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` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` FlatWing Pharmaceuticals, LLC,
` Petitioner
` vs.
` Anacor Pharmaceuticals, Inc.,
` Patent Owner
`
` Case No. 2018-00168
` Patent No. 9,549,938
` Case No. 2018-00169
` Patent No. 9,566,289
` Case No. 2018-00170
` Patent No. 9,566,290
` Case No. 2018-00171
` Patent No. 9,572,823
`
` DEPOSITION OF STEPHEN B. KAHL, Ph.D.
` Chicago, Illinois
` Thursday, August 23, 2018
`
`Reported by: JANICE M. KOCEK, CSR, CLR
`Job No: 146559
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`Anacor Exhibit 2017
`Flatwing Pharmaceuticals, Inc. v. Anacor Pharmaceuticals, Inc
`IPR2018-00170
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`

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` August 23, 2018
` 9:00 a.m.
`
` The deposition of STEPHEN B. KAHL,
`Ph.D., held at the offices of Husch Blackwell,
`LLP, Chicago, Illinois, before Janice M. Kocek,
`a Certified Shorthand Reporter, Certified
`LiveNote Reporter and Notary Public of the
`State of Illinois.
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`Anacor Exhibit 2017
`Flatwing Pharmaceuticals, Inc. v. Anacor Pharmaceuticals, Inc
`IPR2018-00170
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`A P P E A R A N C E S:
` HUSCH BLACKWELL
` Attorneys for Petitioner
` 120 South Riverside Plaza
` Chicago, IL 60606
` BY: PHILIP SEGREST, ESQ.
`
` WILLIAMS & CONNOLLY
` Attorneys for Patent Owner
` 725 Twelfth Street Northwest
` Washington, DC 20005
` BY: ANTHONY SHEH, ESQ.
` AARON MAURER, ESQ.
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`Anacor Exhibit 2017
`Flatwing Pharmaceuticals, Inc. v. Anacor Pharmaceuticals, Inc
`IPR2018-00170
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`

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` S. KAHL, Ph.D.
` (Witness sworn.)
`S T E P H E N K A H L , P h. D. ,
` called as a witness, having been duly
` sworn by a Notary Public, was examined
` and testified as follows:
`EXAMINATION BY
`MR. SHEH:
` Q. Good morning, Dr. Kahl.
` A. Good morning.
` Q. My name is Anthony Sheh. I'm here
`on behalf of Anacor Pharmaceuticals and Owner.
`With me is Aaron Maurer, also on behalf of
`Anacor.
` Could you please state your name and
`address for the record?
` A. My name is Stephen Bruce Kahl. I
`live at 1 Lerida Court, Portola Valley,
`California.
` Q. And it's pronounced Kahl?
` A. Kahl.
` Q. I apologize.
` A. No worries.
` Q. And you're appearing here today as
`an expert witness on behalf of FlatWing
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`Anacor Exhibit 2017
`Flatwing Pharmaceuticals, Inc. v. Anacor Pharmaceuticals, Inc
`IPR2018-00170
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` S. KAHL, Ph.D.
`Pharmaceuticals; is that correct?
` A. That's correct.
` Q. And you understand that there are
`four IPR proceedings in which you submitted
`four declarations in.
` Do you understand that?
` A. I do.
` Q. And you also understand that today's
`deposition is a combined deposition for all
`four proceedings?
` A. I do.
` (Patent Owner's Exhibit 1003,
` Exhibit 1003-A, 1003-B, and
` Exhibit 1003-C were marked
` for identification.)
`BY MR. SHEH:
` Q. Okay. In front of you I have
`already marked your declarations. Because
`FlatWing has marked the declarations all as
`Exhibit 1003, you'll see that we've applied
`differentiator at the end, a little suffix.
` So your declaration in IPR
`2018-00168 is 1003. Your declaration IPR
`2018-00169 is 1003-A. Your declaration in IPR
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`Anacor Exhibit 2017
`Flatwing Pharmaceuticals, Inc. v. Anacor Pharmaceuticals, Inc
`IPR2018-00170
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` S. KAHL, Ph.D.
`2018-00170 is Exhibit 1003-C -- sorry -- B.
` A. B.
