Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MYLAN PHARMACEUTICALS INC., )
`)
`Petitioner, ) CASE IPR2017-00203
`)
` vs. ) PATENT 6,649,180
`)
`QUALICAPS CO., LTD. )
`)
`Patent Owner. )
`______________________________)
`
`DEPOSITION OF ARTHUR H. KIBBE, PH.D.
`Atlanta, Georgia
`Friday, June 16, 2017
`
`Reported by:
`Judith Leitz Moran, CCR, RPR, RSA
`JOB NO.: 125630
`
`TSG Reporting - Worldwide 877-702-9580
`
`1 2
`
`3 4 5
`
`6
`
`7
`
`8
`
`9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 1/130
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MYLAN PHARMACEUTICALS INC., )
`)
`Petitioner, ) CASE IPR2017-00203
`)
` vs. ) PATENT 6,649,180
`)
`QUALICAPS CO., LTD. )
`)
`Patent Owner. )
`______________________________)
`
`DEPOSITION OF ARTHUR H. KIBBE, PH.D.
`Atlanta, Georgia
`Friday, June 16, 2017
`
`Reported by:
`Judith Leitz Moran, CCR, RPR, RSA
`JOB NO.: 125630
`
`TSG Reporting - Worldwide 877-702-9580
`
`1 2
`
`3 4 5
`
`6
`
`7
`
`8
`
`9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 1/130
`
`
`
` ARTHUR H. KIBBE, PH.D.
`
`Page 2
`
` Friday, June 16, 2017
` 10:00 a.m.
`
` Deposition of ARTHUR H. KIBBE, PH.D., held at
`Kilpatrick Townsend & Stockton, LLP, 1100 Peachtree
`Street, N.E., Suite 2800, Atlanta, Georgia 30309,
`before Judith L. Leitz Moran, Registered
`Professional Reporter, and Certified Court Reporter
`for the State of Georgia.
`
`TSG Reporting - Worldwide 877-702-9580
`
`1
`
`2 3 4 5
`
`6
`
`7 8
`
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 2/130
`
`
`
`Page 3
`
` ARTHUR H. KIBBE, PH.D.
`A P P E A R A N C E S:
`
` KILPATRICK TOWNSEND & STOCKTON
` Attorneys for Petitoner
` 1100 Peachtree Street N.E.
` Atlanta, Georgia 30309
` BY: DAVID CLAY HOLLOWAY, ESQUIRE
`
` COVINGTON & BURLING
` Attorneys for Patent Owner
` One City Center
` 850 Tenth Street, N.W.
` Washington, DC 20001
` BY: MEGAN KEANE, ESQUIRE
` SCOTT KAMHOLZ, ESQUIRE
`
`TSG Reporting - Worldwide 877-702-9580
`
`1
`2
`
`3 4
`
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 3/130
`
`
`
`Page 4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` ARTHUR H. KIBBE, PH.D.,
`being first duly sworn, was examined as follows:
` THE WITNESS: I do.
` EXAMINATION
`BY MS. KEANE:
` Q Good morning, Dr. Kibbe. Could you
`please state and spell your name for the record.
` A Yes, Arthur H. Kibbe. A-R-T-H-U-R, H
`middle initial, K-I-B-B-E.
` Q Okay. And what's your current address?
` A 116 Fox Run Circle, Clarks Summit,
`Pennsylvania, 18411.
` Q How many times have you been deposed
`before?
` A Over 20.
` Q Okay. And how many times have you
`testified at trial?
` A Somewhat less than that, but at least
`more than 12 or 15 times.
` Q Okay. So somewhere between 15 and 20
`times?
` A I don't know, you'd have to look at my
`CV. I list all the cases with whether I'm just
`deposed or whether I spoke at trial.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 4/130
`
`
`
`Page 5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` Q Okay. And in all of those times that
`you've been both deposed and testified at trial,
`have there been any -- where you have been -- you
`have testified in a capacity other than serving as
`an expert in a pharmaceutical case?
` A No.
` Q And I take it all of those cases were
`also patent cases?
` A Yes.
` Q Is there any reason that you cannot
`testify truthfully today?
` A No.
` Q Okay. Any illnesses or medications that
`would prevent you from testifying truthfully today?
` A No.
` Q So I know that you're fairly familiar
`with the ground rules for a deposition, but I'll
`just go over a few reminders.
