RIMFROST AS VS.
`AKER BIOMARINE ANTARCTIC AS
`
`STEPHEN TALLON
`December 12, 2018
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`Original File 254594.TXT
`Min-U-Script® with Word Index
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`AKER EXHIBIT 2022 Page 0
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`AKER BIOMARINE ANTARCTIC AS
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`STEPHEN TALLON
`December 12, 2018
`
`Original File 254594.TXT
`Min-U-Script® with Word Index
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`AKER EXHIBIT 2022 Page 0
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`1
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` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
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` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ------------------------------------------------x
` 3 RIMFROST AS,
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` 4 Petitioner,
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` 5 -against-
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` 6 AKER BIOMARINE ANTARCTIC AS,
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` 7 Patent Owner.
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` 8 Case No. IPR2018-00295
` U.S. Patent 9,320,765 B2
` 9 Issue Date: April 26, 2016
` Title: Bioeffective Krill Oil Compositions
`10 ------------------------------------------------x
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`11
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`12 6 Campus Drive
` Parsippany, New Jersey
`13
` December 12, 2018
`14 8:58 a.m.
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`15
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`16 Deposition of STEPHEN TALLON held
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`17 at the officeS of HOFFMANN & BARON, LLP, before
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`18 Amy A. Rivera, CSR, RPR, CLR, and a Notary
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`19 Public of the States of New York, New Jersey, and
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`20 Delaware.
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`21
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`22
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`23 ELLEN GRAUER COURT REPORTING CO, LLC
` 126 East 56th Street, Fifth Floor
`24 New York, New York 10022
` 212-750-6434
`25 REF: 254594
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`AKER EXHIBIT 2022 Page 1
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` 1 A P P E A R A N C E S:
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` 2
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` 3 HOFFMANN & BARON, LLP
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` 4 Attorneys for Petitioner
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` 5 6 Campus Drive
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` 6 Parsippany, New Jersey 07054
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` 7 BY: MICHAEL I. CHAKANSKY, ESQ.
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` 8 JAMES F. HARRINGTON, ESQ.
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` 9
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`10 CASIMIR JONES, S.C.
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`11 Attorneys for Patent Owner
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`12 2275 Deming Way, Suite 310
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`13 Middleton, Wisconsin 53562
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`14 BY: J. MITCHELL JONES, ESQ.
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`AKER EXHIBIT 2022 Page 2
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` 1 ------------------- I N D E X -------------------
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` 2 WITNESS EXAMINATION BY PAGE
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` 3 STEPHEN TALLON MR. JONES 4, 176
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` 4 MR. CHAKANSKY 152
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` 5
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` 6
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` 7 ---------------- E X H I B I T S ----------------
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` 8 PREV. MARKED DESCRIPTION PAGE
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` 9 Exhibit 1009 Catchpole patent 11
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`10 Exhibit 1014 Tanaka I 95
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`11 Exhibit 1015 Tanaka II 6
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`12 Exhibit 1070 Krill Bill label 146
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`13 Exhibit 1075 Neptune GRAS 148
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`14 Exhibit 1086 Reply in opposition 5
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`15 declaration of Stephen
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`16 Tallon
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`17 Exhibit 1089 Aker GRAS 139
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`18 Exhibit 1094 Marathe paper 104
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`19 Exhibit 2009 Blank paper 118
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`20 Exhibit 2010 Hartvigsen paper 127
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`21
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`22
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`23 (EXHIBITS RETAINED BY COUNSEL)
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`24
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`25
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`AKER EXHIBIT 2022 Page 3
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`4
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` 1 S T E P H E N T A L L O N,
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` 2 having been duly sworn, testified as follows:
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` 3
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` 4 EXAMINATION
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` 5 BY MR. JONES:
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` 6 Q. Good morning, Dr. Tallon.
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` 7 So we've been through this a number of
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` 8 times. You remember that -- you're familiar now
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` 9 with the overall process, correct?
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`10 A. Yes.
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`11 Q. Good.
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`12 So did you do any preparation for this
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`13 deposition?
