RIMFROST AS vs.
`AKER BIOMARINE ANTARCTIC AS
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`DR. STEPHEN J. TALLON
`June 4, 2019
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`Original File 271254.txt
`Min-U-Script® with Word Index
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`AKER EXHIBIT 2020 Page 1
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`AKER BIOMARINE ANTARCTIC AS
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`DR. STEPHEN J. TALLON
`June 4, 2019
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`Original File 271254.txt
`Min-U-Script® with Word Index
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`AKER EXHIBIT 2020 Page 1
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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
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` 3 RIMFROST AS,
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` 4 Petitioner,
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` 5 -vs.-
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` 6 AKER BIOMARINE ANTARCTIC AS,
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` 7 Patent Owner.
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` 8 CASE NUMBER: IPR 2018-01730
` U.S. Patent No. 9,072,752
` 9 ------------------------------------------------x
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`10
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`11 Title: BIOEFFECTIVE KRILL OIL COMPOSITIONS
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`12
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`13 4 Century Drive
` Parsippany, New Jersey
`14
` June 4, 2019
`15 8:54 a.m.
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`16
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`17 DEPOSITION OF, DR. STEPHEN J. TALLON,
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`18 taken by and before TAB PREWETT, a Registered
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`19 Professional Reporter, a Certified LiveNote
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`20 Reporter, Certified Shorthand Reporter and Notary
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`21 Public.
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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: 271254
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`AKER EXHIBIT 2020 Page 2
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` 1 A P P E A R A N C E S:
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` 3 HOFFMAN & BARON LLP
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` 4 Attorneys for Rimfrost
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` 5 4 Century Drive, Suite 300
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` 6 Parsippany, New Jersey 07054-4606
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` 7 BY: MICHAEL I. CHAKANSKY, ESQ.
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` 8 Phone No. 1 973-331-1700
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` 9 mchakansky@hbiplaw.com
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`12 HOFFMAN & BARON LLP
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`13 Attorneys for Rimfrost
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`14 6900 Jericho Turnpike
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`15 Syosset, New York 11791-4407
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`16 BY: JOHN T. GALLAGHER, ESQ.
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`17 Phone No. 1 516-822-3550
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`18 jgallagher@hbiplaw.com
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` 1 A P P E A R A N C E S: (Cont'd)
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` 3 CASIMIR JONES S.C.
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` 4 Attorneys for Aker Biomarine Antarctic
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` 5 2275 Deming Way, Suite 310
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` 6 Middleton, Wisconsin 53562
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` 7 BY: J. MITCHELL JONES, ESQ.
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` 8 Phone No. 1 606-662-1277
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` 9 jmjones@casimirjones.com
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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 J. TALLON MR. JONES 5, 53
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` 4 MR. CHAKANSKY 50
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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 TALLON DESCRIPTION FOR I.D.
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` 9 Exhibit 1120 Document entitled: 50
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`10 "Document made available
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`11 under the Patent
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`12 Cooperation Treaty (PCT)
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`13 International Application
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`14 Number PCT/NZ2007/000087,
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`15
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`16
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`17 ----------- PREVIOUSLY MARKED EXHIBITS ----------
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`18 EXHIBITS DESCRIPTION FOR I.D.
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`19 Exhibit 1006 "Declaration of Dr. Stephen 5
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`20 Tallon" for IPR 2018-01730
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`21 Exhibit 1109 Catchpole Report 8
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`22 Exhibit 1039 Grynbaum Declaration, Paper 18
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`23 Exhibit 1048 Enzymotec GRAS Report 6
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`24
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`25 (EXHIBITS RETAINED BY COUNSEL)
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`AKER EXHIBIT 2020 Page 5
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` 1 D R. S T E P H E N J. T A L L O N,
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` 2 G9 Gracefield Road,
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` 3 Lower Hutt, New Zealand,
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` 4 having been duly sworn by the notary
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` 5 public to testify to the truth,
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` 6 testified as follows:
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` 7
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` 8 DIRECT EXAMINATION BY MR. JONES:
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` 9 Q Good morning, Dr. Tallon.
