UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`PROLLENIUM US INC.
`
`Petitioner
`
`v.
`
`ALLERGAN INDUSTRIE, SAS
`
`Patent Owner
`
`_________________
`
`DEPOSITION OF DALE P. DEVORE, PhD
`
` Wednesday, August 12, 2020 - 9:00 a.m.
`
`Veritext Legal Solutions
`
`101 Arch Street
`
`Boston, Massachusetts
`
`Job no. 4198539
`
`Reported by: Jill K. Ruggieri, RPR, RMR, FCRR, CRR
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`Pages 1 - 316
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`Veritext Legal Solutions
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`ALL 2100
`PROLLENIUM V. ALLERGAN
`IPR2019-01505 et al.
`
`
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`PROLLENIUM US INC.
`
`Petitioner
`
`v.
`
`ALLERGAN INDUSTRIE, SAS
`
`Patent Owner
`
`_________________
`
`DEPOSITION OF DALE P. DEVORE, PhD
`
` Wednesday, August 12, 2020 - 9:00 a.m.
`
`Veritext Legal Solutions
`
`101 Arch Street
`
`Boston, Massachusetts
`
`Job no. 4198539
`
`Reported by: Jill K. Ruggieri, RPR, RMR, FCRR, CRR
`
`Pages 1 - 316
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`ALL 2100
`PROLLENIUM V. ALLERGAN
`IPR2019-01505 et al.
`
`
`
`A P P E A R A N C E S :
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`M e u n i e r C a r l i n & C u r f m a n L L C
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` W a r r e n J . T h o m a s , E s q .
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` 9 9 9 P e a c h t r e e S t r e e t , N E , S u i t e 1 3 0 0
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` A t l a n t a , G e o r g i a 3 0 3 0 9
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` 4 0 4 . 6 4 5 . 7 7 0 0
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` w t h o m a s @ m c c i p l a w . c o m
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` C o u n s e l f o r p e t i t i o n e r
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`J o n e s D a y
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` S . C h r i s t i a n P l a t t , E s q .
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` S a r a h G e e r s , E s q . ( v i a Z o o m )
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` J e n n i f e r H a r t j e s , E s q . ( v i a Z o o m )
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` 4 6 5 5 E x e c u t i v e D r i v e , S u i t e 1 5 0 0
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` S a n D i e g o , C a l i f o r n i a 9 2 1 2 1 - 3 1 3 4
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` 8 5 8 . 3 1 4 . 1 2 0 0
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` c p l a t t @ j o n e s d a y . c o m
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` s g e e r s @ j o n e s d a y . c o m
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` j h a r t j e s @ j o n e s d a y . c o m
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` C o u n s e l f o r p a t e n t o w n e r
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`A l s o p r e s e n t ( v i a Z o o m ) : L i n d a F r i e d l i e b
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` R y a n C o l e t t i
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` J o h n H a r b i n
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` A n t h o n y Z u c c h e r o
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`V i d e o g r a p h e r : A n t h o n y P i c c i r i l l i
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`
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` I N D E X
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`WITNESS:
`
`DALE P. DEVORE, PhD.