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`14 A. Yes.
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`15 Q. And did you review any documents in
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`16 preparation for this deposition?
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`17 A. Yes. I went through some of the
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`18 key -- key documents, some of the exhibits.
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`19 Q. And what documents were those?
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`20 A. Well, I went through the -- a number
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`21 of documents. I went through my original
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`22 declaration on this and my reply declaration, and
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`23 I looked through the -- the patent owner's reply
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`24 and motion to amend the claims.
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`25 Q. Is there anything else you can recall
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`AKER EXHIBIT 2022 Page 4
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` 1 TALLON
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` 2 reviewing?
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` 3 A. I might have looked through just a
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` 4 number of the exhibits that are referenced in the
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` 5 different declarations.
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` 6 Q. And any ones in particular that you
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` 7 recall?
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` 8 A. Nothing in particular, but it
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` 9 includes -- well, the Catchpole patent, which on
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`10 the CO and ethanol extraction.
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`11 Q. Okay. So -- let's see, I'm going to
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`12 give you Exhibit 1086, which is your reply in
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`13 opposition declaration.
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`14 (Exhibit 1086, reply in opposition
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`15 declaration of Stephen Tallon, previously
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`16 marked for identification, shown at this
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`17 time.)
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`18 Q. And as in the previous depositions,
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`19 you know, we'll be referring to that probably
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`20 throughout the entire deposition.
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`21 A. Okay.
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`22 MR. CHAKANSKY: And the Exhibit 1086
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`23 is the reply in opposition declaration of
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`24 Stephen Tallon.
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`25 Q. And I think, to get started, I'm also
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`AKER EXHIBIT 2022 Page 5
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` 1 TALLON
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` 2 going to give you Rimfrost Exhibit 1015, which is
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` 3 the Tanaka II reference.
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` 4 (Exhibit 1015, Tanaka II, previously
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` 5 marked for identification, shown at this
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` 6 time.)
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` 7 BY MR. JONES:
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` 8 Q. And then -- so I think I could direct
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` 9 you to -- in your reply declaration, you discuss
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`10 Tanaka II, Exhibit 1015, and, you know, beginning
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`11 around paragraph 30, so if I could direct you to
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`12 that portion of your declaration, and then I'll
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`13 have some questions.
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`14 MR. CHAKANSKY: Are you talking about
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`15 paragraph 30 on page 17?
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`16 MR. JONES: Sorry. I think the next
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`17 paragraph, in paragraph 31.
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`18 A. Thirty-one?
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`19 Q. Yeah.
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`20 A. Okay. Okay.
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`21 Q. And paragraph 32 of your
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`22 declaration -- of your reply declaration, you
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`23 state that CO2 plus ethanol is known to extract,
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`24 both TGs and phospholipids, and that according
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`25 to -- and then you quote Tanaka, that almost all
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`AKER EXHIBIT 2022 Page 6
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` 1 TALLON
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` 2 lipids were extracted from the salmon roe FD with
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` 3 SC-CO2, and 20 percent ethanol mixture.
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` 4 Was that a one-step supercritical
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` 5 extraction or a two-step critical extraction?
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` 6 A. I need to refer back to Tanaka just to
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` 7 be sure, if you're happy for me to do that?
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` 8 Q. Yes.
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` 9 A. Okay. If you can remind me of the
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`10 question.
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`11 Q. Yeah. So with the supercritical fluid
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`12 extraction that you refer to in paragraph 32 of
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`13 your reply declaration, was that a one-step
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`14 supercritical fluid extraction or a two-step
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`15 supercritical fluid extraction?
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`16 A. The section quoted is referring to a
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`17 one-step process where they used CO2 and ethanol
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`18 to do the extraction.
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`19 Q. And so there was no prior step where
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`20 they extracted with neat CO2?
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`21 A. Not on that particular example.
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`22 There are other examples that Tanaka
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`23 is in the publication.
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`24 Q. Correct. But this example is the
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`25 one-step CO2 extraction?
