throbber
Transcript of Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`Coalition for Affordable Drugs X LLC v. Anacor Pharmaceuticals, Inc.
`
`Alderson Reporting
`1-800-367-3376
`info@aldersonreporting.com
` http://www.aldersonreporting.com
`
`Alderson Reference Number: 66241
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 1/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
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`
`
`COALITION FOR AFFORDABLE DRUGS X LLC,
`
` Petitioner,
`
`v.
`
`ANACOR PHARMACEUTICALS, INC.,
`
` Patent Owner.
`
` Case No. IPR2015-01776
`
` U.S. Patent No. 7,582,621
`
` Case No. IPR2015-01780
`
` U.S. Patent No. 7,767,657
`
` Case No. IPR2015-01785
`
` U.S. Patent No. 7,767,567
`
` DEPOSITION OF STEPHEN B. KAHL, Ph.D.
`
`
`
` Taken at the instance of the Patent Owner at
`
`Covington & Burling, One Front Street, 35th Floor, San
`
`Francisco, California, on Wednesday, September 14,
`
`2016, beginning at 8:58 a.m.
`
`Reported by: Diane S. Martin, CSR 6464, CCRR
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 2/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` A P P E A R A N C E S:
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`Page 2
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`For the Petitioner:
`
` MERCHANT & GOULD
`
` BY: RYAN JAMES FLETCHER, Ph.D., Esq.
`
` 1801 California Street
`
` Suite 3300
`
` Denver, Colorado 80202
`
` 303-357-1670
`
` rfletcher@merchantgould.com
`
`For the Patent Owner:
`
` COVINGTON & BURLING LLP
`
` BY: CHRISTOPHER K. EPPICH, ESQ.
`
` 1999 Avenue of the Stars
`
` Suite 1500
`
` Los Angeles, California 90067
`
` 424-332-4764
`
` ceppich@cov.com
`
` BY: MATTHEW V. MILLER, ESQ.
`
` 333 Twin Dolphin Drive
`
` Suite 700
`
` Redwood Shores, California 94065-1418
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` 650-632-4733
`
` mmiller@cov.com
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`www.aldersonreporting.com
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`Alderson Court Reporting
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`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 3/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` EXAMINATION INDEX
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`EXAMINATION BY: PAGE
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`MR. EPPICH 7
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`MR. FLETCHER 67
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`Page 3
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`Alderson Court Reporting
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`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 4/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 4
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` EXHIBIT INDEX
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`ANACOR PAGE
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`EXHIBIT 79: Patent Owner Anacor Pharmaceuticals, 7
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` Inc.'s Notice of Deposition of Stephen
`
` B. Kahl, Ph.D., Case No.
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` IPR2015-01776, Patent No. 7,582,621
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`EXHIBIT 80: Patent Owner Anacor Pharmaceuticals, 7
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` Inc.'s Notice of Deposition of Stephen
`
` B. Kahl, Ph.D., Case No.
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` IPR2015-01780, Patent No. 7,767,657
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`EXHIBIT 81: Patent Owner Anacor Pharmaceuticals, 7
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` Inc.'s Notice of Deposition of Stephen
`
` B. Kahl, Ph.D., Case No.
