Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`Page 1
`
` U N I T E D S T A T E S P A T E N T A N D T R A D E M A R K O F F I C E
`
` B E F O R E T H E P A T E N T T R I A L A N D A P P E A L B O A R D
`
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
`
`I N N O P H A R M A L I C E N S I N G , I N C . , )
`
`I N N O P H A R M A L I C E N S I N G L L C , )
`
`I N N O P H A R M A I N C . , I N N O P H A R M A L L C , ) C a s e I P R 2 0 1 5 - 0 0 9 0 2
`
`M Y L A N P H A R M A C E U T I C A L S I N C . ) ( P a t e n t 8 , 6 6 9 , 2 9 0 B 2 )
`
`a n d M Y L A N I N C . )
`
` P e t i t i o n e r , ) C a s e I P R 2 0 1 5 - 0 0 9 0 2
`
` v . ) ( P a t e n t 8 , 1 2 9 , 4 3 1 B 2 )
`
`S E N J U P H A R M A C E U T I C A L C O . , L T D . , )
`
`B A U S C H & L O M B , I N C . , a n d )
`
`B A U S C H & L O M B P H A R M A H O L D I N G S C O R P . )
`
` P a t e n t O w n e r . )
`
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ )
`
`
`
` C O N F I D E N T I A L S U B J E C T T O T H E P R O T E C T I V E O R D E R
`
` V I D E O T A P E D D E P O S I T I O N O F J O H N C . J A R O S Z
`
` W a s h i n g t o n , D C 2 0 0 0 1
`
` T h u r s d a y , M a r c h 3 , 2 0 1 6
`
`R e p o r t e d b y : D e n i s e D . V i c k e r y , C R R / R M R
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`PROTECTIVE ORDER MATERIAL
`
`Page 1
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`2 (Pages 2 to 5)
`
`Page 4
`
` A P P E A R A N C E S (continued)
`
`For the Lupin Petitioner:
`CROWELL & MORING
` 1001 Pennsylvania Avenue NW
` Washington, DC 20004-2595
` 202.624.2897
`BY: SHANNON LENTZ, ESQ.
` slentz@crowell.com
`
`Also Present:
`
` T.J. O'Toole, Videographer
`
` I N D E X
`
`Page 5
`
`EXAMINATION OF JOHN C. JAROSZ PAGE
`
`BY MR. ABE ...................................... 12
`
` -o0o-
`
`1
`
`2 3
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`
`2 3
`
`4 5
`
`6 7
`
`8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` Thursday, March 3, 2016
` 9:04 a.m.
`
`Page 2
`
`VIDEOTAPED DEPOSITION OF JOHN C. JAROSZ, held at the
`offices of:
`
` FINNEGAN HENDERSON FARABOW
` GARRETT & DUNNER, LLP
` 901 New York Avenue NW
` Washington, DC 20001
`
`Pursuant to notice, before Denise D. Vickery,
`Registered Merit Reporter, Certified Realtime
`Reporter, and Notary Public in and for the District
`of Columbia.
`
`Page 3
`
` A P P E A R A N C E S
`
`For the Petitioners:
`ALSTON & BIRD LLP
` 333 South Hope Street, Sixteenth Floor
` Los Angeles, CA 90071
` 213.576.1000
`BY: HIDETADA JAMES ABE, ESQ.
` james.abe@alston.com
`
`For the Patent Owner:
`FINNEGAN HENDERSON FARABOW GARRETT & DUNNER, LLP
` 901 New York Avenue NW
` Washington, DC 20001
` 202.408.4000
`BY: JESSICA M. LEBEIS, ESQ.
