`
`70
`
`SCOTT BENNETT Ph.D.
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`I can imagine that to be the case.
`
`If -- you know,
`
`if one had a -- a --
`
`some kind of a subject term thesaurus.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`Of the subject
`
`terms that are reflected
`
`in Attachments 1b,
`
`lc, and ld, are you able to take
`
`an opinion that those terms are meaningful to a
`
`person of ordinary skill in the art looking to
`
`investigate the inhaled administration of
`
`Treprostinil for the treatment of pulmonary
`
`hypertension?
`
`A.
`
`It would be my opinion that the person --
`
`such a person, such an ordinarily skilled person
`
`would not be looking in the wrong place if he or she
`
`were looking in the journal circulation or in the --
`
`what's it called -- the abstracts.
`
`Q.
`
`Okay.
`
`In Paragraph 32 of your
`
`declaration you conclude that it is your opinion that
`
`Document
`
`1 was publicly available, at least by
`
`December 2004; correct?
`
`A.
`
`QO.
`
`Yes,
`
`I say that that's my opinion.
`
`Okay. But you did not provide an exact
`
`
`
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`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
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`71
`
`SCOTT BENNETT Ph.D.
`
`date that the document was publicly available;
`
`correct?
`
`A. Well, again, everything turns -- turns on
`
`what you mean by exact.
`
`What
`
`I say is December.
`
`And you say at least by December?
`
`I'm sorry. You're quite right. At least
`
`Q.
`
`A.
`
`by December.
`
`Q.
`
`You attach in your declaration,
`
`Attachment 1f.
`
`Attachment 1f is a Scopus index
`
`record for a review article that in turn cites to the
`
`Voswinckel abstract; correct?
`
`A.
`
`Yes, as I say in Paragraph 33, Attachment
`
`1f is a copy of a Scopus record for a review article
`
`that cites Document 1.
`
`QO:
`
`You did not provide a Scopus index record
`
`for the Voswinckel reference itself; right?
`
`A.
`
`@.
`
`Correct.
`
`Did you search for a Scopus index record
`
`for the Voswinckel abstract itself?
`
`A.
`
`I am confident that my business partner,
`
`Helen Sullivan,
`
`looked for it.
`
`Q.
`
`And one is not
`
`included in the
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 71 of 137
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`SCOTT BENNETT Ph.D.
`
`72
`
`attachments to your declaration because there is no
`
`Scopus index record for the Voswinckel reference;
`
`correct?
`
`A.
`
`G:
`
`That's a reasonable conclusion.
`
`Why is the Scopus reference that you do
`
`include as Attachment 1f relevant to whether
`
`Voswinckel itself was publicly accessible and
`
`properly indexed?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`You will see in Paragraph 23 the
`
`statement that a citation of a document, which is
`
`what we're talking about
`
`in this case,
`
`is evidence
`
`that the document was publicly available and in use
`
`by researchers no later than the publication date of
`
`the citing document.
`
`Q.
`
`Do you know how the authors of that
`
`review article Poon and Sulica obtained the
`
`Voswinckel abstract?
`
`A.
`
`In Paragraph 6
`
`I assert that in the
`
`several ways previously enumerated I have a general
`
`knowledge of how researchers work, so, yes,
`
`I know
`
`how they found it in the way that any researcher
`
`would find it, any other, you know, ordinarily
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
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`73
`
`SCOTT BENNETT Ph.D.
`
`skilled researcher would find it.
`
`Q.
`
`A.
`
`How did they find it?
`
`One very common way is word of mouth.
`
`Hey, did you see? Another common way is trooping off
`
`to the library to look at the new issue of the
`
`journals that they -- that the researcher keeps up
`
`with.
`
`6.
`
`Is it possible that the authors obtained
`
`the Voswinckel reference by attending the scientific
`
`sessions at which they were presented?
`
`A.
`
`QO.
`
`That,
`
`too.
`
`Is it possible that the authors obtained
`
`the Voswinckel reference directly from the Voswinckel
`
`authors?
