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`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
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`Page 15
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`STEPHEN G. DAVIES D.PHIL.
`
`of
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`the patentee in that case
`
`A
`
`Q
`
`I did yes.
`
`And in the remaining cases
`
`the
`
`remaining five cases listed in paragraph 84
`
`did you also testify on behalf of
`
`the patentee
`
`in those cases
`
`A
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`Depends on what you mean by on
`behalf of.
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`I was
`
`retained by the patentee
`
`yes but
`
`I
`
`testified to help the court
`
`rather
`
`than on behalf of
`
`the patentee.
`
`Q
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`In each of
`
`those cases did you
`
`testify that
`
`the patent was valid and
`
`infringed
`
`A
`
`Well
`
`involved in those particular cases.
`
`I gave evidence about what was
`Im not
`
`sure I ever stated the words you used.
`lets go one by one.
`
`Q
`
`Okay.
`
`Lets --
`
`So in the Sunovion Pharmaceuticals
`
`case you
`
`said that you were retained by the Sunovion
`
`the patentee is that right
`
`A
`
`Q
`
`Thats correct
`
`yes.
`
`What was the subject of your opinions
`
`in that case
`
`A
`
`It was mostly about chemistry and
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`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
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`Page 16
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`STEPHEN G. DAVIES D.PHIL.
`
`there was
`
`some obviousness arguments as far as
`
`I
`
`remember.
`
`Q
`
`And did you testify in support or
`
`against
`
`those obviousness arguments
`
`MS. LEBEIS Objection vague and
`
`ambiguous.
`
`A
`
`Q
`
`I
`
`testified that
`
`it was nonobvious.
`
`Do you remember what
`
`law firm
`
`retained you in the Sunovion case
`
`A
`
`Q
`
`I
`
`think it was Paul Hastings.
`
`Now you mentioned that
`
`the subject
`
`of your
`
`testimony in the Sunovion case was
`
`chemistry.
`
`Can you be any more specific than
`
`that What was the subject of
`
`the chemistry
`
`about which you testified
`
`MS. LEBEIS Objection to the extent
`
`it mischaracterizes prior testimony.
`
`A
`
`I dont
`
`remember
`
`in each of
`
`these
`
`cases.
`
`I havent
`
`reviewed my reports in those.
`
`Q
`
`Lets go on to the second case
`
`AstraZeneca AB et al. versus Ranbaxy
`
`Pharmaceuticals
`
`Inc.
`
`In that case were you
`
`retained by the patentee AstraZeneca
`
`A
`
`I was yes.
`
`The Little Reporting Company
`646 650-5055
`1 www.littlereporting.com
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`Page 17
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`STEPHEN G. DAVIES D.PHIL.
`
`Q
`
`What was the general subject of your
`
`testimony in that case
`
`A
`
`Q
`
`Mostly chemistry.
`
`Were the issues in that case related
`
`to synthetic chemistry
`
`A
`
`I dont
`
`recall precisely but
`
`it
`
`would have been synthetic chemistry enantiomer
`
`separation medicinal chemistry.
`
`Q
`
`In the AstraZeneca AB et al. versus
`
`Hanmi USA Inc.
`
`case the third case listed in
`
`paragraph 84 were you also retained by the
`
`patentee AstraZeneca
`
`A
`
`Q
`
`I was yes.
`
`What was the general subject of your
`
`testimony in that case
`
`A
`
`Q
`
`case
`
`Chemistry.
`
`Was
`
`it synthetic chemistry in that
`
`A
`
`The answer
`
`is the same as last
`
`time.
`
`Synthetic chemistry resolution chemistry and
`
`medicinal chemistry.
`
`Q
`
`Just so were on the same page how
`
`do you define medicinal chemistry
`
`A
`
`Anything involved in the search for
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`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 18
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`STEPHEN G. DAVIES D.PHIL.
`
`novel pharmaceutical
`
`compounds that are of
`
`therapy to use.
`
`Q
`
`Then
`
`in the fourth case AstraZeneca
`
`AB et al. versus Dr. Reddys Laboratories
`
`Inc. were you also retained by the patentee
`
`AstraZeneca
`
`A
`
`Q
`
`Yes.
