DR. RUFFOLO
`
`Page 1
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
` - - -
`
` UNITED THERAPEUTICS : C.A. No.
` CORPORATION, : 20-755-RGA
` :
` Plaintiff, :
` :
` vs. :
` :
` LIQUIDIA TECHNOLOGIES, INC.:
` :
` Defendant. :
`
` - - -
`
` THURSDAY, APRIL 15, 2021
`
` - - -
` Remote Videotape Zoom Deposition of
` ROBERT R. RUFFOLO, Ph.D., taken pursuant
` to Notice, commencing at approximately
` 9:03 a.m., on the above date, before Rose A.
` Tamburri, RPR, CM, CCR, CRR, USCRA Speed and
` Accuracy Champion and Notary Public.
` - - -
` VERITEXT LEGAL SOLUTIONS
` MID-ATLANTIC REGION
` 1801 Market Street, Suite 1800
` Philadelphia, Pennsylvania 19103
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
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`IPR2020-00770
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`Page 4
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`DR. RUFFOLO
`Page 2
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`1 E X H I B I T S, Continued:
`2
`
` Exhibit 0009 C.F.R. Section 210.3 - 179
`3 Bates Nos.
` UTC_LIQ00041891 - 893
`
`4
`
` Exhibit 0010 Supplemental Declaration 234
`5 of Robert R. Ruffolo,
` Ph.D., dated April 2,
`6 2021
`7 Exhibit 0011 Patent Owner's Response 243
` to Petition - Bates Nos.
`8 LIQ00084488 - 571
`9 Exhibit 0012 Patent Owner 264
`10 Preliminary Response
`11 Under 35 U.S.C. Section
`12 313 and 37 C.F.R.
`13 Section 42.107 - Bates
`14 Nos. LIQ00083725 - 806
`15
`16 Exhibit 0013 Patent Owner's Request 271
`17 for Rehearing - Bates
`18 Nos. LIQ00083884 - 899
`19
`20 Exhibit 0014 Decision Denying Patent 277
`21 Owner's Request on
`22 Rehearing of Decision
`23 on Institution - Bates
`24 Nos. LIQ00084819 - 828
`
`Page 3
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`Page 5
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`1 DEPOSITION SUPPORT INDEX
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`23
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`45
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` DIRECTION TO WITNESS NOT TO ANSWER
`
` Page Line
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` 28 24
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`67
`
`89
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` 45 6
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`10
`11 60 24
`12
`13 284 8, 24
`14
`15 285 23
`16
`17 286 6, 12, 19
`18
`19 287 20
`20
`21 288 3, 21
`22
`23 289 3, 17, 24
`24
`
`1 APPEARANCES:
`2
`
` BOIES, SCHILLER, FLEXNER LLP
`3 BY: BILL WARD, ESQUIRE
` 401 Wilshire Boulevard, Suite 850
`4 Santa Monica, California 90401
` (310) 752-2402
`5 bward@bsfllp.com
` (Via Remote Zoom)
`6 Representing the Plaintiff and
` The Witness
`
`78
`
` COOLEY LLP
` BY: JONATHAN DAVIES, ESQUIRE
`9 1299 Pennsylvania Avenue NW, Suite 700
` Washington, DC 20004
`10 (202) 776-2049
` jdaviesw@cooley.com
`11 (Via Remote Zoom)
` Representing the Defendant
`
`12
`13
`14 ALSO PRESENT:
`15
`16 ADAM W. BURROWBRIDGE, ESQUIRE
`17
`18 DOUGLAS H. CARSTEN, ESQUIRE
`19
`20 DOUGLAS W. CHEEK, ESQUIRE
`21
`22 ANDREW SMITH, Video Concierge
`23
`24 ORSON BRAITHWAITE, Videographer
`
`1 I N D E X
`2
`
` TESTIMONY OF: ROBERT R. RUFFOLO, Ph.D.
`
` By Mr. Davies............................8
`
` E X H I B I T S
`
` EXHIBIT NO. DESCRIPTION PAGE NO.
