`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`------------------------------------------- x
`RIMFROST AS
` Petitioner
` -versus-
`AKER BIOMARINE ANTARCTIC AS
` Patent Owner
`IPR2018-01730
`U.S. Patent No. 9,072,752
`------------------------------------------ x
`
` 4 Century Drive
` Parsippany, New Jersey
`
` August 15, 2019
` 8:30 a.m.
`
` DEPOSITION of DR. NILS HOEM, taken
`pursuant to Notice, held at the offices of
`Hoffmann & Baron, LLP, before Fran Insley, a
`Notary Public of the States of New York and New
`Jersey.
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`www.veritext.com
`RIMFROST EXHIBIT 1145 Page 0001
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`Page 2
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`A P P E A R A N C E S:
` HOFFMANN & BARON, LLP
` Attorneys for Petitioner
` 4 Century Drive
` Parsippany, New Jersey 07054
`
` BY: MICHAEL I. CHAKANSKY, ESQ.
` -and-
` JAMES F. HARRINGTON, ESQ.
` Phone: (973) 331-1700
` Fax: (973) 331-1717
` mchakansky@hbiplaw.com
`
` CASIMIR JONES
` Attorneys for Patent Owner
` 2275 Deming Way, Suite 310
` Middleton, Wisconsin 53562
`
` BY: J. MITCHELL JONES, J.D., Ph.D.
` Phone: (608)662-1277
` Fax: (608) 662-1276
` jmjones@casimirjones.com
`
` xxxxx
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`RIMFROST EXHIBIT 1145 Page 0002
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`Page 3
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`--------------- I N D E X -----------------
`WITNESS EXAMINATION BY PAGE
`NILS HOEM MR. CHAKANSKY 4
`
`-------------E X H I B I T S----------------
`EXHIBITS REFERRED TO PAGE
`EXHIBIT 2001 4
`EXHIBIT 1140 18
`EXHIBIT 1009 68
`EXHIBIT 1048 94
`EXHIBIT 1001 164
`EXHIBIT 1010 167
`EXHIBIT 1143 214
`EXHIBIT 1006 226
`EXHIBIT 1013 249
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`RIMFROST EXHIBIT 1145 Page 0003
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`Page 4
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` N. Hoem
`N I L S H O E M,
`the Witness herein, having first been duly
`sworn by the Notary Public, was examined and
`testified as follows:
`EXAMINATION BY MR. CHAKANSKY:
` Q. Good morning, Dr. Hoem.
` A. Good morning.
` Q. I think as we have been through this
`a quite a number of times, you are probably
`familiar with the process?
` A. I am.
` Q. Is there any reason you can't give
`your testimony today?
` A. No.
` Q. Let me put in front of you what was
`previously marked as Aker Exhibit 2001, the
`Declaration of Dr. Nils Hoem in support of
`patent owners response and motion to amend in
`case number IPR2018-1730. Do you recognize
`that document?
` A. Yes, I do.
` Q. Could you turn to page 91, please.
`I ask if that is your signature at the bottom?
` A. Yes, it is.
`
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`RIMFROST EXHIBIT 1145 Page 0004
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`Page 5
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` N. Hoem
` Q. Dr. Hoem, is there any reason your
`CV was not attached to this declaration?
` A. No, not that I know of. It's
`probably a mistake.
` MR. JONES: We can submit a
` corrected version of it. It would be the
` same CV as the other cases.
` MR. CHAKANSKY: We can use the CV
` from the other case then?
` MR. JONES: Yes.
` Q. I direct your attention to page 5 of
`Exhibit 2001. It actually has reference to the
`CV. I didn't realize that. So maybe you can
`just submit a new one.
` MR. JONES: Okay.
` Q. It talks about your qualifications
`in paragraph 5; is that correct?
` A. Yes, it does.
` Q. What, if anything, was your
`experience with extraction prior to 2008?
` A. My experience with extraction prior
`to that was from my previous work as an
`academic in -- as lab work. I worked on
`fractionation -- purifications and
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` N. Hoem
`fractionations of proteolytic enzymes in
`general and specifically a class of proteolytic
`enzymes that belongs to what is called Plasma
`Cascade Systems. So coagulation, the
`complement system, the Kallekren Kinin system.
