COURT REPORTING
`
`Transcript of Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`Aldersom
`
`Aldcrson Reference Number 6624]
`
`Coalition for Affordable Drugs X LLC v. Anacar Pharmaceuticals, Inc.
`
`Alderson Repomng
`1-800—3613376
`
`inl'o‘a‘alderson reporting. com
`hllp Mm“: aldersonrepomngcom
`
`
`
`Transcript of Stephen B. Kahl, Ph.D.
`
`September 14, 2016
`
`Aldersom
`
`Aldcrson Reference Number 6624]
`
`Coalition for Affordable Drugs X LLC v. Anacar Pharmaceuticals, Inc.
`
`Alderson Repomng
`1-800—3613376
`
`inl'o‘a‘alderson reporting. com
`hllp Mm“: aldersonrepomngcom
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`COALITION FOR AFFORDABLE DRUGS X LLC,
`
`Petitioner,
`
`v.
`
`ANACOR PHARMACEUTICALS,
`
`INC.,
`
`Patent Owner.
`
`Reported by: Diane S. Martin, CSR 6464, CCRR
`
`
`
`Case No.
`
`IPR2015—017?6
`
`U.S. Patent No. 7,582,621
`
`Case No.
`
`IPR2015—01?80
`
`U.S. Patent NO. 7,767,657
`
`Case NO.
`
`IPR2015-Ul785
`
`U.S. Patent No. ?,767,567
`
`DEPOSITION OF STEPHEN B. KAHL, Ph.D.
`
`Taken at the instance of the Patent Owner at
`
`Covington & Hurling, One Front Street, 35th Floor, San
`
`Francisco, California, on Wednesday, September 14,
`
`2016, beginning at 8:58 a.m.
`
`1-800«FOR—DEPO
`
`wwwaldersonreportingcom
`
`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`A P P E A_R A.N C E S:
`
`For the Petitioner:
`
`MERCHANT & GOULD
`
`BY:
`
`RYAN JAMES FLETCHER, Ph.D., Esq.
`
`1801 California Street
`
`Suite 3300
`
`Denver, Colorado
`
`80202
`
`303—357—1670
`
`rfletcher@merchantgould.com
`
`mmiller@cov.com
`
`
`
`Patent Owner:
`
`COVINGTON & BURLING LLP
`
`BY:
`
`CHRISTOPHER K. EPPICH, ESQ.
`
`1999 Avenue of the Stars
`
`Suite 1500
`
`Los Angeles, California
`
`90067
`
`424—332—4764
`
`ceppich@oov.com
`
`BY:
`
`MATTHEW V. MILLER, ESQ.
`
`333 Twin Dolphin Drive
`
`Suite 700
`
`Redwood Shores, California
`
`94065-1418
`
`650~632-4733
`
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`Alderson Court Reporting
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`
`
`Stephen B. Kahl, PhD‘
`
`September 14, 2016
`
`San Francisco, CA
`
`EXAMINATION INDEX
`
`EXAMINATION BY:
`
`MR. EPPICH
`
`MR. FLETCHER
`
`
`
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`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`EXHIBIT INDEX
`
`ANACOR
`
`EXHIBIT 79: Patent Owner Anacor Pharmaceuticals,
`
`Inc.'s Notice of Deposition of Stephen
`
`B. Kahl, Ph.D., Case No.
`
`IPR20lS‘OII76, Patent No. 7,582,621
`
`EXHIBIT 80: Patent Owner Anacor Pharmaceuticals,
`
`Inc.‘s Notice of Deposition of Stephen
`
`B. Kahl, Ph.D., Case No.
`
`IPR2015—01780, Patent No. 7,767,657
`
`EXHIBIT 81: Patent Owner Anacor Pharmaceuticals,
`
`Inc.'s Notice of Deposition of Stephen
`
`
`3. Kahl, Ph.D., Case NO.
`
`IPRZOlS—OITBS, Patent NO. 7,767,657
`
`
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`1- BOO-FOR—DEPO
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`Alderson Court Reporting
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`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`PREVIOUSLY MARKED EXHIBITS
`
`EXHIBIT 1002:
`
`International Application WO 95/33754
`
`EXHIBIT 1028:
`
`International Journal of Pharmaceutics
`
`"Drug delivery to the nail following
`
`topical application”
`
`EXHIBIT 1039:
`
`Supplemental Declaration of Stephen
`
`Kahl, Ph.D.
`
`In Support of Petitioner's
`
`Supplemental Evidence and Response to
`
`Patent Owner's Objections to the
`
`Petition Evidence Pursuant
`
`to 37 CFR
`
`42.62
`
`EXHIBIT 1043:
`
`
`Support of Petition for Inter Partes
`
`EXHIBIT 1049:
`
`EXHIBIT 1050:
`
`
`
`boron—containing compounds
`
`Review of Patent No. 7,582,621
`
`Progress in Heterocyclic Chemistry
`
`In Vivo Percutaneous Absorption of Boric
`
`Acid, Borax, and Disodium Octaborate
`
`Tetrahydrate in Humans Compared to In
`
`Vitro Absorption in Human Skin from
`
`Infinite and Finite Doses
`
`
`
`EXHIBIT 1054: Biological Trace Element Research
`
`EXHIBIT 1055: U.S. Patent 7,465,836
`
`EXHIBIT 1056: Therapeutic potential of
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`Stephen B. Kahl, PhD.
