`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` _______________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _______________
`LUYE PHARMA GROUP LTD., LUYE PHARMA (USA) LTD., SHANDONG
` LUYE PHARMACEUTICAL CO., LTD., and NANJING LUYE
` PHARMACEUTICAL CO., LTD.,
` Petitioners,
` v.
` ALKERMES PHARMA IRELAND LTD and ALKERMES CONTROLLED
` THERAPEUTICS, INC.,
` Patent Owners
` _______________
` Case IPR2016-01096
` U.S. Patent No. 6,667,061
` _______________
`
` VIDEO DEPOSITION of
` PATRICK DELUCA, Ph.D.
` taken on behalf of Patent Owners
` February 22, 2017
` Fort Myers, Florida
` 9:32 a.m.
`
`
`Reported By:
`Dawn A. Hillier, RMR, CRR, CLR
`Job No: 48895
`
`
`
`ALKERMES Exh. 2016
`Luye v. Alkermes
`IPR2016-1096
`
`
`
`APPEARANCES:
`
`2
`
`ATTORNEYS FOR PETITIONERS
` LERNER DAVID LITTENBERG KRUMHOLZ & MENTLIK, LLP
` 600 South Avenue West
` Westfield, New Jersey 07090
` 908.654.5000
` BY: PAUL H. KOCHANSKI, ESQ.
` pkochanski@lernerdavid.com
` TEDD W. VAN BUSKIRK, ESQ.
` tvanbuskirk@lernerdavid.com
`
`ATTORNEYS FOR PATENT OWNERS
` FITZPATRICK, CELLA, HARPER & SCINTO
` 1290 Avenue of the Americas
` New York, New York 10104-3800
` 212.218.2100
` BY: HA KUNG WONG, ESQ.
` hwong@fchs.com
` UNA FAN, ESQ.
` ufan@fchs.com
`
`ALSO PRESENT:
` Claire Visios
` Cory Berkland
` Mr. Li
` Francios Mignon, Videographer
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`DAVID FELDMAN WORLDWIDE, INC.
`450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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` INDEX
` PAGE
`WITNESS - Dr. Patrick DeLuca 7
`DIRECT EXAMINATION BY MR. WONG 7
`CROSS EXAMINATION BY MR. KOCHANSKI 254
`CERTIFICATE OF OATH 258
`REPORTER'S CERTIFICATE 259
` EXHIBITS
`Exhibit 2020 "Development of Risperidone PLGA 58
` Microspheres"
`Exhibit 2021 "Preparation and 72
` Characterization of
` Poly(D,L-lactide-co-glycolide)
` Microspheres for Controlled Release of
` Human Growth Hormone"
`Premarked Exhibit 1002 78
`Premarked Exhibit 1008 121
`Exhibit 2022 "Extended release peptide 129
` delivery systems through the use of PLGA
` microsphere combinations"
`Exhibit 2023 "Enhancing Initial Release of 142
` Peptide from
` Poly(d,l-lactide-co-glycolide)(PLGA)
` Microspheres by Addition of a Porosigen
` and Increasing Drug Load"
`Exhibit 2024 "Polymer and microsphere 145
` blending to alter the release of a
` peptide from PLGA microspheres"
`Exhibit 2025 "Evaluation of Orntide 149
` Microspheres in a Rat Animal Model and
` Correlation to In Vitro Release
` Profiles"
`Exhibit 2026 "Preparation, characterization 151
` and in vivo evaluation of 120-day
` poly9D,L-lactide) leuprolide
` microspheres"
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`Exhibit 2027 "Preparation, Characterization, 154
` and In Vivo Evaluation of Salmon
` Calcitonin Microspheres"
`Exhibit 2028 "In Vitro Characterization and 156
` in Vivo Testosterone Suppression of
` 6-Month Release Poly(D,L-Lactide)
` Leuprolide Microspheres"
`Exhibit 2029 "Preparation and in Vitro/in 158
` Vivo Evaluation of Insulin-Loaded
` Poly(Acryloyl-Hydroxyethyl Starch)-PGLA
` Composite Microspheres"
`Exhibit 2030 United States Patent Application 167
` Publication, Pub No.: US 2007/0122487
` A1
`Exhibit 2031 "Rheological Characterization of 180
` Cellulosic and Alginate Polymers"
`Exhibit 2032 "Binding of Organic Electrolytes 191
` by a Nonionic Surface-Active Agent"
`Exhibit 2033 "Topics in Pharmaceutical 199
` Sciences 1993", Proceedings of the 53rd
` International Congress of Pharmaceutical
` Sciences of F.I.P., held in Tokyo,
` Japan, 5-10 September 1993
`Premarked Exhibit 1001 219
`Premarked Exhibit 1009 222
`Premarked Exhibit 1011 238
`Premarked Exhibit 1005 245
`Premarked Exhibit 1010 245
`Premarked Exhibit 1018 250
`REPORTER'S NOTE: All premarked exhibits retained by
`counsel.