`
`What was the general subject of your
`
`testimony in that case
`
`A
`
`Q
`
`Chemistry.
`
`Would it
`
`be those same categories of
`
`chemistry synthetic chemistry enantiomer
`
`chemistry and medicinal chemistry
`
`A
`
`Q
`
`Yes.
`
`And then in the fifth case
`
`GlaxoSmithKline LLC versus Banner Pharmacaps
`
`Inc. were you retained by the patentee
`
`GlaxoSmithKline in that case
`
`A
`
`Q
`
`I was yes.
`
`What was the general subject of your
`
`testimony in that case
`
`A
`
`Q
`
`Chemistry.
`
`And again would it
`
`be those same
`
`three categories of synthetic chemistry
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`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 19
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`STEPHEN G. DAVIES D.PHIL.
`
`enantiomer chemistry and medicinal chemistry
`
`20
`
`A
`
`In broad. Other
`
`topics may have came
`up but thats the broad outline.
`
`Q
`
`What were the other topics that might
`
`have come up
`I dont
`
`A
`
`recall.
`
`Q
`
`So sitting here today the ones you
`
`recall are synthetic chemistry enantiomer
`
`chemistry and medicinal chemistry is that
`
`right
`
`A
`
`Thats true.
`
`I havent
`
`had time to
`
`review exactly what
`
`I did in each of
`
`these
`
`cases.
`
`In fact most of
`
`the cases
`
`I have
`
`nothing to review to look to remind myself.
`
`Q
`
`Then
`
`in the last case that you list
`
`here Gilead Sciences
`
`Inc. versus Teva
`
`Pharmaceuticals USA Inc. were you retained by
`
`the patentee Gilead Sciences
`
`Inc.
`
`in that
`
`case
`
`A
`
`Q
`
`I was yes.
`
`What was the general subject of your
`
`testimony in that case
`
`A
`
`Q
`
`Chemistry.
`
`And was it
`
`the same three categories
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 20
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`STEPHEN G. DAVIES D.PHIL.
`
`weve been talking about synthetic chemistry
`
`enantiomer chemistry and medicinal chemistry
`
`MS. LEBEIS Objection to the extent
`
`it mischaracterizes the prior testimony.
`
`A
`
`I dont
`
`recall. Certainly synthetic
`
`chemistry.
`
`I cant
`
`recall whether
`
`it was
`
`enantiomer chemistry.
`
`And it would have been
`
`medicinal chemistry.
`
`Q
`
`Now in each of
`
`these cases
`
`listed in
`
`paragraph 84 you testified on behalf of
`
`the
`
`brand pharmaceutical
`
`company
`
`right
`
`MS. LEBEIS Objection asked and
`
`answered.
`
`A
`
`I was retained by the patentee in
`
`each of cases but
`
`testified on behalf
`
`--
`
`to
`
`help the court.
`
`Q
`
`Were you being paid by the party that
`
`retained you in each of
`
`those cases
`
`A
`
`I was yes.
`
`21
`
`22
`
`Q
`
`Were you compensated by the court
`
`in
`
`connection
`
`--23A
`
`Actually I dont
`
`--
`
`that may not be
`
`24
`
`25
`
`true.
`
`Some of
`
`the cases
`
`I may have been paid
`
`by the lawyers.
`
`In fact all
`
`the cases
`
`I was
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 21
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`STEPHEN G. DAVIES D.PHIL.
`
`paid by the lawyers.
`
`Q
`
`Okay.
`
`So you were paid by the
`
`lawyers representing the brand pharmaceutical
`
`company in each of
`
`those cases
`
`Thats correct.
`
`And you werent paid by the court
`
`A
`
`Q
`
`any of
`
`22
`
`in
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`5
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`6
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`7
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`8
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`10
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`those cases--9A
`
`No.
`
`--
`
`Q
`
`for your
`
`testimony
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`A
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`Q
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`No.