` Q. And your declaration in IPR
`2018-00171 is Exhibit 1003-C.
` A. Correct.
` Q. Does that make sense? Do you
`understand?
` A. I do.
` Q. Okay. And you agree that there is a
`substantial overlap in the declarations and the
`subject matter?
` A. Yes.
` MR. SEGREST: Object to form.
`BY MR. SHEH:
` Q. Could you turn to paragraph 14 of
`any one of the declarations. Is that the list
`of references that you considered in your
`declaration?
` MR. SEGREST: Object to the form.
` THE WITNESS: For Exhibit 1003, the
` list appears to be correct.
`BY MR. SHEH:
` Q. Did you consider any other
`references besides those on the list?
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` S. KAHL, Ph.D.
` MR. SEGREST: Object to form.
` THE WITNESS: No.
`BY MR. SHEH:
` Q. And if you flip to the end, last
`page, is that your signature?
` A. It is.
` Q. And did you carefully review your
`declarations before signing them?
` A. Yes, I did.
` Q. Is there anything that you wanted to
`change upon -- after signing them?
` A. No.
` Q. Are there any additional opinions
`you wanted to express?
` MR. SEGREST: Object to form.
` THE WITNESS: No.
`BY MR. SHEH:
` Q. Okay. And you can feel free to
`refer to your declarations at any time.
` (Patent Owner's Exhibit 1001,
` Exhibit 1001-A, Exhibit 1001-B,
` and Exhibit 1001-C were marked
` for identification.)
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` S. KAHL, Ph.D.
`BY MR. SHEH:
` Q. You'll also notice that in front of
`you we placed four patents at issue in the four
`IPRs. You'll see again we've applied a little
`differentiator.
` So U.S. Patent 9,544,938 is Exhibit
`1001. U.S. patent 9,566,289 is Exhibit 1001-A.
`U.S. patent 9,566,290 is Exhibit 1001B. And
`exhibit -- sorry, U.S. patent 9,572,823 is
`Exhibit 1001-C.
` A. Okay. I see that.
` Q. So Dr. Kahl, you've been deposed
`before; is that correct?
` A. That's correct.
` Q. And you understand that today you're
`under oath?
` A. I do.
` Q. And is there any reason why you
`cannot testify truthfully today?
` A. No.
` Q. Are you on any medications that
`would prevent from you testifying truthfully?
` A. No.
` Q. Are there any other reasons why you
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`couldn't testify truthfully today?
` MR. SEGREST: Object to form.
` THE WITNESS: No.
`BY MR. SHEH:
` Q. And as you're no doubt aware, this
`deposition is being recorded stenographically.
`So we will try to make all your answers verbal,
`yeses or noes, corrects or incorrects, that way
`the reporter can pick them up.
` A. I do.
` Q. And if you need a break at any time,
`please let me know and we'll try to take a
`break at the earliest possible time after the
`question is done.
` Can you turn to paragraph 21 of any
`of your declarations, please. Is it your
`understanding that the earliest priority date
`of the patents in this case is February 16,
`2005?
` A. I do.
` Q. And you don't express an opinion on
`whether there's a different priority date,
`correct?
` A. That's correct.
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` S. KAHL, Ph.D.
` Q. And so you'll understand for the
`purposes of your testimony that when I refer to
`the priority dates, I'm talking about the
`February 16th, 2005, date.
` Is that all right?
` A. That's correct.
` Q. And if there's any question that you
`-- that I ask that you don't understand, feel
`free to ask me for clarifications. Otherwise
`I'll assume that you understood it.
` A. Okay.
` MR. SEGREST: Object to form.
`BY MR. SHEH:
` Q. Are you aware of any other inter
`partes review proceedings that have been filed
`against the patent at issue?
` MR. SEGREST: Object to form.
` THE WITNESS: I am.
`BY MR. SHEH:
` Q. How are you aware?
` A. I was asked to provide expert
`testimony as to a prior inter partes review.
` Q. Okay. And those were against
`different patents, not the four patents
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` S. KAHL, Ph.D.
`currently in front of you; is that correct?
` A. That's correct.
` Q. So as to the four patents in front
`of you right now, are you aware of any
`proceedings against those patents aside from
`the ones at issue today?