`
` IPR2015-01785, Patent No. 7,767,657
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`Alderson Court Reporting
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`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 5/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 5
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` PREVIOUSLY MARKED EXHIBITS
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`EXHIBIT 1002: International Application WO 95/33754
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`EXHIBIT 1028: International Journal of Pharmaceutics
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` "Drug delivery to the nail following
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` topical application"
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`EXHIBIT 1039: Supplemental Declaration of Stephen
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` Kahl, Ph.D. In Support of Petitioner's
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` Supplemental Evidence and Response to
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` Patent Owner's Objections to the
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` Petition Evidence Pursuant to 37 CFR
`
` 42.62
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`EXHIBIT 1043: Support of Petition for Inter Partes
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` Review of Patent No. 7,582,621
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`EXHIBIT 1049: Progress in Heterocyclic Chemistry
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`EXHIBIT 1050: In Vivo Percutaneous Absorption of Boric
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` Acid, Borax, and Disodium Octaborate
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` Tetrahydrate in Humans Compared to In
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` Vitro Absorption in Human Skin from
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` Infinite and Finite Doses
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`EXHIBIT 1054: Biological Trace Element Research
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`EXHIBIT 1055: U.S. Patent 7,465,836
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`EXHIBIT 1056: Therapeutic potential of
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` boron-containing compounds
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 6/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 6
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` PREVIOUSLY MARKED EXHIBITS (Continued)
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`EXHIBIT 1059: Boron-containing inhibitors of
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` synthetases
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`EXHIBIT 1061: Biological Trace Element Research
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`EXHIBIT 1069-1: Declaration of Stephen Kahl, Ph.D. In
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` Support of First Petition for Inter
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` Partes Review of Patent No. 7,767,657
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`EXHIBIT 1069-2: Declaration of Stephen Kahl, Ph.D. In
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` Support of Second Petition for Inter
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` Partes Review of Patent No. 7,767,657
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`EXHIBIT 1072: Tissue uptake of BSH in patients with
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` glioblastoma in the EORTC 11961 phase I
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` BNCT trial
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`EXHIBIT 1073: Boron neutron capture therapy of brain
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` tumors: Clinical trials at the Finnish
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` facility using boronophenylalanine
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`EXHIBIT 1074: Boron neutron capture therapy (BNCT) for
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` glioblastoma multiforme: A phase II
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` study evaluating a prolonged high-dose
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` of boronophenylalanine (BPA)
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`www.aldersonreporting.com
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`Alderson Court Reporting
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`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 7/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`WEDNESDAY, SEPTEMBER 14, 2016, 8:58 A.M.
`
`Page 7
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` P R O C E E D I N G S
`
` --oOo--
`
` (ANACOR EXHIBITS 79-81 WERE MARKED.)
`
` STEPHEN B. KAHL, Ph.D.,
`
`called as a witness, after having been duly sworn by
`
`the Certified Shorthand Reporter to tell the truth, the
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`whole truth, and nothing but the truth, testified as
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`follows:
`
` EXAMINATION
`
`BY MR. EPPICH:
`
` Q. Good morning, Dr. Kahl.
`
` A. Good morning.
`
` Q. My name is Chris Eppich. I represent the
`
`patent owner, Anacor Pharmaceuticals, in these
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`proceedings.
`
` Before we get started, is there any reason
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`that you cannot testify truthfully today?
`
` A. No.
`
` Q. Are you on any medication that would inhibit
`
`your ability to testify truthfully today?
`
` A. No.
`
` Q. I know you've been deposed at least once
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`before, but I'd like to cover a few of the ground
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`rules.
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 8/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 8
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` I'll be asking you a few questions, and you'll
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`respond to those questions. Your counsel may object,
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`as he did the last time we were together, but you still
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`will need to answer those questions unless he instructs
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`you not to and you follow that instruction.
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` It's important that we try not to talk over
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`each other so that we can make the transcript clear.
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`And I'll endeavor to make my questions clear. But if
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`you have any questions about my questions, if I'm vague
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`in any way, just ask me to clarify, and I'll gladly do
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`so.
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` If you need to take a break, you know, just
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`ask, and we'll get to get a break for you. I'd just
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`ask that if a question is pending, you answer the
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`question before we break.
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` A. Sure.
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` Q. Do you understand these rules today?
`
` A. Yes.
`
` Q. Great.
`
` Now, your last deposition in this matter was
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`in April, on April 8th, 2016; correct?
`
` A. That's correct.
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` Q. Have you been deposed in any other matter
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`since that deposition?
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` A. No.
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 9/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 9
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` Q. Have you provided testimony at trial or any
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`hearing in any matter since that deposition?
`
` A. No.
`
` Q. Since your last deposition in April, have you
`
`received any documents from your counsel in this case?
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` A. Yes.
`
` Q. Which documents has your counsel provided you?
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` A. Oh, there's a fairly lengthy list. I can't --
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`I couldn't possibly sum it all.
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` Q. Do you log the documents in some kind of a
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`list that you receive from your counsel?
`
` A. No.
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` Q. Have you cited to all of these documents in
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`your recent reply declaration?
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` A. I've used all of the documents to construct
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`the declaration, yes, or to inform my statements in the
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`declaration, yes.
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` Q. Were there any documents that your counsel
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`provided you that you did not cite to in your reply
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`declaration?
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` A. I don't believe so.
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` Q. I see that you have some materials in front of
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`you in a folder today.
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` A. Mm-hm.
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` Q. What materials did you bring with you to the
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 10/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
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`Page 10
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`deposition?
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` A. I have a copy of my declaration. I have a
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`copy of Dr. Reider's deposition -- declaration, sorry.