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`10 A Good morning.
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`11 Q So we have done this a few times.
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`12 We have been through kind of the -- kind of the
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`13 rules on depositions several times?
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`14 A Yes.
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`15 Q Okay. Anything you don't
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`16 understand?
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`17 A No questions from me, no.
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`18 Q Okay. Great. So let's start out
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`19 with the -- I'll give you a copy of Exhibit 1006,
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`20 which is "Declaration of Dr. Stephen Tallon" for
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`21 IPR 2018-01730.
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`22 (Previously Marked Exhibit No.
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`23 1006, "Declaration of Dr. Stephen Tallon"
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`24 for IPR 2018-01730, Document is introduced
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`25 into the proceedings.)
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`AKER EXHIBIT 2020 Page 6
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` 1 DR. STEPHEN TALLON
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` 2 Q That's a front and back copy; and
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` 3 remember that, you know, there is a table of
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` 4 contents up-front, and everything where things
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` 5 are. And we will be referring to that several
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` 6 times during the deposition today.
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` 7 And feel free to -- when I am
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` 8 questioning you about these other documents, you
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` 9 know, feel free to refer back to that if you need
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`10 to.
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`11 A Okay.
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`12 Q All right. And the next thing I am
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`13 going to provide you with is Exhibit 1048. And
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`14 this is referred to, I believe, in the filings as
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`15 the Enzymotec GRAS report.
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`16 A Okay.
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`17 (Previously Marked Exhibit No.
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`18 1048, Enzymotec GRAS Report, Document is
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`19 introduced into the proceedings.)
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`20 Q And if you want to take a moment or
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`21 so to look at that and --
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`22 MR. CHAKANSKY: Is there a question
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`23 or something? He's been --
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`24 MR. JONES: No, no, just -- I am
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`25 just giving him a chance to look at it, and
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`AKER EXHIBIT 2020 Page 7
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` 1 DR. STEPHEN TALLON
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` 2 I am going to start asking questions then.
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` 3 MR. CHAKANSKY: All right. As long
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` 4 as he has the opportunity to look at it
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` 5 again.
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` 6 MR. JONES: Yes.
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` 7 MR. CHAKANSKY: This applies to
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` 8 the -- for the report.
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` 9 Q So do you recall providing an
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`10 analysis of this for your expert report of the
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`11 Enzymotec GRAS -- do you recall providing an
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`12 analysis of the Enzymotec GRAS report as a part
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`13 of your expert report?
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`14 A As part of my declaration, yes.
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`15 Q Okay. I would like to direct your
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`16 attention to page 0017 of Exhibit 1048.
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`17 A Okay.
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`18 MR. CHAKANSKY: Yes, the one on the
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`19 bottom.
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`20 Q There are two. It's the number on
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`21 the very bottom.
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`22 A The 17.
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`23 Q 0017. I would like to direct your
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`24 attention to -- in the table B1 of Exhibit 1048,
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`25 do you see a list:
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`AKER EXHIBIT 2020 Page 8
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`8
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` 1 DR. STEPHEN TALLON
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` 2 "Concentrations of
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` 3 phosphatidylinositol," or PI -- that's
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` 4 p-h-o-s-p-h-a-t-i-d-y-l-i-n-o-s-i-t-o-l -- and we
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` 5 will abbreviate that as "PI."
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` 6 A Okay. Yes. I see the numbers in
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` 7 the table.
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` 8 Q And in your work with krill oil,
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` 9 when you have done analyses of krill oil, have
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`10 you generally found that phosphatidylinositol is
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`11 present in krill oil?
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`12 A Yes, that's my understanding there
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`13 is some level of PI in krill oil.
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`14 Q And would you normally see it at
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`15 levels above 1 percent?
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`16 A That would depend on how it was --
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`17 how it was made. What material are you talking
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`18 about?
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`19 Q Krill oil.
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`20 A Yes. Krill oils are -- can vary
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`21 quite widely in the composition.
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`22 Q Okay. I am going to provide you
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`23 with Exhibit 1009. We generally refer to this as
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`24 "Catchpole."