`
`3
`
`456
`
`7
`
`8
`
` Exhibit 0001 Amended Notice of 14
`9 Deposition
`10 Exhibit 0002 Declaration of Robert 31
` R. Ruffolo, Ph.D.
`11 dated February 5, 2021
`12 Exhibit 0003 U.S. Patent No. 65
` 9,593,066 - Bates Nos.
`13 UTC_LIQ00000001 - 12
`14 Exhibit 0004 U.S. Patent No. 65
` 9,604,901 - Bates Nos.
`15 UTC_LIQ00003447 - 58
`16 Exhibit 0005 '066 and '901 Patent 65
` Asserted Claims -
`
`17
`
` Exhibit 0006 Hemander Article - 95
`18 Regular Definitions for
` Ambient, Room Temperature
`19 and Cold Chain -Bates
` Nos. LIQ00084845 - 47
`
`20
`
` Exhibit 0007 Packaging and Storage 102
`21 Requirements Revision
` Bulletin dated
`22 May 1, 2017
`23 Exhibit 0008 Declaration of Dr. 158
` Liang Guo - Bates Nos.
`24 LIQ00083900 - 934
`
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`2 (Pages 2 - 5)
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`DR. RUFFOLO
`Page 6
`1 REQUEST FOR PRODUCTION OF DOCUMENTS
`
`Page 8
`
`1 Therapeutics Corporation versus Liquidia
`2 Technologies, Inc., filed in the United States
`3 District Court for the District of Delaware,
`4 Case No. 20-755-RGA.
`5 My name is Orson Braithwaite from
`6 the firm Veritext Solutions, and I'm the
`7 videographer. The court reporter is Rose
`8 Tamburri from the firm Veritext Legal
`9 Solutions.
`10 Counsel will now state their
`11 appearances and affiliations for the record.
`12 MR. DAVIES: Jonathan Davies from
`13 Cooley LLP for defendant, Liquidia.
`14 MR. WARD: Bill Ward of Boies,
`15 Schiller, Flexner for the plaintiff, United
`16 Therapeutics, and the witness. And here in
`17 the room with me is Adam Burrowbridge of
`18 Wilson Sonsini.
`19 MR. CARSTEN: And Doug Carsten of
`20 McDermott, Will & Emery, also for plaintiff.
`21 THE VIDEOGRAPHER: Thank you.
`22 Will the court reporter please swear in the
`23 witness.
`24 - - -
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` Page Line Description
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` None
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` STIPULATIONS
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`2 3
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`4 5
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`6 7 8 9
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`10
`11 Page Line
`12
`13 None
`14
`15
`16 PREVIOUSLY MARKED EXHIBITS REFERRED TO
`17
`18 EXHIBIT NUMBER PAGE REFERENCED
`19
`20 None
`21
`22
`23
`24
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`Page 7
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`1 (Whereupon, the deposition
`2 commenced at 9:03 a.m.)
`3 - - -
`4 THE COURT REPORTER: The attorneys
`5 participating in this deposition acknowledge
`6 that I am not physically present in the
`7 deposition room, and that I will be reporting
`8 this deposition remotely.
`9 They further acknowledge that, in
`10 lieu of an oath administered in person, I will
`11 administer the oath remotely.
`12 The parties further agree that if
`13 the witness is testifying from a state where I
`14 am not a Notary, that the witness may be sworn
`15 in by an out-of-state Notary.
`16 If any party has an objection to
`17 this manner of reporting, please state it now.
`18 Hearing none, we can proceed.
`19 - - -
`20 THE VIDEOGRAPHER: Good morning.
`21 We are going on the record at
`22 9:03 a.m. on April 15th, 2021. This is Media
`23 Unit 1 of the remote recorded deposition of
`24 Dr. Robert R. Ruffolo, in the matter of United
`
`Page 9
`1 ...ROBERT R. RUFFOLO, Ph.D., after
`2 having first been duly sworn and/or affirmed,
`3 was examined and testified as follows...