` jessica.lebeis@finnegan.com
`
`1
`2
`
`3 4 5
`
`6
`
`7 8
`
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`
`2 3
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`Pages 2
`
`Page 2
`
`PROTECTIVE ORDER MATERIAL
`
`Page 2
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`3 (Pages 6 to 9)
`
`Page 8
`
` E X H I B I T S (continued)
` (Previously marked)
`
`EXHIBIT DESCRIPTION PAGE
`Senju Exhibit 2130 Declaration of 15
` John C. Jarosz
` Page 1 - 123
`
`Senju Exhibit 2153 CDER Application Number: 196
` 203168Orig1s000
` Summary Review Page 1 - 22
`
`Senju Exhibit 2191 ASCRS EyeWorld Pharmaceutical 204
` Focus: Getting the scoop
` on NSAIDs for cataract surgery
`
`Senju Exhibit 2220
`
`
`
` 107
`
`
`
`///
`
` E X H I B I T S (continued)
` (Previously marked)
`
`Page 9
`
`EXHIBIT DESCRIPTION PAGE
`Senju Exhibit 2226
` 97
`
`
`
`
`
`
`Senju Exhibit 2229 Bausch & Lomb Submits New 159
` Drug Application for
` Once-Daily Prolensa
` to Treat Ocular
` Inflammation and Pain
` Following Cataract Surgery
` Page 1 - 2
`
`Senju Exhibit 2232 The Economics of Commercial 114
` Success in Pharmaceutical
` Patent Litigation, Guha et al.
` Page 1 - 5
`///
`
`1
`2
`
`3 4
`
`5
`6
`7
`
`8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`
`3 4
`
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` E X H I B I T S
`
`Page 6
`
`EXHIBIT DESCRIPTION PAGE
`InnoPharma EX1056 Valeant Pharmaceuticals 168
` International Management
` Discusses Q2 2013
` Results - Earnings
` Call Transcript
`
` E X H I B I T S
` (Previously marked)
`
`EXHIBIT DESCRIPTION PAGE
`InnoPharma EX1054 Assessing Commercial Success 51
` at the U.S. Patent Trial
` and Appeal Board John Jarosz
` and Robert L. Vigil
`
`InnoPharma Exhibit 1066 Deposition of WITHDRAWN
` John Jarosz on
` February 17, 2016
`///
`
` E X H I B I T S (continued)
` (Previously marked)
`
`Page 7
`
`EXHIBIT DESCRIPTION PAGE
`Senju Exhibit 2002 United States Patent 49
` 8,129,431 Sawa et al.
` Page 1 - 8
`
`Senju Exhibit 2013 Prolensa Label Page 1 - 6 138
`
`Senju Exhibit 2024 Stipulated Consent Judgment 179
` and Injunction Bausch & Lomb
` v. Apotex Page 1 - 4
`
`Senju Exhibit 2122 Stipulated Consent Judgment 179
` and Injunction Bausch &
` Lomb v. Metrics Page 1 - 4
`
`Senju Exhibit 2123 Stipulated Consent Judgment 179
` and Injunction Bausch &
` Lomb v. Paddock
` Page 1 - 5
`
`1
`
`2 3
`
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`
`3 4
`
`5
`6
`7
`
`8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`Pages 3
`
`Page 3
`
`PROTECTIVE ORDER MATERIAL
`
`Page 3
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`4 (Pages 10 to 13)
`
`Page 12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Bird for the InnoPharma Petitioner and Mylan
`Petitioner.
` MS. LENTZ: Shannon Lentz of
`Crowell & Moring here for Petitioner Lupin.
` MS. LEBEIS: Jessica Lebeis of
`Finnegan on behalf of the Patent Owners Senju and
`Bausch & Lomb.
` THE VIDEOGRAPHER: Thank you.
` Would the court reporter please
`swear in the witness.
` - - -
` JOHN C. JAROSZ
`called for examination, and, after having been duly
`sworn, was examined and testified as follows:
` EXAMINATION
`BY MR. ABE:
`
` Q. Q. Good morning, Mr. Jarosz.
`
` Q. Q.
`
` A. A. Good morning.
`
` A. A.
`
` Q. Q. Can you state your name for the record?
`
` Q. Q.
`
` A. A. John C. Jarosz.
`
` A. A.
`
` Q. Q. You've been deposed many times before;
`
` Q. Q.
`right?
`
`Page 13
`
` A. Yes, only in different matters.
` A.
` A. A.
`
`
` Q. Q. Of course.
`
` Q. Q.
`
` A. A. Many different matters.
`
` A. A.
`
` Q. Q. Yes. I just wanted to go over the
`
` Q. Q.
`ground rules.
`
` A. A. (Nods head).
`
` A. A.
`
` Q. Q. I represent the InnoPharma Petitioners
`
` Q. Q.
`and I'll be asking questions today, and I'll ask
`that you answer my questions. Your counsel might
`object, but unless she instructs you not to answer,
`I expect you to answer.
` Is that okay?
`
` A. A. Yes.
`
` A. A.
`
` Q. Q. If you don't understand a question I'm
`
` Q. Q.
