RIMFROST AS VS.
`AKER BIOMARINE ANTARCTIC AS
`
`DR. STEPHEN J. TALLON
`August 7, 2019
`
`Original File 279193.txt
`Min-U-Script® with Word Index
`
`AKER EXHIBIT 2026 Page 0
`
`
`AKER BIOMARINE ANTARCTIC AS
`
`DR. STEPHEN J. TALLON
`August 7, 2019
`
`Original File 279193.txt
`Min-U-Script® with Word Index
`
`AKER EXHIBIT 2026 Page 0
`
`
`
`1
`
`
`
` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
`
` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
` -----------------------------------------------X
` 3 RIMFROST AS,
`
` 4 Petitioner,
`
` 5 vs.
`
` 6 AKER BIOMARINE ANTARCTIC AS,
`
` 7 Patent Owner.
`
` 8 CASE NUMBER: IPR 2018-01178 and IPR 2018-01179
`
` 9 U.S. Patent No. 9,375,453
` -----------------------------------------------X
`10
`
`11 4 Century Drive
` Parsippany, New Jersey
`12
` August 7, 2019
`13 8:55 a.m.
`
`14
`
`15 TRANSCRIPT of the stenographic
`
`16 notes of the proceedings in the deposition of
`
`17 DR. STEPHEN J. TALLON in the above-entitled
`
`18 matter, as taken by and before TAB PREWETT, a
`
`19 RegisteredProfessional Reporter, a Certified
`
`20 LiveNote Reporter, Certified Shorthand
`
`21 Reporter and Notary Public.
`
`22
`
`23 ELLEN GRAUER COURT REPORTING CO. LLC
` 126 East 56th Street, Fifth Floor
`24 New York, New York 10022
` 212-750-6434
`25 REF: 279193
`
`AKER EXHIBIT 2026 Page 1
`
`
`
`2
`
`
`
` 1 A P P E A R A N C E S:
`
` 2
`
` 3 CASIMIR JONES S.C.
`
` 4 Attorneys for Aker Biomarine Antarctic
`
` 5 2275 Deming Way, Suite 310
`
` 6 Middleton, Wisconsin 53562
`
` 7 BY: J. MITCHELL JONES, ESQ.
`
` 8 606-662-1277
`
` 9 jmjones@casimirjones.com
`
`10
`
`11 HOFFMANN & BARON LLP
`
`12 Attorneys for Rimfrost
`
`13 4 Century Drive, Suite 300
`
`14 Parsippany, New Jersey 07054-4606
`
`15 BY: MICHAEL I. CHAKANSKY, ESQ.
`
`16 973-331-1700
`
`17 mchakansky@hbiplaw.com
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`AKER EXHIBIT 2026 Page 2
`
`
`
`3
`
`
`
` 1 ------------------- I N D E X -------------------
`
` 2 WITNESS EXAMINATION BY PAGE
`
` 3 DR. STEPHEN J. TALLON MR. JONES 4
`
` 4
`
` 5
`
` 6 ---------------- E X H I B I T S ----------------
`
` 7 EXHIBIT DESCRIPTION FOR I.D.
`
` 8 PREVIOUSLY MARKED
`
` 9 Exhibit 1086 Reply and Opposition 4
`
`10 Declaration of Dr. Stephen
`
`11 J. Tallon,
`
`12 Exhibit 1009 Patent, International 15
`
`13 Publication Number WO
`
`14 2007/123424 A1, by John
`
`15 Owen Catchpole
`
`16 Exhibit 2002 Article entitled, 37
`
`17 "Supercritical Carbon
`
`18 Dioxide Extraction of
`
`19 Oils from Antarctic
`
`20 Krill," by Katsumi
`
`21 Yamaguchi and others
`
`22
`
`23
`
`24 (EXHIBITS RETAINED BY MR. JONES)
`
`25
`
`AKER EXHIBIT 2026 Page 3
`
`
`
`4
`
`
` 1 D R. S T E P H E N J. T A L L O N,
`
` 2 G9 Gracefield Road,
`
` 3 Lower Hutt, New Zealand,
`
` 4 having been duly sworn by the notary public to
`
` 5 testify to the truth, testified as follows:
`
` 6
`
` 7 DIRECT EXAMINATION
`
` 8 BY MR. JONES:
`
` 9 Q Good morning, Dr. Tallon. So we
`
`10 are here for a deposition for IPR 2018-01178 and
`
`11 IPR 2018-01179 for US patent 9,375,453.