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` Examination by Mr. Platt 8
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` E X H I B I T S
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` Exhibit 58 Base structure of the 57
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` units in hyaluronic acid
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` Exhibit 64 Two pages of chemical 60
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` structures
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` Exhibit 1 Document re: 1.6 percent 65
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` sodium HA
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` Exhibit 33 Part of the FDA document 81
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` for PMA approval
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` Exhibit 2 Document 88
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` Exhibit 60 Anika Therapeutics Form 122
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` 10-Q, 3/31/04
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` Exhibit 4 Document re: Class 3 131
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` device recall
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` Exhibit 46 US Patent No. 10,463,595 147
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` Exhibit 48 Viscoelastic Evaluation of 153
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` Different Hyaluronic Acid
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` Based Fillers Using
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` Vibrational Optical
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` Coherence Tomography
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` Exhibit 27 June 2017 abstract from 173
`
` the ARVO Annual Meeting
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` Exhibit 10 US Patent No. 6,946,551 187
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` Exhibit 28 US Patent No. 9,352,046 196
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` Exhibit 35 Mentor Reports 224
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` Third-Quarter Financial
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` Results
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` Exhibit 36 Form 10-Q by Mentor 226
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` Corporation
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` Exhibit 37 Mentor Corporation, 227
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` 3/31/2006
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` Exhibit 38 Mentor Corporation 10-K, 229
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` 3/31/2007
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` Exhibit 39 Mentor Corporation 10-K, 231
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` 3/31/2008
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` Exhibit 5 Anika Form 10-K, 12/2006 244
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` Exhibit 22 Printout from the FDA for 247
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` a PMA supplement
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` Exhibit 23 PMA supplement 249
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` Exhibit 6 Supplemental PMA, 1/4/2008 250
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` Exhibit 29 DeVore declaration in EMS 275
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` Exhibit 41 Expert Report by Dr. Dale 282
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` P. DeVore in the United
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` States District Court,
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` Central District of
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` California, Southern
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` Division
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` Exhibit 3 US Patent, 4,920,104 314
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` Exhibit 13 US Patent 4,716,224 314
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` Exhibit 14 US Patent 5,099,013 314
`
` Exhibit 20 BioCell District Court 314
`
` order
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` Exhibit 30 BioCell DeVore CV 314
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` Exhibit 40 DeVore ITC CV 314
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` P R O C E E D I N G S 08:55:23
`
` THE VIDEOGRAPHER: Good 08:58:38
`
`morning. We are now on the record. Please 08:58:39
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`note that the microphones are sensitive and 08:58:40
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`may pick up whispering and private 08:58:42
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`conversations. Please turn off all 08:58:44
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`cellphones or place them away from the 08:58:46
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`microphones, as they can interfere with the 08:58:48
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`deposition audio. 08:58:51
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` Recording will continue until all 08:58:52
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`parties agree to go off the record. 08:58:55
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` My name is Anthony Piccirilli, 08:58:57
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`representing Veritext. The date today is 08:58:59
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`August 12, 2020, and the time is approximately 08:59:02
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`9:00 a.m. This deposition is being held at 101 08:59:06
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`Arch Street in Boston, Massachusetts. 08:59:10
`
` The caption of this cases is 08:59:13
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`Prollenium US versus Allergan Industrie SAS. 08:59:15
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`The name of the witness is Dale DeVore. 08:59:20
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` At this time, the attorneys 08:59:23
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`present in the room and everyone attending 08:59:24
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`remotely will identify themselves and the 08:59:26
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`parties they represent, after which our court 08:59:30
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`reporter, Jill Ruggieri, representing Veritext, 08:59:32
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`will swear in the witness, and we can proceed. 08:59:35
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` MR. PLATT: Christian Platt 08:59:38
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`from Jones Day on behalf of the patent owner, 08:59:40
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`Allergan, and also with me remotely, also 08:59:42
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`from Jones Day, is Sarah Geers, as well as 08:59:48
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`Jennifer Hartjes. Also joining remotely from 08:59:52
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`the patent owner are in-house counsel Linda 08:59:56
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`Friedlieb and Ryan Coletti. 09:00:00
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` MR. THOMAS: And I'm Warren 09:00:06
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`Thomas for the petitioner, Prollenium US, 09:00:07
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`Inc., from the law firm Meunier Carlin & 09:00:10
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`Curfman. Attending remotely from MCC for 09:00:11
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`Prollenium US, Inc. are John Harbin and 09:00:16
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`Anthony Zucchero. 09:00:18
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` 09:00:21
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` DALE P. DEVORE, PhD, a witness 09:00:21
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`having been duly sworn, on oath deposes and 09:00:21
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`says as follows: 09:00:21
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` 09:00:21
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` EXAMINATION 09:00:21
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`BY MR. PLATT: 09:00:32
`
` Q Good morning, Dr. DeVore. 09:00:34
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` A Good morning. 09:00:36