` A. I --
` MR. SEGREST: Object to form.
` THE WITNESS: I am not.
`BY MR. SHEH:
` Q. Are you familiar with Mylan
`Pharmaceuticals?
` MR. SEGREST: Object to form.
` THE WITNESS: I'm not quite sure
` what you mean by "aware of."
`BY MR. SHEH:
` Q. Are you familiar with them? Have
`you been contacted by them?
` MR. SEGREST: Object to form.
` Compound.
` THE WITNESS: I -- I know the name.
` I have not been contacted by them.
`BY MR. SHEH:
` Q. Okay. As you noted, there was a
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` S. KAHL, Ph.D.
`prior IPR and you gave deposition testimony in
`that prior IPR proceeding, right?
` A. That's correct.
` Q. And that was on behalf of the
`Coalition of Affordable Drugs?
` A. That's correct.
` Q. Right. And if I refer to Coalition
`of Affordable Drugs as CFAD, that's all right
`with you?
` A. Okay with me.
` Q. And you gave deposition testimony on
`April 2016 in that case; is that correct?
` A. That's correct.
` (Patent Owner's Exhibit 2010
` was marked for identification.)
`BY MR. SHEH:
` Q. I'm handing you what has been marked
`as Patent Owner's Exhibit 2010.
` MR. SEGREST: Thank you. While
` you're looking at that, for the record, the
` petitioners object to the notice only to
` the extent that it would exceed the scope
` of cross-examination permitted by 37 C.F.R.
` 42.53. But we note for the record that the
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` S. KAHL, Ph.D.
` parties have agreed to allow the use of
` previous depositions in cases IPR
` 2015-1776, -1780, and -1785.
` The parties agreed to allow the use
` of that previous deposition testimony to
` the extent it's relevant on issues,
` including the background of the witness and
` prior art references that are common to
` both proceedings.
` To the extent that parts of those
` depositions were relevant only in those
` particular proceedings, such as testimony
` and exhibits unique to the patents at
` issues in those proceedings and not the
` patents in these proceedings, petitioner
` reserves the right to object to the
` relevance.
` Additionally, petitioner reserves
` the right to object in this deposition to
` any particular questions regardless of what
` similar objections were or could have been
` posed in that previous deposition.
`BY MR. SHEH:
` Q. Do you recognize this -- well, do
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` S. KAHL, Ph.D.
`you recognize this as the transcript of your
`April 2016 deposition in the prior IPR,
`Dr. Kahl?
` MR. SEGREST: Object to form and
` best evidence rule for Exhibit 2010.
` THE WITNESS: It appears to be a
` transcript of that proceedings.
`BY MR. SHEH:
` Q. Do you recall reviewing the
`transcripts after your deposition?
` A. Yes, I did.
` Q. Did you identify any errors in the
`transcripts?
` A. I don't believe that I did other
`than typographical errors.
` Q. Have you reviewed your April 2016
`transcript since -- since the last proceeding?
` A. No.
` Q. Do you recall, Dr. Kahl, that you
`also gave a deposition in the prior IPRs in
`December 2016?
` MR. SEGREST: Also object to 2010
` under Rule 106 as not including the errata
` sheets.
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`BY MR. SHEH:
` Q. Do you recall?
` A. Yes.
` Q. Second deposition, right?
` A. Correct.
` (Patent Owner's Exhibit 2011
` was marked for identification.)
`BY MR. SHEH:
` Q. I'm handing you what's been marked
`as Exhibit 2011.
` MR. SEGREST: Thank you. Same
` objections and object under Rule 106 for
` not including the errata sheets.
`BY MR. SHEH:
` Q. Do you recognize this as a
`transcript of your September 2016 deposition?
` A. It appears to be.
` Q. Did you review the transcript after
`the deposition?
` A. I believe that I did, yes.
` Q. And with respect to both this
`deposition and the other one, that is Exhibit
`2010, you notified either your counsel or your
`court reporter of any errors?
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` A. I believe that I did.
` Q. And you testified truthfully during
`those depositions, correct?
` A. Yes.
` Q. And when was the last time you
`reviewed the transcript of your September 2016
`transcript that is Exhibit 2011?
` A. I'm sorry. Would you repeat that?