`
`Ay
`
`You're asking about what is possible;
`
`and, of course.
`
`So one can imagine,
`
`just to imagine
`
`it, a colleague says,
`
`"Have you seen this?"
`
`"No. But
`
`I know Voswinckel,
`
`so I'll
`
`get
`
`in touch with Voswinckel."
`
`Sure there's a range of
`
`possibilities here.
`
`Osx
`
`You don't know directly whether any
`
`particular search was done by the citing authors to
`
`find Voswinckel; correct?
`
`
`
`19
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 73 of 137
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`74
`
`SCOTT BENNETT Ph.D.
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`Would you care to define directly?
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`Let me rephrase my question.
`
`You don't have any firsthand
`
`personal knowledge of how the authors came into
`
`possession of the Voswinckel reference; correct?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`No. No.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`And in your declaration you have not
`
`provided any other reference that cites the
`
`Voswinckel reference; correct?
`
`A.
`
`That is true of the declaration.
`
`It
`
`doesn't mean, by the way,
`
`that there aren't any.
`
`It means that it's true of this
`
`declaration,
`
`that this is the one that we provided,
`
`and I'll just mention, by the by,
`
`that it's our
`
`practice to mention only one citation and the
`
`earliest one we could find.
`
`Q.
`
`Are you aware of whether you found any
`
`other citations to that article?
`
`
`
`19
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 74 of 137
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`SCOTT BENNETT Ph.D.
`
`75
`
`A.
`
`This happened -- this is work that Helen
`
`Sullivan did nine months ago, and so I have no
`
`present knowledge.
`
`QO.
`
`Let's look at Document 1f a little more
`
`closely, and in particular at Page 45 of 74.
`
`A.
`
`Q.
`
`I'm sorry.
`
`45 of 74.
`
`Thank you.
`
`And Citation 51 is a citation that you
`
`reference to the Voswinckel abstract; correct?
`
`A.
`
`Ox
`
`That is correct.
`
`And the next citation, 52,
`
`is to an
`
`article by author Arai and others.
`
`Do you see that?
`
`I do.
`
`Do you know why Reference 52 is
`
`A.
`
`Q.
`
`highlighted in blue and Reference 51 to the
`
`Voswinckel reference is not?
`
`A.
`
`Q.
`
`No,
`
`I do not.
`
`Do you know why some of the references
`
`are highlighted in orange?
`
`A.
`
`QO:
`
`Né;,
`
`IT do not.
`
`Do you know why Reference 52 indicates
`
`that it was cited 2,269 times and Reference 51,
`
`the
`
`Voswinckel abstract, gives no number of times it was
`
`cited?
`
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 75 of 137
`
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`76
`
`SCOTT BENNETT Ph.D.
`
`NG,
`
`TE
`
`ido NG.
`
`In Paragraph 30 of your declaration
`
`A.
`
`Q.
`
`towards the end of that paragraph you conclude that
`
`it is your opinion that circulation and its abstract
`
`supplements were sufficiently accessible to the
`
`public interested in the art, and an ordinarily
`
`skilled researcher exercising reasonable diligence
`
`would have no difficult finding copies of circulation
`
`in its abstract supplements.
`
`My question is what do you mean by,
`
`quote, exercising reasonable diligence?
`
`A. Well,
`
`I know as a researcher myself, and
`
`I know from working with researchers and for
`
`researchers that discovering the published literature
`
`relevant to your subject requires some work.
`
`I mean
`
`it just doesn't fall out of the heaven.
`
`And so doing that work,
`
`for
`
`instance,
`
`tracking some of the chief publications --
`
`periodical publications in your field is part of
`
`exercising reasonable diligence.
`
`If you don't do that,
`
`then you're
`
`going to miss literature relevant to your subject
`
`matter.
`
`QO.
`
`Okay. Referring to Document le, you --
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
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`77
`
`SCOTT BENNETT Ph.D.
`
`and in particular Page 37 of 74.