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` -- At end of question or answer references
` interruption.
` ... References a trail-off by the speaker.
` No testimony omitted.
` "Uh-huh" References an affirmative sound.
` "Huh-uh" References a negative sound.
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` THE VIDEOGRAPHER: Here begins the videotaped
` deposition of Patrick DeLuca, Ph.D., taken in the
` matter of Luye Pharma Group, LTD., et al., versus
` Alkermes Pharma Ireland LTD. The case is filed in
` the United States Patent and Trademark Office
` before the patent trial and appeal board.
` This deposition is being held at 16410
` Corporate Commerce Way in Fort Myers, Florida, on
` February 22nd, 2017, approximately 9:32. My name
` is Francois Mignon. I am the legal video
` specialist. Our court reporter is Dawn Hillier.
` And we represent David Feldman Worldwide. Will
` counsel please introduce yourselves for the record,
` after which our court reporter will swear in the
` witness?
` MR. WONG: Ha Kung Wong from Fitzpatrick Cella
` on behalf of the patent owner. And with me is Una
` Fan from my office, Fitzpatrick Cella, as well as
` Claire Vasios from Alkermes and Dr. Cory Berkland
` from Kansas.
` MR. KOCHANSKI: Okay. Paul Kochanski from
` Lerner David for -- representing the witness,
` Dr. DeLuca, and also representing the petitioner in
` this IPR proceeding, Luye, and the other
` petitioners. With me are Tedd van Buskirk from
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` Lerner David and Mr. Li from Luye.
` DR. PATRICK DELUCA,
`was called as a witness, and having first been duly
`sworn, was examined and testified as follows:
` THE WITNESS: I do.
` COURT REPORTER: Thank you.
` DIRECT EXAMINATION
`BY MR. WONG:
` Q Good morning, Dr. DeLuca.
` A Good morning.
` Q First of all, thank you so much for giving us
`the time to proceed with this deposition here. We
`appreciate that.
` Would you please state your full name for the
`record, please?
` A Patrick P. DeLuca.
` Q Okay. And what is your home and work
`addresses?
` A 8319 Provencia Court, Florida, Fort Myers,
`Florida.
` Q So that's your home address?
` A That's my official residence.
` Q Official residence. Okay.
` A I still have a home in Lexington, Kentucky.
` Q Okay. Fantastic.
`
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` So you've been deposed, I believe, a couple
`times in the past; is that right?
` A Yes, I have.
` Q And how many times has that been?
` A I'd say probably in the neighborhood of about
`ten.
` Q Okay. So we're going to get back to the
`details in a minute. But I want to go over some basics
`for the deposition today. And since you've been through
`this a number of times, this will be more of a refresher
`more than anything else.
` So, first of all, as you know, the court
`reporter will be taking down everything we say today.
`So two things to remember: If you could just give a
`verbal answer to any of my questions instead of shaking
`your head, that would be -- that would be terrific; and
`secondly, we should try to avoid talking over each
`other. So if there is more to your answer, if you want
`to give, and you feel like I've cut you off at any time,
`just let me know and I will absolutely stop, let you
`finish your answer; okay?
` A Yes.
` Q And at any point today, if you don't
`understand one of my questions, please let me know. And
`I'll try to help you out with that; all right?
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` A Thank you.
` Q And lastly, and most importantly, if you want
`to take a break at any time, just let me know and we'll
`take a break. The only caveat is that if we're in the
`middle of a question and answer, that I just request we
`finish that question and answer first and then we can
`take a break; okay?