` Q. When was the last time you reviewed
`your September 2016 deposition transcripts,
`which has been marked as Exhibit 2011?
` A. 2011. It would have been in the
`fall of 2016.
` Q. Is there anything you'd like to
`change regarding your testimony in either of
`the two depositions?
` MR. SEGREST: Object to form.
` THE WITNESS: Since I haven't
` reviewed those in the past two -- two --
` yeah, two years, it would be difficult to
` say. But I don't think so.
`BY MR. SHEH:
` Q. Dr. Kahl, could you describe your
`educational background?
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` S. KAHL, Ph.D.
` A. I received my BS in chemistry from
`Duke University in 1968. I then went to
`Indiana University to complete my Ph.D.
`studies, which I did in 1972. And during the
`time of my Ph.D. studies, my primary interest
`and my -- much of my Ph.D. thesis involved
`boron compounds.
` In -- from 1972 to 1974 I was a
`postdoctoral research associate at the
`University of California in Berkeley. The
`first year from 1972 to '73 I worked in the lab
`of Dr. Kenneth Raymond in the chemistry
`department. And in the second year from 1973
`to '74 I worked -- did postdoctoral studies in
`the lab of Dr. John Reynolds in the physics
`department.
` Q. You mentioned that your graduate
`work at Indiana University brought you to boron
`compounds; is that correct?
` A. That's correct.
` Q. What was the focus -- what was the
`specific focus of your research at Indiana
`University?
` A. The specific focus of my research
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`was the application of what was then a new
`technique -- spectrographic technique called
`Carbon-13 nuclear magnetic resonance to a class
`of boron compounds known as carboranes.
` Q. And was that research regarding C-13
`also your advisor's research focus?
` A. My advisor was Dr. Lee Todd who was
`essentially a boron chemist who had trained in
`the laboratory of Dr. Riley Schaeffer at
`Indiana University.
` I became interested in Carbon-13
`nuclear magnetic resonance as a result of my
`presence at Indiana University at that time.
`So Dr. Todd's involvement was not from the
`perspective of the NMR approach. It was from
`the perspective of the subject matter, the
`boron compounds.
` Q. Okay. What is your current
`occupation, Dr. Kahl?
` A. Well, I have several. I am an
`emeritus professor at the University of
`California, San Francisco. I am on recall,
`which the University of California -- at the
`University of California that means that
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` S. KAHL, Ph.D.
`emeritus professors are sometimes asked to
`return to the university to either -- either to
`continue their research and/or teach. I'm
`doing the latter --
` Q. I see. So you're on --
` A. I'm sorry.
` -- 25 percent time. The other part
`of my time, my professional time, I am the
`chief scientific officer of a very small
`biotech company in the Bay area called
`Manzanita Pharmaceuticals.
` Q. So when you refer to the 25/75
`split, that is your personal time, not the time
`at the university; is that correct?
` A. 25 percent time is the time that I'm
`employed officially by the university.
` Q. I see. So the university considers
`you like a quarter-time employee; is that
`correct?
` A. That's correct.
` Q. Sorry to circle back to this.
` After your Ph.D. at Indiana
`University, did your research continue to focus
`on boron chemistry?
`
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` S. KAHL, Ph.D.
` A. Not while I was at University of
`California, Berkeley. I began again in my
`first academic appointment, which began in the
`fall of 1974, at Wellesley College in
`Massachusetts.
` Q. And what drew you back to boron
`chemistry?
` A. I had been fascinated by boron
`chemistry since about 1966 as an undergraduate
`at Duke University. That was a time during
`which there was a great flowering, if you will,
`of boron chemistry due to the -- to a number of
`factors. The primary one of which was the Navy
`was very interested in the use of boron
`compounds.
` Q. What was the Navy interested in them
`for?
` A. Propellants.
` Q. Propellants?
` A. For rocket -- rocket fuel. One
`group of -- of boron compounds that had been
`recently discovered at that time was of
`interest to them. There was -- as a
`consequence of that interest, there was a great
`
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` S. KAHL, Ph.D.
`deal of money that was put into the general
`exploration of what I'm going to call
`polyhedral boron chemistry.