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`September 14, 2016
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`San Francisco. CA
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`PREVIOUSLY MARKED EXHIBITS {Continued}
`
`EXHIBIT
`
`1059:
`
`Boron—containing inhibitors of
`
`EXHIBIT
`
`EXHIBIT
`
`synthetases
`
`Biological Trace Element Research
`
`Declaration of Stephen Kahl, Ph.D.
`
`In
`
`Support of First Petition for Inter
`
`Partes Review of Patent No. 7,76?,657
`
`of boronophenylalanine (EPA)
`
`EXHIBIT
`
`Declaration of Stephen Kahl, Ph.D.
`
`In
`
`Support of Second Petition for Inter
`
`Partes Review of Patent No. 7,767,657
`
`
`
`Tissue uptake of BSH in patients with
`
`glioblastoma in the EORTC 11961 phase I
`
`BNCT trial
`
`EXHIBIT
`
`Boron neutron capture therapy of brain
`
`tumors: Clinical trials at the Finnish
`
`facility using boronophenylalanine
`
`EXHIBIT
`
`Boron neutron capture therapy (BNCT)
`
`for
`
`glioblastoma multiforme: A phase II
`
`study evaluating a prolonged high—dose
`
`
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`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`WEDNESDAY, SEPTEMBER 14, 2016,
`
`P R O C E E D I N G S
`
`——oOo——
`
`(ANACOR EXHIBITS 79*81 WERE MARKED.)
`
`STEPHEN B. KAHL, Ph.D.,
`
`called as a witness, after having been duly sworn by
`
`the Certified Shorthand Reporter to tell the truth,
`
`the
`
`whole truth, and nothing but
`
`the truth,
`
`testified as
`
`follows:
`
`BY MR. EPPICH:
`
`EXAMINATION
`
`Q. Good morning, Dr. Kahl.
`
`A.
`
`Good morning.
`
`rules.
`
`Q. My name is Chris Eppich.
`
`I represent the
`
`patent owner, Anaoor Pharmaceuticals,
`
`in these
`
`proceedings.
`
`Before we get started,
`
`is there any reason
`
`that you cannot testify truthfully today?
`
`A. No.
`
`Q. Are you on any medication that would inhibit
`
`your ability to testify truthfully today?
`
`A. No.
`
`Q.
`
`I know you've been deposed at least once
`
`before, but I'd like to cover a few of the ground
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`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`I'll be asking you a few questions, and you'll
`
`Page 8
`
`respond to those questions. Your counsel may object,
`
`as he did the last time we were together, but you still
`
`will need :0 answer those questions unless he instructs
`
`
`
`you not
`
`to and you follow that instruction.
`
`It's important that we try not
`
`to talk over
`
`each other so that we can make the transcript Clear.
`
`And I'll endeavor to make my questions clear. But if
`
`
`
`A. No.
`
`you have any questions about my questions,
`
`if I'm vague
`
`in any way,
`
`50.
`
`just ask me to clarify, and I'll gladly do
`
`
`
`If you need to take a break, you know,
`
`just
`
`ask, and we'll get
`
`to get a break for you.
`
`I'd just
`
`ask that if a question is pending, you answer the
`
`question before we break.
`
`A.
`
`Sure.
`
`Q A
`
`Do you understand these rules today?
`
`. Yes.
`
`Q Great.
`
`Now, your last deposition in this matter was
`
`in April, on April 8th, 2016; correct?
`
`A. That's correct.
`
`Q. Have you been deposed in any other matter
`
`since that deposition?
`
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`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`Page 9
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`Q. Have you provided testimony at trial or any
`
`
`
`hearing in any matter since that deposition?
`
`A. No.
`
`Q.
`
`Since your last deposition in April, have you
`
`received any documents from your counsel
`
`in this case?
`
`A. Yes.
`
`Q. Which documents has your counsel provided you?
`
`A.
`
`Oh,
`
`there's a fairly lengthy list.
`
`I can't —~
`
`
`
`I couldn't possibly sum it all.
`
`Q.
`
`Do you log the documents in some kind of a
`
`list that you receive from your counsel?
`
`A. No.
`
`Q. Have you cited to all of these documents in
`
`your recent reply declaration?
`
`A.
`
`I've used all of the documents to construct
`
`the declaration, yes, or to inform my statements in the
`
`declaration, yes.
`
`Q. Were there any documents that your counsel
`
`provided you that you did not cite to in your reply
`
`Q. What materials did you bring with you to the
`
`declaration?
`
`A.
`
`I don‘t believe so.
`
`Q.
`
`I see that you have some materials in front of
`
`you in a folder today.