`
`A.
`
`Os
`
`Thank you.
`
`You refer to a few dates that are visible
`
`on that page; correct?
`
`A.
`
`Could we look at the text of the
`
`declaration that you're interested in?
`
`Q.
`
`A.
`
`Q.
`
`I
`
`think it's generally in Paragraph 31.
`
`Okay.
`
`One is the date label at the top cover
`
`that indicates in your opinion that the October 2004
`
`issue of circulation was processed on 22, November,
`
`2004; correct?
`
`A.
`
`Q.
`
`Yes.
`
`That label does not actually on its face
`
`indicate that the issue was processed on that date;
`
`correct?
`
`A.
`
`Q.
`
`A.
`
`label -—-
`
`QO.
`
`A.
`
`Q.
`
`What do you mean by processed?
`
`What do you mean by processed?
`
`In this case what
`
`I mean is that the
`
`Was affixed on that date?
`
`Yes.
`
`Okay.
`
`You don't claim to have firsthand
`
`personal knowledge of who affixed that label;
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 77 of 137
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`SCOTT BENNETT Ph.D.
`
`78
`
`correct?
`
`A.
`
`QO.
`
`That is correct.
`
`And you don't claim to have firsthand
`
`personal knowledge of what was done with this
`
`document at the time of affixing that label; correct?
`
`A.
`
`Q.
`
`A.
`
`You did say firsthand personal?
`
`Yes.
`
`Yes -- no,
`
`I do not claim to have
`
`firsthand personal knowledge of what happened at the
`
`British Library.
`
`Q:.
`
`And on this same page you also refer to
`
`another label indicating,
`
`in your opinion,
`
`that the
`
`restriction on reading room only use of the
`
`supplement expired on 22, May, 2005; correct?
`
`A.
`
`Yes. What
`
`I say is the third label on
`
`the cover indicates restriction on reading room use
`
`only, expired on the 22nd of May.
`
`Q.
`
`You don't claim to have firsthand
`
`personal knowledge that reading room use only access
`
`expired on the 22nd of May; correct?
`
`A.
`
`What
`
`I affirm is -- is the evidence of
`
`this label.
`
`Q.
`
`Okay.
`
`Do you know who affixed that
`
`label?
`
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 78 of 137
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`79
`
`SCOTT BENNETT Ph.D.
`
`A.
`
`No. What
`
`I do affirm is that I do not
`
`see any indications or have any reason to believe
`
`that this date label or the other labels evident
`
`in
`
`this copy were affixed by anyone other than library
`
`personnel on or about the date indicated by the
`
`label.
`
`Q.
`
`Do you know why the date on the loan ban
`
`label is crossed out?
`
`A.
`
`Ox
`
`No,
`
`I do not.
`
`Okay. We've discussed Scopus --
`
`MR. SOMMER: Object
`
`to form of the last
`
`question.
`
`BY MS. ASCARRUNZ:
`
`Q. We've discussed Scopus and the Statewide
`
`Tllinois Library Catalog; right?
`
`A.
`
`We have talked about records from the
`
`Illinois Library Catalog Record and Cat -- Catalog
`
`and Scopus.
`
`Q.
`
`Okay.
`
`In your time as a librarian, did
`
`you also become familiar with MEDLINE or PubMed?
`
`A.
`
`Qs
`
`Yes.
`
`Do you agree that PubMed is a critical
`
`tool in biomedical electronic research?
`
`A.
`
`Yes.
`
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 79 of 137
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`SCOTT BENNETT Ph.D.
`
`80
`
`Q.
`
`Do you agree that PubMed is very popular
`
`and used widely with clinicians and medical
`
`researchers?
`
`A.
`
`Q.
`
`Yes.
`
`Do you agree that PubMed is the most
`
`popular among clinicians and medical researchers?
`
`A. Well,
`
`taken as a very large group,
`
`that
`
`is probably true.
`
`One can imagine specialists within
`
`that very large group having other sources that are
`
`more popular even.
`
`Q.