` I'll be asking you questions today and
`you'll endeavor to answer to the best of your
`ability. We should make sure not to talk over each
`other so that the court reporter can get down both
`the full questions and the answers. Does that make
`sense to you?
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 5/130
`
`
`
`Page 6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` A Yes, it's hard to do, but it makes sense
`to me.
` Q Great.
` And your attorney may object to some of
`the questions, but unless he instructs you not to
`answer, you'll still need to answer the question.
`Understood?
` A Yes.
` Q Okay. If at any point in time you feel
`that you need a break, let me know. I would just
`ask that we not take any breaks while a question is
`pending.
` A Okay.
` Q I'm going to hand you a document that's
`previously been marked in this proceeding as
`Exhibit 111 -- sorry, 1011. Do you recognize the
`document?
` A Yes, I believe so.
` Q Okay. And what is Exhibit 1011?
` A It's my declaration in support of the
`petition.
` Q Okay. And just for our understanding
`today, do you understand that if I refer to the
`'180 patent that that's referring to U.S. Patent
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 6/130
`
`
`
`Page 7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`No. 6,649,180?
` A That's right, it's the patent at issue.
` Q If you could turn to Page 56 of
`Exhibit 1011. Okay. And is that your signature
`that's there's on Page 56?
` A Yes, it is.
` Q Okay. And you see that it's dated there
`November 4th, 2016?
` A That's right.
` Q Is November 4th, 2016, the date that you
`signed this declaration?
` A Yes.
` Q When were you first contacted about
`working as a declarant on this case?
` A I don't remember the exact date, but it
`was well before that signature date.
` Q Well before November 2016?
` A Yes.
` Q Okay. Was it in the summer of 2016?
` A It's possible. I really don't remember.
` Q Okay. Would it have been more than six
`months before November 2016?
` A It could have been, but again, I don't
`remember exactly when I was contacted.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 7/130
`
`
`
`Page 8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` Q Who contacted you about working on that
`case?
` A A lawyer that's, I think, no longer with
`the firm. She's --
` MR. HOLLOWAY: Maternity leave.
` THE WITNESS: Yeah. Okay.
` THE COURT REPORTER: I'm sorry.
` MR. HOLLOWAY: She's on maternity leave.
` THE WITNESS: I thought she transferred
`to Denver then. No?
`BY MS. KEANE:
` Q If we can keep it to your. Recollection.
`So, is it an attorney --
` A Fine. It was another lawyer at this
`firm.
` Q An attorney at Kilpatrick Stockton?
` A Right.
` MR. HOLLOWAY: Kilpatrick Townsend,
`sorry.
` MS. KEANE: I'm sorry, Kilpatrick
`Townsend.
` A Yeah, Stockton is a different...
`BY MS. KEANE:
` Q Yep, understand.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 8/130
`
`
`
`Page 9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` MR. HOLLOWAY: That's why people get mad
`if I don't say that.
`BY MS. KEANE:
` Q Do you have a recollection of when she
`first went on leave?
` A No.
` Q And how were you contacted?
` A I really don't remember exactly, but in
`most cases people phone me.
` Q Okay. And do you know how the attorneys
`identified you as an expert to work on this matter?
` A I don't know how they individually
`identified me.
` Q Have you worked with Kilpatrick in the
`past?
` A I don't remember. I might have. Often
`it's word of mouth, you know. I work with a lawyer
`on a different firm and then there's a lawyer at
`this firm, so...
` Q Okay. Have you worked with any of the
`attorneys on this case in a prior case?
` A Not that I remember.
` Q Have you ever served as an expert on
`behalf of Mylan in other cases?
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 9/130
`
`
`
`Page 10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` A Yes.
` Q Approximately how many cases?
` A I'd have to look at my CV.
` Q And is your engagement for this matter --
`well, let me back up.
` So you understand that the declaration,
`Exhibit 1011, is the declaration that was submitted
`in support of a petition before -- in an IPR
`proceeding?
` A Before the patent office, yes.
` Q Yes, okay.
` And you understand that in addition to
`the IPR proceeding, there is also litigation in
`district court between the parties?
` A I've been told that that is going on,
`yes.
` Q Okay. Have you been engaged solely to
`work on the IPR matter also on the litigation?
` A No, on only this one.
` Q And by "this one," you mean --
` A The IPR, the one we're talking about
`today.
` Q How many hours of your time did you spend
`working on preparing your declaration, Exhibit
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 10/130
`
`
`
`Page 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`1011?