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`25 (Previously Marked Exhibit No. 1109
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`AKER EXHIBIT 2020 Page 9
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`9
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` 1 DR. STEPHEN TALLON
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` 2 Catchpole Report, Document is introduced
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` 3 into the proceedings.)
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` 4 Q I would like to direct your
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` 5 attention to example 18 at the top of page 0024.
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` 6 A Okay.
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` 7 Q And then specifically to table 16.
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` 8 A Yep.
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` 9 Q And table 16 includes the
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`10 percentages of a column labeled "PI." Do you see
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`11 that?
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`12 A I see that.
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`13 Q And what is the percentage of PI
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`14 listed in the "feed" material and extract
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`15 obtained in table 16?
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`16 A The entry for PI in the feed in
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`17 table 16 is reported as 0.0 percent.
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`18 Q Okay. Do you know why the
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`19 Enzymotec krill oil described in table B-1 of
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`20 Exhibit 1048 would include PI while the feed
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`21 material in Exhibit 1009 would not contain PI?
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`22 MR. CHAKANSKY: Objection to the
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`23 form of the question.
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`24 A The data in Enzymotec -- the data
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`25 in Enzymotec is talking about a krill oil
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`AKER EXHIBIT 2020 Page 10
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` 1 DR. STEPHEN TALLON
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` 2 extract, not a feed material. So they are not
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` 3 directly comparable.
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` 4 Q Okay. Then -- then what about
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` 5 extract two listed in table 16 of Exhibit 1009?
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` 6 Would that be comparable to the extract of the
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` 7 Enzymotec -- in Enzymotec -- would that be
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` 8 comparable to the extracts that are described in
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` 9 table B-1 of Exhibit 1048?
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`10 MR. CHAKANSKY: Objection to the
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`11 form of the question.
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`12 A Well, it depends on what you mean
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`13 by "comparable" -- but, in general, no --
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`14 different publications, different krill oils,
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`15 different processes for extracting them.
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`16 Q So the different processes might be
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`17 an explanation for why extract two in
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`18 Exhibit 1009 has 0.0 PI, and the Enzymotec
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`19 extracts in table B-1 of Exhibit 1048 have
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`20 varying levels of PI?
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`21 MR. CHAKANSKY: Objection.
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`22 Misstates -- mischaracterizes the
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`23 testimony. Objection to the form. You can
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`24 answer.
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`25 A Well, a couple of comments:
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`AKER EXHIBIT 2020 Page 11
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` 1 DR. STEPHEN TALLON
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` 2 The -- the levels of PI that you
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` 3 are referring to in Enzymotec are relatively
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` 4 small numbers; but, yet, one of the contributing
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` 5 factors to a difference in reported PI levels
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` 6 will be the extraction process.
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` 7 Q Okay. With respect to the analyses
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` 8 provided in table B-1 of Exhibit 1048, do you
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` 9 know how the krill oils, the grade A and grade B
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`10 krill oil was analyzed for lipid content?
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`11 A I'll need to have a look through.
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`12 MR. JONES: Yes.
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`13 A I have had a quick look through,
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`14 and, unless you want to indicate any specific
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`15 parts, I don't see specifically how -- the
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`16 description of how the phospholipid analysis was
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`17 done -- some description of some of the other
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`18 analyses.
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`19 Q Is there a description for how the
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`20 neutral lipids were analyzed?
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`21 A I can't see a specific description
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`22 of it.
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`23 Q And so to summarize, is there any
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`24 description in Exhibit 1048 of how the lipid
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`25 content of the grade A and grade B krill extracts
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`AKER EXHIBIT 2020 Page 12
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` 1 DR. STEPHEN TALLON
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` 2 was determined?
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` 3 A I don't see a specific description
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` 4 of which analysis method they used.
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` 5 Q Have you prepared GRAS reports
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` 6 before?
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` 7 A I have, in fact, prepared a GRAS
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` 8 report or contributed to one.
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` 9 Q Would it be normal to include a
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`10 description in a GRAS report of the analytical
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`11 methods that are used to describe the GRAS
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`12 material?