` Q. And you mentioned that you are --
`the rest of your time. I assume that you meant
`that by the 75 percent that was the rest of
`your time currently; is that right?
` A. That's correct.
` Q. You're the chief scientific officer
`of Manzanito?
` A. Manzanita --
` Q. Manzanita.
` A. -- with an A at the end.
` No, I don't spend the rest of my
`time with Manzanita.
` Q. Right. Without disclosing any
`confidential information, is the area of
`scientific exploration or focus on boron
`chemistry?
` A. None whatsoever.
` Q. Dr. Kahl, I'm handing you what's
`been marked as FlatWing Exhibit 1004. Do you
`recognize this document?
` A. I do.
`
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` S. KAHL, Ph.D.
` Q. Okay. And could you please describe
`what it is?
` A. This document is my curriculum vitae
`from the University of California, San Francisco.
` (Whereupon, a recess was taken
` from 9:23 a.m. to 9:26 a.m.)
`BY MR. SHEH:
` Q. Dr. Kahl, do you see the date at the
`bottom of the first page of this document?
` A. I do.
` Q. So this CV is about a little over a
`year old; is that correct?
` A. That's correct. It's dated August
`9th, 2017.
` Q. Are there any updates to this CV
`that you might have?
` A. It's a minor one. But on page -- on
`the second page, page 2, under honors and
`awards, 2018, another Dean's recognition for
`excellence in teaching.
` Q. Dr. Kahl, you would agree that --
`would you agree that the number of awards
`regarding teaching is -- is a lot?
` MR. SEGREST: Object to form.
`
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` S. KAHL, Ph.D.
`BY MR. SHEH:
` Q. Let me -- strike that. I'll ask the
`question another way.
` Dr. Kahl, you've been honored
`numerous times for your teaching; is that
`correct?
` A. That's correct.
` Q. And is teaching something that you
`focus on?
` MR. SEGREST: Object to form.
` THE WITNESS: Teaching often
` involves teaching material that is not part
` of one's research. So in that sense, if
` you use the term focus to mean as in part
` of my research, I would say not.
`BY MR. SHEH:
` Q. Because it is not part of your
`research focus; is that correct?
` A. Not directly.
` Q. Right. But your -- you devote
`substantial personal efforts to teaching; is
`that correct?
` A. I do.
` Q. And you mentioned that the
`
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` S. KAHL, Ph.D.
`university had brought you back as an emeritus
`professor on recall primarily to teach; is that
`correct?
` A. That's correct.
` Q. And what courses do you teach?
` MR. SEGREST: Object to form and
` relevance.
` THE WITNESS: I think if you --
` that's covered on the CV. But I'll update
` you specifically. In the fall quarter I
` teach a large lecture course for
` second-year Pharm D students that involves
` the chemistry -- the pharmaceutical
` chemistry and chemistry of a variety of
` pharmaceutical agents, mostly focused on
` endocrine and immunologic agents. I'm also
` the course director for that course.
` There are approximately 125 students
` in that course and I oversee the lecturing
` in that course of approximately ten other
` individuals, other faculty.
` In the spring quarter I teach a
` small graduate-level course in bioanalysis.
` It's bioanalytical theory and technique.
`
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`IPR2018-00170
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` S. KAHL, Ph.D.
` It's a course that is given typically to a
` small group of students, students who have
` been selected into a pathway called
` pharmaceutical sciences.
` Typically the enrollment for that
` course is restricted only for students in
` this pathway and averages about ten per
` year.
`BY MR. SHEH:
` Q. And the description you're referring
`to regarding these two courses is on page 19 of
`this exhibit; is that correct?
` A. That's correct. Although I should
`say that the pharmaceutical chemistry course is
`now a five-unit course and it's called
`Pharmacology 121.
` Q. As opposed to Pharmaceutical
`Chemistry 121?
` A. So it encompasses this
`pharmaceutical chemistry course and also the
`pharmacology of these agents.
` Q. What do you mean by the
`"pharmacology of the agents"?
` A. Typically one speaks of things like
`
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` S. KAHL, Ph.D.
`dose response curves, toxicities, toxic side
`effects, and matters of that type rather than
`-- rather than focusing on the chemistry and
`structure activity relationships.
` Q. So it's more like pharmacokinetics,
`pharmacodynamics?