`
`Do you agree that one of the major
`
`benefits of PubMed is the ability to search by author
`
`and keyword?
`
`A.
`
`O.
`
`Yes
`
`In your declaration you did not provide a
`
`PubMed entry for the Voswinckel abstract; correct?
`
`A.
`
`Q.
`
`A.
`
`That is correct.
`
`Did you look for one?
`
`As
`
`I said before,
`
`this work was done by
`
`Helen Sullivan nine months ago, and I cannot -- do
`
`not recall the specifics of her work.
`
`I
`
`think it
`
`quite likely that she looked there.
`
`QO.
`
`Are you surprised to learn that the
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
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`SCOTT BENNETT Ph.D.
`
`81
`
`Voswinckel abstract does not have a PubMed entry?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`No.
`
`I'd like to look at Attachment
`
`la?
`
`La.
`
`And in particular Page 26 of 74.
`
`Page 26 of 74.
`
`I
`
`think you might have alluded to this
`
`earlier.
`
`A.
`
`Q:.
`
`What is WTS?
`
`What?
`
`I'm sorry.
`
`At the top of the page it says,
`
`"WTS
`
`Article Delivery."
`
`What is WTS?
`
`A.
`
`It's a document delivery service offered
`
`by the University of Wisconsin at Madison Library.
`
`Q.
`
`A.
`
`And what is this page?
`
`This is the cover page that WTS uses to
`
`record each of its service transactions.
`
`Q.
`
`Do you see under "Instructions" there's
`
`some text there that starts with,
`
`"We need copy..."?
`
`A.
`
`Qs
`
`A.
`
`Q.
`
`Yes,
`
`I see that.
`
`Do you know who wrote this text?
`
`Yes,
`
`I do.
`
`Who did?
`
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 81 of 137
`
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`
`82
`
`SCOTT BENNETT Ph.D.
`
`Helen Sullivan.
`
`Do you have an understanding of what she
`
`A.
`
`Q.
`
`meant when she wrote,
`
`"We have not been able to
`
`obtain a copy with a date stamp," and then the
`
`sentence continues?
`
`A.
`
`QO.
`
`I'm sorry. What's the question?
`
`sure.
`
`Do you have an understanding of what
`
`she meant by:
`
`"We have not been able to obtain a
`
`copy with the date stamp"?
`
`A.
`
`QO.
`
`A.
`
`Yes.
`
`What did she mean?
`
`It means that we,
`
`that is she and we
`
`collectively as a firm, have not been able to obtain
`
`a copy with a date stamp.
`
`O.
`
`A.
`
`Of the Voswinckel abstract?
`
`
`
`No.
`
`Of the supplement to circulation
`
`that includes the abstract.
`
`Q.
`
`Okay.
`
`Is it unusual to have difficulty
`
`obtaining a copy with the date stamp of reference?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`Unusual? Well, date stamping is a very
`
`widely practice -- is very widely practiced in
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
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`Page 82 of 137
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`83
`
`SCOTT BENNETT Ph.D.
`
`processing competitive journals.
`
`This is a practice that -- that has
`
`gone on for decades. There's -- libraries vary
`
`somewhat.
`
`So is it unusual? Yes, one might
`
`say, given, you know, a general
`
`impression of decades
`
`of practice it is unusual.
`
`Does it -- does one with some
`
`frequency find issues of periodicals without date
`
`stamps, yes.
`
`So everything in your question turns
`
`on what you mean by unusual.
`
`the practice varies, but generally we are able --
`
`And all I can answer is really, yes,
`
`
`
`generally,
`
`I emphasize, we are able to find date
`
`stamps.
`
`Q.
`
`Okay. At Page 36 of 74 as part of
`
`Attachment
`
`le --
`
`A.
`
`Gs
`
`A.
`
`Qs
`
`Thank you.
`
`-—- there's another WTS document?
`
`Yes.
`
`And this one reflects that the requester
`
`was Steve Wesclitz.
`
`Do you know who that is?