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`AKER EXHIBIT 2022 Page 7
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` 2 A. Yes. This example is demonstrating
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` 3 that if you use CO2 with ethanol co-solvent, that
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` 4 it extracts both phospholipids and triglycerides.
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` 5 Q. And is that different from the
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` 6 extraction procedure used in Catchpole?
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` 7 A. Catchpole also uses a second-stage
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` 8 extraction that uses CO2 and ethanol and, well,
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` 9 the connection with Tanaka is that we know that
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`10 those solvent conditions would extract both
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`11 neutral lipids and phospholipids.
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`12 Q. So if I'm correct, Catchpole utilized
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`13 a first fraction set of conditions used in neat
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`14 CO2?
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`15 MR. CHAKANSKY: Is that a question?
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`16 MR. JONES: Correct.
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`17 Q. Is that correct?
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`18 A. The -- excuse me -- you're referring
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`19 to the -- just to make sure we're clear on what
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`20 we're referring to, there's an example in the
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`21 Catchpole page that refers to extraction of krill.
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`22 Q. Okay. Great.
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`23 And there are two steps to that
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`24 extraction process.
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`25 And in the process in paragraph 32,
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`AKER EXHIBIT 2022 Page 8
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` 1 TALLON
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` 2 that's a one-step extraction process?
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` 3 A. Tanaka is a one-step CO2 and ethanol
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` 4 extraction example.
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` 5 Q. And that's what you're referring to in
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` 6 paragraph 32 of your declaration?
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` 7 A. That's correct.
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` 8 Q. Okay.
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` 9 I'd like to refer you to paragraph 34
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`10 of your reply declaration.
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`11 A. Okay.
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`12 Q. There in paragraph 32, you cite --
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`13 A. Thirty-four.
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`14 Q. Sorry. Paragraph 34, you cite to
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`15 Tanaka II and a series of extractions that used
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`16 10 percent or 15 percent ethanol entrainer.
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`17 Were those single-step extractions
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`18 and -- in that example as well?
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`19 A. Again, if you want me to take a minute
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`20 to peruse the actual section.
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`21 Okay. If you could repeat your
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`22 question?
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`23 Q. Yeah.
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`24 So in paragraph 34 of your
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`25 declaration, are the extractions -- the
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`AKER EXHIBIT 2022 Page 9
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` 2 supercritical fluid extractions referred to in
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` 3 that paragraph single-step extractions or two-step
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` 4 extractions?
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` 5 A. The section referred to in
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` 6 paragraph 34 is a succession of extractions using
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` 7 different levels of ethanol. It starts with CO2
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` 8 and the 5 percent concentration, and then the
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` 9 steps led up to higher levels.
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`10 Q. And is the data for that provided in
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`11 Table 1 of Tanaka II?
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`12 A. That's my interpretation of Table 1,
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`13 correct.
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`14 Q. And what do you mean by "successive
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`15 extractions"?
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`16 A. Let me just confirm here what
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`17 Tanaka --
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`18 MR. CHAKANSKY: Take your time. Make
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`19 sure you got the right table and the right
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`20 section.
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`21 A. Okay. On closer reading it, those
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`22 particular results described as sort of single
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`23 extractions each with different levels of ethanol,
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`24 ethanol co-solvent.
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`25 Q. So to summarize then, are the
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`AKER EXHIBIT 2022 Page 10
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` 1 TALLON
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` 2 extractions that are described in Table 1 of
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` 3 Tanaka and referred to in paragraph 34 of your
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` 4 reply declaration single-step extractions using an
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` 5 ethanol co-solvent?
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` 6 MR. CHAKANSKY: Objection to form.
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` 7 A. Yeah. The -- yes, those results
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` 8 referred to in Section 34 are a series of
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` 9 single-step extractions.
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`10 Q. Okay.
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`11 In paragraph 36 of your reply
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`12 declaration, you refer to Example 18 of Catchpole,
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`13 correct?
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`14 A. Correct.
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`15 Q. All right.
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`16 I'm going to provide you with
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`17 Exhibit 1009, which is --
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`18 MR. CHAKANSKY: Catchpole.