`
` Q Could you please just state your 09:00:37
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`name for us. 09:00:38
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` A Dale Paul DeVore. 09:00:40
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` Q And you've taken an oath to tell 09:00:43
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`the truth today, correct? 09:00:45
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` A Yes. 09:00:46
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` Q And you understand that because 09:00:47
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`this is a Patent Office procedure, there's 09:00:49
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`also a duty of candor that applies to that? 09:00:53
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` A Yes. 09:00:56
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` Q Okay. 09:00:56
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` You understand a transcript of 09:00:56
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`the proceedings is being taken down, and that 09:00:58
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`will be supplied to the judges that are 09:01:01
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`hearing this IPR matter; is that right? 09:01:02
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` A Yes. 09:01:07
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` Q Now, I'll be asking you a series of 09:01:08
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`questions. If you don't understand those 09:01:10
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`questions, can you ask me for clarification? 09:01:14
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` A Yes. 09:01:18
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` Q And if you don't ask for 09:01:19
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`clarification, can we assume that you 09:01:20
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`understood the question? 09:01:22
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` A Yes. 09:01:25
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` Q Now, you understand that Mr. Thomas 09:01:26
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`may make objections, but unless you're 09:01:29
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`instructed otherwise, you need to answer the 09:01:33
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`question. 09:01:35
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` Do you understand that? 09:01:36
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` A Yes. 09:01:36
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` Q For example, you understand that 09:01:37
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`you can't refuse to answer a question on 09:01:38
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`confidentiality grounds? You understand 09:01:40
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`that? 09:01:42
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` A Yes. 09:01:43
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` Q Now, is there any reason today why 09:01:46
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`you can't give us complete, accurate and 09:01:50
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`truthful testimony? 09:01:53
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` A No reason I can't. 09:01:54
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` Q And have you given sworn testimony 09:01:56
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`in the past in the form of a deposition? 09:02:00
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` A As a technical individual for -- 09:02:04
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`not like this one. 09:02:07
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` Q Have you given a deposition in 09:02:09
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`other cases, whether in court or in the 09:02:13
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`Patent Office? 09:02:17
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` A Not in court. 09:02:17
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` Q Okay. 09:02:18
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` Have you had a deposition 09:02:18
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`before like in this format, where there's a 09:02:19
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`court reporter taking down the words -- 09:02:23
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` A Yes. 09:02:25
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` Q Okay. 09:02:25
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` So you're a little bit 09:02:25
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`familiar with the process? 09:02:27
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` A A little bit. 09:02:30
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` Q So just for some reminders, we'll 09:02:31
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`go through that a little bit. We'll go for 09:02:34
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`about an hour today, and then we'll take a 09:02:37
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`short break, and if at any time during the 09:02:41
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`proceeding you need a break, use the 09:02:46
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`restroom, something like that, just let us 09:02:48
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`know. 09:02:49
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` The only thing I would ask is 09:02:50
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`normally we'd ask that you answer the 09:02:51
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`question before we take a break. 09:02:53
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` A Yes, I understand. 09:02:55
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` Q The other thing is that our court 09:02:57
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`reporter is going to be taking down 09:03:00
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`everything that we're saying, so we need to 09:03:01
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`be cautious not to talk over one another. 09:03:03
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` Do you understand that? 09:03:07
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` A I understand that. 09:03:08
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` Q The other thing is, we'll be 09:03:09
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`looking for affirmative answers, so 09:03:10
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`"mm-hmms," "uh-uhs" are difficult to keep 09:03:12
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`track of, so if you can answer "yes," "no," 09:03:19
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`using language like that. 09:03:21
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` A Yes. 09:03:22
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` Q Understood? 09:03:23
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` Now, you understand that 09:03:25
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`you've offered declarations in support of a 09:03:27
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`number of IPR petitions filed in the Patent 09:03:31
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`Trial and Appeal Board; is that right? 09:03:35
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` A Yes. 09:03:38
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` Q And the IPR petitions that we'll be 09:03:39
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`talking about today are for IPR2019-01505, 09:03:40
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`01506, 01508, 01509, 01617, 01623 and 09:03:49
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`2020-00084; is that right? 09:04:02
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` A That's right. 09:04:08
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` Q And you understand you're here to 09:04:08
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`testify both today and tomorrow on those -- 09:04:10
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`on your declarations in those IPR petitions? 09:04:13
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` A Yes. 09:04:19