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` I have a copy of the Baker review paper. Both
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`of the Baker review papers. And I have notes that
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`we -- that I had at our last deposition on Austin,
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`Freeman and Brehove. Just these are my notes that you
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`all xeroxed last time.
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` I have one additional sheet, which basically
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`has references to neutron capture therapy papers on it.
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` Q. Okay. Thank you, Dr. Kahl.
`
` A. Okay.
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` Q. We'll set those aside for now and come back to
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`them later in the deposition.
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` A. Okay.
`
` Q. We'll probably -- we'll get some copies at a
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`break, like we did in the last deposition.
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` A. Mm-hm.
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` Q. Let me hand you what has been marked as
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`Exhibit Number 79. Exhibit 79 is Anacor
`
`Pharmaceuticals' notice of deposition of Stephen B.
`
`Kahl in IPR2015-01776.
`
` Dr. Kahl, have you seen this document before?
`
` A. I believe I have. I think I saw it yesterday
`
`when we were prepping for this.
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 11/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` Q. Okay. Let me hand you what has been marked as
`
`Exhibit 80. Exhibit 80 is Anacor Pharmaceuticals'
`
`notice of deposition of Stephen B. Kahl in
`
`Page 11
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`IPR2015-01780.
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` Dr. Kahl, have you seen this document before?
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` A. I believe, yes.
`
` Q. And let me mark finally, the last of the
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`notices, Exhibit 81. This is Anacor Pharmaceuticals'
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`notice of deposition of Stephen B. Kahl in
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`IPR2015-01785.
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` And, Dr. Kahl, have you seen this document
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`before?
`
` A. I believe I have.
`
` Q. Are you -- you're appearing today in response
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`to these notices?
`
` A. Yes.
`
` Q. And you -- just for confirmation, you're
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`appearing on behalf of the Coalition for Affordable
`
`Drugs X LLC?
`
` A. Correct.
`
` Q. What did you do to prepare for the deposition
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`today?
`
` A. I reviewed my declaration with counsel. I
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`also reviewed a number of -- re-reviewed a number of
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`the papers that I referred to, the Baker papers in
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 12/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`particular. And some of my BNCT notes, boron neutron
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`Page 12
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`capture therapy. Sorry for the acronym.
`
` Q. When you say your declaration, are you
`
`referring to your second declaration that you
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`submitted --
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` A. Yes.
`
` Q. -- with a reply?
`
` A. Yes.
`
` Q. Thank you.
`
` In addition to the Baker articles and your
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`notes on -- on boron neutron therapy, did you -- did
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`you review any other documents?
`
` A. I reviewed other doc -- other papers that were
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`provided to me by counsel.
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` Q. Do you remember what papers counsel provided
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`to you that you reviewed yesterday?
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` A. As I said, I have quite a -- I received a -- a
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`significant number of literature papers. The Groziak
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`papers, both the Groziak papers; Dr. Reider's
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`declaration.
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` I know there were others, but I can't recall
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`exactly the names of them.
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` Q. Do you remember if all of the papers that you
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`reviewed yesterday were cited in your reply
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`declaration?
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 13/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` A. By "cited," do you mean specifically cited
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`Page 13
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`with the reference?
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` Q. Yes, sir.
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` A. No, I don't believe so. These were -- well,
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`let me check my declaration again.
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` Yes. They -- I believe they all would have
`
`been cited.
`
` Q. Thank you, Dr. Kahl.
`
` A. Mm-hm.
`
` Q. With whom did you meet yesterday?
`
` A. Ryan, and Peter Gergely.
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` Q. Other than your meeting with counsel
`
`yesterday, did you have any other meetings with counsel
`
`to prepare for today's deposition?
`
` A. No.
`
` Q. For how long did you meet with Mr. Fletcher
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`and Mr. Gergely yesterday?
`
` A. Approximately five hours.
`
` Q. What did you discuss?
`
` A. We discussed this deposition.
`
` Q. Did you discuss any of the references that you
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`cited specifically?
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` A. Yes.
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` Q. Did you take any notes from your meeting
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`yesterday?
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 14/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 14
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` A. No.
`
` Q. During your meetings with counsel yesterday,
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`did counsel give you any documents during that session?
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` A. By new -- do you mean new documents? Or do
`
`you mean documents that I either already had but didn't
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`bring to the session or --
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` Q. Let's start with the broader, all documents,
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`and then narrow it down.
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` A. I don't -- I don't think so. I don't think he
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`did give me any new documents or any documents.