` Q. Could you spell that for her?
` A. K-A-L-L-E-K-R-E-N K-I-N-I-N and
`then it's just System. Then it also belongs to
`the same group, the fiber analytic system.
` Q. Was this lab work done in connection
`with studies of PAF?
` A. PAF is not directly linked into
`this. PAF is on the -- basically on the odds.
`PAF is, of course, important to understand, not
`coagulation but plated aggregation which links
`into this, but back to -- so my experiences
`with purifications and fractionations comes
`from that kind of work. That is, you use
`different chromatographic techniques.
` You do different primary extraction
`techniques like dialysis and sorting out and
`it's lab work definitely.
` Q. Is fractionation another term for
`extraction?
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` N. Hoem
` A. Extraction, fractionation can be,
`but not necessarily. That depends on how you
`do your extraction. Fractionation then you
`want a specific fraction, a specific part of
`the material.
` Q. Prior to 2008, did you do any work
`on extractions at the pilot level, pilot plant
`level, excuse me?
` A. No, not.
` Q. Prior to 2008, did you do any
`extractions at the commercial level?
` A. No.
` Q. Prior to 2008, did you do any work
`with lipases and phospholipases?
` A. No.
` Q. After 2008, did you do any -- what
`was your extraction experience, if any, et
`cetera?
` A. Well, I gain experience as we --
`through my functions at Aker Biomarine. We
`were a fairly small enterprise early on. We
`were -- I shouldn't say all men on deck, but --
`and then I gained experience as necessary and
`also working both in lab scale, but also in
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` N. Hoem
`pilot scale in a specific facility made for
`that.
` Q. So you were -- was that with
`extraction?
` A. That was extraction.
` Q. And was it extraction from krill?
` A. Yes, it was.
` Q. Was it extraction from euphasia
`superba, E-U-P-H-A-S-I-A, S-U-P-E-R-B-A?
` A. It was extraction specifically with
`our specific krill meal that comes from
`euphasia superba.
` Q. Have you worked on the extraction
`of -- strike that.
` Were the extractions with respect to
`euphasia superba krill meal extraction of
`lipids?
` A. Yes.
` Q. Was it your testimony that you did
`both lab work on that as well as pilot work
`with the extraction of lipids from --
` A. Yes, lab work and pilot scale. I
`still would call pilot scale lab work.
` Q. Did you work with extraction of
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` N. Hoem
`lipids directly from whole krill?
` A. No.
` Q. Did you work with extraction of
`lipids from chopped up krill?
` A. You would have to define what you
`mean by chopped up krill.
` Q. Put into a grinder?
` A. As is?
` Q. As is.
` A. Fresh, dried, fresh, frozen?
` Q. All the above. How about fresh?
` A. At what time do you refer to then?
` Q. After 2008.
` A. After 2008, I have been at sea.
`Let's put it that way. We have laboratories at
`sea.
` Q. The question is dealing with
`extraction from the feed material where the
`feed material is, I asked first about whole
`krill. Now I'm asking about krill that has
`been chopped up or in small pieces?
` A. If I have ever done that, is that a
`question or if -- now, if you define worked
`with, then the answer is no. Then I worked
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` N. Hoem
`with, but what I'm trying to come through with
`is that I have been in labs where different
`kinds of krill material is available and that
`is basically at sea and where you can do
`investigations on -- to extract the chopped or
`whole enema or whatever, but that is -- you
`actually have to be at sea to be able to do
`that. You can't do that at any industrial --
` Q. But my question was, you testified
`that you've done extractions at the lab level,
`pilot/lab level?
` A. Sure.
` Q. Were there labs on these boats that
`you are on?
` A. Yes.
` Q. And in that -- those labs on those
`boats that you were on, did you do extraction
`of lipids from chopped up krill?
` A. Yes.
` Q. Personally?
` A. Yes, personally.
` Q. Did you do work on krill meal, on
`the boat in the lab?
` A. Yeah, but again very -- it's a boat.
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` N. Hoem
`It's a very low -- it's lab work and you do
`that out of a number of reasons.
` Q. What exactly is fresh krill?