`4 - - -
`5 THE VIDEOGRAPHER: Please proceed.
`6 - - -
`7 EXAMINATION
`8 - - -
`9 BY MR. DAVIES:
`10 Q. Good morning.
`11 A. Good morning.
`12 Q. Could you please state your full
`13 name, Dr. Ruffolo.
`14 A. Yes. Robert Ruffolo, R-U-F-F-O-L-O.
`15 Q. Thanks very much.
`16 And have you been deposed before,
`17 Dr. Ruffolo?
`18 A. Yes, I have.
`19 Q. And can you tell me about how many
`20 times?
`21 A. Maybe eight to ten, maybe a little
`22 bit more.
`23 Q. So you have some familiarity with the
`24 -- the process. As you know, we're doing this
`3 (Pages 6 - 9)
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`Page 12
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`DR. RUFFOLO
`Page 10
`1 remotely today, but regardless, you understand
`2 that the testimony you're providing today is
`3 still under oath; correct?
`4 A. Yes, I do.
`5 Q. Okay.
`6 Today's deposition is being
`7 conducted over Zoom and you are being recorded
`8 over Zoom. It's our understanding that you
`9 were provided a training with regard to
`10 today's deposition and the use of Exhibit
`11 Share with regards to today's deposition by
`12 Veritext; is that correct?
`13 MR. WARD: We -- Jonathan, this is
`14 the subject of the email exchange. We have
`15 your box of exhibits, and so I'm prepared to
`16 give those exhibits to the witness so he can
`17 handle them in hard copy.
`18 MR. DAVIES: Understood, Bill, I
`19 -- I just wanted to confirm whether or not Dr.
`20 Ruffolo had received any training from
`21 Veritext regarding the use of Exhibit Share?
`22 THE WITNESS: No, I haven't.
`23 MR. DAVIES: Okay.
`24 THE WITNESS: I think it was
`
`1 Q. Okay.
`2 And for the benefit of the court
`3 reporter, and even though it's being recorded,
`4 I need you to provide verbal responses, rather
`5 than, for example, a head nod or a shoulder
`6 shrug.
`7 Is that agreeable?
`8 A. Yes.
`9 Q. Okay.
`10 And during the deposition today,
`11 if you feel the need to take a break, I'll try
`12 and take a break, I typically take a break
`13 around every hour, sometimes a little longer,
`14 sometimes maybe a little less, but if, at any
`15 point during the deposition, you need to take
`16 a break, let me know. And the only thing that
`17 I'd ask is if there's a pending question, that
`18 you respond to the pending question and then
`19 we'll go off the record.
`20 Fair enough?
`21 A. I understand.
`22 Q. Okay. Great.
`23 So is there any reason today why
`24 you can't provide truthful and accurate
`
`Page 11
`
`1 offered, but I -- I don't understand.
`2 MR. DAVIES: Okay. That's fine.
`3 BY MR. DAVIES:
`4 Q. And as your -- as your counsel
`5 indicated, we did provide hard copies of all
`6 the exhibits that we may use today. There may
`7 be additional ones that come up, and counsel
`8 has agreed to assist us with printing out
`9 additional exhibits if we need to enter those.
`10 Is that your understanding, Dr.
`11 Ruffolo?
`12 A. Yes, it is, and thank you.
`13 Q. Okay.
`14 MR. WARD: We'll be happy to print
`15 those, Jonathan.
`16 MR. DAVIES: Great. Thanks very
`17 much, Bill.
`18 BY MR. DAVIES:
`19 Q. During the deposition today, your --
`20 your counsel may object from time to time.
`21 You understand that you still need to provide
`22 a response to my questions unless your counsel
`23 instructs you not to answer; is that correct?
`24 A. Yes.
`
`Page 13
`
`1 testimony?
`2 A. No.
`3 Q. Okay. Great.
`4 So you'll have to bear with me a
`5 little.
`6 MR. DAVIES: I'm going to enter as
`7 Exhibit 1, and, Bill, this should be Tab 1 in
`8 your box.