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 83 of 137
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`84
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`SCOTT BENNETT Ph.D.
`
`A.
`
`No.
`
`I only know that he is identified as
`
`
`working for Winston & Strawn.
`
`Os
`
`Do you have any knowledge of why he made
`
`the request that's reflected on this page?
`
`MR. SOMMER:
`
`I'm going to object; and to the
`
`extent that you know why, you would have learned that
`
`from us, and I'm going to instruct you not to answer
`
`on grounds of attorney work product.
`
`BY MS. ASCARRUNZ:
`
`Gy
`
`All right. Let's look at Attachment
`
`la,
`
`
`
`and in particular Page 29 of 74, and it says at the
`
`top,
`
`"Supplements to Circulation Published in 2004."
`
`Are we on the same page?
`
`We on the same page.
`
`Okay.
`
`Do you see the last entry on that
`
`A.
`
`Q.
`
`page?
`
`MR. SOMMER: Object
`
`to form.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`Where it reads:
`
`"Abstracts From
`
`Scientific Sessions 2004"?
`
`A.
`
`Qs
`
`I see that, yes.
`
`Do you recognize that to be the citation
`
`to the volume and issue of the abstracts supplement
`
`to circulation in which the Voswinckel abstract is
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 84 of 137
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`85
`
`SCOTT BENNETT Ph.D.
`
`found?
`
`A.
`
`Yes,
`
`I recognize that as a reference to
`
`the physical volume in which these abstracts were
`
`published.
`
`Os
`
`Do you know what it means where it says,
`
`"Pages III-1-III-1102"?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`I suppose that the first element
`
`in that,
`
`which is Roman numeral three relates to the Roman
`
`numerals one,
`
`two,
`
`three, and four elsewhere evident
`
`on this page,
`
`so we're probably -- probably talking
`
`about four supplements, each of which has its own
`
`separate pagination.
`
`So in the case of the abstracts
`
`we're dealing with a -- a publication that -- that
`
`has page numbers ranging from Roman numeral three,
`
`Arabic numeral one,
`
`through Arabic -- Roman numeral
`
`three, Arabic numeral 1102.
`
`And if you look on Page 32 of 74, at
`
`the top you will see the page number there is Roman
`
`numeral three, Arabic numeral 295.
`
`Q.
`
`Okay.
`
`So this volume and issue of the
`
`abstract supplement contains likely 1,102 pages;
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 85 of 137
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`SCOTT BENNETT Ph.D.
`
`86
`
`correct?
`
`A.
`
`Os
`
`That would be my conclusion, yes.
`
`Do you know how many abstracts were
`
`included in that supplement?
`
`A.
`
`Q.
`
`No,
`
`1
`
`deo: nots
`
`Do you see that the Voswinckel abstract
`
`is labeled as Abstract No. 1414?
`
`A.
`
`Q.
`
`Yes,
`
`I see that.
`
`So there were at least 1414 abstracts in
`
`this issue; correct?
`
`A.
`
`Q.
`
`Yes.
`
`And that's only as far as Page 295 out of
`
`1,102 pages; correct?
`
`A.
`
`Q.
`
`Correct.
`
`So we would expect that the number of
`
`abstracts to be at least double 1,414; correct?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`We would expect to find a very large pile
`
`ef abstracts.
`
`BY MS. ASCARRUNZ:
`
`Qs
`
`Do you know how many pages are contained
`
`in all supplements to circulation from 1950 through
`
`2004?
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 86 of 137
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`87
`
`SCOTT BENNETT Ph.D.
`
`NS,
`
`= don't,
`
`Do you know how many pages are contained
`
`A.
`
`Q.
`
`in all circulation abstracts from 1964 through 2004?
`
`A.
`
`Q.
`
`No,
`
`I don't.
`
`And you don't know how many pages are
`
`
`contained in all circulation, periodicals, and
`
`supplements from 1950 through 2004; correct?
`
`A.
`
`Q.
`
`That is correct .