`asking, just let me know. If you need a break, just
`let me know, but I ask that you answer any pending
`question before you do that.
` Is that okay?
`
` A. A. Yes.
`
` A. A.
`
` Q. Q. Okay. Is there any reason why you
`
` Q. Q.
`can't testify truthfully today?
`
` A. A. No.
`
` A. A.
`
` E X H I B I T S (continued)
` (Previously marked)
`
`Page 10
`
`EXHIBIT DESCRIPTION PAGE
`Senju Exhibit 2235 Valeant Pharmaceuticals 152
` International.
` Solid results; Increased
` Guidance. CIBC Page 1 - 10
` -o0o-
`
`Page 11
`
` P R O C E E D I N G S
` - - -
` THE VIDEOGRAPHER: On the record
`with disk No. 1 of the video deposition of John
`Jarosz taken by the Petitioner in the matter of
`InnoPharma Licensing, Incorporated, et al. versus
`Senju Pharmaceuticals Company Limited, et al., being
`heard before the Patent Trial and Appeal Board of
`the United States Patent and Trademark Office, Case
`No. IPR2015-00902.
` This deposition is being held at
`the Finnegan law offices located at 901 New York
`Avenue Northwest in Washington, DC on March 3, 2016
`at approximately 9:04 a.m.
` My name is T.J. O'Toole. I am the
`certified legal video specialist. The court
`reporter is Denise Vickery. We are both here
`representing Gregory Edwards, LLC.
` Will counsel please introduce
`themselves and indicate which parties they
`represent.
` MR. ABE: James Abe of Alston &
`
`1
`2
`
`3 4
`
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`Pages 4
`
`Page 4
`
`PROTECTIVE ORDER MATERIAL
`
`Page 4
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`Page 14
`
` MR. ABE: Okay. Counsel, will you
`stipulate that the witness is here for
`cross-examination for both IPR2015-00902 and 903?
` MS. LEBEIS: Yes.
` MR. ABE: Okay. And will counsel
`also stipulate that my questions will be directed to
`both IPR proceedings unless I specify otherwise?
` MS. LEBEIS: Yes.
`BY MR. ABE:
`
` Q. Q. Okay. Mr. Jarosz, have you ever been
`
` Q. Q.
`deposed in the context of an inter partes review
`proceeding?
`
` A. A. Yes.
`
` A. A.
`
` Q. Q. How many times?
`
` Q. Q.
`
` A. A. I'd have to look at my CV, but my best
`
` A. A.
`memory right now is that it's been three times. I
`might be wrong, however.
`
` Q. Q. And your CV, I believe, is attached as
`
` Q. Q.
`one of the exhibits or it is attached to your
`declaration; is that right?
`
` A. A. I have attached the version of my CV
`
` A. A.
`that was current as of the time I submitted my
`
`Page 15
`
`report or declaration in this matter.
` Q. Q. Do you recall when those three -- let
`
`
` Q. Q.
`me restate it.
` Were those three depositions for the
`inter partes review -- would that have happened
`after you submitted your declaration in this case?
`
` A. A. No, I don't think any have been
`
` A. A.
`since --
`
` Q. Q. Okay.
`
` Q. Q.
`
` A. A. -- the declaration in this matter.
`
` A. A.
`Though I might be wrong. I think I'm correct.
`
` Q. Q. Were any of those IPR proceedings in
`
` Q. Q.
`relation to patents that covered pharmaceutical
`subject matter?
`
` A. A. I'd have to go back and check. I don't
`
` A. A.
`recall sitting here right now.
`
` Q. Q. Okay. Maybe if I hand you your
`
` Q. Q.
`declaration, that might help. So I'm -- so I'm
`handing you what's been marked Senju Exhibit 2130 in
`the 902 IPR.
` Mr. Jarosz, is this your declaration?
`
` A. A. (Reviewing document).
`
` A. A.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`5 (Pages 14 to 17)
`
`Page 16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` Well, I'm not exactly sure. I believe
`so, but I see a few redactions in this, and I am not
`sure that what I submitted had redactions. So I'm
`not positive --
`
` Q. Q. Yeah, this is --
`
` Q. Q.
`
` A. A. -- that this is what I submitted.
`
` A. A.
`
` Q. Q. Right. There's another version that is
`
` Q. Q.