` A I don't remember really. I would have to
`go back and look at my billings.
` Q Okay. Is it more than 10 hours?
` A Oh, yeah.
` Q More than 20 hours?
` A Possibly.
` Q Okay. When is the last time that you
`would have reviewed your billings to see how much
`time you spent working on this matter?
` A I haven't. I send a bill and then I get
`a check and then I just ignore it.
` Q When you are deposed in cases having to
`do with declarations and expert reports that you
`submit in litigation in IPR proceedings, are you
`typically asked how much time you spent working on
`the declarations?
` A A lot of people ask me that.
` Q Yeah. And so is it something you think
`about and consider before the depositions take
`place?
` A No.
` Q And how did you go about preparing your
`declaration?
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 11/130
`
`
`
`Page 12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` A Okay. So the first step is to review the
`patent to see if what I would think of the patent
`as I've read the patent, okay?
` Q Uh-huh.
` A And then we look for prior art that might
`apply to the essence of the patent. And then we
`see how that prior art supports my initial opinion
`of the patent.
` Okay, if you -- this particular patent is
`extremely obvious that they used standard
`excipients to make a product using --
` THE COURT REPORTER: I'm sorry, the
`standard --
` A The standard excipients to make CIP,
`okay? And so we looked for relevant literature
`that applied to that process. And since the patent
`quotes from The Japanese Pharmacopeia we looked at
`The Japanese Pharmacopeia to -- and then we looked
`at publications that detailed how to make capsules
`out of cellulose derivatives.
`BY MS. KEANE:
` Q Okay. When you say "we," who do you mean
`by we?
` A Well, a lot of times the law firm does
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 12/130
`
`
`
`Page 13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`better searches than I do, so they'll search
`literature for key words and come up with articles
`that they share with me.
` Q Okay. So the law firms will do the
`searching and look for articles and then pass them
`on to you?
` MR. HOLLOWAY: Objection, form.
` A They will do some of that. And then
`there are documents that I have, for instance, the
`Handbook of Pharmaceutical Excipients which I've
`been associated with since the Second Edition. I
`have all the editions so I can go to that. And
`then there are some basic texts on manufacturing
`and formulation that I have already.
`BY MS. KEANE:
` Q And when you say the first step is to
`look at the patent, is that generally the approach
`that you take with all of your matters?
` A Yeah. In order to understand whether or
`not I can give reasonable opinions about the
`matter, I have to read the patent and then I tell
`the lawyer what my opinion of the patent before
`they tell me where they are on -- on the case. And
`if my opinion of the patent and the direction of
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 13/130
`
`
`
`Page 14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`their client wants to go is incompatible, then I
`don't do it.
` Q And did you do that in this case?
` A Yes. Of course, I review the patent
`first.
` Q Okay. And in how many instances do you
`recall where attorneys have asked you to look at a
`patent and your views have been incompatible with
`the attorney?
` MR. HOLLOWAY: Objection, form.
` A There have been several over the years.
`And after a while, the -- I don't know, the
`individuals who contact me are usually up front,
`there are different approaches that they take.
` One asks questions about the science
`before they even give me the patent to see where I
`would come down on a particular question and if it
`doesn't work out.
` I've had, I'd say, five cases for sure
`that I told them, you know, I can't take that
`position because it's wrong and...
`BY MS. KEANE:
` Q And that would be five cases over the
`course of time since you started working as an
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 14/130
`
`
`
`Page 15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`expert consultant?
` A Sure.
` Q And how long has it been since you last
`refused to work as an expert on a patent matter?
` A Well, there's the second reason, is that
`if I think there's a conflict of interest, then I
`don't. And so I've turned down cases in the last
`year.
` Q Okay. With -- sorry, go ahead.
` A No, I don't have anything else.
` Q Okay. With respect to the issue of the
`five cases that you referred to -- sorry, let me
`back up.
` Of the five cases where you did not think
`that you could help with the substance of the
`cases, when was the most recent one of those cases
`that you turned down?
` A About two years ago.
` Q And for the -- for example, the last
`matter about two years ago that you turned down, is
`that because you disagreed with the substance or
`you didn't feel qualified to offer an opinion on
`the subject?
` A No, I disagreed with the substance.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 15/130
`
`
`
`Page 16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`ARTHUR H. KIBBE, PH.D.
` Q Did you, yourself, perform any literature
`searches with respect to preparing Exhibit 1011?