`
`Have you ever offered testimony that
`
`a patent
`
`is obvious
`
`MS. LEBEIS Objection to the extent
`
`it calls for a legal conclusion.
`
`A
`
`I dont
`
`think Ive ever been involved
`
`in a case where I have come to that conclusion.
`
`Q
`
`So youve never
`
`testified that
`
`a
`
`patent
`
`is obvious
`
`A
`
`Q
`
`I dont believe so.
`
`Have you ever
`
`testified that
`
`a patent
`
`was not
`
`infringed
`
`A
`
`Q
`
`I dont believe so.
`
`Besides these six cases
`
`listed in
`
`paragraph 84 of your -- of Exhibit 1 how many
`
`The Little Reporting Company
`646 650-5055
`1 www.littlereporting.com
`
`Page 22
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`STEPHEN G. DAVIES D.PHIL.
`
`other cases have you offered testimony as an
`
`expert
`
`A
`
`I
`
`think I answered that previously.
`
`So its a number of cases.
`
`I
`
`forget how many.
`
`Q
`
`I
`
`think we said it was about
`
`ten.
`
`Is
`
`that right
`
`MS. LEBEIS Objection to the extent
`
`it mischaracterizes prior testimony.
`
`Asked
`
`and answered.
`
`A
`
`Q
`
`Repeat
`
`the question.
`
`In about
`
`how many cases besides the
`
`six listed in paragraph 84 of your expert
`
`report have you offered testimony as an
`
`expert
`
`A
`
`Well
`
`Ive been in --
`
`Ive written
`
`reports as I
`
`think I said previously in a
`
`number of other cases.
`
`So its certainly more
`
`than ten.
`
`Q
`
`So apart
`
`from the six cases
`
`listed in
`
`paragraph 84 are there other cases
`
`in which
`
`youve testified as an expert prior to the last
`
`four years
`
`A
`
`Q
`
`Yes.
`
`About how many of
`
`those cases have
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 23
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`STEPHEN G. DAVIES D.PHIL.
`you testified in
`
`ten.
`
`A
`
`Q
`
`I dont recall but maybe another
`
`So were talking about about
`
`16 cases
`
`total
`
`that youve offered testimony as an
`
`expert
`
`is that right
`
`MS. LEBEIS Objection to the extent
`
`it mischaracterizes prior testimony.
`
`A
`
`Q
`
`Testimony or reports.
`
`In each of
`
`those approximately 16
`
`cases
`
`in which youve offered an expert report
`
`or testified has the subject of your
`
`testimony
`
`been synthetic chemistry enantiomer chemistry
`
`or medicinal chemistry
`
`MS. LEBEIS Objection to the extent
`
`it mischaracterizes prior testimony.
`
`Asked
`
`and answered.
`
`A
`
`Its been chemistry in general which
`
`has included those but other things have come
`
`up that
`
`if
`
`its within my expertise Ive
`
`given testimony about.
`
`Q
`
`Can you recall what other subjects in
`
`chemistry have come up apart
`
`from enantiomer
`
`chemistry synthetic chemistry and medicinal
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`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
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`Page 24
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`STEPHEN G. DAVIES D.PHIL.
`
`chemistry that youve testified about before
`
`MS. LEBEIS Objection asked and
`
`answered.
`
`A
`
`I dont
`
`recall.
`
`Im a chemist so
`
`anything that comes up in the general
`
`field of
`
`chemistry in its broadest sense I may well
`
`have testified about.
`
`Q
`
`Now the issue of enantiomers or
`
`stereochemistry is not
`
`the subject of your
`
`opinions in this case correct
`Its not no.
`
`A
`
`Q
`
`And the subject of synthetic
`
`chemistry is not
`
`the subject of your opinions
`
`in this case correct
`
`A
`
`Q
`
`Thats correct.
`
`And medicinal chemistry as youve
`
`defined it
`
`is not
`
`the subject of your opinions
`
`in this case correct
`
`A
`
`Well medicinal chemistry is anything
`
`to do with particularly therapeutically useful
`
`compounds.