`
`12 Is there any reason you can't be
`
`13 deposed today?
`
`14 A No.
`
`15 Q And I assume you probably don't
`
`16 need a refresher at this point on how the conduct
`
`17 of a deposition goes?
`
`18 A I think I am okay to start.
`
`19 Q Okay. Good. So I'm going to start
`
`20 off by giving you an Exhibit 1086, which is the:
`
`21 "Reply and Opposition Declaration
`
`22 of Dr. Stephen J. Tallon."
`
`23 (Previously Marked Exhibit No.
`
`24 1086, "Reply and Opposition Declaration of
`
`25 Dr. Stephen J. Tallon," Document is
`
`AKER EXHIBIT 2026 Page 4
`
`
`
`5
`
`
` 1 TALLON
`
` 2 introduced into the proceedings.)
`
` 3 Q Could you go to page, I guess, 189,
`
` 4 of the deposition, last page -- of the
`
` 5 declaration.
`
` 6 And that's your signature?
`
` 7 A That's correct.
`
` 8 Q So you prepared this declaration?
`
` 9 A That's correct.
`
`10 MR. CHAKANSKY: I will move the
`
`11 binder off for you so you can open the
`
`12 pages a little better. There you go.
`
`13 Q Could you describe your current
`
`14 duties at your job again? Remind me which
`
`15 company it is that you work for.
`
`16 A The company I currently work for is
`
`17 called Callaghan Innovation.
`
`18 Q Yes, Callaghan.
`
`19 A It's a New Zealand Crown research
`
`20 agency.
`
`21 Q It's a government research agency?
`
`22 A That's correct.
`
`23 Q And what's the current topic of
`
`24 your research at Callaghan?
`
`25 A My work is largely in the field of
`
`AKER EXHIBIT 2026 Page 5
`
`
`
`6
`
`
` 1 TALLON
`
` 2 natural products, including sort of
`
` 3 nutraceuticals and cosmetic products. The main
`
` 4 component of my job is working with New Zealand
`
` 5 and some international companies in doing
`
` 6 contract process development work.
`
` 7 Q And what's "contract process
`
` 8 development work"?
`
` 9 MR. CHAKANSKY: And at this point I
`
`10 would just alert the witness to the fact
`
`11 that, if any of the information that would
`
`12 be responsive to the question is a trade
`
`13 secret, please don't divulge the trade
`
`14 secret.
`
`15 Q Yeah, just in general, not the
`
`16 specifics of who you work for.
`
`17 A General terms.
`
`18 Q Yes.
`
`19 A Yes, so the process development
`
`20 work is -- spans a reasonably wide range, but a
`
`21 typical piece of work would be a company that has
`
`22 a product concept in mind. And we would assist
`
`23 them with some of the process development stips,
`
`24 maybe make up some prototype product, and provide
`
`25 recommendations on the products they are trying
`
`AKER EXHIBIT 2026 Page 6
`
`
`
`7
`
`
` 1 TALLON
`
` 2 to develop.
`
` 3 Q And does that involve in any way
`
` 4 extraction?
`
` 5 A Extraction is a large component of
`
` 6 our work.
`
` 7 Q Okay. So as part of your job, have
`
` 8 you ever been on a krill fishing vessel?
`
` 9 A I have never been on a krill
`
`10 fishing vessel, no.
`
`11 Q And have you ever observed in
`
`12 person the process of making krill meal?
`
`13 A I haven't personally been there on
`
`14 a ship when krill meal was being made aboard a
`
`15 ship.
`
`16 Q Okay.
`
`17 A I have seen some photographs and
`
`18 videos of the process being carried out.
`
`19 Q Okay. And have you ever handled
`
`20 fresh krill?
`
`21 In terms -- let me -- so have you
`
`22 ever handled fresh non-frozen krill?
`
`23 A Not personally, no.