` A When I first looked at the patent, I
`looked at some of the references I have in my
`office, but I did not do like a Google search or
`something like that.
` Q Okay.
`MR. HOLLOWAY: You might have to talk a
`little louder if you can.
`THE WITNESS: Okay, I'm sorry.
`MS. KEANE: Let's take a minute and let
`the sirens pass.
`BY MS. KEANE:
` Q So with respect to the references that
`you found in your office, you referred previously
`to the Handbook of Pharmaceutical Excipients, was
`that one of the references you found in your office
`with respect to --
` A Yes, it's right on my shelf.
` Q Okay. And what were the other
`references?
` A I don't remember off the top of my head.
`But I have books on -- like, Lachman's How to Make
`a Tablet, and Banker and Rhodes Pharmaceutical
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 16/130
`
`
`
`Page 17
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`ARTHUR H. KIBBE, PH.D.
`Manufacturing, those kinds of things where you go
`to and see if they've got anything.
`And there is a five-volume text on
`pharmaceutical technology that you can go and look
`at background information for different things. So
`I generally look at those to see if there's
`anything that's useful.
` Q And were any of those references ones
`that you considered in forming your opinions that
`are in Exhibit 1011?
` A Well, of course, the handbook, I always
`consider it when I'm talking about the use of
`excipients. Some of the others might have had just
`background information that was useful to keep in
`mind when we reviewed references that were directly
`related to the issue.
`Would it be easier if he asked the
`
`questions?
` Q And with respect to the Handbook of
`Pharmaceutical Excipients, I take it, you have
`multiple editions?
` A Yes.
` Q And with respect to the other -- besides
`the books that were on your shelves with respect to
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 17/130
`
`
`
`Page 18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`other references that you considered in preparing
`your declaration, were those all provided to you by
`counsel?
` A I think the majority of them were.
` Q Okay. You say the majority. Are you
`aware of any that were?
` A I don't know for sure one way or the
`other. I know that one is the principle reference
`that shows obviousness. Clearly was given to me by
`counsel the Japanese Yamamoto references.
` Q Okay. So sitting here today, you're not
`aware of any references that are cited in your
`declaration other than the Handbook of
`Pharmaceutical Excipients that you identified
`yourself?
` A No, I can't think of anything off the top
`of my head.
` Q And how did you -- actually, let me back
`up.
` Did you actually write your declaration?
` A Yes, I wrote it. I didn't type every
`paragraph because often in a discussion with the
`lawyers I tell them what issues I want to do and
`they begin to compile it in a format that fits the
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 18/130
`
`
`
`Page 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`legal requirements for the case. And then I get to
`review it and edit it and change it and rewrite it.
`So it's an iterative process.
` Q Did you actually type the initial draft
`of your declaration?
` A No, I don't think so.
` Q And did you review a draft that was
`provided to you by counsel?
` A Well, yeah, I reviewed several drafts.
` Q And do you know how many drafts you
`reviewed?
` A No, I don't.
` Q Okay. Was it more than one?
` A Well, I think I've already said I
`reviewed several, so at least more than one.
` Q And do you know who prepared the initial
`draft? Which attorney?
` MR. HOLLOWAY: I'm going to object to the
`form. Instruct you not to answer that one.
` A I don't remember which specific attorney.
`It's been a while.
`BY MS. KEANE:
` Q And how many times did you communicate
`with counsel before the declaration was prepared?
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 19/130
`
`
`
`Page 20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` A I don't know. I can't remember.
`Several.
` Q How did you typically -- how did those
`communications typically take place?
` A Telephone and email.
` Q Okay. Did you ever meet with counsel in
`person?
` A Yes.
` Q Okay. How many times?
` A At least twice down here.
` Q Okay. And do you know when -- when those
`meetings took place?
` A Well before the signing of the
`declaration.
` Q What is -- in your mind, what does well
`before mean? Is that a few weeks?
` A No, in months or more.
` Q And do you recall how long those meetings
`were?
` A Normally one or two days.
` Q One or two full days?
` A One full day, one and a half days, two
`days, depending on how much we wanted to get
`accomplished. One of the most enjoyable ways for
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 20/130
`
`
`
`Page 21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`me putting this together is to have someone sitting
`there with a projector and we go through paragraph
`by paragraph. And I say, change this, change that,
`and they generate it as I go and then I get a copy
`afterwards to see if I've got all of my changes in
`there.