`the board's only -- eyes only, but for today's
`proceeding I'd like to use the board version that's
`redacted.
` Is that okay?
`
` A. A. I think so. Although I'm a little bit
`
` A. A.
`nervous since it doesn't look like exactly the
`document that I submitted.
`
` Q. Q. That's fair.
`
` Q. Q.
` I'll just represent to you that this is
`what was filed by the patent owners in the case as
`protective order material with the redactions as you
`noted.
` Is that okay?
`
` A. A. Yes.
`
` A. A.
`
` Q. Q. Okay. So why don't you turn to the CV,
`
` Q. Q.
`
`Page 17
`
`which is attached to your declaration as Appendix 1.
`On page 69, it lists your patent cases.
` Do you see that?
`
` A. A. Well, it's the start of the list of my
`
` A. A.
`patent cases.
`
` Q. Q. And the second case listed there,
`
` Q. Q.
`that's an IPR proceeding?
`
` A. A. If that's a question, the answer is
`
` A. A.
`yes.
`
` Q. Q. Yeah. And you represented the Polaris
`
` Q. Q.
`Industries, Inc. company?
`
` A. A. Yes.
`
` A. A.
`
` Q. Q. Is that right?
`
` Q. Q.
`
` A. A. Our firm did, yes.
`
` A. A.
`
` Q. Q. Okay. And that case didn't involve a
`
` Q. Q.
`pharmaceutical product, did it?
`
` A. A. No.
`
` A. A.
`
` Q. Q. And you represented petitioner --
`
` Q. Q.
`sorry.
` You were representing the patent owner
`in that case; is that right?
` MS. LEBEIS: Objection to the form
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`Pages 5
`
`Page 5
`
`PROTECTIVE ORDER MATERIAL
`
`Page 5
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`Page 18
`
`of the question.
` THE WITNESS: Our firm represented
`polar -- Polaris Industries, and I believe they
`owned the patents.
`BY MR. ABE:
`
` Q. Q. Okay. So the testimony you were
`
` Q. Q.
`offering in that case was that there was commercial
`success with respect to the patents-in-suit in that
`case; is that right?
`
` A. A. I'm not sure what I can say about that
`
` A. A.
`matter. I think it was covered by protective order.
`So I hesitate a little bit in answering your
`question, not wanting to violate a protective order.
`
` Q. Q. That's fine. Do you know if a decision
`
` Q. Q.
`has been rendered in that case?
`
` A. A. I believe so.
`
` A. A.
`
` Q. Q. Do you know what the decision is?
`
` Q. Q.
`
` A. A. I don't know all the particulars of the
`
` A. A.
`decision, but I believe that at least some of the
`petitioner's challenge was upheld by the PTAB, as I
`recall.
`
` Q. Q. So would that mean that the
`
` Q. Q.
`
`Page 19
`
`petitioner's -- well, let me restart.
` The petitioner was challenging that the
`patents in that case were invalid; right? Or some
`of the claims were invalid; is that right?
` MS. LEBEIS: Objection. No
`foundation.
` THE WITNESS: Among other things,
`they were challenging the validity of the patent or
`patents, as I recall.
`BY MR. ABE:
`
` Q. Q. Okay. And the board affirmed that some
`
` Q. Q.
`of those claims were invalid --
` MS. LEBEIS: Same objection.
`BY MR. ABE:
`
` Q. Q. -- is that right?
`
` Q. Q.
`
` A. A. If that's a question, I believe that's
`
` A. A.
`right. I only looked at the final decision fairly
`quickly, but I believe that's correct.
`
` Q. Q. Okay. In rendering that decision, did
`
` Q. Q.
`the board reject any of the statements or opinions
`you were offering in that case?
` MS. LEBEIS: Objection. No
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`6 (Pages 18 to 21)
`
`Page 20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`foundation. Calls for speculation.
` THE WITNESS: You'd have to go
`back and look.
` My memory is the board's decision
`was keyed off belief or understanding as to whether
`the patent or patents are used, and I think anything
`with regard to commercial success, I think it might
`have said, was dicta. I don't think that it was
`dispositive because they had made a determination
`before getting to those, the commercial success
`issues, I believe.
`BY MR. ABE:
`
` Q. Q. Then you had two other IPR cases in
`
` Q. Q.
`which you served as an expert; is that right?
`
` A. A. Well, no, I've had more than two
`
` A. A.