`
`And you don't know how many references
`
`are located in all circulation, periodicals, and
`
`supplements from 1950 through 2004; correct?
`
`MR. SOMMER: Object
`
`to form.
`
`THE WITNESS:
`
`So would you repeat the
`
`question?
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`You don't know how many references are
`
`located in all circulation, periodicals, and
`
`supplements from 1950 through 2004?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`By references you mean discrete
`
`publications?
`
`No,
`
`I don't know that.
`
`
`
`20
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 87 of 137
`
`
`
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`
`88
`
`SCOTT BENNETT Ph.D.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`In your work in this case did you attempt
`
`to locate the Voswinckel abstract at any of the
`
`institutions where you had been involved as a
`
`librarian?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`I don't know. We do know that
`
`Ms. Sullivan reported not being able to find one with
`
`the date stamp.
`
`So one could imagine that she looked
`
`at the University of Illinois,
`
`found the journal,
`
`didn't find a date stamp, and kept going.
`
`As
`
`I say, that's speculative on my
`
`part.
`
`I don't know what -- I don't have a specific
`
`recollection of what she may have done nine months
`
`ago.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`But certainly nowhere in the declaration
`
`or attachments is there documentation showing that
`
`you obtained either of the Voswinckel abstract or the
`
`Giovannini reference at any of the institutions where
`
`you were employed previously as a librarian; correct?
`
`A.
`
`That is correct.
`
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 88 of 137
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`
`
`SCOTT BENNETT Ph.D.
`
`89
`
`O%
`
`So earlier when we were talking about
`
`exercising reasonable diligence, you indicated that
`
`often researchers have to do the work, and things
`
`obviously just don't fall out of the heavens.
`
`Do you remember that discussion?
`
`I do remember that very phrase.
`
`Is it your opinion that it is exercising
`
`A.
`
`Q.
`
`reasonable diligence to locate the one paragraph
`
`Voswinckel abstract for a person of ordinary skill in
`
`the art to review every issue of all monthly
`
`periodicals spanning over 50 years that are indexed
`
`with the subject cardiology?
`
`MR. SOMMER: Object
`
`to form.
`
`THE WITNESS: Would you repeat the question,
`
`please?
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`Is it your opinion that it is exercising
`
`reasonable diligence to locate the one paragraph
`
`abstract -- the one paragraph Voswinckel abstract for
`
`a person of ordinary skill in the art to review every
`
`issue of all monthly periodicals spanning over 50
`
`years that are indexed with the subject cardiology?
`
`MR. SOMMER: Object
`
`to form.
`
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 89 of 137
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`
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`90
`
`SCOTT BENNETT Ph.D.
`
`BY THE WITNESS:
`
`A.
`
`If I'm an ordinarily diligent -- what's
`
`the phrase -- reasonably diligent investigator of
`
`Subject A,
`
`in the first instance I don't have to --
`
`I'm especially in medicine let's say -- I don't have
`
`to research what happened 50 years ago.
`
`I probably am looking -- probably --
`
`looking for something more recent than the literature
`
`published 50 years ago.
`
`So your question doesn't describe to
`
`me a set of reasonable assumptions about due dil --
`
`due -- a reasonable diligence.
`
`So I don't know how to answer your
`
`question because it doesn't -- doesn't describe
`
`something that I -- that I understand.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`Okay. When I refer to a person of
`
`ordinary skill in the art,
`
`I'm referring to the
`
`paragraphs we discussed earlier, Paragraphs 11 and
`
`12, of how that was defined -—-
`
`A.
`
`Qs
`
`A.
`
`QO.
`
`Uh-huh.
`
`-- for you by counsel.
`
`Uh-huh.
`
`Can you -- do you understand that that's
`
`
`
`20
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 90 of 137
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`
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`
`
`SCOTT BENNETT Ph.D.
`
`91
`
`what
`
`I mean when I say a person of ordinary skill in
`
`the art?
`
`A.
`
`Q.
`
`Right.
`
`Okay.