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`13 MR. CHAKANSKY: Objection to the
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`14 form.
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`15 A What do you mean by "usual"?
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`16 Q In --
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`17 A There is an example here where it
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`18 isn't.
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`19 Q Yes.
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`20 A But the GRAS report, in my -- in my
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`21 single experience of contributing to draft one
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`22 was -- was entirely about making a -- you know,
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`23 compiling an expert opinion just about the safety
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`24 of the product.
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`25 MR. CHAKANSKY: And at this point,
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`AKER EXHIBIT 2020 Page 13
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` 1 DR. STEPHEN TALLON
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` 2 if there is any confidential information
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` 3 relating to that report, you know, the GRAS
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` 4 is public -- if there's anything
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` 5 confidential, just stay away from that.
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` 6 A Yes. I won't give any specifics
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` 7 about the GRAS application.
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` 8 Q In example 18, "Fractionation of
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` 9 krill lipids" from Exhibit 1009 --
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`10 MR. CHAKANSKY: So we are changing
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`11 the exhibit to Catchpole?
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`12 MR. JONES: Yes.
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`13 A Sorry. Which page?
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`14 Q Page 0024.
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`15 MR. CHAKANSKY: Example 18.
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`16 A Okay.
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`17 Q So the compositional data in table
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`18 16, what method was used to provide the
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`19 compositional data in table 16?
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`20 A As a range of different components,
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`21 analysis of them. But if you're referring
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`22 specifically to the quantification of the
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`23 phospholipid classes, then that was done by a
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`24 phosphorous NMR method.
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`25 Q And is NMR a preferred method to
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`AKER EXHIBIT 2020 Page 14
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` 1 DR. STEPHEN TALLON
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` 2 determine phospholipid composition in a sample?
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` 3 A NMR is a very effective method of
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` 4 measuring composition.
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` 5 Q And when you used NMR to determine
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` 6 the composition of PI in the feed and extract two
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` 7 listed in table 16, it indicated that the amount
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` 8 of PI was 0.0; is that correct?
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` 9 MR. CHAKANSKY: Objection to the
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`10 form. You can answer.
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`11 A The value that we reported in that
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`12 table is 0.0.
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`13 Q Okay. So going back to
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`14 Exhibit 1048, and in table B-1 on page 0017.
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`15 A Okay.
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`16 Q Now, let's just leave it. That's
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`17 fine.
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`18 So if the analytical method is not
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`19 provided in Exhibit 1048, as an expert, is it
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`20 difficult to determine if discrepancies in the
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`21 results could be due to the analytical method
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`22 that was utilized?
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`23 MR. CHAKANSKY: Objection. Lack of
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`24 foundation. Objection to the form.
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`25 A You know, that would depend
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`AKER EXHIBIT 2020 Page 15
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` 1 DR. STEPHEN TALLON
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` 2 entirely on what sort of discrepancy you would
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` 3 find to -- trying to observe.
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` 4 Q What about discrepancies in
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` 5 reported phospholipid content?
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` 6 MR. CHAKANSKY: Objection. Lack of
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` 7 foundation.
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` 8 A Which discrepancies are you
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` 9 referring to?
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`10 Q For example, table B-1 of
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`11 Exhibit 1048 listing the grade A and grade B
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`12 krill extracts contain phosphatidylinositol, and
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`13 extract two of example 18 of Exhibit 1009
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`14 contains 0.0 percent phosphatidylinositol?
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`15 MR. CHAKANSKY: Objection.
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`16 Mischaracterizes his testimony.
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`17 A I am still not sure which
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`18 discrepancy you are talking about.
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`19 Q Okay. So the grade A and grade B
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`20 krill oil extracts described in table B-1 contain
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`21 phosphatidylinositol; is that correct?
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`22 MR. CHAKANSKY: Objection. Asked
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`23 and answered.
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`24 A Yes, it refers to levels of PI for
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`25 a number of different batches, and has numbers
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`AKER EXHIBIT 2020 Page 16
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` 1 DR. STEPHEN TALLON
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` 2 ranging from 0.8 to 4.1 for some of the grade B
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` 3 materials.