`
`A. Mm—hm.
`
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`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`deposition?
`
`A.
`
`I have a copy of my declaration.
`
`I have a
`
`copy of Dr. Reider‘s deposition —— declaration, sorry.
`
`I have a copy of the Baker review paper. Both
`
`of the Baker review papers. And I have notes that
`
`we -- that
`
`I had at our last deposition on Austin,
`
`Freeman and Brehove.
`
`Just these are my notes that you
`
`all xeroxed last time.
`
`I have one additional sheet, which basically
`
`has references to neutron capture therapy papers on it.
`
`Q. Okay.
`
`Thank you, Dr. Kahl.
`
`A. Okay.
`
`Q. We'Ll set those aside for now and come back to
`
`when we were prepping for this.
`
`them later in the deposition.
`
`
`
`A. Okay.
`
`Q. We'll probably —— we‘ll get some copies at a
`
`break,
`
`like we did in the last deposition.
`
`A.
`
`Mm—hm.
`
`Q.
`
`Let me hand you what has been marked as
`
`Exhibit Number 79. Exhibit 79 is Anacor
`
`Pharmaceuticals' notice of deposition of Stephen B.
`
`Kahl
`
`in IPR2015-01??6.
`
`Dr. Kahl, have you seen this document before?
`
`A.
`
`I believe I have.
`
`I
`
`think I saw it yesterday
`
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`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`Q. Okay. Let me hand you what has been marked as
`
`Page 11
`
`Exhibit 80. Exhibit 80 is Anacor Pharmaceuticals‘
`
`notice of deposition of Stephen B. Kahl
`
`in
`
`IPR2015*01?80.
`
`Dr. Kahl, have you seen this document before?
`
`A.
`
`I believe, yes.
`
`Q. And let me mark finally,
`
`the last of the
`
`notices, Exhibit 81. This is Anacor Pharmaceuticals'
`
`notice of deposition of Stephen B. Kahl
`
`in
`
`IPR2015-01?85.
`
`And, Dr. Kahl, have you seen this document
`
`before?
`
`A.
`
`I believe I have.
`
`Q. Are you —— you‘re appearing today in response
`
`the Baker papers in
`
`
`
`to these notices?
`
`A. Yes.
`
`Q. And you —— just for confirmation, you're
`
`appearing on behalf of the Coalition for Affordable
`
`Drugs x LLC?
`
`A. Correct.
`
`Q. What did you do to prepare for the deposition
`
`today?
`
`A.
`
`I reviewed my declaration with counsel.
`
`I
`
`also reviewed a number of —— re-reviewed a number of
`
`the papers that I referred to,
`
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`Stephen B. Kahl1 PhD.
`
`September 14, 2016
`
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`
`particular. And some of my BNCT notes, boron neutron
`
`Page 12
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`capture therapy.
`
`Sorry for the acronym.
`
`Q. When you say your declaration, are you
`
`referring to your second declaration that you
`
`submitted ——
`
`A. Yes.
`
`Q A
`
`Q
`
`—— with a reply?
`
`. Yes.
`
`Thank you.
`
` In addition to the Baker articles and your
`
`declaration?
`
`notes on —— on boron neutron therapy, did you —— did
`
`you review any other documents?
`
`A.
`
`I reviewed other doc -- other papers that were
`
`provided to me by counsel.
`
`Q.
`
`Do you remember what papers counsel provided
`
`to you that you reviewed yesterday?
`
`A.
`
`As
`
`I said,
`
`I have quite a —— I received a —— a
`
`significant number of literature papers.
`
`The Groziak
`
`papers, both the Groziak papers; Dr. Reider‘s
`
`declaration.
`
` know there were others, but
`
`I can't recall
`
`exactly the names of them.
`
`Q.
`
`Do you remember if all of the papers that you
`
`reviewed yesterday were cited in your reply
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`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`A.
`
`By "cited," do you mean specifically cited
`
`Page 13
`
`with the reference?
`
`Q. Yes, sir.
`
`A. No,
`
`I don't believe so.
`
`These were —~ well,
`
`let me check my declaration again.
`
`Yes.
`
`They -- I believe they all would have
`
`been cited.
`
`Q.
`
`Thank you, Dr. Kahl.
`
`A. Mm—hm.
`
`yesterday?
`
`With whom did you meet yesterday?
`
`Ryan, and Peter Gergely.
`
`Q A
`
`Q. Other than your meeting with counsel
`
`yesterday, did you have any other meetings with counsel
`
`to prepare for today‘s deposition?
`
`A. No.
`
`Q.
`
`For how long did you meet with Mr. Fletcher
`
`and Mr. Gergely yesterday?
`
`A. Approximately five hours.
`
`Q. What did you discuss?
`
`A.
`
`We discussed this deposition.
`
`Q. Did you discuss any of the references that you
`
`cited specifically?
`
`A. Yes.
`
`Q. Did you take any notes from your meeting
`
`
`
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`Stephen B. Kahl, PhD.