`
`24 Q Okay. Okay. I would like to
`
`25 direct your attention to Exhibit 1086, page 0063,
`
`AKER EXHIBIT 2026 Page 7
`
`
`
`8
`
`
` 1 TALLON
`
` 2 which is the page number at the bottom in bold,
`
` 3 and paragraph 105.
`
` 4 A Okay.
`
` 5 Q And there is a subsection there
`
` 6 labeled small "i":
`
` 7 "PO's Expert Dr. Hoem, has
`
` 8 previously expressed a conflicting view."
`
` 9 Do you see that?
`
`10 A I do.
`
`11 Q And do you recall preparing this
`
`12 section of your declaration?
`
`13 A I do.
`
`14 Q And so do you recall that this was
`
`15 about a declaration submitted by Dr. Hoem in the
`
`16 reexamination proceeding related to US patent
`
`17 number 8,057,825?
`
`18 A That's correct.
`
`19 Q When you prepared this part of your
`
`20 declaration, did you review the claims of the --
`
`21 of US patent 8,057,825?
`
`22 A Only briefly.
`
`23 Q And do you recall what those claims
`
`24 described?
`
`25 A I don't recall offhand, no.
`
`AKER EXHIBIT 2026 Page 8
`
`
`
`9
`
`
` 1 TALLON
`
` 2 Q And as I'm looking at paragraph
`
` 3 105, you refer to the '825 patent; but I don't
`
` 4 see that it's provided as an exhibit.
`
` 5 MR. CHAKANSKY: I can clarify that
`
` 6 if you want.
`
` 7 MR. JONES: Sure.
`
` 8 MR. CHAKANSKY: He was never
`
` 9 provided with a copy of it.
`
`10 MR. JONES: Okay. That's fine.
`
`11 MR. CHAKANSKY: Yes.
`
`12 MR. JONES: Okay. But that's what
`
`13 I was trying to find out.
`
`14 MR. CHAKANSKY: Yes, he was just --
`
`15 as I said, he was just informed that that
`
`16 was the patent and the --
`
`17 MR. JONES: That saves a lot of
`
`18 time. Is that on the record then?
`
`19 MR. CHAKANSKY: Yes, that he was
`
`20 not given a copy.
`
`21 MR. JONES: Okay.
`
`22 Q Okay. So --
`
`23 MR. CHAKANSKY: And so that would
`
`24 reflect that his earlier statement was
`
`25 incorrect where he said that he looked at
`
`AKER EXHIBIT 2026 Page 9
`
`
`
`10
`
`
` 1 TALLON
`
` 2 the claim.
`
` 3 A That's true. I thought you were
`
` 4 talking about the declaration of Dr. Hoem, which
`
` 5 is the --
`
` 6 Q Yeah -- no, I was asking
`
` 7 specifically about the patent that the
`
` 8 declaration was about.
`
` 9 A Right.
`
`10 Q Yeah.
`
`11 A No, I didn't review the patent.
`
`12 Q And so then you don't know if the
`
`13 claims that were at issue in that patent had an
`
`14 ether phospholipid limitation then; do you?
`
`15 A No, I can't comment on it.
`
`16 Q And you don't know if they were
`
`17 limited to any specific range of triglycerides;
`
`18 do you?
`
`19 A No, I have got no understanding of
`
`20 the particular claims.
`
`21 Q And you don't know if they were
`
`22 limited to a particular range of astaxanthin
`
`23 esters either, correct?
`
`24 A That's correct.
`
`25 Q So on page 0064 of your
`
`AKER EXHIBIT 2026 Page 10
`
`
`
`11
`
`
` 1 TALLON
`
` 2 declaration, there is a paragraph there begins
`
` 3 with the number four. And that's a paragraph
`
` 4 that's reproduced from the Hoem declaration; is
`
` 5 that correct?
`
` 6 A That's correct.
`
` 7 Q And you see there that it says
`
` 8 that -- the first sentence of that paragraph, and
`
` 9 it says:
`
`10 "Lipid extracts from krill have
`
`11 common characteristics."
`
`12 Correct?
`
`13 A That's correct.
`
`14 Q And then to paraphrase, he refers
`
`15 to a patent, WO 00/23546, Fricke et al., and
`
`16 Gordeev.