` Q And did you exchange drafts of the
`declaration with counsel via email?
` A I might have, yeah. That's the easiest
`way to communicate nowadays.
` Q And what is your process to make sure
`that everything that is in your declaration is
`complete and accurate?
` A I read it all before I sign it. And even
`then I miss typos.
` Q And I take it that the opinions that you
`are offering in Exhibit 1011, those are technical
`opinions --
` A Yes.
` Q -- based on the science?
` You're not offering legal opinions?
` A No, I'm not a lawyer. Although, the
`lawyers tend to offer technical opinions when they
`shouldn't.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 21/130
`
`
`
`Page 22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` Q Okay. Are there any errors in Exhibit
`1011 that you would -- that you have noticed since
`you signed the declaration that you're aware of?
` A There's a transcription typo error.
` Q Okay. Do you know where that is?
` A It's in here somewhere, but we spelled
`"group" incorrectly in the copy of the patent.
` Q Okay.
` A It's really not a big thing and I didn't
`want to make a big deal out of it.
` Q Okay. So it's a spelling error in the
`word "group"?
` A Yeah, it's a typo.
` Q Okay. And other than that typo, are you
`aware of anything else?
` A Not really, no.
` Q Okay. And are all of your opinion -- all
`of opinions that you have formed with respect to
`this matter contained in Exhibit 1011?
` MR. HOLLOWAY: Objection, form.
` A I have lots of opinions about the patent,
`but the ones that apply to whether the patent was
`obvious are all in here.
`BY MS. KEANE:
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 22/130
`
`
`
`Page 23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` Q So all of your -- I take it, all of your
`opinions with respect to obviousness of the '180
`patent are contained in Exhibit 1011?
` A Yes.
` MR. HOLLOWAY: Objection, form.
`BY MS. KEANE:
` Q If you'd take a look at Paragraph 5 of
`your declaration. Other than the documents that
`are referenced in Paragraph 5, is there anything
`else that you relied on in drafting your
`declaration?
` A Well, just my own personal experience and
`knowledge in the area.
` Q But no other documents or materials other
`than what's identified in Paragraph 5?
` A No.
` Q Did you review the petition that was
`filed in this proceeding?
` A Whose petition?
` Q The Petitioner's petition, Mylan's
`petition.
` A Oh, yes, I reviewed it.
` Q Okay. When did you review it?
` A I don't remember exactly. Clearly before
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 23/130
`
`
`
`Page 24
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`it was submitted.
` Q Did you review it before November 4th,
`2016, which is the date that you signed your
`declaration?
` A I don't remember.
` Q How many times did you review the
`petition?
` A Two or three just to make sure that they
`were -- their positions were the same as the ones I
`wanted to take in my declaration.
` Q Did you provide comments on the petition?
` A I think I might have.
` Q Do you know if those comments were
`implemented?
` A I don't -- well, I don't remember. I
`expect that they should have been because that's
`why they hired me, right?
` Q And so I take it then that if you
`reviewed the petition two or three times you
`reviewed drafts of the petition?
` A Well, since I reviewed it two or three
`times, then the first couple must have been drafts
`because you don't review the same thing three times
`in a row, right? So that's pretty obvious.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 24/130
`
`
`
`Page 25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` Q Right. Okay. So then I take it that you
`also reviewed that prior to November 4th, 2016,
`which is the date you signed your declaration if
`there were multiple drafts that you reviewed?
` A That's an assumption you're making and
`I'm not sure when I reviewed it. And all I know is
`that I reviewed it before they submitted it.
` Q Okay. Did you review two to three drafts
`of the petition in the same day?
` A That's an interesting question. So often
`I get it and then I'm -- I'm a early riser. So
`I'll work from, say, 5:30 to 6 in the morning till
`9 and send off an email. And if the lawyers make
`the changes and send it back to me and say just to
`verify we made these changes that you suggested, I
`might have seen it twice and just agreed to it.
` Q Okay. In this case, did you see it
`multiple times in the same day?
` A I don't know. I don't remember.
` Q Okay. Did you have a copy of the
`petition while you were working on making changes
`and edits to your declaration?
` A I don't think so.
` Q And what is your understanding with
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 25/130
`
`
`
`Page 26
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`respect to the legal standard of obviousness?
` A I'm not a lawyer. I don't have a legal
`understanding. If there is a legal understanding
`in my declaration, it was explained to me by the
`lawyers and I accept that.