`
`Q
`
`And you havent
`
`testified in this
`
`case or you havent offered an opinion in this
`
`case about
`
`the search for novel pharmaceutical
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`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
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`Page 25
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`STEPHEN G. DAVIES D.PHIL.
`
`compounds that are of
`
`therapeutic use right
`
`MS. LEBEIS Objection to the extent
`
`it mischaracterizes prior testimony.
`
`A
`
`I would have to check
`
`through to see
`
`if
`
`thats true.
`
`I dont recall
`
`that
`
`I did but
`
`..
`
`Q
`
`So sitting here right now you dont
`
`recall an opinion youve offered about
`
`the
`
`search for novel pharmaceutical
`
`compounds that
`
`are of
`
`therapeutic use in this case right
`
`I dont believe I did no.
`A
`said Im a chemist
`
`in the broadest
`
`As
`
`Ive
`
`sense.
`
`Q
`
`If
`
`you turn to Appendix B of your
`expert report Exhibit 1 this is a copy of
`
`your curriculum vitae is that right
`
`A
`
`Q
`
`A
`
`Thats correct
`
`yes.
`
`Is it up-to-date
`
`It was up-to-date on the date at
`
`which I signed it
`
`--
`
`I signed the report which
`
`is the 29th of January.
`
`Q
`
`Are there --
`
`is there anything you
`
`would like to update thats happened
`
`over
`
`the
`
`last
`
`three weeks since youve signed the
`
`report
`
`The Little Reporting Company
`646 650-5055
`www.littlereporting.com
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`Page 26
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`27
`
`STEPHEN G. DAVIES D.PHIL.
`
`Not
`
`that
`
`I
`
`-- no.
`
`Now you received a BA in chemistry
`
`A
`
`Q
`
`in 1973 is that right
`
`A
`
`Q
`
`Thats correct.
`
`Did you do any research during your
`
`studies for that degree
`
`A
`
`The BA in Oxford is a four-year
`
`course.
`
`The first
`
`three years are mostly
`
`theoretical
`
`and the fourth year
`
`is an entire
`
`research project.
`
`Q
`
`What was the subject of
`
`that year of
`
`research
`
`A
`
`The synthesis and chemical properties
`
`of benzene oxide and related compounds.
`
`Q
`
`Did you do any work on pharmaceutical
`
`formulations during your
`
`research for your BA
`
`degree
`
`A
`
`Q
`
`I did not no.
`
`Did you do any research on compounds
`
`for ophthalmic
`
`use during your
`
`research for
`
`your BA degree
`
`A
`
`Q
`
`I did not no.
`
`Did you do any research on
`
`nonsteroidal anti-inflammatory drug compounds
`
`The Little Reporting Company
`646 650-5055
`1 www.littlereporting.com
`
`Page 27
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`28
`
`STEPHEN G. DAVIES D.PHIL.
`
`during your
`
`research for your BA degree
`
`A
`
`Q
`
`I did not no.
`
`You got your D.Phil. degree in
`
`chemistry in 1975 is that right
`
`A
`
`Q
`
`Thats correct
`
`yes.
`
`Did you do any research during the
`
`time you were studying for that degree
`
`A
`
`Q
`
`I did yes.
`
`What was the subject of
`
`that degree
`
`-- of
`
`that research
`
`A
`
`The synthesis and properties of
`
`a
`
`broad class of molecules containing the
`
`functional group epoxide.
`
`Q
`
`Did you do any work on pharmaceutical
`
`formulations during your
`
`research for your
`
`D.Phil. degree
`
`A
`
`Q
`
`I did not no.
`
`Did you do any research on compounds
`
`for ophthalmic
`
`use during your
`
`research for
`
`your D.Phil. degree
`
`A
`
`Q
`
`I did not no.
`
`Did you do any research on
`
`nonsteroidal anti-inflammatory drug compounds
`
`during your
`
`research for your D.Phil. degree
`
`The Little Reporting Company
`646 650-5055
`1 www.littlereporting.com
`
`Page 28
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`29
`
`STEPHEN G. DAVIES D.PHIL.
`
`I did not
`
`no.