`
`17 And then he states that:
`
`18 "... all produced lipid fractions
`
`19 containing phosphatidylcholine and
`
`20 phosphatidylethanolamine as well as other
`
`21 phospholipid species, docosahexaenoic acid,
`
`22 eicosahexaenoic acid, and oleic acid as well as
`
`23 many other fatty acids."
`
`24 Do you see that?
`
`25 MR. CHAKANSKY: I object. It's
`
`AKER EXHIBIT 2026 Page 11
`
`
`
`12
`
`
` 1 TALLON
`
` 2 only a partial quote of that paragraph --
`
` 3 of that sentence. You can answer.
`
` 4 A I can tell you in general terms,
`
` 5 yes, I can see the -- I can see what you are
`
` 6 referring to.
`
` 7 Q And in that paragraph labeled
`
` 8 paragraph four from Dr. Hoem's declaration, there
`
` 9 is no reference to a specific triglyceride
`
`10 content; is there?
`
`11 MR. CHAKANSKY: Objection to the
`
`12 form of the question.
`
`13 A Sorry. Can you give me the
`
`14 question again then.
`
`15 Q In paragraph four from the Hoem
`
`16 declaration --
`
`17 MR. CHAKANSKY: Maybe you can put
`
`18 it in front of him.
`
`19 Q Well, it's right here.
`
`20 A This one here.
`
`21 MR. CHAKANSKY: So paragraph four
`
`22 is in his declaration.
`
`23 Q Yes. Paragraph four from the Hoem
`
`24 declaration is reproduced in your declaration,
`
`25 Exhibit 1086?
`
`AKER EXHIBIT 2026 Page 12
`
`
`
`13
`
`
` 1 TALLON
`
` 2 A Yes.
`
` 3 Q There is no reference to a specific
`
` 4 range for triglycerides; is there?
`
` 5 A Well, what is referenced is --
`
` 6 well, referenced is Dr. Hoem's comment here that
`
` 7 lipid extracts from common characteristics.
`
` 8 And the part that I was reading was
`
` 9 is the fact that Dr. Hoem agrees that, when you
`
`10 do these range of different extractions, that
`
`11 what you get -- these key components that are in
`
`12 krill, the phospholipids and the triglycerides,
`
`13 for example, that you are asking about -- there
`
`14 is no specific mention of exact ranges.
`
`15 It's just to demonstrate that, you
`
`16 know, these components are known to be
`
`17 extractable.
`
`18 And in connection to the -- I guess
`
`19 the '453 patent that we are talking about, it's a
`
`20 fairly wide range of all of these different
`
`21 comments, including triglycerides, that are in
`
`22 the specification; so I wasn't looking
`
`23 particularly for a -- an exact number of
`
`24 triglyceride content in Hoem's deposition.
`
`25 MR. CHAKANSKY: Declaration, you
`
`AKER EXHIBIT 2026 Page 13
`
`
`
`14
`
`
` 1 TALLON
`
` 2 mean.
`
` 3 A Declaration.
`
` 4 MR. CHAKANSKY: And that's
`
` 5 H-o-e-m-'-s.
`
` 6 Q And you don't know if the claims
`
` 7 that were at issue in the '825 patent were claims
`
` 8 to a method of treatment; do you?
`
` 9 MR. CHAKANSKY: Objection. Asked
`
`10 and answered. He testified he never looked
`
`11 at the patent.
`
`12 Q You can answer.
`
`13 A Want me to answer again, right?
`
`14 Q Yes.
`
`15 A No, I haven't looked at that
`
`16 patent.
`
`17 Q Okay. So what's your understanding
`
`18 of how freeze-dried krill powder is made?
`
`19 A Any specific freeze-dried krill
`
`20 powder -- there's quite possibly a range of
`
`21 different ways they can be prepared.
`
`22 Q Okay. Well, let's start with the
`
`23 freeze-dried krill powder in Catchpole, for
`
`24 example.
`
`25 MR. CHAKANSKY: That would be
`
`AKER EXHIBIT 2026 Page 14
`
`
`
`15
`
`
` 1 TALLON
`
` 2 Exhibit 1009.