`9 MR. WARD: Okay. I have not
`10 opened it yet.
`11 MR. DAVIES: Okay.
`12 MR. WARD: Do you want me to open
`13 it or, I'm happy to do whatever you want.
`14 MR. DAVIES: Yeah, go ahead and
`15 open the -- the box, Bill; that would be
`16 great.
`17 MR. WARD: Okay. If you don't
`18 need me on camera, I can just do it right
`19 here.
`20 MR. DAVIES: No, I -- I trust that
`21 you can open -- open the box.
`22 MR. WARD: All rightee.
`23 MR. DAVIES: Just let me know once
`24 you have it open. And then once you have it
`4 (Pages 10 - 13)
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`DR. RUFFOLO
`Page 14
`
`1 open, if you could pass Dr. Ruffolo the
`2 document at Tab 1.
`3 MR. WARD: Okay.
`4 (Brief pause.)
`5 MR. WARD: Okay.
`6 And if it's all right with you,
`7 Jonathan, just to make sure that the record
`8 doesn't disconnect between Exhibit Share and
`9 what we have locally, I'll go ahead and
`10 identify the document as I hand it to Dr.
`11 Ruffolo?
`12 MR. DAVIES: I -- I -- I can go
`13 ahead and identify it --
`14 MR. WARD: Okay.
`15 MR. DAVIES: -- as we can go on.
`16 (Whereupon, a document was marked,
`17 for identification purposes, as Exhibit 0001.)
`18 BY MR. DAVIES:
`19 Q. So, Dr. Ruffolo, you should be passed
`20 Exhibit 1, which is Defendant's Amended Notice
`21 of Deposition of Robert R. Ruffolo in this
`22 case, and it's dated March 29, 2021.
`23 Is that the document you have in
`24 front of you?
`
`Page 16
`
`1 A. About the same.
`2 Q. Okay.
`3 Other than Mr. Ward, Mr.
`4 Burrowbridge and Mr. Jackson, was anyone else
`5 present for your preparation for your
`6 deposition testimony today?
`7 A. Mr. Carsten was present for very
`8 small portions, in and out.
`9 Q. Anyone else other than Mr. Carsten?
`10 A. No.
`11 Q. Was Mr. Carsten present yesterday?
`12 A. I think for a short period at -- at
`13 the end maybe.
`14 Q. Okay.
`15 And was Mr. Carsten also present
`16 the day before yesterday?
`17 A. The same, for a short period at the
`18 end.
`19 Q. Okay.
`20 You mentioned that during that
`21 time, you reviewed your previous reports. Did
`22 you intend to mean the two reports that you
`23 have submitted in the current case?
`24 MR. WARD: Objection, misstates
`
`Page 15
`
`1 A. It -- it looks like it, yes.
`2 Q. Okay.
`3 And you understand that you are
`4 here today pursuant to this Notice to provide
`5 testimony regarding the two declarations
`6 regarding claim construction that you
`7 submitted in this case?
`8 A. Yes, I do.
`9 Q. Great.
`10 With respect to today's
`11 deposition, what did you do to prepare for
`12 today's deposition?
`13 A. I reviewed my previous reports and
`14 the background information for those reports.
`15 I reviewed the patents and the cited material.
`16 And then I worked with Mr. Ward,
`17 Mr. Burrowbridge and Mr. Jackson going over
`18 some of the material yesterday and the day
`19 before.
`20 Q. And about how long yesterday did you
`21 spend preparing?
`22 A. Maybe eight hours, maybe nine.
`23 Q. And the day before yesterday, how
`24 long did you spend preparing?
`
`Page 17
`1 the testimony. And we're not going to get
`2 into what Dr. Ruffolo reviewed in his
`3 preparation with attorneys.
`4 MR. DAVIES: That's -- okay. I
`5 was just asking because Dr. Ruffolo indicated
`6 he had reviewed previous reports.
`7 BY MR. DAVIES:
`8 Q. And I was just asking if you can
`9 recall if those -- two of those reports were
`10 those that you authored in this case?