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` 4 Q And in example 18, table 16, of
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` 5 Exhibit 1009, the amount of PI for the feed and
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` 6 the extract is listed as 0.0, correct?
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` 7 A That's correct.
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` 8 Q And so you see that there's a
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` 9 discrepancy in that Exhibit 1048 reports the
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`10 presence of PI in krill extracts, and
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`11 Exhibit 1009 reports that there is 0.0 PI in
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`12 krill extracts?
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`13 MR. CHAKANSKY: Objection to the
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`14 form. Objection to lack of foundation.
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`15 A I can see that the numbers are
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`16 different -- whether it's different to a
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`17 discrepancy.
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`18 Q Could the reason that the numbers
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`19 are different be that -- be due to the analytical
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`20 technique that was utilized?
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`21 A Again, there are a number of
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`22 potentially contributing factors, but the --
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`23 suggest that the fact that in the Catchpole
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`24 patent, as the 1009 exhibit -- the fact that very
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`25 low levels of PI were reported in the feed, that
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` 1 DR. STEPHEN TALLON
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` 2 would be a pretty good reason why there are also
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` 3 relatively low levels in extract two. There
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` 4 would be some consistency there.
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` 5 Q Okay. Table B-1 of Exhibit 1048,
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` 6 do you see the row labeled
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` 7 "Phosphatidylethanolamine" or PE?
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` 8 A I do.
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` 9 Q And do you see that the fourth
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`10 entry in that row is 0.0?
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`11 A I can see that. Yes.
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`12 Q In your experience, have you ever
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`13 seen a krill extract that has 0.0 percent PE?
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`14 A Given the breadth of possible krill
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`15 extracts that one can make, yes, I have.
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`16 Q So have you seen it in your own
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`17 personal experience?
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`18 A I would have to say, yes, it is
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`19 quite likely that I have.
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`20 Q Okay.
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`21 A But I don't recall a specific
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`22 instance.
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`23 Q I provide you with Exhibit 1039
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`24 this is referred to in the papers as the Grynbaum
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`25 reference. That is G-r-y-n-b-a-u-m.
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`AKER EXHIBIT 2020 Page 18
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` 1 DR. STEPHEN TALLON
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` 2 (Previously Marked Exhibit No.
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` 3 1039, Grynbaum Declaration, Paper, Document
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` 4 is introduced into the proceedings.)
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` 5 Q And do you remember providing an
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` 6 analysis of this in your expert report?
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` 7 A It's part of the declaration, yes.
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` 8 Q Or declaration. Yes. Sorry.
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` 9 So on page 002 of Exhibit 1039,
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`10 column two, they refer to "matrix solid phase
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`11 dispersion" or MSPD. Are you familiar with that
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`12 technique?
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`13 A In broad terms, yes.
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`14 Q Could you explain how it works?
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`15 A My understanding of it is it's a
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`16 process where you just light up a -- a sample
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`17 that you are aiming to test; and you pass a
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`18 solvent through it to separate out the -- in this
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`19 case the lipid-rich or astaxanthin-containing
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`20 fraction, so that that extracted fraction can be
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`21 analyzed.
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`22 Q Let's go to page 0003 of
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`23 Exhibit 1039, column one, section 2.2.1,
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`24 extraction?
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`25 A Okay.
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`AKER EXHIBIT 2020 Page 19
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` 1 DR. STEPHEN TALLON
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` 2 Q So there it says:
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` 3 "The krill (0.5 grams) was ground
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` 4 with 1.5 grams of C18 (end-capped) MSPD material
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` 5 and butylated hydroxytoluene into a ... powder."
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` 6 MR. CHAKANSKY: "... into a dried
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` 7 homogeneous powder."
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` 8 Q "... a dried homogeneous powder."
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` 9 Yes.
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`10 A I can see that, yes.
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`11 Q What -- what's your understanding
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`12 of what a "C18 (end-capped) MSPD material" would
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`13 be?