`
`So I'm speaking about a person of
`
`ordinary skill in the art specifically in this
`
`
`
`context, not
`
`A.
`
`Q.
`
`in some abstract general research.
`
`Uh-huh. Okay.
`
`Okay.
`
`Is it your opinion that it is
`
`exercising reasonable diligence to locate the one
`
`paragraph Voswinckel abstract for a person of
`
`ordinary skill in the art to review every recent
`
`issue of all monthly periodicals that are indexed
`
`with the subject cardiology?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`I can imagine that being the case.
`
`I can
`
`imagine some other set of behaviors that I would also
`
`describe as reasonably diligent.
`
`BY MS. ASCARRUNZ:
`
`Gs
`
`Is it your opinion that it is exercising
`
`reasonable diligence to locate the one paragraph
`
`Voswinckel abstract for a person with experience in
`
`the investigation or treatment of pulmonary
`
`hypertension to review every recent issue of all
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 91 of 137
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`92
`
`SCOTT BENNETT Ph.D.
`
`monthly periodicals indexed with the subject
`
`cardiology?
`
`MR. SOMMER: Object
`
`to form.
`
`THE WITNESS: Have you changed your question?
`
`MR. SOMMER: Uh-huh.
`
`THE WITNESS:
`
`Just help me understand how
`
`this question differs from the previous one.
`
`MS. ASCARRUNZ:
`
`Sure.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`The previous question referred
`
`specifically to the person of ordinary skill in the
`
`art.
`
`A.
`
`QO.
`
`Yeah.
`
`The second question used the term a
`
`person with experience in the investigation of
`
`
`treatment of pulmonary hypertension.
`
`And I can tell you for your
`
`understanding and context that there is a dispute in
`
`this case as to what a person of ordinary skill in
`
`the art is.
`
`I understand in your opinion you
`
`employed the definition given to you by Watson's
`
`counsel.
`
`A.
`
`Okay.
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 92 of 137
`
`
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`
`
`93
`
`SCOTT BENNETT Ph.D.
`
`And I'm just --
`
`So you're now asking me about --
`
`A person with experience in the
`
`Q.
`
`A.
`
`Q.
`
`investigation or treatment of pulmonary hypertension.
`
`A. Well, understanding that the only thing
`
`that has changed between the previous question and
`
`this question is the definition of the person we're
`
`talking about,
`
`then the answer has to be the same.
`
`I can imagine that to be the case,
`
`but
`
`I can imagine other behaviors that one would also
`
`describe as reasonably diligent.
`
`QO.
`
`So I want to ask a few more questions as
`
`to what some of those other behaviors are.
`
`So I understand your testimony that
`
`you can certainly imagine other
`other behaviors
`
`being also reasonably diligent.
`
`A.
`
`Q.
`
`Uh-huh.
`
`I just want to try to understand the
`
`parameters of what that is, and so the questions that
`
`I'm asking you are, you know, specific to one
`
`particular behavior,
`
`is it reasonable or not?
`
`A.
`
`Q.
`
`Thank you.
`
`In your opinion is it exercising
`
`reasonable diligence to locate the one paragraph
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 93 of 137
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`SCOTT BENNETT Ph.D.
`
`94
`
`Voswinckel abstract for a person of ordinary skill in
`
`the art to review every recent issue of
`
`circulation -- to review every recent issue of
`
`circulation?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`On the assumption that circulation is a
`
`crit -- it publishes critically important
`
`information
`
`for the person we're talking about, yes, it would
`
`be -- it would be my opinion that -- there are just
`
`
`too many terms floating around here.
`
`It would be my opinion that looking
`
`at every issue of circulation would represent -- help
`
`me with the term we're -- reasonable diligence?
`
`What's the term?
`
`Q.
`
`A.
`
`Q.
`
`Reasonable diligence.
`
`Thank you.
`
`Okay. And you indicated on the
`
`assumption that circulation is critically important
`
`for the person that we're talking about?
`
`A.
`
`Qs
`
`Yes.