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` Q. You'd seen all the documents that you guys
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`reviewed yesterday?
`
` A. Oh, yes. Yes. Yes.
`
` Q. Okay.
`
` A. Yeah.
`
` If I carried around all the documents that I
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`have with respect to this case, I would have -- have to
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`have somebody help me. As would you.
`
` Q. Did you talk to anyone else in preparation for
`
`your deposition today, other than Mr. Gergely and
`
`Mr. Fletcher?
`
` A. Yes, I talked to my wife.
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` Q. Now, since you signed the reply declaration,
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`has counsel for CFAD provided you with any additional
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`documents?
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 15/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 15
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` A. I don't believe so, no.
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` Q. Did you perform any literature searching in
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`preparation of your reply declaration?
`
` A. No.
`
` Q. Did you perform any literature searching in
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`preparation for your deposition today?
`
` A. No.
`
` Q. Have you performed any literature searching in
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`preparation of your first declaration in this matter?
`
` MR. FLETCHER: Objection. Scope.
`
` THE WITNESS: I believe I did, but that was
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`long enough ago that I -- I can't be certain.
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`BY MR. EPPICH:
`
` Q. I'm handing you what has been previously
`
`marked CFAD Exhibit 1043 in IPR2015-01776.
`
` Do you recognize Exhibit 1043?
`
` A. Yes, I do.
`
` Q. And what is Exhibit 1043?
`
` A. This is my declaration. Let's call it my
`
`second declaration.
`
` Q. You submitted Exhibit 1043, your second
`
`declaration, in support of the petitioner's reply
`
`brief?
`
` A. Yes.
`
` Q. Can we turn to page 18 of Exhibit 1043. The
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 16/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 16
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`last page.
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` A. Mm-hm.
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` Q. On the bottom of the last page, page 18, is
`
`that your signature?
`
` A. Yes, it is.
`
` Q. And when did you sign this document?
`
` A. It's dated the 22nd of August of 2016.
`
` Q. And when you signed this declaration, did you
`
`understand that you were attesting that everything in
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`the declaration is true and correct under the penalty
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`of perjury?
`
` A. Yes.
`
` Q. And do you understand that today you're
`
`testifying under the penalty of perjury?
`
` A. Yes.
`
` Q. Is everything in your declaration Exhibit 1043
`
`true and correct?
`
` A. To the best of my knowledge, yes.
`
` Q. Are there any corrections to the declaration
`
`that you'd like to make at this time?
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` A. No.
`
` Q. Any errors of which you're aware?
`
` A. There are a couple -- there's a word
`
`capitalized that doesn't need to be, but we don't need
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`to get it today.
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 17/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 17
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` Q. Okay. We'll let that one go.
`
` A. Okay. I'm a perfectionist.
`
` Q. So during the preparation of Exhibit 1043,
`
`your second reply declaration, did CFAD's counsel
`
`provide you with a draft of the declaration for you to
`
`review?
`
` MR. FLETCHER: Objection. I think -- you can
`
`answer, but objection.
`
` I think discovery re the draft declaration is
`
`protected by Rule 26.
`
` But go ahead.
`
` THE WITNESS: We jointly discussed all of the
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`things that were in the declaration, and this is the
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`document that came out of that.
`
`BY MR. EPPICH:
`
` Q. Did counsel draft a declaration that counsel
`
`handed to you for discussion?
`
` A. We both -- we both worked on the dec -- on the
`
`draft.
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` Q. Did you write the declaration together,
`
`paragraph by paragraph?
`
` A. I wouldn't -- we talked about it, and they put
`
`it into -- they added my suggestions. I discussed
`
`their suggestions. We came up with a draft. I looked
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`it over, found it acceptable and agreeable, and that's
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 18/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 18
`
`what I signed.
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` Q. So just so I understand, you talked with
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`counsel for CFAD. CFAD's attorneys prepared a draft.
`
`You reviewed the draft, added any edits to the draft,
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`provided those comments to CFAD's counsel, who then
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`provided you with another draft of the declaration; is
`
`that correct?
`
` MR. FLETCHER: Objection. Misstates the
`
`witness's testimony. Objection. Asked and answered.
`
` THE WITNESS: Please repeat the question. I
`
`want to be sure I understand you exactly.
`
`BY MR. EPPICH:
`
` Q. Absolutely.
`
` In preparing the draft of the declaration
`
`Exhibit 1043, did you first meet with counsel to
`
`discuss the draft of the declaration?