`
`September 14, 2016
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`San Francisco, CA
`
`A. No.
`
`Q. During your meetings with counsel yesterday,
`
`did counsel give you any documents during that session?
`
`A.
`
`By new —— do you mean new documents? Or do
`
`you mean documents that I either already had but didn't
`
`bring to the session or ~~
`
`Q. Let's start with the broader, all documents,
`
`and then narrow it down.
`
`A.
`
`I don't —— I don't think so.
`
`I don't think he
`
`did give me any new documents or any documents.
`
`Q. You'd seen all the documents that you guys
`
`reviewed yesterday?
`
`A.
`
`Oh, yes. Yes. Yes.
`
`Q. Okay.
`
`A. Yeah.
`
`documents?
`
`If I carried around all the documents that I
`
`have with respect to this case,
`
`I would have —— have to
`
`have somebody help me. As would you.
`
`Q. Did you talk to anyone else in preparation for
`
`your deposition today, other than Mr. Gergely and
`
`Mr. Fletcher?
`
`A. Yes,
`
`I
`
`talked to my wife.
`
`Q.
`
`Now, since you signed the reply declaration,
`
`has counsel for CFAD provided you with any additional
`
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`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
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`
`A.
`
`I don't believe so, no.
`
`Q. Did you perform any literature searching in
`
`preparation of your reply declaration?
`
`A.
`
`NO.
`
`Q. Did you perform any literature searching in
`
`preparation for your deposition today?
`
`A. No.
`
`Q. Have you performed any literature searching in
`
`preparation of your first declaration in this matter?
`
`MR. FLETCHER: Objection.
`
`Scope.
`
`THE WITNESS:
`
`I believe I did, but that was
`
`long enough ago that I —e
`
`I can't be certain.
`
`BY MR. EPPICH:
`
`Q.
`
`I'm handing you what has been previously
`
`marked CFAD Exhibit 1043 in IPR2015—01776.
`
`
`
`Do you recognize Exhibit 1043?
`
`A. Yes,
`
`I do.
`
`Q. And what is Exhibit 1043?
`
`A. This is my declaration. Let's call it my
`
`second declaration.
`
`Q.
`
`You submitted Exhibit 1043, your second
`
`declaration,
`
`in support of the petitioner's reply
`
`brief?
`
`A. Yes.
`
`The
`
`Q.
`
`Can we turn to page 18 of Exhibit 1043.
`
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`
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`
`last page.
`
`A. Mm—hm.
`
`Q.
`
`On the bottom of the last page, page 18,
`
`is
`
`that your signature?
`
`A
`
`Yes, it is.
`
`Q. And when did you sign this document?
`
`A
`
`It‘s dated the 22nd of August of 2016.
`
`Q. And when you signed this declaration, did you
`
`understand that you were attesting that everything in
`
`the declaration is true and correct under the penalty
`
`of perjury?
`
`A. Yes.
`
`to get it today.
`
`Q. And do you understand that today you‘re
`
`testifying under the penalty of perjury?
`
`A. Yes.
`
`Q.
`
`Is everything in your declaration Exhibit 1043
`
`true and correct?
`
`A.
`
`To the best of my knowledge. yes.
`
`Q. Are there any corrections to the declaration
`
`that you'd like to make at this time?
`
`A. No.
`
`Q. Any errors of which you‘re aware?
`
`A. There are a couple —— there's a word
`
`capitalized that doesn't need to be, but we don't need
`
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`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`Okay. We‘ll let that one go.
`
`A. Okay.
`
`I'm a perfectionist.
`
`Q.
`
`So during the preparation of Exhibit 1043,
`
`your second reply declaration, did CFAD's counsel
`
`provide you with a draft of the declaration for you to
`
`review?
`
`MR. FLETCHER: Objection.
`
`I
`
`think —— you can
`
`answer, but objection.
`
`I
`
`think discovery re the draft declaration is
`
`protected by Rule 26.
`
`But go ahead.
`
`
`THE WITNESS: We jointly discussed all of the
`
`things that were in the declaration, and this is the
`
`found it acceptable and agreeable, and that‘s
`
`document that came out of that.
`
`BY MR. EPPICH:
`
`
`
`Q. Did counsel draft a declaration that counsel
`
`handed to you for discussion?
`
`A. We both —— we both worked on the dec —— on the
`
`draft.
`
`Q. Did you write the declaration together,
`
`paragraph by paragraph?
`
`A.
`
`I wouldn't —— we talked about it, and they put
`
`it into —— they added my suggestions.
`
`I discussed
`
`their suggestions. We came up with a draft.
`
`I
`
`looked
`
`it over,
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`WWW. aldersonreporting. com
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`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`what
`
`I signed.
`
`Q.
`
`So just so I understand, you talked with
`
`counsel for GRAD.
`
`You reviewed the draft, added any edits to the draf
`
`CFAD's attorneys prepared a draft.
`
`MR. FLETCHER: Objection. Asked and answered.