`
` 3 Q So Exhibit 1009 --
`
` 4 MR. CHAKANSKY: Example 18.
`
` 5 MR. JONES: I can give you a copy
`
` 6 if you want.
`
` 7 (Previously Marked Exhibit No. 1009
`
` 8 Patent, International Publication Number WO
`
` 9 2007/123424 A1, by John Owen Catchpole,
`
`10 Document is introduced into the
`
`11 proceedings.)
`
`12 MR. CHAKANSKY: Page 24.
`
`13 A And your question was?
`
`14 Q Yes.
`
`15 So what's your understanding of how
`
`16 the freeze -- or what would a POSITA -- let me
`
`17 change it just a little bit.
`
`18 What would a POSITA understand a
`
`19 freeze-dried krill powder to be?
`
`20 MR. CHAKANSKY: Are you referring
`
`21 just to Catchpole example 18, or is this
`
`22 more general?
`
`23 Q It's more general. I mean, you can
`
`24 refer to Catchpole example 18, but more general.
`
`25 A They are two separate things, so I
`
`AKER EXHIBIT 2026 Page 15
`
`
`
`16
`
`
` 1 TALLON
`
` 2 can address both of them independently then.
`
` 3 Which one to start with? Let's start with
`
` 4 Catchpole.
`
` 5 So a POSITA looking at Catchpole,
`
` 6 would -- well, I mean, freeze-dried krill is a
`
` 7 process of, you know, taking -- taking krill that
`
` 8 needs to be frozen before it can be freeze-dried
`
` 9 because it's dried from the frozen state. That's
`
`10 what the freeze-dried process involves.
`
`11 So at some stage in the process it
`
`12 involving freezing, and then it goes into a
`
`13 freeze drier. And it's dried under a reasonably
`
`14 high vacuum. And then it will be -- can be a
`
`15 24-hour or a longer process in the dryer.
`
`16 And, quite often, the material
`
`17 comes out as a friable material, so it may be
`
`18 lightly milled afterwards and typically be
`
`19 packaged into something if it wasn't going to be
`
`20 used immediately.
`
`21 Q So that process could start with
`
`22 frozen krill then?
`
`23 A Yes, so the Catchpole material --
`
`24 yes -- well, freezing is a necessary part of
`
`25 freeze-drying. But the Catchpole material would
`
`AKER EXHIBIT 2026 Page 16
`
`
`
`17
`
`
` 1 TALLON
`
` 2 have been frozen rapidly from a fresh material
`
` 3 and then put into a freeze dryer.
`
` 4 Q And that fresh material would be
`
` 5 whole krill that has just been caught or --
`
` 6 A It could be either. If it's --
`
` 7 yes, if it's processed or chopped up a little
`
` 8 bit, that can help with the -- with both the
`
` 9 freezing and the drying process. But either way
`
`10 it will be done -- you know, done rapidly.
`
`11 MR. CHAKANSKY: Is this asking as a
`
`12 POSITA would understand this or if he knows
`
`13 what's going on there.
`
`14 A Well, this is as a POSITA would
`
`15 understand it.
`
`16 MR. CHAKANSKY: Okay. I just want
`
`17 to be clear.
`
`18 (There was a discussion off the
`
`19 record.)
`
`20 A Now, you also asked in the general
`
`21 case about freeze-drying; and, in fact, the
`
`22 answer to that would be similar.
`
`23 Q Okay. That's all.
`
`24 A It's the freeze-drying process.
`
`25 Well, optionally, there are
`
`AKER EXHIBIT 2026 Page 17
`
`
`
`18
`
`
` 1 TALLON
`
` 2 other like pre-processing steps to it. You know,
`
` 3 processing it rapidly is a good way to -- I mean,
`
` 4 freezing it rapidly is a good way to prevent any
`
` 5 sort of means of degradation. But there are
`
` 6 other optional -- like preheating, just a quick
`
` 7 heating step to kill off some of the enzymes.
`
` 8 So depending on the particular
`
` 9 requirements, there are other -- other
`
`10 intermediate steps.
`
`11 Q But you wouldn't know if a
`
`12 freeze-dried krill powder had been subjected to a
`
`13 heating step unless the reference described that
`
`14 heating step; would you?