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`14 A My understanding is that there
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`15 would be -- well, a granular kind of carrier
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`16 material just to aid with the extraction process.
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`17 Q Okay. The C18 MSPD material, is
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`18 it -- would you understand that to be a material
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`19 that would be used in column chromatography?
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`20 MR. CHAKANSKY: Objection to the
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`21 form of the question. You can answer.
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`22 A In general terms, yes.
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`23 Q And would you understand it to be
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`24 an absorbent material?
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`25 A In terms of chromatography, it
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`AKER EXHIBIT 2020 Page 20
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` 1 DR. STEPHEN TALLON
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` 2 potentially has some interaction with the
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` 3 analytes.
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` 4 Q And do you know what analytes it
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` 5 would interact with and what analytes it would
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` 6 not interact with?
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` 7 MR. CHAKANSKY: Objection to the
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` 8 form of the question.
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` 9 A Not off the top of my head. I'd
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`10 need to review a bit of other information to make
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`11 a useful comment on that.
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`12 Q Okay. Let's go to page 004 of
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`13 Exhibit 1039, the section labeled three, "Results
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`14 and Discussion."
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`15 A Okay.
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`16 Q So the second sentence in that
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`17 section says:
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`18 "Polar compounds were eluted with
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`19 water and the carotenoids were eluted with TBME."
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`20 MR. CHAKANSKY: Can you read the
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`21 whole section or just that one line?
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`22 A Sorry. Can you tell me which part
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`23 of the section three you are looking at.
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`24 Q Section three, column two, the
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`25 second sentence, and you can review the whole --
`
`AKER EXHIBIT 2020 Page 21
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`21
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` 1 DR. STEPHEN TALLON
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` 2 or that whole paragraph?
`
` 3 A Okay.
`
` 4 Q So it says:
`
` 5 "Polar compounds were eluted with
`
` 6 water."
`
` 7 Do you see that?
`
` 8 A I see where it says that.
`
` 9 Q Do you know what "polar compounds"
`
`10 those would be?
`
`11 A The water soluble ones.
`
`12 Q Okay. And you see it says
`
`13 "carotenoids were eluted with TBME"?
`
`14 A I do.
`
`15 Q Do you know if TBME is food safe?
`
`16 A What do you mean by "food safe"?
`
`17 Q Would it be safe to include a
`
`18 compound that's extracted with TBME in food?
`
`19 A Well, if it was not present in the
`
`20 food product afterwards.
`
`21 Q It would have to be removed?
`
`22 A Yeah, it wouldn't be my choice to
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`23 consume a large amount of TBME.
`
`24 Q Okay.
`
`25 A It's a solvent used -- well, I
`
`AKER EXHIBIT 2020 Page 22
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`22
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` 1 DR. STEPHEN TALLON
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` 2 mean, it's not the -- not the food product
`
` 3 itself, so one would remove it.
`
` 4 Q And you see it says:
`
` 5 "The carotenoids were separated by
`
` 6 HPLC on a C30 column"?
`
` 7 MR. CHAKANSKY: Objection to the
`
` 8 form. Where are you?
`
` 9 Q Column two.
`
`10 MR. CHAKANSKY: Could you say the
`
`11 whole sentence as opposed to picking out
`
`12 phrases?
`
`13 Q Okay. It says:
`
`14 "The carotenoids were separated by
`
`15 HPLC on a C30 column (250 by 4.6 millimeters,
`
`16 3 micrometers, 120 angstroms), resulting in the
`
`17 chromatogram shown in figure two."
`
`18 A I can see where it says that.
`
`19 Q Could you explain what a "C30
`
`20 column" is?
`
`21 A It's just a type of HPLC column
`
`22 used for analysis.
`
`23 Q And what does the "C30" refer to?
`
`24 A I couldn't say offhand the specific
`
`25 properties of the C30 -- a C30 column without
`
`AKER EXHIBIT 2020 Page 23
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`23
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` 1 DR. STEPHEN TALLON
`
` 2 referring to other information.