` A Yes.
` Q Okay. So --
` MR. KOCHANSKI: Mr. Wong, before you get
` started, let me just put an objection on the record
` because everything with the PTAB is you have to
` maintain with respect to this deposition. I see
` that it's being video recorded. The deposition
` notice that was filed with the PTAB did not
` indicate that, nor as per Rule 42.53, did the
` parties agree to take the video-recorded
` deposition.
` We're -- I can tell you we're not -- I want to
` maintain my objection, preserve my objection, but
` you can go ahead and question Dr. DeLuca as
` noticed. But I want to make sure I have my
` objection on record.
` MR. WONG: Okay. Noted. Thank you.
`BY MR. WONG:
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` Q So, Dr. DeLuca, I know that you received your
`undergraduate degree at Temple. And then you went on to
`get an advanced degree. Could you please describe for
`us what advanced degrees you obtained?
` A I have a master's degree in the pharmaceutical
`sciences and Ph.D.
` Q Okay. And are those both also from Temple
`University?
` A Yes.
` Q And what year did you get your master's
`degree?
` A 1960.
` Q And did you write a thesis?
` A Yes.
` Q What was that thesis about?
` A You're testing my memory.
` Q To the best of your recollection.
` A Yeah. It was a microbiological, looking at
`some preservatives and their preservative activity.
` Q Okay. When you say microbiological, what do
`you mean by that?
` A We were studying the effect of various
`preservatives on the -- their inhibitory action on
`certain bacteria.
` Q Okay. And when you say preservatives, was
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`that because the biologics had any -- had issues with
`degradation or denaturing?
` A Well, we were looking at preservatives that
`were, you know, routinely used in the pharmaceutical
`formulations.
` Q Okay. And those preservatives, as an example,
`are --
` A Benzyl alcohol, poly-ammonium compounds --
` Q Okay.
` A Cetylparadinium chloride.
` Q Okay. And you then went on to get your Ph.D.
`also at Temple University; correct?
` A Yes.
` Q And what was your dissertation on there?
` A I was working on actually a -- looking at the
`effects of light on degradation. So we were studying
`the degradation caused by ultraviolet light.
` Q Okay. And degradation of what types of
`compounds?
` A Again, you're testing. It's long time.
` Q To the best of your recollection, of course.
` A Yeah. I can tell you, I'll have to go back
`and look at -- photosensitive compounds that we were
`looking at. Some of the benzyne-ring structures that
`had conjugation in their molecules.
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` Q Okay. So from what we -- what I understand,
`your dissertation was called photobinding and
`photoreactivity of riboflavin in the presence of
`macromolecules. Does that sound familiar?
` A That's right. Yes.
` Q And when you have macromolecules, do you
`recall what that was referring to?
` A Yeah. We were looking at some of the
`polysorbates Tweens.
` Q Okay. So what -- what did the polysorbate
`Tweens -- why were you looking at polysorbates and
`Tweens?
` A Well, these were used for solubilizing agents
`and also for stability purposes.
` Q And how does that -- how does that work? How
`does the polysorbate or the Tweens, as you call them,
`work as a solubilizing agent?
` A By binding. Binding action.
` Q Okay.
` A Interfering with the photooxidation of the
`molecule.
` Q And what types of molecules were you looking
`to see if it bound to?
` A It was riboflavin was the principal one we
`looked at.
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` Q Okay. And what did you find -- what did you
`find when you completed that study?
` A That one needs to consider, you know, light
`sensitivity of various agents.
` Q Um-hum. And then the light sensitivity, by
`that, you meant it changed the way the polysorbate bound
`to the riboflavin?
` A No. It was pretty much being concerned with
`the effect of light on storage of various pharmaceutical
`preparations.
` Q Okay. And the polysorbate somehow inhibited
`that type of degradation?
` A It had -- it had a stabilizing effect, yeah.
` Q Okay. And that's because of the fact it bound
`to riboflavin in some way?
` A To tell you the truth, I would have to go back
`and review that. That's a long time ago.
` Q Okay.
` A Yeah.
` Q Well, sitting here today, do you recall --
` A I don't recall.