`
`15 A Sorry. Are you referring to any
`
`16 particular --
`
`17 Q I mean, if something is --
`
`18 A In general --
`
`19 Q If something is described as a
`
`20 freeze-dried krill powder, the ordinary
`
`21 understanding of that to a -- to a POSITA would
`
`22 be that it's a powder made from freeze-dried
`
`23 krill, correct?
`
`24 A Yes. If the POSITA was reading a
`
`25 statement that said that the material was a
`
`AKER EXHIBIT 2026 Page 18
`
`
`
`19
`
`
` 1 TALLON
`
` 2 freeze-dried krill powder, then they would
`
` 3 understand that it was a freeze-dried krill
`
` 4 powder. I think that was your question.
`
` 5 Q Yes.
`
` 6 A Yes, there are other -- well, as we
`
` 7 were discussing before, there are other common
`
` 8 characteristics that are typical of
`
` 9 freeze-drying; but there are also some
`
`10 variations.
`
`11 Q Okay.
`
`12 A You can -- I mean, the POSITA could
`
`13 also look to -- well, there's always other
`
`14 information around, I mean, when you're talking
`
`15 about a specific case.
`
`16 But, I mean, you can look at the
`
`17 properties of the -- compositional properties of
`
`18 the freeze-dried material, so you could -- and,
`
`19 hypothetically, you could take an unknown
`
`20 freeze-dried material, and you could look at its
`
`21 compositional properties. And that would give
`
`22 you a -- some understanding of the way that it
`
`23 was pretreated.
`
`24 Q And the freeze-dried krill powder
`
`25 referred to in example 18 of Rimfrost
`
`AKER EXHIBIT 2026 Page 19
`
`
`
`20
`
`
` 1 TALLON
`
` 2 Exhibit 1009, a POSITA from reading that
`
` 3 description would not know if that freeze-dried
`
` 4 krill powder had been heated; is that correct?
`
` 5 MR. CHAKANSKY: Objection to the
`
` 6 form of the question.
`
` 7 A For the -- at least in the context
`
` 8 of what we are talking here, I don't think a
`
` 9 POSITA would concern themselves particularly,
`
`10 whether it has been through a heating step at the
`
`11 beginning or not.
`
`12 The example here is talking about a
`
`13 prepared krill powder that the POSITA would
`
`14 understand has been -- because the aim is to
`
`15 demonstrate, you know, a potential commercial
`
`16 product, you know, a POSITA would understand that
`
`17 freeze-dried krill powder was prepared in a way
`
`18 that at least one way or another had been
`
`19 prepared rapidly from a fresh material without
`
`20 significant degradation.
`
`21 And, certainly, I mean -- I know it
`
`22 from my own measurements when doing this work --
`
`23 that it was a very nicely prepared material. It
`
`24 had low levels of, you know, lysolipids.
`
`25 Lysolipids are free fatty acids which are some
`
`AKER EXHIBIT 2026 Page 20
`
`
`
`21
`
`
` 1 TALLON
`
` 2 markers of -- or certainly at least markers of --
`
` 3 intermediate to them.
`
` 4 Q Okay. So I would like to direct
`
` 5 your attention to page 0040 of your declaration,
`
` 6 and specifically to paragraph 57.
`
` 7 MR. CHAKANSKY: And that's
`
` 8 Exhibit 1086.
`
` 9 Q Exhibit 1086, right.
`
`10 A 57, yes.
`
`11 (There was a discussion off the
`
`12 record.)
`
`13 MR. CHAKANSKY: Where?
`
`14 Q I would like to direct your
`
`15 attention to page 0036 and paragraph 49 of your
`
`16 declaration, of Exhibit 1086.
`
`17 A Okay.
`
`18 Q Okay. There you state that the:
`
`19 "Levels of Lyso PLs and free fatty
`
`20 acids are intrinsically linked, and a level of
`
`21 more than a `few percent' Lyso PL cannot exist"
`
`22 in the free fatty acid -- "if the free fatty acid
`
`23 content is only a few percent."
`
`24 Do you see that?
`
`25 A I can see that.