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` Q Now, we also have -- there's a 09:04:19
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`number of patents that are at issue there. I 09:04:21
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`think there's seven IPR petitions. There's 09:04:23
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`six patents at issue. 09:04:26
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` You understand that it's -- 09:04:27
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`that in referring to patents, it's fairly 09:04:29
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`common to refer to the last three digits of 09:04:32
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`the patent number? 09:04:34
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` A Yes. 09:04:36
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` Q So if we refer to the last three 09:04:36
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`digits, you'll understand which patent number 09:04:38
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`we're talking about? Is that right? 09:04:39
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` A Yes. 09:04:42
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` Q So I have placed a number of 09:04:43
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`binders in front of you, and we've tried to 09:04:48
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`premark everything so that we don't have to 09:04:53
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`exchange exhibits. 09:04:56
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` And I do want to say thanks to 09:04:58
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`everybody here for going through this process 09:05:01
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`in the pandemic. So we've tried to make it 09:05:03
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`in such a way so that we're not having to 09:05:05
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`pass documents back and forth to each other. 09:05:08
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` So they're all there. They've 09:05:10
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`been sitting there since yesterday, and I 09:05:11
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`will give you just a brief summary of what 09:05:15
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`those are in front of you. 09:05:18
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` So first off, on the 09:05:19
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`right-hand side, there's two white binders 09:05:20
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`there. Those two white binders contain the 09:05:23
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`exhibits that have already been marked in the 09:05:25
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`Patent Office. So that's the 1000 series 09:05:27
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`exhibits as well as some of the 2000 series, 09:05:30
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`and then the 3000 series as well. 09:05:33
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` A Yes. 09:05:36
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` Q In front of you is a green binder 09:05:36
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`that has your declarations in it. We've 09:05:39
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`included all seven of the declarations in the 09:05:42
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`IPRs that have been filed. We also included 09:05:44
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`in there, there are two additional 09:05:48
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`declarations that have been submitted. This 09:05:52
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`deposition is not about those two additional 09:05:54
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`IPRs, the 901 and 902, I believe, but they're 09:05:57
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`in there just in case we need to refer to it 09:06:00
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`for a couple questions just regarding your 09:06:03
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`testimony in these seven IPRs, okay? 09:06:05
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` A Okay. 09:06:09
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` Q On the left-hand side are a series 09:06:09
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`of pink binders, and those are documents that 09:06:13
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`will be used as exhibits today in the 09:06:16
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`deposition. 09:06:20
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` Per my discussion with 09:06:20
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`Prollenium's counsel, those documents are to 09:06:22
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`be left in the room. Mr. Thomas has agreed 09:06:26
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`that he's not going to flip through them and 09:06:32
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`do a preview of what the exhibits may be, but 09:06:34
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`each one of those has a tab on it 09:06:38
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`corresponding to the document or exhibit 09:06:39
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`number that we'll be using, so I may refer to 09:06:41
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`those and say let's take a look at this 09:06:45
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`particular exhibit. It's going to be in the 09:06:47
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`pink binder. 09:06:49
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` A All right. 09:06:49
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` Q And then on the floor next to you 09:06:52
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`then are a series of additional binders. And 09:06:54
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`there is a yellow binder with the institution 09:06:58
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`decisions in there. There is a blue binder 09:07:01
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`with all of the patents that are at issue 09:07:05
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`among the IPR petitions. And then there is a 09:07:07
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`white binder containing the IPR petitions 09:07:10
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`filed by Prollenium's counsel. 09:07:14
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` So I think I've covered all 09:07:16
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`the potential documents that may be in here, 09:07:17
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`but I wanted to make sure that that's on the 09:07:21
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`record so we know if we're referring to, for 09:07:23
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`example, I say take a look at the green 09:07:26
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`binder, that's your declarations. 09:07:29
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` A Mm-hmm. 09:07:31
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` Q So any questions for me about that? 09:07:32
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` A No. 09:07:35
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` Q Okay. 09:07:36
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` MR. PLATT: And I would add, 09:07:36
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`the other thing that we've agreed to between 09:07:38
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`counsel -- and Warren, correct me if I'm 09:07:41
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`wrong here, if I don't state it correctly -- 09:07:44
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`but with the pink binder, the documents for 09:07:45
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`the exhibits today, again, those are going to 09:07:48
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`be left in the room. At the end of the 09:07:51
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`deposition, we will pull out any of the 09:07:53