` Q Okay. Other than those degrees, the master's
`and Ph.D. you received, did you receive any other
`degrees?
` A The only other degree is an honorary doctorate
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`from the University of Perugia in Italy.
` Q Okay. Terrific. And was that provided to you
`because of some work that you had had completed or is
`that -- why was that presented to you?
` A I had quite a bit of interaction with the --
`some of the colleges and academic institutions in Italy.
` Q Okay.
` A And particularly in the University of Perugia
`where we had some collaborative efforts going, and many
`students from there came to my labs both on the
`undergraduate and graduate and postdoctorate level.
` Q Okay.
` A And so 2006, I was -- I guess they gave an
`honorary doctorate every year at the university there.
`And I was selected in 2006.
` Q Terrific.
` And what was the focus of the -- your lab work
`at that time?
` A At that time, we were -- we had several
`collaborations going. Pretty much the work was with
`microparticles.
` Q Um-hum.
` A And using those as a delivery system.
` Q What types of microparticles were you looking
`at?
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` A We were pretty much focused on the polymeric
`lactide co-glycolide polymers.
` Q So is that PLGA polymers?
` A That's correct. Yes.
` Q And why were you focused on the PLGA polymers?
` A Because they're well known as biocompatible
`polymers. And they do undergo a biodegradation in the
`host, in the body. And so it provided a good matrix for
`delivery of, you know, therapeutic agents.
` Q Okay. So it kind of formed a matrix that had
`the active agent kind of incorporated in the
`microparticle made of PLGA?
` A Yes.
` Q Okay. And then when you say biocompatible,
`you mean that it can be delivered to the body and then
`it slowly degrades over time?
` A Yes.
` Q Okay. And during that time, as it degrades,
`the particles of active ingredient which are in this
`matrix are released into the body slowly over time?
` A Yes.
` Q And PLGA, did that have any limitations, that
`you know of, being used as a microparticle?
` A Well, like everything, there's limitations.
`You know, you have to control the size, control the
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`morphology, and...
` But these are, you know, problems that can be
`overcome.
` Q Um-hum. And -- oh, I'm sorry. I didn't mean
`to -- did you have more to say?
` A No. I think that -- that's about it.
` Q Okay. And when you say control size and
`morphology, you mean ultimately of the microparticle
`that's made; is that right?
` A Yes.
` Q Okay. Now, what about using PLGA as this
`matrix for the microparticle? Were there any
`limitations on the types of active ingredients you could
`use?
` A Again, there's always limitations based on
`the -- you know, the sensitivity of the active agent
`that you're trying to incorporate.
` Q Okay. And what types of sensitivities would
`cause you concern?
` A Solubility, stability problems.
` Q So by solubility, you mean whether it's
`soluble in a PLGA solution?
` A That's correct.
` Q Okay. And when you say stability, you mean
`whether it's stable in a PLGA solution?
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` A Stable during the processing, the preparation
`process and then storage following preparation.
` Q Okay. So stable during the time that you
`manufacture the microparticle as well as when it's
`stored?
` A Correct.
` Q Okay. And PLGA, is that soluble in organic
`solvents?
` A Yes.
` Q Is it soluble in aqueous solvents?
` A No.
` Q Okay. So would the active ingredients also
`have to be soluble in organic solvents to be used in
`PLGA?
` A If you want to incorporate the drug within the
`matrix --
` Q Uh-huh.
` A -- that's -- it's always helpful.
` Q Okay.
` A It doesn't always have to be. You can -- you
`can incorporate it as a solid.
` Q I see. So just so I make sure I understand.
`So in order -- if you're going to use it kind of as a
`polymeric binder to bind the active ingredient together,
`you need to make sure it goes into the solution
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`together. But if it's something -- if you want to make
`it like a solid particle that you just mix in and kind
`of coat it with PLGA, then you can do that instead; is
`that right?
` A No. It depends, again, on the solubility in
`what you're trying to accomplish.
` Q Okay.
` A You're trying to, say, incorporate it into and
`trap it within, as a solution. Then you need to have it
`dissolved and cause it to precipitate along with the
`polymer when you're carrying it as a microdroplet. So
`you have -- there's many ways that it can be done.
` Q Um-hum.