` A. Fresh krill to me is krill that has
`just very recently has been live, that is just
`ahead of your processing of the krill.
` Q. What do you mean -- can you explain
`what you mean by recently alive, an hour, ten
`hours, 50 minutes?
` A. Definitely not ten hours. Even an
`hour would be a long time. I can't give you an
`exact precise, but it is -- krill decomposes
`very fast. That's a known feature of krill and
`it's been known for a long, long time.
` Q. What has been your experience on the
`boat with how fast it decomposed?
` A. Again, I can't give you a number,
`but we are talking minutes.
` Q. The term fresh is very important in
`this litigation in a lot of the discussions.
`So I wanted to see if we can get some type of
`actual amounts of time involved from your
`experience and from what I am hearing is it
`could be as short as a few minutes or 30
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` N. Hoem
`minutes or 50 minutes?
` A. It's impossible to give you. It's a
`short time, but I would like to turn it around.
`I think it makes much more sense to define it
`the other way around. If you catch krill, if
`you do not catch krill in a continuous stream
`and you get it on board live, it will never be
`fresh when you high the trawl, when you take
`the trawl out of the water.
` If you have a conventional fishery,
`you will actually have to drag the trawl
`through the net and in the net the krill is
`going to be squeezed and smashed and it will
`die there. You could actually witness this
`by -- and it was known early in the krill
`fisheries -- that you would see fats float in
`the area behind the trawl. In a continuous
`system you actually -- in a continuous water
`stream, pump live krill onboard the boat. So
`it enters the boat live. So without such --
`without -- that would be an absolute
`prerequisite to be able to call it fresh.
` Q. We have been discussing and you've
`discussed, I believe, that it's measured by --
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` N. Hoem
`fresh is measured by the time between I guess
`processing and when it was last alive?
` A. What I said is that -- what I tried
`to say now is that you cannot call it live
`under any circumstances if you do not have --
`if it doesn't arrive at the boat in front of
`the -- or at the first part of the processing
`stream live, it is impossible to have fresh
`krill out of the water the way I've defined
`fresh, if you do it by conventional trawl
`because then it would already be smashed and
`it's dead and it will take -- it takes quite
`some time to drag the nets through the water
`and it takes quite some time to get the trawl
`onboard and to empty the trawl and to put it
`into storage tanks. That is definitely too
`long.
` Q. What I'm trying to get at is how
`much time, if you know, is there between when
`the krill dies and when you consider it not to
`be fresh?
` A. Again, I'm standing by what I'm
`saying. You asked me to dial in a number.
`What I'm saying is I'm trying to say that at
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` N. Hoem
`least it requires the krill to be alive when it
`enters the boat.
` Q. Can it sit on the boat for 30
`minutes?
` A. You would try to -- you would
`process it as fast as possible.
` Q. But from your experience on the
`boat, you're unaware of any time constraints
`and how fast you have to process it so that it
`be processed in the fresh condition?
` A. I'm not the one who runs the factory
`onboard the boat. So what I know is that it is
`processed as fast as possible. The first step
`is to heat the product and to kill off
`enzymatic activity, to denature the live basis.
` Q. At this point in time you have no
`understanding of the time between when krill is
`caught and when it no longer becomes fresh?
` A. I said it is a short period of time.
`You know, you could compare that with what I
`said for hiding a trawl. If it sits there for
`hours, definitely then you are in trouble. I
`said it is -- it is a time frame that is as
`fast as possible. You could definitely not
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` N. Hoem
`keep it there forever, but again, back to my
`statement with regards if it is dead when it
`arrives, because then it is dead in the trawl,
`that would amount to hours and actually it
`could amount to several hours before you even
`get the product onboard and start processing
`it.
` So I can't possibly give you a
`specific number. It's a short time. As short
`as possible. That's why we pump it live
`onboard.
` Q. So basically if somebody -- there is
`no way to characterize whether something is
`fresh or not fresh krill by time of death of
`the krill; is that correct?
` A. I have given you a time frame and I
`characterized that if it dies in the trawl,
`then there is no way that it would be fresh.