`
` A. We did not meet in person. We did this over
`
`the phone.
`
` Q. And what happened after your telephone
`
`conference with counsel?
`
` A. As I said, we came up with a draft, which I
`
`then approved, and signed.
`
` Q. Did they provide you with a copy of the draft
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`declaration after your phone call?
`
` MR. FLETCHER: Objection. Asked and answered.
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 19/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 19
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` THE WITNESS: I think I did answer that.
`
`BY MR. EPPICH:
`
` Q. I may have just not understood, sir.
`
` Did you physically type the draft declaration
`
`or did counsel for CFAD?
`
` A. Did I physically type it? No.
`
` Q. So counsel for CFAD provided you with a draft
`
`declaration?
`
` A. Yes.
`
` Q. And what did you --
`
` A. We --
`
` Q. -- do with the declaration once you received
`
`the draft declaration?
`
` MR. FLETCHER: Can you let him finish and
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`answer that?
`
` MR. EPPICH: Of course.
`
` THE WITNESS: I then reviewed it to make sure
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`that it was -- it was correct. I added -- changed
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`things, added things, the way any document that one is
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`going to sign, particularly a legal document. And sent
`
`it back and signed it.
`
`BY MR. EPPICH:
`
` Q. Do you recall how many drafts you sent to and
`
`from with counsel for CFAD?
`
` A. No, I don't.
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 20/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` Q. Was it more than one?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`Page 20
`
`26.
`
` THE WITNESS: I honestly do not remember
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`whether it was more than one or more than two or
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`whatever. I was actually on vacation when I did this,
`
`so ...
`
`BY MR. EPPICH:
`
` Q. So how did you correspond with counsel for
`
`CFAD? By e-mail? Fax?
`
` A. E-mail and telephone.
`
` Q. And do you have copies of those e-mails with
`
`the drafts attached?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: I don't believe that I do.
`
`BY MR. EPPICH:
`
` Q. You haven't saved --
`
` A. I don't have them with me, that's for sure.
`
` Q. Are they in your computer in your home or
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`office?
`
` MR. FLETCHER: Objection. Rule 26.
`
` THE WITNESS: That's where they would be if I
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`have them, yes.
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` MR. EPPICH: So Counsel, I'm requesting that
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 21/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`CFAD would immediately produce copies of the drafts and
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`communications going back and forth with Dr. Kahl,
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`regarding the preparation of this reply declaration.
`
` MR. FLETCHER: We have your request. We
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`Page 21
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`believe it's protected by Rule 26.
`
`BY MR. EPPICH:
`
` Q. And just to be clear, Dr. Kahl, you did not
`
`write the first draft of the declaration yourself;
`
`correct?
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` MR. FLETCHER: Objection. Misstates the
`
`witness's testimony. Objection. Asked and answered.
`
` THE WITNESS: I did not physically write it.
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`Not the -- no.
`
`BY MR. EPPICH:
`
` Q. Dr. Kahl, did you review and understand all of
`
`the paragraphs in sections of the reply declaration
`
`before you signed it?
`
` A. Yes.
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` Q. Did you have any questions that you discussed
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`with counsel about any of the paragraphs?
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` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: We -- we probably -- we may
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`have. I don't recall.
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`BY MR. EPPICH:
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 22/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` Q. Do you recall any of the changes you made, for
`
`example to paragraph 1 of your declaration?
`
` MR. FLETCHER: Objection. Protected by --
`
`Page 22
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`objection. Protected by Rule 26.
`
` THE WITNESS: To paragraph 1? No.
`
`BY MR. EPPICH:
`
` Q. You had no changes to paragraph number 1?
`
` MR. FLETCHER: Objection. Misstates the
`
`witness's testimony. Objection. Protected by Rule 26.
`
` THE WITNESS: No.
`
`BY MR. EPPICH:
`
` Q. Do you remember if you had any changes to
`
`paragraph number 2?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: I don't recall. I doubt it.
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`It's pretty much boilerplate.
`
`BY MR. EPPICH:
`
` Q. How about paragraph number 3?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: Similarly.
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`BY MR. EPPICH:
`
` Q. And any changes to paragraph number 4?
`
` MR. FLETCHER: Objection. Protected by Rule
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 23/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`26.
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` THE WITNESS: I don't think so. Boilerplate
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`Page 23
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`again.
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`BY MR. EPPICH:
`
` Q. Did you make any changes to paragraph number
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`5?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: I don't believe so.