`others. My memory was that three went to
`deposition, but when I look further, I don't see
`mention of depositions besides the one we just
`talked about.
`
` Q. Q. Okay.
`
` Q. Q.
`
` A. A. So I have submitted reports in IPR
`
` A. A.
`matters but not been deposed.
`
`Page 21
`
` Q. Okay. And those wouldn't be on this
` Q.
` Q. Q.
`
`list because you haven't been deposed yet; is that
`right?
`
` A. A. Or given testimony; that's right.
`
` A. A.
`
` Q. Q. Okay.
`
` Q. Q.
`
` A. A. Meaning live testimony.
`
` A. A.
`
` Q. Q. Do you recall the case name for those?
`
` Q. Q.
` Or just the party you represent.
`That's fine, too.
` MS. LEBEIS: Objection to the form
`of the question.
` THE WITNESS: Sitting here right
`now, I clearly remember that one was in the
`pharmaceutical industry, but I don't, frankly,
`remember the names of the parties. I believe the
`one we represented succeeded at the -- at the PTAB
`final decision level, but I'm just not remembering
`the name of the parties. I remember the name of the
`drug, but not the parties.
` The other that is coming to mind
`is also in the pharma area, and I'm remembering that
`one less well.
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`Pages 6
`
`Page 6
`
`PROTECTIVE ORDER MATERIAL
`
`Page 6
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`Page 22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`BY MR. ABE:
` Q. Q. The first one you remember the drug
`
`
` Q. Q.
`name. Can you tell me what the drug name you
`remember is?
`
` A. A. Yes, and I assume I'm not violating a
`
` A. A.
`protective order by saying I was involved in that.
`So -- actually, I'm going to turn to counsel to make
`absolutely sure.
` MS. LEBEIS: If you think that
`there was a protective order in place, then you
`should just -- you shouldn't answer.
` THE WITNESS: There was a
`protective order. So I'm not positive I'm allowed
`to talk about it, but if I learn the name, I'd be
`happy to tell you.
`BY MR. ABE:
`
` Q. Q. Well, usually the name of the drug is
`
` Q. Q.
`not under protective order, but if you're
`uncomfortable, that's fine.
`
` A. A. Well, I think the name of the drug may
`
` A. A.
`be public, but I don't know that our involvement is
`public.
`
`Page 23
`
`1
` Q. Oh, your firm's involvement as a
` Q.
` Q. Q.
`
`2 witness --
`3
` A.
` A. Yes.
`
` A. A.
`4
`
` Q. Q. -- as testifying?
`
` Q. Q.
`5
`
` A. A. As someone involved in the matter.
`
` A. A.
`6
` Q.
` Q. That's interesting. Okay.
`
` Q. Q.
`7 Can you turn back to paragraph 9 of
`8 your declaration.
`9
`
` A. A. Yes.
`
` A. A.
`10
`
` Q. Q. Yeah. And there you describe that you
`
` Q. Q.
`11 have a JD from the University of Wisconsin.
`12 Do you see that?
`13
` A. Yes.
` A.
` A. A.
`
`14
`
` Q. Q. You're a licensed attorney; is that
`
` Q. Q.
`15 right?
`16
` A. I'm a member of the state bar of
` A.
` A. A.
`
`17 Wisconsin. If you call that a licensed attorney,
`18 the answer is yes.
`19
` Q. Okay. Have you ever practiced law?
` Q.
` Q. Q.
`
`20
`
` A. A. No. I'm inactive -- I'm on inactive
`
` A. A.
`21 status at the state bar of Wisconsin.
`22
` Q. Do you know when you changed your
` Q.
` Q. Q.
`
`
`7 (Pages 22 to 25)
`
`Page 24
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`status to inactive?
` A. A. I think it's always been inactive. If
`
`
` A. A.
`it -- if it hasn't always been, it was within the
`first year of me being admitted to the bar.
`
` Q. Q. Now, the second sentence of paragraph 9
`
` Q. Q.
`you say that you've been involved in "more than 350
`such engagements spanning a broad range of
`industries and technologies, including a variety of
`covering pharmaceutical products."
` Do you see that?
`
` A. A. Yes, I see a typo of the word.
`
` A. A.
`
` Q. Q. Yes. Right.
`
` Q. Q.
`
` A. A. The word "of" and "variety" should be
`
` A. A.