`Fresh involves the fact that it needs to come
`live onboard and then being processed as fast
`as possible after that. There is a time for
`it. I can't dial in a number for you. Also
`because there are, you know, there are seasonal
`differences for example.
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` N. Hoem
` Q. When the krill is brought fresh and
`live on the boat, you have had experience with
`that, correct?
` A. Well, I have seen it, yes.
` Q. From your experience on the boat?
` A. Yes, but again, I'm there as a
`researcher, as a lab member. I'm not on board
`the boat as part of the processing team.
` Q. Have you observed the process?
` A. I have observed the process.
` Q. How long is the time between when,
`in your experience, when the krill, the E.
`superba krill are brought onboard the ship
`until the processing starts?
` A. In my mind as soon as possible. I
`can't possibly give you three minutes or two
`minutes or 15 minutes. It's a floating
`continuous process. It starts there and then
`it enters the process as fast as you can get it
`into the process.
` Q. Maybe it's me, but I'm having
`difficulty understanding if you observed it
`from the krill fresh onboard to the beginning
`of the process, do you recall how long that
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`took?
` A. Well, it comes onboard and then it
`is dropped into the system and then it starts.
` Q. Is it dropped into a tank?
` A. Of course there would have to be
`some sort of a holding tank that takes it in,
`of course.
` Q. How long is it in the tank?
` A. I don't know. I can't answer that
`question by one general answer. It is
`processed as fast as possible.
` Q. Have you ever used the definition of
`fresh with respect to the processing of krill
`in a different sense than the one you just gave
`us?
` A. Not that I can recall.
` Q. Would you be surprised if there was
`a difference in another definition of fresh?
` A. I didn't really understand that
`question. If I would --
` Q. You don't recall ever using the term
`fresh in a different manner?
` A. I can't recall that now, no, no.
` Q. I'm handing the witness that which
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` N. Hoem
`has been marked as Rimfrost Exhibit 1140. It
`is US patent 8,372,812 and let me hand it to
`the witness and ask you if you recognize that
`document?
` A. Yes, I do.
` Q. Are you named as a co-inventor of
`that patent?
` A. Yes.
` Q. I would like to direct your
`attention to column 11, lines 37 to 44 where
`there is a definition of fresh krill. It's on
`page 0016.
` A. Which line?
` Q. Column 11, lines 37 to about 44.
` A. (Witness reading document). Yes.
` Q. Does that paragraph say quote, "As
`used herein the term 'fresh krill' refers to
`krill that has been harvested less than about
`12, 6, 4, 2 or preferably 1 hour prior to
`processing?"
` A. Yes, it does.
` Q. What is your understanding of the
`term harvest in that context?
` A. Well, we have always used our
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`Page 19
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` N. Hoem
`continuous harvesting system for all our
`commercial operations and so that would be our
`continuous catch system which then means krill
`enters into the process live.
` Q. But I'm asking as what the term
`harvest means in that paragraph or harvested?
` A. Fishery.
` Q. What?
` A. Fishery.
` Q. What does fishery mean?
` A. Fishery means trawl.
` Q. That is describing a trawl?
` A. Well, I know no other way of
`harvesting krill than to trawl it. You
`couldn't possibly pick them one by one.
` Q. Didn't you just say, and correct me
`if I'm wrong, that if it's caught in a trawl,
`there is no way the fish could be fresh, the
`krill could be fresh?
` A. No, I did not say that.
` Q. Could you clarify?
` A. I said in a conventional trawl
`without a continuous emptying of the trawl,
`that is at the end of the trawl, the continuous
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`system has a pump which pumps live krill in a
`continuous stream and it can do so for weeks at
`a time into the boat.
` In a conventional trawl you actually
`fill the trawl and you squeeze the contents of
`the trawl until it's full. Then you high the
`trawl, you take the trawl out of the water, you
`actually have to lift it into the boat and no
`krill would survive that process.
` So in our harvesting system, it's
`completely opposite. Krill comes almost one by
`one onboard in a continuous water stream
`because it's pumped from the end of the trawl.
`The trawl is simply a barrier, but it is not
`storing krill like you would do in a
`conventional system. The conventional system
`you fill the trawl. We never fill the trawl.