`
`provided those comments to CFAD's counsel, who then
`
`provided you with another draft of the declaration;
`
`is
`
`that correct?
`
`MR. FLETCHER: Objection. Misstates the
`
`witness‘s testimony. Objection. Asked and answered.
`
`THE WITNESS:
`
`Please repeat the question.
`
`I
`
`want
`
`to be sure I understand you exactly.
`
`
`
`BY MR. EPPICH:
`
`Q. Absolutely.
`
`In preparing the draft of the declaration
`
`Exhibit 1043, did you first meet with counsel
`
`to
`
`discuss the draft of the declaration?
`
`A. We did not meet
`
`in person. We did this over
`
`the phone.
`
`Q. And what happened after your telephone
`
`conference with counsel?
`
`A.
`
`As
`
`I said, we came up with a draft, which I
`
`then approved, and signed.
`
`Q. Did they provide you with a copy of the draft
`
`declaration after your phone call?
`
`1-800-FOR—DEPO
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`Alderson Court Reporting
`
`
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`Stephen B. Kahl, PhD.
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`September 14, 2016
`
`San Francisco, CA
`
`THE WITNESS:
`
`I
`
`think I did answer that.
`
`BY MR. EPPICH:
`
`Q.
`
`I may have just not understood, sir.
`
`Did you physically type the draft declaration
`
`or did counsel for CFAD?
`
`A. Did I physically type it? No.
`
`Q.
`
`So counsel for CFAD provided you with a draft
`
`declaration?
`
`A. Yes.
`
`Q. And what did you ——
`
`A. We --
`
`I don‘t.
`
`Q. —- do with the declaration once you received
`
`the draft declaration?
`
`MR. FLETCHER:
`
`Can you let him finish and
`
`answer that?
`
`MR. EPPICH: Of course.
`
`THE WITNESS:
`
`I
`
`then reviewed it to make sure
`
`that it was —— it was correct.
`
`I added —- changed
`
`things, added things,
`
`the way any document that one is
`
`going to sign, particularly a legal document. And sent
`
`it back and signed it.
`
`BY MR. EPPICH:
`
`Q.
`
`Do you recall how many drafts you sent to and
`
`from with counsel for CFAD?
`
`A.
`
`No,
`
`
`
`l-SOO-FOR-DEPO
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`WW. aldersonreporting. com
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`Alderson Coun Reporting
`
`
`
`Stephen B. Kahl, PhD.
`San Francisco, CA
`
`September 14, 2016
`
`Q. Was it more than one?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`Page 20
`
`26.
`
`THE WITNESS:
`
`I honestly do not remember
`
`whether it was more than one or more than two or
`
`whatever.
`
`I was actually on vacatiOn when I did this,
`
`so
`
`BY MR. EPPICH:
`
`Q.
`
`So how did you correspond with counsel for
`
`CFAD?
`
`By e—mail?
`
`Fax?
`
`A.
`
`E—mail and telephone.
`
`Q. And do you have copies of those e—mails with
`
`the drafts attached?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`26.
`
`THE WITNESS:
`
`I don't believe that
`
`I do.
`
`BY MR. EPPICH:
`
`Q.
`
`You haven‘t saved ——
`
`A.
`
`I don‘t have them with me,
`
`that's for sure.
`
`Q. Are they in your computer in your home or
`
`office?
`
`MR. FLETCHER: Objection. Rule 26.
`
`THE WITNESS: That‘s where they would be if I
`
`have them, yes.
`
`MR. EPPICH:
`
`So Counsel,
`
`I'm requesting that
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
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`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`:4
`
`:5
`
`
`
`L6
`
`L7
`
`l8
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
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`1—800-FOR—DEPO
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`www.aldersonreporting.00m
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`Alderson Court Reporting
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`
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`Stephen B. Kahl, PhD.
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`September 14, 2016
`
`San Francisco, CA
`
`CFAD would immediately produce copies of the drafts and
`
`Page 21
`
`communications going back and forth with Dr. Kahl,
`
`regarding the preparation of this reply declaration.
`
`MR. FLETCHER:
`
`We have your request. We
`
`believe it's protected by Rule 26.
`
`BY MR. EPPICH:
`
`Q. And just to be clear, Dr. Kanl, you did not
`
`write the first draft of the declaration yourself;
`
`
`
`correc:?
`
`BY MR. EPPICH:
`
`
`
`MR. FLETCHER: Objection. Misstates the
`
`witness's testimony. Objection. Asked and answered.
`
`THE WITNESS:
`
`I did not physically write it.
`
`Not the -- no.
`
`BY MR- EPPICH:
`
`Q. Dr. Kahl, did you review and understand all of
`
`the paragraphs in sections of the reply declaration
`
`before you signed it?
`
`A. Yes.
`
`Q. Did you have any questions that you discussed
`
`with counsel about any of the paragraphs?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS: We
`
`~— we probably —— we may
`
`have.
`
`I don't recall.
`
`1-8 00-FOR—DEPO
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`Alderson Court Reporting
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`
`
`Stephen B. Kahl, PhD.