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`19 Q. -- the Catchpole patent. PCT
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`20 application.
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`21 (Exhibit 1009, Catchpole patent,
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`22 previously marked for identification, shown
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`23 at this time.)
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`24 BY MR. JONES:
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`25 Q. So -- and could you refer to
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`AKER EXHIBIT 2022 Page 11
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` 1 TALLON
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` 2 Example 18, please.
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` 3 MR. CHAKANSKY: C-A-T-C-H-P-O-L-E.
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` 4 Q. And to clarify, the Catchpole
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` 5 reference, Exhibit 1009, has two Example 18s, and
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` 6 so I think if we could agree when we refer to
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` 7 Example 18 from here on that we're referring to
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` 8 title 18 fraction?
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` 9 MR. CHAKANSKY: For further
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`10 definition, it is -- this isn't the copy.
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`11 MR. JONES: I think it must have got
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`12 cut off.
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`13 MR. CHAKANSKY: Yeah. This -- because
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`14 the page numbers stop.
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`15 It's on page -- this is page 0024, and
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`16 it's lines 1 through 19. It's the first
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`17 Example 18.
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`18 Off the record.
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`19 (Discussion off the record.)
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`20 BY MR. JONES:
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`21 Q. So in paragraph 36 of your reply
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`22 declaration, you state that Catchpole in
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`23 Example 18 used supercritical carbon dioxide and
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`24 11 percent entrainer to extract lipids from
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`25 freeze-dried krill powder, correct?
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`AKER EXHIBIT 2022 Page 12
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` 1 TALLON
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` 2 A. Correct.
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` 3 Q. Did -- did example of -- in Example 18
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` 4 of Catchpole, was there a prior step to the
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` 5 extraction with supercritical dioxide in the
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` 6 11 percent entrainer?
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` 7 A. Yes.
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` 8 Q. And what was that step?
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` 9 A. It was extraction using CO2 by itself.
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`10 Q. Okay. Now, then the examples that you
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`11 cite from Tanaka II in paragraph 32 of your reply
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`12 declaration and paragraph 34 of your reply
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`13 declaration did not use a first step with neat
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`14 carbon dioxide, correct?
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`15 A. That is correct.
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`16 Q. And so did those -- to summarize,
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`17 those extraction procedures referred to in
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`18 paragraphs 32 and 34 of your reply declaration are
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`19 different extraction procedures than what's
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`20 described in Catchpole Example 18?
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`21 MR. CHAKANSKY: I'll object to the
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`22 form.
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`23 A. No. The examples in Tanaka that I'm
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`24 referring to demonstrate the -- the sort of
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`25 non-effect the second stage of Catchpole's
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`AKER EXHIBIT 2022 Page 13
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` 1 TALLON
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` 2 extraction will have. It demonstrates that, you
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` 3 know, why triglycerides and phospholipids
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` 4 are known to be soluble, which is the second page
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` 5 that Catchpole's process used.
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` 6 Q. But is it fair to say that the
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` 7 samples -- so Tanaka II is extracting from
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` 8 freeze-dried salmon roe, correct?
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` 9 A. Correct.
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`10 Q. And when the one-step procedure from
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`11 Tanaka was utilized, that freeze-dried salmon roe
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`12 had not been pre-extracted by neat CO2, correct?
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`13 MR. CHAKANSKY: I'll object to the
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`14 form. Lack of foundation.
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`15 A. In the -- in Tanaka's examples that
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`16 you're referring to in paragraphs 32 and 34,
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`17 there's no pre-extraction with a -- with CO2 by
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`18 itself.
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`19 Q. Okay.
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`20 A. But I describe later on in my
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`21 declaration other examples of the -- from Tanaka
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`22 that do include a CO2 extraction.
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`23 Q. Correct. We'll get to those in a
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`24 minute, yeah.
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`25 So let's go to Example 18 on page 24
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`AKER EXHIBIT 2022 Page 14
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` 1 TALLON
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` 2 of Catchpole. I want to go through that example
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` 3 really quick. I have some questions to clarify
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` 4 some things.