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`exhibits that we did not use during the 09:07:54
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`deposition, and then you'll be free to take 09:07:56
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`those with you. 09:07:59
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` MR. THOMAS: Yes, understood 09:08:00
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`and agreed by petitioners. 09:08:01
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` Q So let's take a look at your 09:08:06
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`declaration. So that's going to be the green 09:08:10
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`binder in front of you. 09:08:13
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` A Mm-hmm. 09:08:17
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` Q And with respect to the 09:08:17
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`declarations you've submitted in this case, 09:08:21
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`are there any corrections that you'd like to 09:08:23
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`make? 09:08:25
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` A Maybe one typographical correction, 09:08:28
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`but not really. 09:08:31
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` Q And what is that? 09:08:32
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` A I have to go back and look again. 09:08:34
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` Q Sure. Please do. And let me 09:08:36
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`know -- 09:08:37
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` A I think the identification of 09:08:38
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`bio -- carbodiimide, we originally had BCDI 09:08:40
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`and we changed that to the correct name. 09:08:49
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` Q Okay. 09:08:51
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` A That's it. 09:08:51
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` Q And we can talk about that later. 09:08:51
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` Any other corrections that you 09:08:55
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`want to make in your declarations? 09:08:56
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` A Not at the present, no. 09:08:58
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` Q And were your declarations accurate 09:08:59
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`when you signed them? 09:09:01
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` A Yes. 09:09:02
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` Q And were there any 09:09:04
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`misrepresentations made in your declarations? 09:09:06
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` A No. 09:09:10
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` Q Now, when were you first contacted 09:09:15
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`to work on these IPR matters? 09:09:20
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` A Originally contacted by Prollenium 09:09:22
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`in August of 2018. 09:09:24
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` Q And who contacted you? 09:09:28
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` A The president, Ario. I can't think 09:09:34
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`of his last name right now. 09:09:39
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` Q The president of Prollenium? 09:09:41
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` A The president of Prollenium. 09:09:43
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` Q And did you know the president of 09:09:43
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`Prollenium prior to that? 09:09:45
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` A Yes, I did. 09:09:46
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` Q And how is that that you know him? 09:09:47
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` A Well, at one point, they were 09:09:49
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`looking for someone to help them with their 09:09:50
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`development, and they had asked me if I was 09:09:54
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`interested, but I was already associated with 09:09:56
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`my own company. 09:09:59
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` Q And when you say looking for 09:10:03
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`development, they were interested in -- what 09:10:04
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`do you mean by that? 09:10:09
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` A They were interested in someone to 09:10:10
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`handle the risk -- research and development. 09:10:11
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` Q And then what happened -- what 09:10:21
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`happened after that? At some point were you 09:10:23
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`contacted regarding these -- 09:10:25
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` A Well, I suggested someone else who 09:10:27
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`I knew who took the position. 09:10:29
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` Q And did you know the president 09:10:33
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`prior to this call? 09:10:35
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` MR. THOMAS: Objection to 09:10:38
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`form. 09:10:38
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` Q Did you have a personal 09:10:43
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`relationship with the president prior to 09:10:44
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`this? 09:10:45
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` A No, no. 09:10:46
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` Q You hadn't worked with him -- 09:10:46
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` A No, I haven't worked with him, no. 09:10:48
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` Q And when were you contacted 09:10:50
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`regarding your work with respect to the 09:10:51
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`declarations that were submitted in these IPR 09:10:53
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`petitions? 09:10:55
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` A It was in August of 2018. I don't 09:10:56
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`remember the exact date. 09:10:58
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` Q I'm trying to -- hopefully you can 09:11:01
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`help me understand this. 09:11:02
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` I understood you to be saying 09:11:04
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`you were contacted relating to doing some 09:11:06
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`development work. Was that at the same time 09:11:08
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`you were -- 09:11:09
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` A Oh, no, no, much earlier, I was 09:11:10
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`contacted to see if I was interested in 09:11:13
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`accepting a position. 09:11:14
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` Q That was before August 2018. 09:11:15
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` A Well before. Yes. 09:11:24
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` Q And do you recall what the reason 09:11:34
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`was for when they contacted you in August 09:11:36
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`2018? What was the request that was made of 09:11:38
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`you? 09:11:41