`
`AKER EXHIBIT 2026 Page 21
`
`
`
`22
`
`
` 1 TALLON
`
` 2 Q And so how are Lyso levels and free
`
` 3 fatty acids intrinsically linked?
`
` 4 A So the comment there is -- again,
`
` 5 it's related to the, you know, the potential for
`
` 6 intermediate hydrolysis of the lipids. That's
`
` 7 one of the potential degradation routes.
`
` 8 And, you know, Lyso phospholipids,
`
` 9 as you all know, will be generated from a --
`
`10 well, either from a diacyl or an alkylacyl
`
`11 phospholipid by hydrolysis. And that hydrolysis
`
`12 process will generate a free fatty acid.
`
`13 So if you have a Lyso phospholipid
`
`14 which is generated by intermediate hydrolysis,
`
`15 then for every Lyso phospholipid molecule, you
`
`16 would have an associated free fatty acid molecule
`
`17 generated in the sample.
`
`18 Q And so, for example, if you had
`
`19 something with a free fatty acid, a krill oil
`
`20 preparation with a free fatty acid content of
`
`21 10 percent, would there be a -- what would the
`
`22 correlation to Lyso phosphatidyl -- or Lyso P&L
`
`23 content be?
`
`24 A There are other sources of free
`
`25 fatty acids. And then they can come from, you
`
`AKER EXHIBIT 2026 Page 22
`
`
`
`23
`
`
` 1 TALLON
`
` 2 know, out of glycerols; and there can be, you
`
` 3 know, a natural level of free fatty acid in a --
`
` 4 an organism.
`
` 5 The comment here is coming from the
`
` 6 other angle. It's not -- it's not saying that
`
` 7 all of the free fatty acid is -- is going to have
`
` 8 an associated Lyso phospholipid.
`
` 9 It's saying that the -- that the
`
`10 maximum level of Lyso phospholipids that are
`
`11 likely to be present is limited to the maximum
`
`12 level of free fatty acids.
`
`13 Q Okay. Okay. So I would like to
`
`14 direct your attention to page 0066 of
`
`15 Exhibit 1086, paragraph 107.
`
`16 A Okay.
`
`17 MR. CHAKANSKY: Can he have a
`
`18 chance to read it?
`
`19 MR. JONES: Yes.
`
`20 A Okay.
`
`21 Q In fact, I am going to read the
`
`22 first sentence because I have some questions
`
`23 about it. It says:
`
`24 "PO disregards the fact that a
`
`25 POSITA would not even have made the distinction
`
`AKER EXHIBIT 2026 Page 23
`
`
`
`24
`
`
` 1 TALLON
`
` 2 between selective and non-selective extractions,
`
` 3 as all extractions are selective by nature, to
`
` 4 one extent or another -- the aim of extraction is
`
` 5 to separate some (i.e. selected) compounds, the
`
` 6 soluble ones from the insoluble ones."
`
` 7 MR. CHAKANSKY: Is there a
`
` 8 question?
`
` 9 MR. JONES: Yes, I am thinking
`
`10 about it.
`
`11 MR. CHAKANSKY: I'm sorry.
`
`12 Q So are you aware of references in
`
`13 the art that describe extractions as being
`
`14 selective or non-selective?
`
`15 A Well, firstly, I mean, the terms
`
`16 "selective" and "non-selective" being used here
`
`17 are, you know, ones that you introduced; so I am
`
`18 only, you know, reusing terminology in this
`
`19 context that -- that I wouldn't necessarily have
`
`20 used myself.
`
`21 The concept of "selectivity" in
`
`22 my -- in my field does have a defined meaning in
`
`23 terms of equilibrium and solubilities of
`
`24 materials, but that's a different concept to the
`
`25 way it's being used here.
`
`AKER EXHIBIT 2026 Page 24
`
`
`
`25
`
`
` 1 TALLON
`
` 2 But coming back to what I have
`
` 3 stated in my declaration, and the literal use of
`
` 4 the term "selective," it's what a solvent is
`
` 5 doing. If you are doing an extraction, then the
`
` 6 solvent is selecting the soluble compounds; and
`
` 7 then that's what's going to be extracted.