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` 5 At line -- you know, lines 4 to 6, it
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` 6 states that 5,619.19 grams of freeze-dried krill
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` 7 powder, containing 21.4 percent lipid and
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` 8 considering phospholipids concentration known in
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` 9 table -- was extracted continuously with
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`10 supercritical CO2 at 300 bar and 313 K until no
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`11 further extract was obtained, correct?
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`12 A. Correct.
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`13 Q. Then you state that this extract
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`14 contained no phospholipids and was substantially
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`15 all neutral lipids, correct?
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`16 A. Correct -- well, the extract is
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`17 referred to as "Extract 1."
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`18 Q. Okay. We can refer to that -- well,
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`19 strike that question.
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`20 So next you applied -- a total of
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`21 650 grams of that extract was obtained and 66.41
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`22 kilograms of CO2 was used, correct?
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`23 A. Correct.
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`24 Q. And when you state that extract
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`25 contained no phospholipids and was substantially
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`AKER EXHIBIT 2022 Page 15
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` 1 TALLON
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` 2 all neutral lipids, what will the neutral lipids
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` 3 include?
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` 4 MR. CHAKANSKY: I'll object.
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` 5 It's Extract 1.
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` 6 Q. Extract 1, so let me just state that.
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` 7 So the Catchpole reference indicates
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` 8 that Extract 1 contained no phospholipids, it was
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` 9 substantially all neutral lipids, what will those
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`10 neutral lipids include?
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`11 A. They would include at least
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`12 triglycerides. There will be expected to be some
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`13 level of free fatty acids. And there may be small
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`14 labels of partial glycerides. And there are other
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`15 sort of neutral lipid-soluble components, which
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`16 sometimes is referred to as "neutral lipids," but
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`17 they include things like astaxanthin and if you
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`18 have trace things, like sterols.
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`19 Q. It would include free fatty acids?
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`20 A. It will include some free fatty acid
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`21 content.
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`22 Q. And then after that first step where
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`23 Extract 1 was obtained, it goes on to say, in
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`24 Catchpole -- goes on to indicate that the residual
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`25 powder was extracted with CO and absolute ethanol
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`AKER EXHIBIT 2022 Page 16
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` 2 using a mass ratio of ethanol to CO2 of
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` 3 11 percent, correct?
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` 4 A. Correct.
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` 5 Q. And so that residual powder that's
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` 6 referred to in Example 18 of Catchpole, is it fair
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` 7 to say that that powder had had the neutral lipids
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` 8 removed from it?
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` 9 A. Some of them. The 650 grams that are
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`10 referred to in the example.
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`11 Q. Okay.
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`12 So the residual powder referred to in
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`13 Example 18 is not the same as the freeze-dried
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`14 krill powder starting material. Is that correct?
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`15 A. That's correct.
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`16 Q. So while in the extract, that was
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`17 obtained from the CO2 and 11 percent ethanol
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`18 extraction?
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`19 Example 18 is referred to as
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`20 "Extract 2," correct?
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`21 A. Correct.
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`22 Q. So is it fair to say that Extract 1
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`23 was obtained from freeze-dried krill powder and
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`24 that Extract 2 was obtained from a residual powder
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`25 that had been treated -- that had been extracted
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`AKER EXHIBIT 2022 Page 17
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` 2 with neat CO2?
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` 3 MR. CHAKANSKY: Object to the form.
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` 4 A. If I can resummarize it.
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` 5 So you're saying -- well, Extract 1
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` 6 was extracted from all freeze-dried krill powder,
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` 7 and then Extract 2 was extracted from -- well,
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` 8 from what was left after doing that first
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` 9 extraction.
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`10 Q. Okay.
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`11 And so that material that was left
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`12 after the first extraction is necessarily
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`13 different from the starting material?
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`14 A. Correct. It's 650 grams of
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`15 substantially neutral lipids extracted from it.
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`16 Q. Correct.
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`17 Okay. So referring back to Tanaka II,
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`18 so if you look at this Exhibit 1015, page 004?