`The trawl is just a net that serves as a
`barrier for the pump to be able to get krill
`onboard.
` Q. Let's go back to that statement. It
`puts a time frame between harvesting and
`processing. Can you clarify what is meant by
`harvested in that context since it is not part
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`of processing?
` A. In our system harvesting, it is not
`part of processing?
` Q. I'll read the sentence again. It
`says, "As used herein, the term 'fresh krill'
`refers to krill that has been harvested less
`than about," a certain amount of time "prior to
`processing."
` My question to you is in the context
`of that patent, what does harvested mean?
` A. It means taken out of the water,
`brought onto the boat.
` Q. Does it mean put into a tank on the
`boat?
` A. It may mean that. If that tank,
`whatever it is, is the first part of the
`processing, yes.
` Q. Well, no, that would be the
`processing then putting it in the tank?
` A. Can you read this? This is -- I
`would maintain that this is splitting on words.
`Could you say harvesting and then further
`processing? This is definitions on splitting
`of words.
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` N. Hoem
` What I have been -- my statements,
`as always, with regard to fresh, is that the
`harvesting process is an integral part of our
`process because it brings krill live onboard
`and it is an absolutely -- absolutely integral
`part of our whole processing system.
` Q. Dr. Hoem, I appreciate that. We are
`focusing in on US patent 8,372,812 where there
`is a definition given in the patent in the
`specification and it talks about fresh krill
`and it says that that refers to krill that has
`been harvested and then is processed within a
`certain amount of time. And the question was
`in the context of that patent, what did
`harvested mean?
` A. It means getting the krill live
`onboard.
` Q. Therefore, does that term fresh
`krill, where there was a timeframe of twelve
`hours say between harvested and processing,
`what happens to the krill between the harvested
`and the processing?
` A. It also says one hour. It says four
`hours. It says six hours. It gives a range of
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`options and it's a general description of the
`whole process. There is nothing that prevents
`you to do it in five minutes.
` Q. With respect to the time given here,
`what happens -- and it's twelve hours, six
`hours, four hours, two hours preferably one
`hour, what happens during of the preferably one
`hour when the krill has been harvested and it's
`processed? What is happening with the krill?
` A. Krill would have to -- you couldn't
`feed one and one krill into the machine, into a
`process. You would always have to have a
`master krill that continuously flows into the
`process. So you would have to store it.
` Q. It would be stored?
` A. Of course.
` Q. In the tank?
` A. If it's a tank, it's stored.
` Q. Let me ask you on the boats that you
`have been on for Aker, is it a tank that it is
`put into and stored?
` A. There is a buffer in front of the
`rest of the machinery, yes.
` Q. Is that buffer a tank? Can it be
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`characterized as a tank?
` A. It's a storage.
` Q. Does it have water in it?
` A. If it has water in it?
` Q. Sea water?
` A. The first thing that happens to
`krill when it enters the boat, you couldn't
`possibly store it with all the sea water that
`comes onboard. You would have to pass over a
`drainage and by no means it wouldn't be dry.
` Q. Dr. Hoem, have you seen this buffer?
` A. Yes, I have.
` Q. Can you describe it?
` A. It's a buffer. It's a storage
`facility in stainless steel.
` Q. Stainless steel?
` A. Yes. It's not enormously big. It's
`enough to as a buffer to keep the process going
`continuously. So there is -- you have to
`calculate a flow through the process.
` Q. Is it rectangular in shape?
` A. Yes, it is.
` Q. Does it have some depth to it?
` A. Yes.
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` N. Hoem
` Q. Is it filled with a liquid?
` A. The tank?
` Q. Yes.
` A. In itself? Not that I know of.
` Q. In itself. When it's storing the
`krill, is there also a liquid in it?
` A. There would have to be liquids into
`it as long as you store krill there.
` Q. So the answer is yes?
` A. Yes, but the way you asked the
`question, it sounds like if you put liquids in
`it and then put krill in, you put in krill that
`has been slightly drained but, yeah. But it is
`not -- it's not filled with a liquid without
`krill being there.
` Q. Is it filled with a liquid when
`krill is there?
` A. We do not fill it with a liquid. We
`fill it with krill that has been drained.