`transposed.
`
` Q. Q. Yes. I noticed that, too.
`
` Q. Q.
`
` A. A. "Of variety." No. The word "of"
`
` A. A.
`should be eliminated.
`
` Q. Q. Right.
`
` Q. Q.
`
` A. A. Sorry about that.
`
` A. A.
`
` Q. Q. No problem. Can you expand a little
`
` Q. Q.
`bit what you're referring to by "pharmaceutical
`products" there?
`
`Page 25
`
` MS. LEBEIS: Objection to the form
`of the question.
` THE WITNESS: I'm not really sure
`what you're asking. Are you asking me to define
`"pharmaceutical products"?
`BY MR. ABE:
`
` Q. Q. Well, I'm interested in how much
`
` Q. Q.
`experience you have with pharmaceutical products in
`connection to these engagements you're referencing
`here.
`
` A. A. Again, I'm not -- I'm not fully
`
` A. A.
`appreciating your question.
` Many of my engagements have been in
`pharmaceutical product settings. You could look at
`my CV to get a sense of those over time. Perhaps 25
`or 30 percent of my work has been in pharmaceutical
`settings, but of course it differs from time to
`time.
`
` Q. Q. 25 percent of the total amount of times
`
` Q. Q.
`you've been engaged as an expert witness; is that
`what you're saying?
`
` A. A. That our firm has been engaged in
`
` A. A.
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`Pages 7
`
`Page 7
`
`PROTECTIVE ORDER MATERIAL
`
`Page 7
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`Page 26
`
`matters in which I have been involved.
` Q. Q. How many total engagements are you
`
`
` Q. Q.
`talking about?
`
` A. A. I'm not exactly sure I'm appreciating
`
` A. A.
`your question.
` More than 350 --
`
` Q. Q. And --
`
` Q. Q.
`
` A. A. -- is the total engagements. And if
`
` A. A.
`you take 25 or 30 percent of that, that would give
`you a rough estimate of the pharmaceutical
`engagements in which I've been involved.
`
` Q. Q. Thank you.
`
` Q. Q.
` How many of those were covering
`ophthalmic products?
` MS. LEBEIS: Objection. No
`foundation.
` THE WITNESS: Of course, this
`engagement and the ones associated with it cover
`ophthalmic therapies. I have a recollection of
`having been involved in a set of cases having to do
`with glaucoma treatment. I have been involved in
`cases having to do with eyeglasses and vision
`
`Page 27
`
`correction. I'm not sure if you're counting that as
`ophthalmic or not.
`BY MR. ABE:
`
` Q. Q. In this context, I would not.
`
` Q. Q.
` The glaucoma treatment was an eye drop
`product; is that right?
`
` A. A. The glaucoma treatment?
`
` A. A.
`
` Q. Q. Yes.
`
` Q. Q.
`
` A. A. I'd have to go back and refresh my
`
` A. A.
`memory. I think that's right, but I'm not
`absolutely certain that's right.
` For now I'm willing to say I think
`that's right.
`
` Q. Q. Okay. That's fair.
`
` Q. Q.
` Have you ever worked on an engagement
`that involved a nonsteroidal anti-inflammatory drug,
`or an NSAID?
`
` A. A. Yes, I have been involved in matters
`
` A. A.
`involving NSAIDs.
`
` Q. Q. Do you recall how many?
`
` Q. Q.
`
` A. A. Less than half a dozen, but I can't be
`
` A. A.
`any more specific than that.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`8 (Pages 26 to 29)
`
`Page 28
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` Q. Okay. Were any of those ophthalmic
` Q.
` Q. Q.
`
`products?
`
` A. A. Not other than this, as I recall, but I
`
` A. A.
`don't have a perfect memory. I've been involved in
`many cases over the years.
`
` Q. Q. Now, you mentioned about of the 350
`
` Q. Q.
`engagements, 25 percent were for pharmaceutical
`matters; is that -- is that right?
`
` A. A. I don't think that's quite right.
`
` A. A.
` I gave you an estimate --
`
` Q. Q. Estimate.
`
` Q. Q.
`
` A. A. -- as to how many might have been
`
` A. A.
`pharmaceutical related, and I may have said 25 to 30
`percent. It could be high or it could be low on
`that estimate, but I gave you a rough estimate.
`
` Q. Q. Yeah. So approximately 25 percent?