` A. Not pharmacokinetics and
`pharmacodynamics. Those are taught in separate
`courses.
` Q. So you mentioned that your focus is
`-- your teaching focus is split from your
`research focus. Did you mean -- what did you
`mean by that?
` MR. SEGREST: Objection. Form.
` THE WITNESS: When I retired
` officially in 2011 I closed my research
` laboratory. So I have not carried out any
` new research in that laboratory at UCSF
` since that time.
`BY MR. SHEH:
` Q. I see. Okay.
` Do either of the two courses that
`you -- strike that.
` And are these the only two courses
`
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` S. KAHL, Ph.D.
`you've taught recently, let's say in the past
`five years?
` MR. SEGREST: Objection. Form.
` THE WITNESS: No. I also have
` taught organic chemistry at Stanford
` University in the summers for about 30
` years prior to -- let me see the exact
` date. I stopped doing that a couple years
` ago -- through 2015.
`BY MR. SHEH:
` Q. This is organic chemistry at
`Stanford?
` A. That's correct.
` Q. And that's a course taught to
`undergraduates, correct?
` A. That's correct.
` Q. What aspect, if any, of the three
`courses you've taught are -- are regarding
`boron chemistry?
` MR. SEGREST: Object to form.
` THE WITNESS: The content of the
` organic course at Stanford includes some
` boron chemistry.
`
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` S. KAHL, Ph.D.
`BY MR. SHEH:
` Q. What kind of boron chemistry?
` A. Typical organic -- organoboron
`chemistry, boron hydride reactions, addition
`reactions across carbon-carbon double bonds.
`The kind of thing that you'd normally find in
`an introductory organic chemistry course.
` Q. Is there a reason why this section
`-- sorry. Strike that.
` Is -- would you consider the boron
`chemistry part of your organic chemistry course
`at Stanford to be a discrete teaching unit?
` MR. SEGREST: Objection. Relevance.
` THE WITNESS: Yes.
`BY MR. SHEH:
` Q. Why is that?
` A. Among the typical reactions that
`carbon-carbon double bonds undergo, prominently
`they undergo addition reactions of boranes
`across the double bond. So in that sense it is
`a stand- -- stand alone facet of -- of the --
`of the course, I suppose, one might say, would
`be something that would be covered by -- by a
`typical undergraduate organic chemistry course.
`
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` S. KAHL, Ph.D.
` Q. And the reaction you just mentioned,
`is there a name for that family of reactions,
`if you will?
` A. Hydride addition across a double
`bond.
` Q. And what -- what is it about boron
`that makes that reaction a focus of teaching?
` MR. SEGREST: Objection. Relevance.
` THE WITNESS: That particular
` reaction has great utility in the
` preparation of a very wide variety of
` organic functional compounds, including
` many of which are pharmaceutical agents.
`BY MR. SHEH:
` Q. I apologize.
` To restate the question, is there
`anything about that reaction family that's
`characterized by the boron aspects of the
`reactants?
` MR. SEGREST: Objection. Form.
` Relevance. Beyond the scope of direct.
` THE WITNESS: I'm not sure what --
` what you're driving at here. Would you
` like to rephrase your question?
`
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` S. KAHL, Ph.D.
`BY MR. SHEH:
` Q. What is it about boron that makes
`these reactions happen?
` MR. SEGREST: Same objections.
` THE WITNESS: The boron that -- the
` -- the form of the boron that is used in
` these reactions is one that is electron
` deficient. And it is typical of most
` borons, boron compounds, in -- in the sense
` that boron typically combines with three
` pairs -- three pairs of electrons rather
` than four, which is the more normal
` function for most of the lighter elements.
` Boron is formally then electron deficient.
`BY MR. SHEH:
` Q. And it's electron deficient because
`it prefers to have four electron pairs. There
`is --
` A. That's correct.
` Q. -- eight electrons, correct?
` A. That's correct.
` MR. SEGREST: Same objections.
`BY MR. SHEH:
` Q. And would you call that rule the
`
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` S. KAHL, Ph.D.
`octet rule?
` A. Yes, I would.
` Q. And the three bonds that you talked
`about just now, you would call them -- that
`boron normally forms -- sorr

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