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`September 14, 2016
`
`San Francisco, CA
`
`Q.
`
`Do you recall any of the changes you made,
`
`for
`
`Page 22
`
`example to paragraph 1 of your declaration?
`
`MR. FLETCHER: Objection. Protected by --
`
`objection. Protected by Rule 26.
`
`THE WITNESS:
`
`To paragraph 1? No.
`
`BY MR. EPPICH:
`
`Q.
`
`You had no changes to paragraph number 1?
`
`MR. FLETCHER: Objection. Misstates the
`
`witness's testimony. Objection. Protected by Rule 26.
`
`THE WITNESS:
`
`NO.
`
`BY MR. EPPICH:
`
`
`
`Q.
`
`Do you remember if you had any changes to
`
`paragraph number 2?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS:
`
`I don't recall.
`
`I doubt it.
`
`It's pretty much boilerplate.
`
`BY MR. EPPICH:
`
`Q.
`
`How about paragraph number 3?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS: Similarly.
`
`BY MR. EPPICH:
`
`Q. And any changes to paragraph number 4?
`
`1-8 00-FOR—DEPO
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`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
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`San Francisco, CA
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`Page 23
`
`THE WITNESS:
`
`I don't think so. Boilerplate
`
`EPPICH:
`
`Did you make any changes to paragraph number
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS:
`
`I don't believe so.
`
`EPPICH:
`
`Did you make any changes to paragraph number
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS: No,
`
`it accurately reflects that
`
`I read the —— Reider's declaration.
`
`BY MR. EPPICH:
`
`Q. Did you make any changes to paragraph number
`
`A.
`
`I don't know.
`
`MR. FLETCHER: Objection. Protected by Rule
`
`
`
`Do you recall any other changes that you made
`
`THE WITNESS:
`
`I don't recall.
`
`
`BY MR. EPPICH:
`
`Q.
`
`1-800-FOR—DEPO
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`www.mdersonreporting. com
`
`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`to any of the paragraphs in your declaration?
`
`Page 24
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS: Not specifically, no.
`
`As
`
`I said. we jointly put this together, and
`
`it represents my input as well as their input, and
`
`accurately reflects my positions.
`
`BY MR. EPPICH:
`
`Q. Approximately how many hours did you spend
`
`working on the draft of your second reply declaration?
`
`A.
`
`I have no idea.
`
`Q. Did you review any drafts of the reply brief
`
`Was it 15 hours?
`
`A: least.
`
`
`
`I: was more than 15?
`
`I —— honestly,
`
`I really don‘t recall.
`
`In paragraph I of your declaration, it states
`
`Q A Q
`
`.
`
`A Q
`
`
`
`that you're providing your expert opinions in support
`
`of petitioner‘s petition for inter partes review of
`
`Patent Number ?,582,621,
`
`the '621 patent. and in reply
`
`to patent owner‘s response pursuant
`
`to 3? CFR 42.120?
`
`A. Mm—hm.
`
`I‘m sorry, yes.
`
`Q. And you're referring to CFAD's reply brief
`
`there; correct?
`
`A. Yes.
`
`l-800-FOR-DEPO
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`
`Alderson Court Reporting
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`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`that CFAD submitted in this action?
`
`Page 25
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS:
`
`I may have.
`
`I don't recall.
`
`BY MR. EPPICH:
`
`Q.
`
`Do you remember when you remember seeing a
`
`reply brief?
`
`A.
`
`I -- I -- no,
`
`I do not.
`
`Q.
`
`Do you remember making any markups or changes
`
`to the reply brief after you read it?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`It appears to be my declaration.
`
`
`
`THE WITNESS:
`
`To the reply brief. No,
`
`I don't
`
`recall.
`
`BY MR. EPPICH:
`
`Q. Did you have any communications with counsel
`
`for CFAD regarding the reply brief?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS:
`
`I don't believe so.
`
`BY MR. EPPICH:
`
`Q.
`
`So I'm handing you what has been previously
`
`marked as CFAD Exhibit 1069 in IPR2015—01780.
`
`Do you recognize this document?
`
`A. Yes.
`
`1 -8 00-FOR-DEPO
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`WWW. aldersonreporti 11g. com
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`Alderson Conn Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`Q. And this is the second declaration you
`
`submitted for the inter partes review of U.S. Patent
`
`Page 26
`
`Number 7,767,657; correct?
`
`A. Correct.
`
`Q.
`
`Now, can we -— we do agree we could refer to
`
`this declaration as Exhibit 1069—1 because there are
`
`two exhibits 1069, as you'll see in a second.
`
`A. Okay.
`
`BY MR. EPPICH:
`
`Q.
`
`So let's —— let’s go ahead and mark this one
`
`as Exhibit 1069—1.
`
`Please turn to page 18 of Exhibit 1069—1.
`
`On the bottom of page 18, Dr. Kahl,
`
`is that
`
`your signature?
`
`A.
`
`It is.