`11 MR. WARD: Objection, misstates
`12 testimony.
`13 You can answer.
`14 THE WITNESS: Oh, I -- I can
`15 answer.
`16 Yes, so they were my two reports,
`17 the first and -- and the second --
`18 MR. DAVIES: Okay.
`19 THE WITNESS: Supplemental was the
`20 second one.
`21 BY MR. DAVIES:
`22 Q. Do you recall, Dr. Ruffolo, if you
`23 reviewed any other declarations that you had
`24 submitted in other proceedings outside of the
`5 (Pages 14 - 17)
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`Page 20
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`1 Other than the two days that you
`2 spent with counsel yesterday and the -- the
`3 day before, was there any other time before
`4 that that you prepared for your deposition
`5 today on your own?
`6 A. Yes. I prepared for several weeks on
`7 my own.
`8 Q. And that preparation was not at the
`9 direction of counsel?
`10 A. No.
`11 Q. And what, if you can recall, did you
`12 review during the preparation that you
`13 undertook for those several weeks?
`14 A. It -- it was what I said earlier. It
`15 were -- it was background documents that I
`16 cited, I reviewed the documents that Liquidia
`17 also provided, and -- and documents that they
`18 cited as well.
`19 Q. When you say background documents
`20 that you cited, you reviewed the documents
`21 that were cited in your two declarations in
`22 this case?
`23 A. Yes, in my two declarations. Yes.
`24 Q. Okay.
`
`DR. RUFFOLO
`Page 18
`1 two that you have submitted in this case?
`2 MR. WARD: Again, objection.
`3 So I think Mr. Davies is asking
`4 you about outside of the context of preparing
`5 with attorneys.
`6 THE WITNESS: Outside of an
`7 attorney.
`8 MR. DAVIES: Counsel, I'm sorry, I
`9 couldn't hear -- I am asking him the context
`10 of preparing for his deposition today.
`11 BY MR. DAVIES:
`12 Q. And other than the two pre -- the
`13 reports that you entered in this case, Dr.
`14 Ruffolo, do you recall reviewing any other
`15 reports that you have authored in other
`16 proceedings in preparation for your deposition
`17 testimony today?
`18 MR. WARD: Okay. Mr. Davies, can
`19 you hear me?
`20 MR. DAVIES: I can, yes.
`21 MR. WARD: Okay. Great.
`22 So my objection is, is that we're
`23 not going to get into the documents that --
`24 identifying the documents that Dr. Ruffolo
`Page 19
`1 reviewed in the context of preparing with
`2 attorneys.
`3 My instruction to you, Dr.
`4 Ruffolo, is that you can answer the question
`5 with respect to what you did outside of
`6 preparing with attorneys or at the direction
`7 of attorneys, you may answer.
`8 THE WITNESS: I'm -- okay. Maybe
`9 a month or two ago, I did review one of my old
`10 reports on the '393 Patent to bring, my --
`11 start to bring myself up to speed, but that
`12 would be the only other report that I wrote.
`13 BY MR. DAVIES:
`14 Q. And was that a declaration that you
`15 submitted in an IPR related to the '393
`16 Patent?
`17 A. I think it was an IPR.
`18 Q. Okay.
`19 Other than that additional report,
`20 can you think of any other reports that you
`21 reviewed outside of the direction of counsel
`22 related to this case?
`23 A. No.
`24 Q. Okay.
`
`Page 21
`
`1 Did you review any other
`2 background documents beyond those that you can
`3 think of?
`4 A. It's possible, but I'm not recalling
`5 any that I reviewed that I didn't cite.
`6 Q. Okay.
`7 A. But I can't be absolutely certain.
`8 Q. I believe you also mentioned some
`9 filings by Liquidia that you reviewed; is that
`10 correct?
`11 A. Yes.
`12 Q. And what were those, if you can
`13 recall?