`
`You said that your area of
`
`research
`
`A
`
`Q
`
`during your studies for your D.Phil. degree was
`
`on a broad class of compounds containing the
`
`functional group epoxides is that right
`
`A
`
`Thats correct.
`
`Q
`
`-- what
`What does it
`a broad class of compounds
`Well
`A
`there are many compounds of
`
`do you mean by
`
`very different
`
`types that contain the epoxide
`
`functional group.
`
`Q
`
`And what properties of
`
`that class of
`
`compounds were you studying
`
`A
`
`Their physical properties and their
`
`chemical properties.
`
`Q
`
`Did you identify any physical or
`
`chemical properties shared by that class of
`
`compounds
`
`MS. LEBEIS Objection.
`
`No
`
`foundation.
`
`Vague and ambiguous.
`
`A
`
`One
`
`thing we discovered was that you
`
`can predict
`
`the substitution pattern of
`
`the
`
`epoxide from the carbon 13 NMR chemical shift.
`
`Q
`
`I
`
`think my question was a little
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 29
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`30
`
`STEPHEN G. DAVIES D.PHIL.
`
`different.
`
`Did you identify any physical
`
`properties shared by compounds within that
`
`class that you were studying
`
`MS. LEBEIS
`
`Same objections.
`
`A
`
`Well what we found was that each
`
`molecule that we made behaved differently.
`
`So
`
`for example the NMR --
`
`the reason we could
`
`identify them is they all had different NMR
`
`characteristics
`
`and their chemical
`
`reactions
`
`were different.
`
`Q
`
`Did you find that any --
`
`there were
`
`any properties shared amongst
`
`the molecules
`
`within the class
`
`MS. LEBEIS
`
`Same objections.
`
`A
`
`I dont
`
`think we
`
`came
`
`to that
`
`conclusion
`
`no.
`
`Q
`
`What makes you call
`
`those compounds a
`
`class when they have no shared properties
`
`A
`
`They all have the same functional
`
`group.
`
`Q
`
`Can compounds within the same class
`
`share common chemical
`
`reactions
`
`MS. LEBEIS Objection vague and
`
`ambiguous.
`
`No
`
`foundation.
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 30
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`31
`
`STEPHEN G. DAVIES D.PHIL.
`
`They can yes.
`
`Why is a particular moiety in a
`
`A
`
`Q
`
`compound called a functional group
`
`MS. LEBEIS
`
`Same objections.
`
`A
`
`Because it
`
`has --
`
`a functional group
`
`is a part of
`
`a molecule that has reactivity.
`
`Q
`
`And do the same functional groups on
`
`different
`
`compounds have -- sometimes have
`
`similar reactivity
`
`MS. LEBEIS
`
`Same objections.
`
`A
`
`They can have a particular
`
`type of
`
`reactivity but you --
`
`you have to look at a
`
`whole molecule in order to determine the
`
`precise reactivity that you might expect.
`
`Q
`
`You said the precise reactivity that
`
`you might expect.
`
`Why did you qualify it
`
`that
`
`way
`
`MS. LEBEIS Objection to the extent
`
`it mischaracterizes prior testimony.
`
`A
`
`I could have said general
`
`reactivity.
`
`Its just at what
`
`level you want
`
`to try and
`
`predict
`
`a particular
`
`type of reactivity.
`
`Q
`
`Well general and precise are two
`
`different
`
`things right
`
`The Little Reporting Company
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`Page 31
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`32
`
`STEPHEN G. DAVIES D.PHIL.
`
`MS. LEBEIS Objection vague and
`
`ambiguous.
`
`A
`
`Q
`
`on which way youre using it.
`Depends
`Lets move on in your CV.
`
`So in 1980
`
`you got
`
`a D.Sc. degree is that right
`
`A
`
`Q
`
`Thats correct
`
`yes.
`
`Did you do any research in connection
`
`with that degree
`
`A
`
`Its a research degree on chemistry
`
`of epoxides.
`
`Q
`
`Did you do any work on pharmaceutical
`
`formulations during that research
`
`A
`
`Q
`
`I did not no.