`
`Do you have any basis on which to make
`
`that assumption? -- let me put it this way.
`
`
`
`Are you purporting to put forward an
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 94 of 137
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`SCOTT BENNETT Ph.D.
`
`95
`
`opinion that circulation is critically important for
`
`a person of ordinary skill in the art?
`
`A.
`
`No, no such assertion is made in my
`
`declaration.
`
`G:
`
`Is it your opinion that it is exercising
`
`reasonable diligence to locate the one paragraph
`
`Voswinckel abstract for a person of ordinary skill in
`
`the art to review every abstract of the scientific
`
`sessions of the American Heart Association and annual
`
`meetings because they are indexed under cardiology?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`You ask is it reasonable for a person to
`
`do that?
`
`I can imagine doing it.
`
`Is it an
`
`obligation that I would lay on a person and say if
`
`she didn't do it, it's not reasonably diligent, no.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`Is it your opinion that it is exercising
`
`reasonable diligence to locate the one paragraph
`
`Voswinckel abstract for a person of ordinary skill in
`
`the art to review over 2500 abstracts, over 1000
`
`pages, and because the full 1000 page is indexed as
`
`relating to medicine, biotechnology, and
`
`pharmaceutical chemistry?
`
`
`
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`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 95 of 137
`
`
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`
`
`96
`
`SCOTT BENNETT Ph.D.
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A. Well, everything in your question turns
`
`around what's reasonable, and I can imagine that
`
`being reasonable.
`
`I can imagine some other standard
`
`behavior being reasonable.
`
`I must say that what -- what
`
`I do
`
`not know right now is what's -- I don't know how all
`
`these abstracts are arranged within the abstract
`
`supplement, and so I'm really at a loss to deal with
`
`your questions because I don't have the relevant
`
`facts at hand.
`
`So,
`
`for instance,
`
`if we had a
`
`complete volume here, we might -- I might be able to
`
`respond more reasonably to your questions.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`In your preparation and work for this
`
`case, did you ever have the full issue of the
`
`circulation abstracts in front of you at any point in
`
`time?
`
`A.
`
`Qs
`
`In front of me personally? No.
`
`In your experience as a researcher, did
`
`you ever find it reasonable to review over 2500
`
`abstracts, over 1000 pages,
`
`to locate a one paragraph
`
`
`
`DAVID FELDMAN WORLDWIDE, INC. - A VERITEXT COMPANY
`330 Old Country Road - Ste. 300, Mineola, NY 11501 1.800.727.4396
`UNITED THERAPEUTICS, EX. 2033
`WATSON LABORATORIESv. UNITED THERAPEUTICS, IPR2017-01622
`Page 96 of 137
`
`
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`20
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`21
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`22
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`23
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`24
`
`20
`
`
`
`
`
`97
`
`SCOTT BENNETT Ph.D.
`
`reference?
`
`MR. SOMMER: Object
`
`to form.
`
`BY THE WITNESS:
`
`A.
`
`I needed at one point as a researcher to
`
`construct as comprehensive a list as I could of the
`
`periodicals published in Great Brittain in the 1820s.
`
`Happily,
`
`I was doing this in the
`
`1960s,
`
`so I was working with the print version of the
`
`British Library catalog.
`
`I was in the British
`
`Library.
`
`Happily,
`
`the British Library has a
`
`set of volumes in its printed catalog called
`
`periodicals.
`
`I went
`
`through all those volumes
`
`looking for titles that were published in the 1820s.
`
`I'm am sure that I
`
`looked at many
`
`thousands of entries.
`
`So if I
`
`thought that behavior was
`
`reasonable then,
`
`I cannot say that a very laborious
`
`search of many thousands of entries for what one is
`
`looking for would be unreasonable now.
`
`BY MS. ASCARRUNZ:
`
`Q.
`
`Do you equate your task of having to
`
`construct a comprehensive listing of all periodicals
`
`
`
`DAVID FELDMAN WORLDWIDE, INC.
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