`
`Q. And when did you sign this document?
`
`A. August 22nd.
`
`Q. And again,
`
`like Exhibit 1043, when you signed
`
`this document, did you understand you were attesting
`
`that everything is true and correct under penalty of
`
`perjury?
`
`A. Yes.
`
`Q.
`
`Is everything in your declaration Exhibit
`
`1069—1 true and correct?
`
`A.
`
`To the best of my knowledge, yes.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`?
`
`8
`
`9
`
`10
`
`ll
`
`12
`
`13
`
`L4
`
`:5
`
`
`
`16
`
`1?
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
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`Alderson Coun Reporting
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`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`Q. Are there any corrections that need to be made
`
`Page 27
`
`to your declaration today?
`
`A.
`
`I'm not aware of any.
`
`Q.
`
`How did you prepare the declaration —— the
`
`second declaration, Exhibit 1069-1?
`
`MR. FLETCHER: Objection. Protected by Rule
`
`THE WITNESS:
`
`I —-
`
`in the same manner that I
`
`prepared Exhibit 1043.
`
`BY MR. EPPICH:
`
`Q.
`
`You received a draft of the declaration that's
`
`Exhibit 1069-1 from counsel for CFAD?
`
`submitted for inter partes review of the second
`
`MR- FLETCHER: Objec:ion. Asked and answered.
`
`
`
`Objection. Misstates the witness's testimony.
`
`THE WITNESS: After discussing the matter,
`
`it
`
`was the same procedure as the 1043, yes.
`
`
`BY MR. EPPICH:
`
`Q.
`
`Let me hand you what has been previously
`
`
`marked as CFAD Exhibit 1069 in IPR20lS~0185.
`
`Do you recognize this document, Dr. Kahl?
`
`A.
`
`I believe you meant 01785.
`
`Q. You‘re right.
`
`Thank you.
`
`A.
`
`I —— yes,
`
`I __ well, yes.
`
`Q. This is the second declaration that you
`
`l-SOO-FOR-DEPO
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`WWW. aldersonreporting. corn
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`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`petition of the '657 patent; correct?
`
`A.
`
`I believe so, yes.
`
`Q. And again, because the exhibit shows the same
`
`Exhibit 1069, let's refer to this declaration as
`
`Exhibit 1069—2.
`
`Okay.
`
`And again, let's turn to page 18 of Exhibit
`
`And at the bottom of page 18 of Exhibit
`
`is that your signature, Dr. Kahl?
`
`It is.
`
`And when did you sign this document?
`
`August 22nd, 2016.
`
`A.
`
`Q.
`
`A.
`
`Q. And when you signed this, did you understand
`
`that you were attesting that everything in this
`
`declaration is true and correct under penalty of
`
`perjury?
`
`A.
`
`To the best of my knowledge, yes.
`
`Q. Are there any corrections to your declaration
`
`
`
`reply declaration?
`
`that you'd like to make today?
`
`Not that I'm aware of.
`
`Any errors you're aware?
`
`No.
`
`Q. Could you explain to me how you prepared this
`
`1- 8 00-FOR-DEPO
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`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`A.
`
`In the same —— it was prepared in the same
`
`Page 29
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`manner as 1069—1 and 1043.
`
`Q. And that's to say that your counsel provided
`
`you with a draft of Exhibit 1069—2?
`
`
`
`declarations? Or did you write changes in each of the
`
`A.
`
`I
`
`think what I said was that we discussed all
`
`of the issues involved, and then the —-
`
`then counsel
`
`provided me with a draft, and then I had my remaining
`
`input.
`
`Q.
`
`Thank you.
`
`I'd like you to look at the second
`
`declarations that you submitted in the three IPR cases
`
`here, Exhibit 1043,
`
`1069—1 and 1069—2.
`
`Dr. Kahl, as we go through the declarations,
`
`is it accurate to say that each of the paragraphs in
`
`Exhibit 1043 are the same as the corresponding
`
`paragraphs in Exhibits 1069—1 and 2, with the exception
`
`of case caption, patent numbers and some of the exhibit
`
`numbers?
`
`A. Yes,
`
`I believe that's true.
`
`I haven‘t
`
`looked
`
`at every single one, but
`
`they certainly do appear to be
`
`the same.
`
`Q. And during the drafting process of these reply
`
`declarations, did you suggest changes to the draft or
`
`one of the declarations that were applied to all three
`
`
`
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`Stephen B. Kahl, PhD.
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`September 14, 2016
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`San Francisco, CA
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`drafts of the three separate declarations?
`
`Page 30
`
`MR. FLETCHER: Objection. Asked and answered.
`
`Objection. Protected by Rule 26.
`
`THE WITNESS:
`
`I
`
`think I —— I —— excuse me.
`
`What —— since the —*
`
`the paragraphs in all
`
`three declarations are the same, whatever I suggested
`
`would have been applied to all three, yes.
`
`BY MR. EPPICH:
`
`Q. Was there one declaration that —— draft
`
`declaration that you were provided with first?