`
` Q. Q.
`
` A. A. Approximately, yes.
`
` A. A.
`
` Q. Q. Okay. And were all those cases in
`
` Q. Q.
`which you provided testimony about commercial
`success?
`
` A. A. No.
`
` A. A.
`
` Q. Q. What other matters did you provide
`
` Q. Q.
`
`Page 29
`
`testimony?
` MS. LEBEIS: Objection to the form
`of the question. Vague and ambiguous.
` THE WITNESS: The causes of action
`that have been underlying some of those suits
`include claims for damages, include breach of
`contract and best-effort evaluations, and include
`claims for injunctive relief. There could be other
`things, but those categories come to mind right now.
`BY MR. ABE:
`
` Q. Q. Do you remember how many were related
`
` Q. Q.
`to commercial success of that 25 percent?
`
` A. A. I don't remember exactly how many.
`
` A. A.
`There have been scores of cases in which I've been
`involved having to do with commercial success issues
`in a pharmaceutical setting.
`
` Q. Q. In each of those cases where you
`
` Q. Q.
`provided opinions for commercial success with
`relation to a pharmaceutical setting, your testimony
`was on behalf of the patent owner --
` MS. LEBEIS: Object.
`BY MR. ABE:
`
`GregoryEdwards, LLC | Worldwide Court Reporting
`GregoryEdwards.com | 866-4Team GE
`
`Pages 8
`
`Page 8
`
`PROTECTIVE ORDER MATERIAL
`
`Page 8
`
`

`
`Confidential - Subject to The Protective Order
`John C. Jarosz - March 3, 2016
`
`Page 30
`
` Q. -- would that be right?
` Q.
` Q. Q.
`
` MS. LEBEIS: Objection. Vague and
`ambiguous. No foundation.
` THE WITNESS: I don't know if
`that's true. It certainly is true that many of the
`engagements in which I've been involved we have done
`analysis in our role as engaged by a patent owner or
`a manufacturer, but I don't know that that's all of
`the engagements.
`BY MR. ABE:
`
` Q. Q. Well, in each of those cases, again for
`
` Q. Q.
`the cases when you provided opinions on commercial
`success for a pharmaceutical case, was your opinion
`supporting the conclusion that the claims were
`non-obvious?
` MS. LEBEIS: Objection. Calls for
`a legal conclusion. Vague and ambiguous.
` THE WITNESS: I'm not -- I'm not
`really sure what you're asking.
` I don't think it would be fair to
`say that I've provided opinions supporting a
`conclusion. I do an analysis of commercial success.
`
`Page 31
`
`So with that, perhaps you could ask your question
`just a little bit differently?
`BY MR. ABE:
`
` Q. Q. Yes. Yes.
`
` Q. Q.
` My question was whether you provided
`opinions -- well, let me ask it a different way
`then.
` Have you ever provided opinions for
`commercial success in a pharmaceutical case when
`you -- your opinion was that there was no commercial
`success?
` MS. LEBEIS: Same objections.
` THE WITNESS: I think I have
`provided that opinion, but not in written or
`testimony form. I think I've had that opinion with
`counsel or with a company that I've had discussions
`with, but I don't think I've submitted a report that
`came to that conclusion, to the best of my memory.
`BY MR. ABE:
`
` Q. Q. Can you turn back to paragraph 9 of
`
` Q. Q.
`your declaration.
`
` A. A. I'm still there.
`
` A. A.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`9 (Pages 30 to 33)
`
`Page 32
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` Q. Okay. And it says that you -- one
` Q.
` Q. Q.
`
`moment.
` Well, let me just ask you generally.
` You have a specialty in applied
`microeconomics and industry or organization; is that
`right?
`
` A. A. Did you say macroeconomics? Because I
`
` A. A.
`don't have --
`
` Q. Q. I said micro.
`
` Q. Q.
`
` A. A. Okay. As my CV says --
`
` A. A.
`
` Q. Q. Yes, CV.
`
` Q. Q.
`
` A. A. -- I specialized in applied
`
` A. A.
`microeconomics and industrial organization.
`
` Q. Q. Yeah. What does that mean, applied
`
` Q. Q.
`microeconomics and industrial organization, that's
`written on your CV?
`
` A. A. Well, those are two different, though
`
` A. A.
`often related, disciplines. The applied
`microeconomics involves taking tools that examine
`firm and c