` A But this is all known -- you know, it's in the
`literature, the various processing techniques to
`accomplish, you know, whether you want a porous particle
`or a nonporous particle.
` Q Um-hum.
` A Whether you want a mixture of the polymer with
`the -- with the drug substance.
` Or whether you want a core around it. So
`there's various techniques that can be used --
` Q Okay.
` A -- to provide the type of microparticle, the
`encapsulation, so...
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` So I think there's -- you know, basically
`it's -- the properties of the drug will also play a role
`in how you go about incorporating it into the -- into
`the polymeric substance.
` Q Okay. So what do you mean? Can you give me
`an example of that, when you say the properties of the
`drug play a role when you try to use a particular
`polymeric substance?
` A Well, you might have a drug that's not soluble
`in the solvent that's used for the polymer.
` Q Um-hum.
` A So you end up with a coating around the
`particle. And the -- there's -- it's like a mixture of
`the two. And so the actual type of particle is
`different than if you dissolve it in with the polymer
`solution and form a microdroplet and then cause that to
`harden around the drug.
` Q Okay.
` A So there's -- there's various procedures that
`can be used. And again, that will depend on the
`properties of the drug.
` Q Okay. So if the drug is not soluble, then it
`would -- you could mix it in with a polymer, but then it
`would be kind -- the polymer would act kind of like a
`coating around that smaller particle with the
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`non-soluble drug; is that right?
` A It's possible to do that, yeah.
` Q Okay. And if it is soluble, then you can mix
`it all together and create an actual microparticle that
`you precipitate out that is -- that binds the active
`ingredient together in kind of a small particle?
` A It will entrap the drug within the matrix.
` Q Okay. And that's what we were talking about
`earlier, that when you then give that drug with --
`that's entrapped in the matrix to a human or to some
`host of some sort, the polymer will slowly be degraded
`away and the active ingredient will be then delivered
`slowly over time out of that matrix?
` A Yes. It depends if it's erosion controlled or
`diffusion controlled.
` Q Okay. Could you explain to me what you mean
`by diffusion controlled?
` A The -- there's pores within the Po Banca
`particle.
` And the body fluids will permeate those pores
`and dissolve the drug and the drug then diffuses out of
`the -- through the pores.
` Q Okay.
` A So that's a diffusional-type of release.
` Q Okay.
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` A Where the access -- the drug has access to the
`body fluids, and then the erosion -- you asked for
`diffusion, I'm sorry.
` Q Well, you can go ahead and tell me what
`erosion controlled is.
` A Well, erosion depends on the biodegradation of
`the polymer.
` Q Um-hum.
` A And that will occur over time in the body
`fluids, depending on the molecular weight of the
`polymer, type of polymer.
` Q Okay. So those are essentially two different
`types of microparticles, one of which where diffusion
`control allows the fluid to get in and take the active
`ingredient out of the microparticle, whereas the other,
`the polymer degrades slowly over time and releases the
`active ingredient; is that right?
` A Yes. And that can occur at the same time.
` Q Okay. So they can have microparticles that do
`both, and you can have microparticles that can do one or
`the other?
` A No. If you have one -- you can do both, but
`you can do just a -- you're eventually going to have
`both occurring.
` Q Um-hum.
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` A But you can start off with just erosion, if
`there are no pores.
` Q I see. I see. So you can have a
`microparticle that is just erosion-controlled release.
` A Yes.
` Q And you can have a microparticle that may
`start with diffusion control, but then eventually will
`break down?
` A Yes.
` Q Okay. Okay. And is there a reason why you
`would use one type of microparticle over another?
` A Depending on the type of release that you'd
`like to get.
` Q Does it also depend on the active ingredient
`you're trying to deliver?
` A The active ingredient could play a role in the
`morphology that you get, yes.
` Q Does the site of injection also play a role in
`which type of microparticle you would want to make?
` A Not really. I mean, you're going to have the
`same type of release if you -- we're talking now about a
`subcutaneous or intramuscular --
` Q Correct.
` A -- type of injection.
` So...
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` So, if you're -- if you're going into a site
`where you're depending on release and ultimately getting
`into the blood stream --
` Q Um-hum.
` A -- then, no. If you're targeting a particular
`site, then you may want to have one. One type may be
`better than the other.