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`19 A. Yes.
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`20 Q. So the extractions described in
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`21 Table 1 were conducted on freeze-dried salmon roe,
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`22 correct?
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`23 A. Correct.
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`24 Q. And that freeze-dried salmon roe had
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`25 not been previously extracted with neat CO2 to
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`AKER EXHIBIT 2022 Page 18
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` 2 remove neutral lipids, correct?
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` 3 A. Not on these examples, no.
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` 4 Q. Okay.
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` 5 Paragraph -- so I was going to refer
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` 6 you to paragraph 37 of your reply declaration.
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` 7 A. Yeah.
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` 8 Q. There you state that Catchpole's
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` 9 Example 18 krill powder Extract 2 would have been
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`10 known by a POSITA to contain a decent level of
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`11 triglycerides, correct?
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`12 A. It goes on, but yes, correct.
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`13 Q. What do you mean by a "decent level"?
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`14 A. Well, referring in this case to, you
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`15 know, reasonable interpretation that a POSITA
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`16 would make looking at -- well, not just in
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`17 isolation of Catchpole's example, but looking at
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`18 other krill oil extracts, and it would be
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`19 perfectly reasonable to expect a decent amount of
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`20 triglyceride being in.
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`21 And if I -- well, had to put a -- sort
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`22 then -- well, perhaps 20 to 50 percent would be a
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`23 reasonable description of "decent" in this case.
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`24 Q. Okay. So we're going to move on to
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`25 paragraph 38 your reply declaration.
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`AKER EXHIBIT 2022 Page 19
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` 2 A. Okay.
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` 3 Q. In paragraph 38 of your reply
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` 4 declaration, you provide that Tanaka II, it's
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` 5 described a three-step process for lipid
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` 6 extraction, correct?
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` 7 A. Correct.
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` 8 Q. And is that different from the
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` 9 one-step processes that are exemplified by the
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`10 data in Table 1 of Tanaka II?
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`11 A. There are differences, yes.
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`12 Q. And what are those differences?
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`13 A. Probably the -- well, one of the
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`14 differences is that in the three-step process,
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`15 Tanaka is progressively extracting the same
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`16 material.
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`17 So rather than using a one-solvent
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`18 system and producing a single extract from the
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`19 starting material, he's using a succession of
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`20 steps, the first one using a very modest amount of
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`21 ethanol co-solvent, and then continued the
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`22 extraction of the same material with an increased
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`23 level of ethanol co-solvent.
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`24 Q. And is it your opinion that the --
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`25 that this three-step process described in
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`AKER EXHIBIT 2022 Page 20
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` 1 TALLON
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` 2 Tanaka II is comparable to the two-step process in
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` 3 Catchpole?
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` 4 A. Yes, there are quite a few
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` 5 similarities.
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` 6 The first stage in both Catchpole and
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` 7 Tanaka is one that will -- when you extracted
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` 8 neutral lipids and negligible of phospholipid.
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` 9 And then the second, and, in fact,
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`10 even the third step in Tanaka has many
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`11 similarities to the second stage of Catchpole in
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`12 which a high level of ethanol co-solvent is being
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`13 used to take out a -- or to extract a lot of
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`14 the -- any residual neutral lipid that's still
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`15 there after the first extraction stage and a --
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`16 and extract of the phospholipids as well.
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`17 Q. And what are the differences between
`
`18 the three-step process of Tanaka II and the
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`19 two-step process described in Catchpole?
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`20 A. Is there any particular aspects you
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`21 want me to draw on?
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`22 I mean, I could work my way through
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`23 the -- all of the details of all the extraction,
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`24 and things, and itemize every difference if you
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`25 want me to, but that could be a reasonably lengthy
`
`AKER EXHIBIT 2022 Page 21
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`22
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` 1 TALLON
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` 2 process, or is there a particular part of it you
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` 3 want me to comment on?
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` 4 I mean, there are many similarities,
`
` 5 but, if we work through the details, there may be
`
` 6 slightly different parts, perhaps, but if you
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` 7 wanted me to pick through the --
`
` 8 Q. Let's start there.