`
`BY MR. EPPICH:
`
` Q. Did you make any changes to paragraph number
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`6?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: No, it accurately reflects that
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`I read the -- Reider's declaration.
`
`BY MR. EPPICH:
`
` Q. Did you make any changes to paragraph number
`
`7?
`
` A. I don't know.
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` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: I don't recall.
`
`BY MR. EPPICH:
`
` Q. Do you recall any other changes that you made
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 24/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`to any of the paragraphs in your declaration?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`Page 24
`
`26.
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` THE WITNESS: Not specifically, no.
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` As I said, we jointly put this together, and
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`it represents my input as well as their input, and
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`accurately reflects my positions.
`
`BY MR. EPPICH:
`
` Q. Approximately how many hours did you spend
`
`working on the draft of your second reply declaration?
`
` A. I have no idea.
`
` Q. Was it 15 hours?
`
` A. At least.
`
` Q. It was more than 15?
`
` A. I -- honestly, I really don't recall.
`
` Q. In paragraph 1 of your declaration, it states
`
`that you're providing your expert opinions in support
`
`of petitioner's petition for inter partes review of
`
`Patent Number 7,582,621, the '621 patent, and in reply
`
`to patent owner's response pursuant to 37 CFR 42.120?
`
` A. Mm-hm. I'm sorry, yes.
`
` Q. And you're referring to CFAD's reply brief
`
`there; correct?
`
` A. Yes.
`
` Q. Did you review any drafts of the reply brief
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`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 25/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
`that CFAD submitted in this action?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`Page 25
`
`26.
`
` THE WITNESS: I may have. I don't recall.
`
`BY MR. EPPICH:
`
` Q. Do you remember when you remember seeing a
`
`reply brief?
`
` A. I -- I -- no, I do not.
`
` Q. Do you remember making any markups or changes
`
`to the reply brief after you read it?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: To the reply brief. No, I don't
`
`recall.
`
`BY MR. EPPICH:
`
` Q. Did you have any communications with counsel
`
`for CFAD regarding the reply brief?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: I don't believe so.
`
`BY MR. EPPICH:
`
` Q. So I'm handing you what has been previously
`
`marked as CFAD Exhibit 1069 in IPR2015-01780.
`
` Do you recognize this document?
`
` A. Yes. It appears to be my declaration.
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 26/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` Q. And this is the second declaration you
`
`submitted for the inter partes review of U.S. Patent
`
`Page 26
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`Number 7,767,657; correct?
`
` A. Correct.
`
` Q. Now, can we -- we do agree we could refer to
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`this declaration as Exhibit 1069-1 because there are
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`two exhibits 1069, as you'll see in a second.
`
` A. Okay.
`
`BY MR. EPPICH:
`
` Q. So let's -- let's go ahead and mark this one
`
`as Exhibit 1069-1.
`
` Please turn to page 18 of Exhibit 1069-1.
`
` On the bottom of page 18, Dr. Kahl, is that
`
`your signature?
`
` A. It is.
`
` Q. And when did you sign this document?
`
` A. August 22nd.
`
` Q. And again, like Exhibit 1043, when you signed
`
`this document, did you understand you were attesting
`
`that everything is true and correct under penalty of
`
`perjury?
`
` A. Yes.
`
` Q. Is everything in your declaration Exhibit
`
`1069-1 true and correct?
`
` A. To the best of my knowledge, yes.
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`CFAD v. Anacor, IPR2015-01776
`ANACOR EX. 2206 - 27/75
`
`

`
`Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`San Francisco, CA
`
` Q. Are there any corrections that need to be made
`
`Page 27
`
`to your declaration today?
`
` A. I'm not aware of any.
`
` Q. How did you prepare the declaration -- the
`
`second declaration, Exhibit 1069-1?
`
` MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
` THE WITNESS: I -- in the same manner that I
`
`prepared Exhibit 1043.
`
`BY MR. EPPICH:
`
` Q. You received a draft of the declaration that's
`
`Exhibit 1069-1 from counsel for CFAD?
`
` MR. FLETCHER: Objection. Asked and answered.
`
`Objection. Misstates the witness's testimony.
`
` THE WITNESS: After discussing the matter, it
`
`was the same procedure as the 1043, yes.
`
`BY MR. EPPICH:
`
` Q. Let me hand you what has been previously
`
`marked as CFAD Exhibit 1069 in IPR2015-0185.
`
` Do you recognize this document, Dr. Kahl?
`
` A. I believe you meant 01785.
`
` Q.

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