` Q. Thank you. Is the krill in the
`buffer alive?
` A. In the buffer tank?
` Q. In the buffer; is it alive?
` A. It may and it may not be. I don't
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`know.
` Q. If it is not alive --
` A. At some point it will die.
` Q. Is it stored in the buffer -- strike
`that.
` Are the krill stored in the buffer
`stored long enough so that they die?
` A. They may die, yes. They may not.
`Both might be the case.
` Q. If they die, how fast do you expect
`decomposition due to the activity of lipases
`and phospholipases to begin?
` A. It depends on quite a number of
`factors. It depends on the -- there are
`seasonalities to it definitely and temperatures
`are important, so there would be different time
`frames on that. It proceeds with different
`speeds and definitely dependent on
`temperatures.
` Q. What temperatures?
` A. You would always keep that tank at
`cool temperatures.
` Q. What is cool temperature?
` A. You know, to the best of my
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`knowledge, a maximum of plus 2-degrees Celsius
`and quite -- when conditions are such, then it
`will be lower than that. That is in the minus
`range. It can easily be down to minus 1 degree
`Celsius. It doesn't freeze at those
`temperatures because of the salt water.
` Q. Does krill decompose at that
`temperature?
` A. When they die that will -- the
`decomposition will start, but, of course, at
`vastly different speeds according to
`temperature.
` Q. At the temperature of 0-degree
`Celsius, freezing point, a dead krill, how long
`in your observation does it take to die -- to
`decompose, excuse me?
` A. I can't give you a specific number
`on that. What I can say is that immediately
`when it dies, that process will start, but the
`speed of that process will be enormously
`dependent on temperatures. So it will be very
`slow or it will be slow at relatively low
`temperatures and it will be -- and it will be
`much faster at higher temperatures. Then as I
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`said, there is seasonality in this also. It
`defends on what kind of feed, what did krill
`eat at the period when you caught it.
` Q. I think we were talking about your
`personal observation on the Aker boats and I
`would assume -- maybe I'm wrong -- correct me
`if I am, that the season that they are picking
`is the optimum season for harvesting krill?
` A. We obviously harvest krill all year
`round.
` Q. Oh, okay.
` A. But what I've seen is -- I could --
` Q. That's okay.
` A. I've seen in tank krill, when you
`look into the tank you see krill.
` Q. Have you seen broken up krill when
`you looked into the tank?
` A. Not into the tank, but I have seen
`krill on research expeditions where you keep
`krill at higher temperatures for relatively
`short while and it is gone.
` Q. Let me ask this. I think you just
`testified that you looked into the buffer tank;
`is that correct?
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` N. Hoem
` A. Yes.
` Q. When you looked into the buffer
`tank, were all the krill whole?
` A. You look into a buffer tank, it
`looked like it is -- what you see in a buffer
`tank is krill.
` Q. So there could be some broken krill
`there?
` A. Broken krill, of course.
` Q. There could be some krill pieces
`there?
` A. Of course. It's a tank.
` Q. Let me just finish up on that
`paragraph. Once again, this is Exhibit 1140.
`It's page 0016 and it is lines 37 to 44. Take
`a look at it. Take your time, please.
` A. It's 37 to 44?
` Q. Yes.
` A. (Witness reading document). Yes.
` Q. Does it say, quote, "'Fresh krill'
`is characterized in that products made from the
`fresh krill, such as coagulum, comprise less
`than 1 milligram/100 grams TMA, volatile
`nitrogen or Trimethylamine oxide-N, alone or in
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`combination, and less than 1 gram/100 grams of
`lysophosphatidylcholine."
` Let me ask as we go forward if
`instead of saying lysophosphatidylcholine, we
`can say LPC for the court reporter?
` A. No, PC -- LPC, sorry.
` Q. Is that correct?
` A. Yes, this is correct.
` Q. Is the characteristic of fresh krill
`in general less than 1 gram per hundred grams
`LPC?
` A. That is the definition used in this
`particular patent.
` Q. But in the way you would -- you used
`the word fresh in other situations, would the
`amount of lyso PC characterize whether some
`krill was fresh?
` A. Again, we use a specific definition
`in this specific patent in this particul