`
` 3 Q Okay. Let's go to -- okay. Let's
`
` 4 go to paragraph 348 of your declaration,
`
` 5 Exhibit 1006.
`
` 6 MR. CHAKANSKY: The big one.
`
` 7 Q And that's where you discuss
`
` 8 Grynbaum.
`
` 9 A Okay. What was the page number
`
`10 again?
`
`11 Q Paragraph 348 and page number 208.
`
`12 MR. CHAKANSKY: That's in the
`
`13 middle of the section, right?
`
`14 Q Yes, it is.
`
`15 MR. CHAKANSKY: You have the whole
`
`16 section on that.
`
`17 A Okay.
`
`18 Q Okay. So in paragraph 348 of your
`
`19 declaration, you state that:
`
`20 "Grynbaum describes the presence of
`
`21 trans-astaxanthin (all-E) and cis-astaxanthin and
`
`22 astaxanthin esters and gives quantification of
`
`23 the extracted krill astaxanthin ester content of
`
`24 3,921 micrograms per 0.5 grams krill extract,
`
`25 which is 7,842 milligrams per kilogram krill
`
`AKER EXHIBIT 2020 Page 24
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`24
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` 1 DR. STEPHEN TALLON
`
` 2 extract, i.e. 7,842 milligrams per kilogram krill
`
` 3 oil."
`
` 4 Do you see that?
`
` 5 A That's what's written.
`
` 6 Q So my question is:
`
` 7 The numbers that are reported in
`
` 8 Grynbaum, are those for the astaxanthin content
`
` 9 of krill oil or the astaxanthin content of krill?
`
`10 A Can I refer back to Grynbaum?
`
`11 Q Yes.
`
`12 A Okay. So in my declaration I'm --
`
`13 MR. CHAKANSKY: What paragraph?
`
`14 A So this is the 348 paragraph, for
`
`15 example, where it was described and possibly in
`
`16 other places as well.
`
`17 I interpreted it as Grynbaum
`
`18 describing the astaxanthin content in the krill
`
`19 oil and in the context of what's on -- sort of
`
`20 drawing on Grynbaum as an example of it -- so
`
`21 that's a conservative estimation of the
`
`22 astaxanthin content that Grynbaum's describing in
`
`23 the -- in the krill.
`
`24 Q Is Grynbaum describing the
`
`25 astaxanthin ester content of a krill oil?
`
`AKER EXHIBIT 2020 Page 25
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`
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`25
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` 1 DR. STEPHEN TALLON
`
` 2 A Grynbaum is -- well, to remind us
`
` 3 what it is. Grynbaum has taken a krill material
`
` 4 and has performed an analysis on it by separating
`
` 5 out a -- a -- the lipophilic fraction containing
`
` 6 the astaxanthin and the krill and has used that
`
` 7 to perform an analysis on the -- on the extracted
`
` 8 material.
`
` 9 Q And is the amount of astaxanthin
`
`10 esters reported as being the content of that
`
`11 lipophilic material or of the krill organism as a
`
`12 whole?
`
`13 A In a sense, both. He's describing
`
`14 the analysis of the astaxanthin and the oil
`
`15 fraction separated out from it. And, presumably,
`
`16 one of the aims of what Grynbaum is describing as
`
`17 one of the purposes of the paper was to, you
`
`18 know, describe the properties of the krill itself
`
`19 as well.
`
`20 All I'm drawing on here is the fact
`
`21 that Grynbaum demonstrates that you can separate
`
`22 out an oil fraction and that the astaxanthin
`
`23 levels in the -- in that oil are going to be
`
`24 higher. If they're higher in the krill material,
`
`25 then they're going to be even higher in the --
`
`AKER EXHIBIT 2020 Page 26
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`26
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`
` 1 DR. STEPHEN TALLON
`
` 2 the separated faction that they analyzed.
`
` 3 Q Does Grynbaum describe a krill oil,
`
` 4 for example, an oil containing the phospholipids,
`
` 5 triglycerides, and astaxanthin?
`
` 6 A Again, "krill oil" is a very broad
`
` 7 term. But within the definition of "krill oils,"
`
` 8 you have -- certainly, the processes that
`
` 9 Grynbaum is describing covers it.