`14 A. There was -- I believe it was
`15 Liquidia's claim construction and their
`16 response to my first declaration, and -- and I
`17 reviewed a few documents that Liquidia
`18 prepared that were related to this case
`19 earlier, that they maybe submitted late in
`20 2020, and maybe even earlier than that, as
`21 part of just my background coming up to -- to
`22 speed in the case.
`23 Q. Those other documents that you
`24 mentioned that Liquidia submitted, were they
`6 (Pages 18 - 21)
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`DR. RUFFOLO
`Page 22
`
`1 related to claim construction?
`2 A. No, I don't -- no, I don't -- they
`3 may have included a comment about claim
`4 construction, but they weren't solely related
`5 to claim construction. They were background
`6 documents that I -- I reviewed just to see
`7 what Liquidia's positions were.
`8 Q. Okay.
`9 Do you recall whether you reviewed
`10 any interrogatory responses submitted by -- or
`11 filed by Liquidia in this case?
`12 A. I did review a document that said
`13 interrogatory responses, but I don't recall
`14 who submitted it. It would just -- I just
`15 don't remember.
`16 And I -- and I think I also
`17 reviewed a Liquidia IPR on -- a document on
`18 the '066 and the '901 Patents maybe. I know
`19 at least one.
`20 Q. Have you reviewed any of UTC's IPR
`21 submissions with respect to either the '066 or
`22 the '901 Patent?
`23 A. I'm certain that I did. I can't tell
`24 you how many, but I'm certain that I did.
`Page 23
`
`1 Q. Okay.
`2 And when -- can you recall when
`3 approximately you reviewed those?
`4 A. It would have been late in 2020
`5 and -- and maybe earlier into this year.
`6 Q. Do you recall if you reviewed any of
`7 the UTC's documents submitted in the '066 IPR
`8 prior to it being filed in that IPR?
`9 A. Oh, I don't know. I don't know when
`10 it was filed or -- I mean, maybe I did or I
`11 didn't. I don't know. Sorry.
`12 Q. Okay.
`13 Same question with the '901. Do
`14 you know whether you reviewed --
`15 MR. WARD: Counsel, I'm going to
`16 object to the extent that this is going
`17 outside of Dr. Ruffolo's work in connection
`18 with claim construction in his declarations
`19 and that it may be going into work performed
`20 in a consulting context with UTC.
`21 MR. DAVIES: And I'll just say Dr.
`22 Ruffolo identified these as things that he had
`23 reviewed outside of the direction of counsel
`24 in preparation for today's deposition
`
`Page 24
`
`1 testimony, so I'll just --
`2 MR. WARD: Mr. Davies, I believe
`3 your questions that Dr. Ruffolo responded to
`4 had to do with UTC's filings in the IPRs, and
`5 then, if I understand correctly, your
`6 questioning switched to looking at documents
`7 prior to their filing with -- so -- so in
`8 other words, you're going from publicly filed
`9 IPR documents to what may include drafts.
`10 MR. DAVIES: Correct. I am asking
`11 Dr. Ruffolo whether he has knowledge --
`12 whether he believes he reviewed documents --
`13 MR. WARD: Okay.
`14 MR. DAVIES: -- submitted in the
`15 '901 IPR before they were filed.
`16 MR. WARD: Okay. Thank you for
`17 clarifying.
`18 So I object to that on privilege
`19 grounds and instruct the witness not to answer
`20 with respect to reviewing drafts in connection
`21 with IPRs.
`22 You can respond with respect to
`23 publicly filed documents from UTC in the IPRs.
`24 THE WITNESS: Okay. I don't
`
`Page 25
`1 actually know of -- I don't think I reviewed
`2 drafts, but just to be clear, I -- the -- the
`3 first number of my answers were related to in
`4 preparation for -- for this deposition, but
`5 then I provided other information that --
`6 other documents that I reviewed that weren't
`7 in preparation for this, but were to come up
`8 to speed in -- in terms of the -- the case in
`9 general.
`10 So those other documents that I
`11 said I reviewed late last year --
`12 MR. WARD: Okay. So I'm
`13 instructing you not to go into documents that
`14 were in general preparation of the case --
`15 THE WITNESS: Okay.