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` MR. THOMAS: Objection to 09:11:42
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`form. Just -- go ahead. Objection to form. 09:11:42
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` A Oh, the request was asking if I had 09:11:47
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`any time to do some consulting work. 09:11:49
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` Q And what was the description of 09:11:55
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`that consulting work? 09:11:56
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` A At the time, he did not give me any 09:12:00
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`description of the consulting work. 09:12:02
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` Q And then were you put in contact 09:12:04
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`with someone else at some point about that, 09:12:06
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`about that work? 09:12:08
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` A Again, the initial contact was he 09:12:11
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`asked me if I was interested in a position 09:12:13
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`many years ago. Then in August of 2018, he 09:12:16
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`contacted me to see if I had any time to do 09:12:19
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`consulting work. 09:12:21
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` Q With respect to these IPR 09:12:26
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`petitions, correct? 09:12:26
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` A Yes, yes. 09:12:28
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` Q So who did you talk to -- who did 09:12:29
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`you talk to next relating to these IPR 09:12:30
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`petitions? 09:12:32
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` A Several weeks later, I had a 09:12:34
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`contact from Chris Curfman from -- 09:12:36
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` Q From the petitioner's law firm? 09:12:42
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` A From the petitioner's law firm. 09:12:44
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` Q And is your consulting agreement 09:12:54
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`with Prollenium or is it with the law firm? 09:12:55
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` A My current one is with Prollenium. 09:12:59
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` Q What is -- what are you charging 09:13:04
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`them for your consulting work? 09:13:06
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` A For this routine type of work is 09:13:10
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`$500 per hour. 09:13:11
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` Q And how much have you billed 09:13:16
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`Prollenium to date? 09:13:20
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` A I don't know exactly, but I -- I 09:13:21
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`believe I billed them for approximately 100 09:13:23
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`hours since that time. 09:13:26
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` Q Have you been -- have you been paid 09:13:33
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`for that time? 09:13:35
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` A Yes. 09:13:35
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` Q Now, who wrote your declarations in 09:13:38
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`these IPR petitions? 09:13:41
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` A I wrote the declarations. 09:13:42
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` Q The attorneys didn't write it for 09:13:44
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`you? 09:13:45
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` A Well, I basically prepared them 09:13:48
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`myself. 09:13:52
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` Q So you on your own computer sat 09:13:53
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`there and typed the words out; is that right? 09:13:54
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` A Well, with assistance. 09:13:56
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` Q And -- 09:13:58
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` A But basically my words. 09:13:58
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` Q Okay. 09:14:00
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` And who assisted you in that? 09:14:00
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` A I guess from some standpoint, some 09:14:08
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`assistance from the law firm. 09:14:10
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` Q But if they had typed something 09:14:21
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`that you didn't agree with, you would have -- 09:14:22
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`you would have changed that, right? 09:14:24
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` A I would have changed that. 09:14:26
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` Q Right. 09:14:27
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` If there's something in there 09:14:28
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`that's a misrepresentation, you would have 09:14:29
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`changed it. 09:14:31
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` A Yes. 09:14:32
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` Q If there was anything in there from 09:14:32
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`a scientific standpoint, right, that you had 09:14:34
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`concerns about, you would have changed it? 09:14:37
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` A Yes. 09:14:38
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` Q Did you -- besides the attorneys, 09:14:42
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`did you speak with anyone else relating to 09:14:43
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`the opinions that are contained in your 09:14:45
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`declarations? 09:14:49
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` A No. 09:14:50
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` Q So what did you do to prepare for 09:14:58
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`this deposition? 09:14:59
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` A Reviewed prior art that I was aware 09:15:00
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`of with technical legal -- with respect to 09:15:05
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`FDA documentation and files, reviewed patents 09:15:10
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`myself, many publications. 09:15:16
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` Q And did you meet with anyone in 09:15:23
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`preparation for your deposition? 09:15:24
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` A Well, we had a meeting yesterday, 09:15:27
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`just a brief -- a meeting yesterday. 09:15:32
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` Q And that was with Mr. Thomas? 09:15:34
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` A Yes. 09:15:36
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` Q And were others available by phone? 09:15:36
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` A Yes. 09:15:39
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` Q And who was -- who was available by 09:15:39
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`phone? Who joined by phone, if you remember? 09:15:41
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` A There were -- there were two other 09:15:46
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`people by phone. John -- 09:15:48
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