`
` 8 Q And so it's your testimony then
`
` 9 that a POSITA wouldn't use the terms "selective"
`
`10 and "non-selective" as Dr. Hoem used in his
`
`11 declaration?
`
`12 MR. CHAKANSKY: Objection.
`
`13 Misstates, mischaracterizes his testimony.
`
`14 A A POSITA is free to use terms
`
`15 however they like as long as -- as long as they
`
`16 define what they mean.
`
`17 Q Have you ever used the term
`
`18 "non-selective" to describe an extraction?
`
`19 A I have -- I have used some of the
`
`20 similar kind of words, again, coming back to, you
`
`21 know, the understanding in my field of
`
`22 "selectivity," its under equilibrium conditions,
`
`23 when a solvent has, you know, a capacity to
`
`24 dissolve, if you like, one component at a higher
`
`25 level than another one.
`
`AKER EXHIBIT 2026 Page 25
`
`
`
`26
`
`
` 1 TALLON
`
` 2 And that that -- becomes relevant
`
` 3 in cases where, you know, particularly for a lot
`
` 4 of the extractions that we describe here, which
`
` 5 are batch extractions where the solvent is
`
` 6 progressively passing through a substrate.
`
` 7 And in that case you can -- some of
`
` 8 the components that are more soluble in the
`
` 9 solvent can be extracted more rapidly than the
`
`10 least soluble solvents. And so you can see a
`
`11 concentration of some compounds earlier in the
`
`12 extraction and then, you know, the concentration
`
`13 of the least soluble compounds later in the
`
`14 extraction.
`
`15 So if you drive -- if you drive the
`
`16 extraction to completion and you just extract
`
`17 everything that is soluble in that solvent, then
`
`18 the selectivity in terms of the equilibrium
`
`19 solubilities is not so relevant anymore.
`
`20 Q Go back to my question.
`
`21 Have you ever used the term
`
`22 non-selective to describe an extraction?
`
`23 MR. CHAKANSKY: Objection. Asked
`
`24 and answered.
`
`25 A I am sure I probably have.
`
`AKER EXHIBIT 2026 Page 26
`
`
`
`27
`
`
` 1 TALLON
`
` 2 Q And what would a "non-selective
`
` 3 extraction" be?
`
` 4 A Yes, so, again, coming back to the
`
` 5 concept of selectivity relating to the
`
` 6 equilibrium conditions, a -- in fact, I wouldn't
`
` 7 so much imply that term "non-selective" to the
`
` 8 solvent; but it's related to the, you know, the
`
` 9 whole solvent system.
`
`10 It relates to the solutes that are
`
`11 being dissolved in the solvent.
`
`12 And if the particular combination
`
`13 of components that are being extracted -- I mean,
`
`14 if the solvent has a similar selectivity for all
`
`15 of the components that are being extracted, then
`
`16 that type of extraction could potentially be
`
`17 described as a -- a non-selective one.
`
`18 But that's a slightly different
`
`19 context to the way it's being applied by
`
`20 Dr. Hoem.
`
`21 Q So would you consider a -- you are
`
`22 familiar with Folch extractions, correct?
`
`23 A Yes, correct.
`
`24 Q And that uses chloroform and
`
`25 methanol as a solvent in a single step
`
`AKER EXHIBIT 2026 Page 27
`
`
`
`28
`
`
` 1 TALLON
`
` 2 extraction?
`
` 3 A More or less.
`
` 4 Q And is a Folch extraction intended
`
` 5 to extract lipids in proportion to their
`
` 6 concentration in the feed material?
`
` 7 A Yeah, indirectly, yeah, the Folch
`
` 8 extraction is to, well, recover nominally all of
`
` 9 the lipid components and none of the -- or as
`
`10 little as possible of the non-lipid components.
`
`11 Q And --
`
`12 A And as such they would be
`
`13 representative of their initial sort of ratios.
`
`14 Q So if a Folch extraction would be
`
`15 non-selective for any particular lipid component;
`
`16 is that correct?
`
`17 A No, a Folch extraction -- again,
`
`18 this is using terminology which is being provided
`
`19 by Dr. Hoem, and I'm trying to interpret it in
`
`20 the co
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