` Q So in your declaration, I take it, you
`offered technical opinions but you didn't undertake
`to apply the legal standard of obviousness to your
`technical opinions?
` MR. HOLLOWAY: Objection to form.
` A Well, I do -- I do conclude that the
`patent is obvious, so I guess I am applying some
`kind of legal form. But it's based on my
`understanding of the science and my understanding
`of what was explained to me by the lawyers
`constitutes obvious.
`BY MS. KEANE:
` Q What did you do to prepare for your
`deposition today?
` A Had a good night's sleep.
` Q Did you do anything else?
` A Yes, we got together yesterday and
`reviewed some of the documents that are involved in
`the litigation. And I reread my declaration. And
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 26/130
`
`
`
`Page 27
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`so I met with -- with counsel tomorrow --
`yesterday.
` Q And how long did you meet with counsel?
` A About five or six hours.
` Q And who was at the meeting?
` A Just the two of us (indicating).
` Q In the course of preparing for your
`deposition, did you review any documents other than
`the documents that are cited in Paragraph 5 of your
`declaration?
` MR. HOLLOWAY: Objection, form.
` A That's a good question because -- okay,
`so I reviewed the patent office's analysis, the
`petition.
`BY MS. KEANE:
` Q The institution decision?
` A Whatever it's called. And your side's
`answer to the petition, I guess that's what it's
`called.
` Q Okay. The --
` A Because, clearly, I didn't have them
`before I formed it.
` Q Okay. So you reviewed the patent owner's
`preliminary response, I take it?
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 27/130
`
`
`
`Page 28
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` A I think so, that's what it was called.
` Q And did you review all of the documents
`associated with that paper?
` A Not in-depth. I looked at some of them.
` Q Okay. Did you review anything else
`during your preparation yesterday?
` A No.
` Q Sorry?
` A No, not that I remember.
` Q Okay. Other than your meeting yesterday
`and your review of documents yesterday, did you do
`anything else to prepare for your deposition today?
` A I just read the documents and here I am.
` Q Okay. Did you discuss your deposition
`today with anybody else other than the attorneys
`that you're working with?
` A No.
` Q If you could turn to Paragraph 50 of your
`declaration. And do you see in Paragraph 50
`there's listed there a construction for the term
`"gelling agent"?
` A Yes.
` Q Is that a construction that was provided
`to you by counsel?
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 28/130
`
`
`
`Page 29
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` A Yes.
` Q And so you weren't asked to form an
`opinion with respect to the construction of that
`term?
` A No.
` Q And if you take a look at Paragraph 51,
`there is, again, a construction and this time it's
`for the term "gelling aid." Do you see that?
` A Yes.
` Q Okay. Was that construction provided to
`you by counsel?
` A It comes directly from the patent.
` Q Okay. And did you identify that
`construction in the patent or was that provided to
`you by counsel?
` A I don't remember who did which when,
`but...
` Q If you take a look at Paragraph 5 of your
`declaration. Do you see at the end of that
`paragraph it refers to, it states: And within the
`time frame of the earliest priority date of the
`claimed subject matter in the '180 patent -
`April 13th, 2000.
` A Right.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 29/130
`
`
`
`Page 30
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
` Q Do you see that?
` A I see it.
` Q Okay. And then if you take a look at
`Paragraph 37. In the last sentence of
`Paragraph 37, it says: For purposes of this
`Petition only.
` I'm sorry, are you with me? It's on Page
`14 at the top of the page.
` A Oh, I'm sorry, I was looking at The
`patent was filed April 13th, 2000, which comports
`with what we said in 5, right?
` Q Right.
` And then if you turn to the top of Page
`14, it's the continuation of Paragraph 38. Or,
`sorry, the continuation of Paragraph 37. And it
`states there: For purposes of this Petition only,
`I assume the earliest priority date for the '180
`patent is April 14th, 1999. Do you see that?
` A Yes, that is clearly information that's
`based on legal opinions about the patent dates and
`when priority is established.
` Q Okay. So those dates were provided to
`you by counsel?
` A Well, they showed me where they were on
`
`TSG Reporting - Worldwide 877-702-9580
`
`Mylan v. Qualicaps, IPR2017-00203
`QUALICAPS EX. 2029 - 30/130
`
`
`
`Page 31
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` ARTHUR H. KIBBE, PH.D.
`the patent itself and why those dates were
`applicable.
` Q Okay. And which is the -- well, le
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