` Q Okay. Okay. So after you received your
`Ph.D., could you briefly describe your work experience?
` A After the Ph.D., I went to work for Ciba
`Pharmaceutical company in New Jersey. This was a
`Swiss-owned company at one time. Now, with all the
`mergers, it's no longer Ciba. But I went -- I joined
`them in 1963.
` Q And what did you do for Ciba?
` A I was in the formulation laboratory. So we
`were responsible for providing formulations of various
`pharmaceutical products that they intended to market.
` Q What types of formulations did you work on?
` A I actually worked, you know, on all types of
`formulations as a start, and then -- and then pretty
`much focused on parenteral, parenteral injectables.
` Q And when you say parenteral injectables, what
`do you mean by that?
` A Products that are going to be introduced,
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`administered via injection.
` Q And those products, were they all including
`microspheres or microparticles?
` A No.
` Q What other types of injectables were you
`looking at?
` A Principally solutions, some suspensions.
` Q Any particular active ingredients that you
`were focused on?
` A Pretty much the -- you know, whatever products
`that they were interested in at that time. To a large
`extent, intravenous injections, parenterals.
` Q Okay. Do you recall any examples of active
`ingredients you were looking at at that time?
` A I'd have to really tax myself to go that far.
` We had an array of products that I worked on.
` Q Do you recall if they were water-soluble
`active ingredients?
` A Yes.
` Q And did you also work on more organic
`solvent-soluble active ingredients?
` A Used organic solvents also. I could, you
`know, if I had my CV or publications, there's probably
`some publications that came out of that. I could be a
`little bit more accurate --
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` Q Okay.
` A -- in answering your questions.
` Q Okay. So how long were you at Ciba?
` A Till 1970.
` Q And then where did you go after that?
` A Well, Ciba changed -- they didn't change. But
`we built a plant -- after I got involved with
`parenterals, they wanted to introduce a new line of
`injectables.
` Called it a Veriject [phonetic]. This was a
`pre-fill disposable syringe. And I was asked to build a
`plant to do this and direct the operations. And so we
`located a plant in Somerville, New Jersey, which was
`about 30 miles from Summit, where the main plant was,
`the research labs. And we built a plant to manufacture,
`prepare pre-filled syringes, clean rooms, all the works
`to make the solutions.
` And we -- that was -- it was a joint venture
`with Corning, Corning Glass Works. So they had the
`glass technology. And we actually formed the glass,
`made the rubber closures, molded plastic, staked the
`needles to the plastic, prepared the solutions. They
`had to be freeze-dried. We had freeze-dry capabilities.
`And filled the -- filled -- made them, filled them, and
`packaged them.
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` Q So these weren't specific to a particular
`product? This was just the mechanical portions of it?
` A No. There was a product involved.
` Q Okay.
` A Yeah.
` Q Which product was that?
` A I'm -- again, I would have to, you know -- I'd
`have to really look at the --
` Q Okay.
` A Ritalin might have been one.
` Q Do you recall if any of those were microsphere
`products?
` A No. None were.
` Q They were solutions?
` A Yes.
` Q And where did you go after that?
` A Then I went to the University of Kentucky.
` Q Um-hum. And what year was that?
` A 1970.
` Q Okay. And you was -- you were a professor
`there?
` A Yes. I was on the faculty there. I joined as
`a social...
` Q And you remained on the faculty at the
`University of Kentucky until when?
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` A Well, I'm still on the -- on the faculty, I
`guess. I get all the emails about faculty meetings and
`still have an office there.
` Q All the downsides.
` A So I'm officially still listed.
` Q Okay.
` A Notice of all the meetings and faculty
`meetings and graduate student meetings.
` Q Okay.
` A When I'm in town, I go into my office for a
`couple hours.
` Q Okay.
` A But that, really officially, I retired in
`2012.
` Q Okay. And when you say "officially" retired,
`you mean you stopped teaching and doing active research?
` A Well, I went completely, you know, retired and
`not active with my labs -- gave my labs up by then.
` Q Okay.
` A And actually started phase retirement around
`2008.
` Q Okay.
` A And then...
` Q You still go back to your office occasionally
`in --
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`DAVID FELD