`
`Did you do any work on compounds
`
`for
`
`ophthalmic
`
`use during that
`
`research for your
`
`D.Sc. degree
`
`A
`
`Q
`
`I did not no.
`
`Did you do any research on
`
`nonsteroidal anti-inflammatory drug compounds
`
`during your
`
`research for the D.Sc. degree
`
`A
`
`Q
`
`I did not no.
`
`What
`
`further work did you do on
`
`epoxides during your
`
`research for your D.Sc.
`
`degree
`
`The Little Reporting Company
`646 650-5055
`www.littlereporting.com
`
`Page 32
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`33
`
`STEPHEN G. DAVIES D.PHIL.
`
`MS. LEBEIS Objection no
`
`foundation.
`
`A
`
`Essentially very little.
`
`So the
`
`D.Sc.
`
`I moved to France and in the French
`
`system you have to have a French degree.
`
`So
`
`they allowed me to put
`
`in the research I
`
`published on epoxides during my U.K. degree for
`
`consideration of
`
`a D.Sc.
`
`in the University of
`
`Paris which they awarded me.
`
`Q
`
`A
`
`Q
`
`What year did you move to France
`
`1977.
`
`Did you do research during those
`
`three years from 1977
`
`to 1980
`
`A
`
`Q
`
`research
`
`I did yes.
`
`What was the subject of
`
`that
`
`A
`
`It was a mixture of
`
`things including
`
`we were looking at
`
`the reactions of a whole
`
`range of natural products
`
`including steroids
`
`alkaloids carbohydrates with transition metal
`
`reactants
`
`and then we were looking at general
`
`organometallic reactivity as well.
`
`Q
`
`Did any of
`
`that
`
`research relate to
`
`work on pharmaceutical
`
`formulations
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 33
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`25
`
`STEPHEN G. DAVIES D.PHIL.
`
`No.
`
`34
`
`Did any of
`for ophthalmic use
`
`that work relate to work
`
`A
`
`Q
`
`on compounds
`
`A
`
`Q
`
`It did not no.
`
`If
`
`I refer to nonsteroidal
`
`anti-inflammatory drugs as NSAIDs will
`
`you
`
`understand what
`
`I mean
`
`A
`
`Q
`
`Yes.
`
`Did you do any work during that
`
`time
`
`period on NSAIDs
`
`A
`
`Q
`
`Not
`
`that
`
`I recall.
`
`Your CV is not --
`
`the pages arent
`
`numbered but
`
`if
`
`you turn to what
`
`is the third
`
`page of your CV you list
`
`a number of companies
`
`that you founded or had a directorship in those
`
`companies
`
`is that right
`
`still
`
`A
`
`Q
`
`A
`
`Q
`
`I actually founded all of
`
`them.
`
`Okay.
`
`Are all of
`
`those companies
`
`in existence
`
`They are not no.
`
`How many of
`
`them are still
`
`in
`
`existence
`
`A
`
`Well maybe I better qualify in
`
`existence.
`
`Some of
`
`them have been sold or
`
`The Little Reporting Company
`646 650-5055 1 www.littlereporting.com
`
`Page 34
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`35
`
`STEPHEN G. DAVIES D.PHIL.
`
`taken over by other companies and therefore
`
`the company under
`
`the name here is not
`
`in
`
`existence.
`
`Q
`
`Okay.
`
`How many of
`
`them are still
`
`in
`
`existence as an independent
`
`company
`
`A
`
`Scilnk Limited Summit Therapeutics
`
`Oxstem Limited.
`
`Q
`
`Are any others still
`
`in existence as
`
`independent
`
`companies
`
`A
`
`Q
`
`I dont believe so.
`
`Did you have a role in any of
`
`these
`
`companies apart
`
`from founding them
`
`A
`
`Well often theyd be founded on my
`
`research work.
`
`And then for some or all of
`
`the
`
`time I would be involved in the research that
`
`was going on in those companies
`
`and I would be
`
`on the board as the director of
`
`the company or
`
`was chairman occasionally.
`
`Q
`
`About
`
`-- over
`
`the ye