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` 9 So Tanaka II utilized 5 percent
`
`10 ethanol in its first stage, correct?
`
`11 A. That's correct.
`
`12 Q. And Catchpole Example 18 utilized neat
`
`13 CO2, correct?
`
`14 A. That's correct.
`
`15 Q. Would you expect there to be any
`
`16 difference between the use of 5 percent ethanol in
`
`17 the first stage of Tanaka II and no ethanol in the
`
`18 first stage of Catchpole Example 18?
`
`19 A. Limited differences. It is quite
`
`20 well-known that once you go below about 13 percent
`
`21 ethanol co-sol, that CO2 with something like
`
`22 5 percent ethanol doesn't extract polar lipids,
`
`23 and you end up with a neutral lipid extract that's
`
`24 very similar to an extract using CO2 alone.
`
`25 Q. Okay. And in stage 2 of Tanaka II,
`
`AKER EXHIBIT 2022 Page 22
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`23
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` 1 TALLON
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` 2 the ethanol percent was increased from 5 to
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` 3 20 percent, correct?
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` 4 A. It's correct.
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` 5 MR. HARRINGTON: Tanaka II?
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` 6 MR. JONES: In Tanaka II.
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` 7 MR. CHAKANSKY: And we're talking
`
` 8 about Figure 7?
`
` 9 MR. JONES: Yeah, the three-stage
`
`10 process, yes.
`
`11 A. Page 6?
`
`12 Q. Yeah.
`
`13 And Catchpole Example 18 utilized
`
`14 11 percent ethanol in the second extraction step,
`
`15 correct?
`
`16 A. That's correct.
`
`17 Q. What differences would there be
`
`18 between using 11 percent in Catchpole and the
`
`19 second stage and increasing from 5 to 20 percent
`
`20 in the second stage of Tanaka II?
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`21 MR. CHAKANSKY: I'll object to the
`
`22 form.
`
`23 You can answer.
`
`24 A. So extraction with either 11 percent
`
`25 or 20 percent is known to extract the
`
`AKER EXHIBIT 2022 Page 23
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`24
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` 1 TALLON
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` 2 phospholipids that are present in krill. The key
`
` 3 differences are a higher level of ethanol
`
` 4 co-solvent might make the process run a bit
`
` 5 faster.
`
` 6 Q. Okay.
`
` 7 One more potential difference that I
`
` 8 want to try to understand. The three-stage
`
` 9 process of -- the three-step process of Tanaka II
`
`10 that you discuss at paragraph 38 of declaration --
`
`11 your reply declaration, is it correct to say that
`
`12 that was a successive extraction where the
`
`13 materials that -- you might need to help me here,
`
`14 but the materials in the reactor is extracted for
`
`15 a period of time with the 5 percent ethanol and
`
`16 CO2, and then that same -- and then just the
`
`17 amount of ethanol was increased to 20 percent?
`
`18 MR. CHAKANSKY: I'll object to -- it's
`
`19 a real long question.
`
`20 MR. JONES: Yeah.
`
`21 MR. CHAKANSKY: Could you break it
`
`22 down?
`
`23 MR. JONES: We'll break it down. Let
`
`24 me try to break it down.
`
`25
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`AKER EXHIBIT 2022 Page 24
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`25
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` 1 TALLON
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` 2 BY MR. JONES:
`
` 3 Q. So the three-step process of Tanaka
`
` 4 II, in the first stage, they extracted with
`
` 5 supercritical CO2 and 5 percent ethanol, correct?
`
` 6 A. Correct.
`
` 7 Q. And then in the -- then it says that
`
` 8 they increased the amount of ethanol from 5 to 20
`
` 9 percent, correct?
`
`10 A. Tanaka's exact description is from
`
`11 page 6. In the second step, the amount of ethanol
`
`12 was increased from 5 percent to 20 percent in the
`
`13 shorter time as possible, and the extraction
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`14 progressed for a further one hour.