`
`10 But, again, just drawing on
`
`11 Grynbaum, you know, partly to show that -- that
`
`12 achieving high levels of astaxanthin is nothing
`
`13 unusual in a -- in extracts from krill; but,
`
`14 also, lastly, just picking up on the fact that
`
`15 Grynbaum describes the -- just the different
`
`16 isomers of the astaxanthin.
`
`17 That's a large component of what
`
`18 I'm drawing on Grynbaum for in my declaration.
`
`19 In terms of astaxanthin content in an extract,
`
`20 there's plenty of other prior art as well that's
`
`21 consistent with my opinion in the declaration.
`
`22 Q Okay. So going back to paragraph
`
`23 348 of your declaration --
`
`24 A Okay.
`
`25 Q -- you state that:
`
`AKER EXHIBIT 2020 Page 27
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`27
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` 1 DR. STEPHEN TALLON
`
` 2 "Grynbaum" -- I will paraphrase
`
` 3 here -- reports that the astaxanthin ester
`
` 4 content of krill oil is 7,842 milligrams per
`
` 5 kilogram krill oil; is that correct?
`
` 6 MR. CHAKANSKY: Objection to the
`
` 7 form.
`
` 8 A Well, what's written in paragraph
`
` 9 348 stands for itself.
`
`10 Q So 7,842 milligrams of kilogram
`
`11 astaxanthin esters in krill oil; is that correct?
`
`12 A That's the number, and I can --
`
`13 that's just drawn out in the values in Grynbaum
`
`14 itself.
`
`15 Q And let's go to page 0008 of
`
`16 Grynbaum Exhibit 1039.
`
`17 A Okay.
`
`18 Q And then in the last full -- I am
`
`19 going to ask questions about the last full
`
`20 paragraph in column one.
`
`21 MR. CHAKANSKY: The one starting
`
`22 with "Quantification"?
`
`23 Q "Quantification of astaxanthin
`
`24 isomers...."
`
`25 A Okay.
`
`AKER EXHIBIT 2020 Page 28
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`28
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`
` 1 DR. STEPHEN TALLON
`
` 2 Q Okay. Do you see the second
`
` 3 sentence says:
`
` 4 "In 0.5 grams krill (mean of five
`
` 5 extracts), 35 micrograms (13-cis) astaxanthin,
`
` 6 271 micrograms (all-E) astaxanthin, 18 micrograms
`
` 7 unidentified astaxanthin isomer, 31 micrograms
`
` 8 (9-cis) astaxanthin, and 3,921 micrograms
`
` 9 astaxanthin fatty acid esters were found."
`
`10 A That's what it says.
`
`11 Q So that sentence is referring to
`
`12 the astaxanthin content of krill and not krill
`
`13 oil, correct?
`
`14 A If we read it again, it refers to
`
`15 both the -- it refers to krill. It refers to the
`
`16 extracts from the krill. That's an inherent
`
`17 part -- and that's an inherent part of the
`
`18 analysis process, is to extract out a fraction of
`
`19 this.
`
`20 Q Were they referring to the
`
`21 astaxanthin ester content for that fraction; or
`
`22 is the astaxanthin ester content of the starting
`
`23 0.5 grams of krill?
`
`24 A The calculation that I have in my
`
`25 declaration is based on that 0.5 grams referring
`
`AKER EXHIBIT 2020 Page 29
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`29
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`
` 1 DR. STEPHEN TALLON
`
` 2 to the extract from the krill; and that is a
`
` 3 conservative calculation of the amount that will
`
` 4 be in the extract. If it was read as being on
`
` 5 the basis of the whole krill material, then those
`
` 6 numbers would be higher.
`
` 7 Q Does Grynbaum report the presence
`
` 8 of phospholipids and any fraction resulting from
`
` 9 the extraction procedures that were utilized?
`
`10 MR. GALLAGHER: Excuse me. Could
`
`11 you read that question back. I apologize.
`
`12 (Reporter read back pending
`
`13 questio
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