`
`
`
`But you'll agree that your testimony for the 1776
`
`
`
`MR. FLETCHER: Objection.
`
`BY MR. EPPICH:
`
`Q.
`
`Or were you provided with copies of all three
`
`declarations at the same time?
`
`A.
`
`I don't recall.
`
`Q. You'd agree that if I ask you a question with
`
`respect to paragraph 7.
`
`for example,
`
`in Exhibit
`
`l043
`
`for the 1776 case, would you agree that your answers
`
`would be the same as they would be for questions
`
`relating to paragraph 7
`
`in either Exhibit 1069—1 or
`
`Exhibit 1069—2?
`
`A. Yes.
`
`Q.
`
`So for purposes of today's deposition,
`
`let‘s
`
`just refer to the 1776 declaration for convenience.
`
`1 ~800-FOR—DEPO
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`
`Stephen B, Kahl, PhD.
`
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`
`San Francisco, CA
`
`declaration will equally apply to the 1780 and 85
`
`cases?
`
`If —— if we stipulate that the declarations
`
`the same, yes.
`
`Okay. And are they all the same, sir?
`
`They do appear to me to be the same.
`
`Okay. And thank you.
`
`And we‘ll also refer to the exhibit numbers in
`
`the 1776 declaration, but will you also agree that your
`
`testimony relating to those exhibits applies to the
`
`A. Yes.
`
`same exhibits?
`
`A. Yes.
`
`Q.
`
`Thank you.
`
`Do you recall where you were on August 22nd,
`
`2016?
`
`A.
`
`I was at my home in Portola Valley,
`
`California.
`
`Q.
`
`Do you remember what you were doing on August
`
`22nd, 2016?
`
`MR. FLETCHER: Objection. Relevance.
`
`THE WITNESS: What
`
`I was doing.
`
`I was
`
`probably unpacking from my —— my vacation.
`
`BY MR. EPPICH:
`
`Q.
`
`Do you have a computer in your home, sir?
`
`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`MR. FLETCHER: Objection. Relevance.
`
`BY MR. EPPICH:
`
`Q.
`
`Do you have access to a scanner in your home?
`
`MR. FLETCHER: Objection. Relevance.
`
`THE WITNESS: Yes.
`
`BY MR. EPPICH:
`
`Q. Let's turn to Exhibit 1043 and back to page 18
`
`of that exhibit.
`
`Now, you confirmed earlier that this is your
`
`signature on the bottom of page 18; correct?
`
`A. Mm—hm. Electronic, yes. That is my
`
`signature.
`
`Q. What do you mean by "electronic"?
`
`Ad This is —— I
`
`think you know what
`
`I mean by
`
`Adobe does it, but *-
`
`"electronic."
`
`It‘s -a I have made —— I have made this
`
`
`
`signature so that
`
`I can apply it to documents such as
`
`this.
`
`Q. And how did you make this signature?
`
`A.
`
`I used Adobe software, whatever the
`
`appropriate software is.
`
`Q. Did you sign a piece of paper and then scan it
`
`into Adobe?
`
`A.
`
`Boy,
`
`I don't recall.
`
`It's been a long time
`
`since I made the signature.
`
`I don't think that's how
`
`1- BOO-FOR-DEPO
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`Alderson Court Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`Q. Okay.
`
`A.
`
`I
`
`think you actually use your finger to
`
`approximately write —- obviously,
`
`if I were to sign, my
`
`signature would look a little different than what this
`
`looks like.
`
`Q. But
`
`the signature we see on page 18 of Exhibit
`
`1043 is not a handwritten signature; correct?
`
`A. Yes, it is.
`
`Q.
`
`A.
`
`It is a handwritten signature?
`
`It's l- I handwrote the Adobe facsimile. This
`
`is not —— of course not. This is -— what would you
`
`call it? An electronic version of my signature.
`
`Q. Did you insert this electronic version of your
`
`signature? Or did your counsel insert the electronic
`
`
`
`signature?
`
`signature into Exhibit 1043?
`
`A.
`
`I inserted it.
`
`Q.
`
`Do you remember when you inserted your
`
`signature, your electronic signature into Exhibit 1043?
`
`A. August 22nd.
`
`Q. Did any earlier drafts of your reply
`
`declaration include your electronic signature?
`
`A. No.
`
`Q.
`
`Do you recall if there were any changes made
`
`to Exhibit 1043 after you inserted your electronic
`
`1-8 00-FOR—DEPO
`
`WWW. aldersonreporti 11g. com
`
`Alderson Coun Reporting
`
`
`
`Stephen B. Kahl, PhD.
`
`September 14, 2016
`
`San Francisco, CA
`
`A.
`
`There were no changes made to it after I
`
`inserted my signature.
`
`Q. Why didn't you submit your declaration with a
`
`handwritten signature as you did your first declaration
`
`submitted with the petition?
`
`A. This was simply more convenient. And I
`
`believe that there was also a time issue because I had
`
`
`
`declarations?
`
`been aw
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