`16 MR. WARD: -- or in a consulting
`17 context that are in prior years to which they
`18 were filed.
`19 THE WITNESS: Okay.
`20 MR. WARD: You can answer with
`21 respect to the work that you did on your --
`22 what you reviewed in order to prepare your
`23 declarations --
`24 THE WITNESS: Okay.
`7 (Pages 22 - 25)
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`DR. RUFFOLO
`Page 26
`1 MR. WARD: -- in -- in the Markman
`2 context here.
`3 THE WITNESS: Markman means?
`4 MR. WARD: Means the claim
`5 construction declarations.
`6 THE WITNESS: Okay.
`7 So -- so a number of those other
`8 documents I reviewed, not to prepare for claim
`9 construction, but to come up to speed in the
`10 case. So I'm sorry if I confused you.
`11 BY MR. DAVIES:
`12 Q. Dr. Ruffolo, do you recall when you
`13 were first contacted regarding consulting with
`14 respect to this litigation?
`15 MR. WARD: Counsel, what's the
`16 relevance of going into the consulting
`17 relationship?
`18 MR. DAVIES: I -- I'm -- I'm
`19 entitled to explore when he was retained, who
`20 retained him, counsel. There's nothing
`21 irrelevant about that.
`22 BY MR. DAVIES:
`23 Q. Do you recall, Dr. Ruffolo?
`24 MR. WARD: I object.
`
`Page 27
`
`1 You can say a date if you
`2 remember.
`3 THE WITNESS: It was in the spring
`4 of 2000.
`5 BY MR. DAVIES:
`6 Q. Okay.
`7 Do you recall who first contacted
`8 you with regard to consulting with respect to
`9 the litigation?
`10 MR. WARD: Objection.
`11 THE WITNESS: I know one person
`12 was Josh Mack and I don't recall the names of
`13 any others.
`14 BY MR. DAVIES:
`15 Q. Do you have a consulting agreement
`16 that governs your consulting work with respect
`17 to the litigation?
`18 MR. WARD: Objection, irrelevant.
`19 Again, getting into his consulting
`20 relationship.
`21 You can answer yes or no, if you
`22 remember.
`23 THE WITNESS: I -- I have an
`24 agreement.
`
`Page 28
`
`1 BY MR. DAVIES:
`2 Q. You do have an agreement, Dr.
`3 Ruffolo?
`4 A. Yes, I do.
`5 Q. Okay.
`6 Do you know who that agreement is
`7 between?
`8 MR. WARD: Objection.
`9 THE WITNESS: It --
`10 MR. WARD: Hang on. You can
`11 answer just with the name, if you know.
`12 THE WITNESS: Do you mean of the
`13 person or the law firm?
`14 MR. WARD: Either one.
`15 THE WITNESS: I -- I -- I think
`16 the agreement was with Wilson Sonsini and --
`17 and Josh Mack.
`18 BY MR. DAVIES:
`19 Q. And you believe that that agreement
`20 began in the spring of 2000, did you say?
`21 MR. WARD: Objection to form.
`22 THE WITNESS: I think so.
`23 BY MR. DAVIES:
`24 Q. In connection with that consulting
`Page 29
`1 agreement, have you provided any consulting
`2 with respect to UTC's filings in the '066 or
`3 '901 IPRs?
`4 MR. WARD: Objection, privileged.
`5 I instruct you not to answer.
`6 MR. DAVIES: I don't -- what's the
`7 basis for privilege on that, counsel?
`8 MR. WARD: You're going into
`9 substance of communications in the consulting.
`10 MR. DAVIES: And to be clear, I'm
`11 not asking for substance; I'm just asking if
`12 he has provided any consulting services with
`13 respect to the '066 or '901 IPRs, and you can
`14 answer that yes or no, Dr. Ruffolo.
`15 MR. WARD: Objection. Privileged.
`16 Instruct you not to answer.
`17 MR. DAVIES: Okay. And I disagree
`18 that that's privileged.