`
`15 Q. Then referring to Example 18 of
`
`16 Catchpole, okay, after Extract 1 was obtained, it
`
`17 says that the residual powder was then extracted,
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`18 correct?
`
`19 A. Not in those exact words, but
`
`20 that's -- that's the effect of it, yes.
`
`21 Q. So did -- did -- in the three-stage
`
`22 process of Tanaka II, did they obtain a residual
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`23 powder that was extracted as described?
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`24 A. In actual fact, the extraction of
`
`25 Example 18 in Catchpole was done exactly as Tanaka
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`AKER EXHIBIT 2022 Page 25
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`26
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` 1 TALLON
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` 2 described. The extraction was run progressively.
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` 3 And in the case of Tanaka's example,
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` 4 in effect, there is a -- there is also a residual
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` 5 powder after that first stage, but still contained
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` 6 within the vessel, and the second stage progressed
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` 7 immediately afterwards.
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` 8 But at the point of that changeover
`
` 9 between stage 1 and stage 2, that residual powder
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`10 exists.
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`11 Q. Okay.
`
`12 MR. JONES: We've been going about 45
`
`13 minutes. Do you want to take a break?
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`14 MR. CHAKANSKY: Do you want to take a
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`15 break? Okay.
`
`16 (Recess taken from 9:47 a.m. until
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`17 9:53 a.m.)
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`18 BY MR. JONES:
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`19 Q. Dr. Tallon, I'd like to direct you to
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`20 paragraph 40 of your reply declaration.
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`21 A. Forty?
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`22 Q. Forty, 4-0, page 22. All right.
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`23 And right above paragraph 40, you see
`
`24 calculating the amount of triglycerides present in
`
`25 Extract 2, correct?
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`AKER EXHIBIT 2022 Page 26
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`27
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` 1 TALLON
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` 2 A. Correct.
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` 3 Q. And in paragraph 40, you refer to a
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` 4 Fricke 1, Table 1?
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` 5 A. Correct.
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` 6 Q. And I think -- and so Fricke 1 is
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` 7 Exhibit 1010, for the record.
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` 8 MR. CHAKANSKY: F-R-I-C-K-E, and 1
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` 9 after it.
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`10 Q. And so Table 1 of Fricke 1, which is
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`11 reproduced in your reply declaration, that
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`12 provides the amounts of lipids from two different
`
`13 samples of krill, correct?
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`14 They're 19, and that would be a 1977
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`15 sample and a 1981 sample.
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`16 MR. CHAKANSKY: Objection to form.
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`17 MR. JONES: Okay. So I'll just start
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`18 over.
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`19 MR. CHAKANSKY: It's more than one
`
`20 krill in each one, that's what I'm trying to
`
`21 get to.
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`22 BY MR. JONES:
`
`23 Q. So Table 1 of Fricke, if you refer to
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`24 the line that says, "Sample," so there's a 1977
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`25 sample and a 1981 sample, correct?
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`AKER EXHIBIT 2022 Page 27
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`28
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` 1 TALLON
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` 2 A. That's correct.
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` 3 Q. And then Table 1 of Fricke 1 then goes
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` 4 on to specify the amounts of phospholipids and
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` 5 neutral lipids present in the 1977 sample and 1981
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` 6 sample, correct?
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` 7 A. Provides a breakdown of a number of
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` 8 phospholipids and neutral lipid classes.
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` 9 Q. And then referring to paragraph 42 of
`
`10 your reply declaration, you state that a POSITA
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`11 would use references, such as Fricke 1, to get an
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`12 understanding of the lipids contained in krill and
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`13 the relative proportions that could be extracted
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`14 by conventionally known methods, correct?
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`15 A. That's correct.
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`16 Q. And those relative proportions that
`
`17 you're referring to are those proportions in
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`18 Table 1 of Fricke 1, correct?
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`19 A. If POSITA was using Fricke 1 as the
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`20 example, then yeah, it would be a reasonable
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`21 expectation to get those proportions.
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`22 Q. But you, in fact, use the proportions
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`23 from Fric
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