`19 What substance do you feel I'm
`20 seeking with that, counsel?
`21 MR. WARD: The substance that's in
`22 your question. You're asking for the topics.
`23 MR. DAVIES: I'm not asking for
`24 the topics; I'm merely asking if he has
`8 (Pages 26 - 29)
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`Veritext Legal Solutions
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`Page 8 of 123
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`Page 32
`
`DR. RUFFOLO
`Page 30
`1 provided any consulting to UTC or its counsel
`2 with respect to the '066 or '901 IPRs.
`3 MR. WARD: Those are topics. Same
`4 objection.
`5 MR. DAVIES: And those are topics
`6 that would need to be identified in a
`7 privilege log, so they're not, themselves,
`8 privileged.
`9 MR. WARD: I disagree with that
`10 characterization.
`11 MR. DAVIES: Okay. We can take
`12 that up later.
`13 Are you still instructing the
`14 witness not to answer?
`15 MR. WARD: I am.
`16 MR. DAVIES: So, counsel, just to
`17 be clear, it's your opinion that Dr. Ruffolo
`18 responding yes or no as to whether or not he
`19 has provided counseling services to UTC or its
`20 counsel with respect to the '066 or '901 IPRs
`21 is privileged? Do I have that correct?
`22 MR. WARD: It is privileged. It's
`23 also beyond the scope of this deposition and
`24 it's -- it's irrelevant.
`
`1 MR. WARD: Yeah, I'm working on
`2 it.
`3 MR. DAVIES: Okay.
`4 MR. WARD: Okay. The witness has
`5 it.
`6 BY MR. DAVIES:
`7 Q. Okay.
`8 So, Dr. Ruffolo, counsel should
`9 have placed in front of you a document titled
`10 Declaration of Robert R. Ruffolo, Ph.D.
`11 Do you see that?
`12 A. Yes, I do.
`13 Q. Okay.
`14 And if you turn to the last page,
`15 and we've appended Exhibits A, B and C to your
`16 report that were provided, do you see that
`17 it's dated February 5th, 2021, and that's
`18 page 43 of your declaration?
`19 A. Yes, February 5th, 2021.
`20 Q. And then is that your signature on
`21 page 43, Dr. Ruffolo?
`22 A. Yes, it is.
`23 Q. And then following that, you should
`24 have a copy of Exhibit A, References.
`
`Page 31
`1 MR. DAVIES: Dr. Ruffolo has, in
`2 fact, reviewed a number of IPR submissions
`3 that are cited in his declaration, so what's
`4 your basis for that being beyond the scope of
`5 this deposition, counsel?
`6 MR. WARD: Well, you may ask him
`7 about the documents that he reviewed from the
`8 IPRs in connection with his declarations.
`9 That's not an issue.
`10 The objection is that you're
`11 getting into Dr. Ruffolo's work that's outside
`12 of what he did for the declaration for the
`13 claim construction.
`14 MR. DAVIES: Okay. And I -- I
`15 disagree that it's unrelated, but we can
`16 pursue that later.
`17 Okay. Let's enter as Ruffolo
`18 Exhibit 2, and, Bill, this will be at Tab 2 in
`19 your box.
`20 MR. WARD: Okay.
`21 (Whereupon, a document was marked,
`22 for identification purposes, as Exhibit 0002.)
`23 MR. DAVIES: Let me know once you
`24 have that.
`
`Page 33
`
`1 Do you see that?
`2 A. I -- yes, I do.
`3 Q. And following that, you should have a
`4 copy of Exhibit B, which is your testimony.
`5 A. Yes, I have that.
`6 Q. Okay.
`7 And then the last exhibit that you
`8 should have there related to this is your
`9 curriculum vitae of Robert R. Ruffolo, Jr.
`10 Do you have that?
`11 A. Yes, I do.
`12 Q. And so do you recognize this as the
`13 declaration, your first declaration that you
`14 submitted in this litigation in support of
`15 your claim construction opinions?
`16 A. Yes,