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`Page 1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________
`
`LIQUIDIA TECHNOLOGIES, INC.,
`
`Petitioner;
`
`-v-
`
`UNITED THERAPEUTICS CORPORATION,
`
`Patent Owner.
`
` The Remote Deposition of SYLVIA HALL-ELLIS, PH.D.,
`
` having been called by the Patent Owner for
`
` examination, taken pursuant to all applicable rules,
`
` conducted via Zoom videoconference, and commencing at
`
` the hour of 9:00 a.m. Mountain Time on the 11th day
`
` of March, 2022.
`
` Reported By Beth Radtke, RPR, CRR
`
` License No. 084-004561
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`IPR2021-00406
`United Therapeutics EX2094
`
`

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`Page 2
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`Page 4
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`1 (Witness sworn.)
`2 MR. HOUSTON: Good morning, Dr. Hall-Ellis.
`3 My name is Mike Houston with the law firm of Foley &
`4 Lardner, and I represent the patent owner, United
`5 Therapeutics, in this proceeding, and I'll pause a
`6 moment to give opposing counsel to introduce
`7 themselves on the record.
`8 MS. KANNAPPAN: This is Deepa Kannappan from
`9 Cooley, LLP on behalf of petitioner, Liquidia
`10 Technologies.
`11 SYLVIA HALL-ELLIS, PH.D.,
`12 having been first duly sworn, was examined and
`13 testified as follows:
`14 EXAMINATION
`15 BY MR. HOUSTON:
`16 Q. Would you just clearly identify yourself for
`17 the record, stating your name and address, please?
`18 A. I'm Dr. Sylvia Hall-Ellis. I live in
`19 Denver, Colorado.
`20 Q. Dr. Hall-Ellis, I'm sure you recall we did a
`21 deposition earlier in this proceeding not too long
`22 ago, so I presume you don't need me to go over the
`23 ground rules again this morning; is that correct?
`24 A. Yes.
`
`Page 3
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`Page 5
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`1 Q. Okay. I think the main one that I will just
`2 remind you of is that because we have a court
`3 reporter on this Zoom call who is trying to take down
`4 everything we say, it's particularly important that
`5 you allow me to finish asking my question, allow your
`6 counsel to pose any objections they may want to pose,
`7 and then try to answer my question as it was asked.
`8 Do you understand that?
`9 A. Yes.
`10 Q. Okay, thank you.
`11 And as a part of this proceeding, you
`12 submitted a reply declaration that has been marked as
`13 Exhibit 1112. Do you have that understanding,
`14 Dr. Hall-Ellis?
`15 A. I did write a second declaration to respond
`16 to issues raised, yes.
`17
`Q. And do you have that declaration available
`18 to you on your screen through the Exhibit Share
`19 portal?
`20
`A.
`I have downloaded that, and I have it as a
`21 PDF file on my computer.
`22 Q. Okay. So we're going to be going through
`23 parts of that declaration today, and I will presume
`24 that you're able to scroll around your version of the
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`*****
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`1
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`APPEARANCES
`
`23
`
` COOLEY, LLP
` By Ms. Deepa Kannappan
`4 1299 Pennsylvania Avenue NW
` Suite 700
`5 Washington, D.C. 20004-2400
` dkannappan@cooley.com
`(202)842-7800
`Appeared on behalf of the Petitioner;
`
`6
`
`78
`
` FOLEY & LARDNER LLP
` By Mr. Michael R. Houston
`9 321 North Clark Street
` Suite 2800
`10 Chicago, Illinois 60654-5313
` mhouston@foley.com
`(312)832-4378
`Appeared on behalf of the Patent Owner.
`
`11
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`*****
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`1 INDEX
`
`2 3
`
` WITNESS PAGE
`4 SYLVIA HALL-ELLIS, PH.D.
` Examination By Mr. Houston 4
`5 Examination By Ms. Kannappan 45
` Further Examination By Mr. Houston 50
`
`6 7
`
`13
`
` EXHIBITS
`8 Exhibit 1112 Declaration
`Sylvia Hall-Ellis
`9 Exhibit 1116 British Library 17
`declaration
`10 Exhibit 2092 British Library 22
`4-20-18 e-mail
`11 Exhibit 1117 JAHA Supplement 28
`PubMed Search
`12 Exhibit 2093 Journal of American 33
`College of Cardiology
`article
` Exhibit 1114 AHA Online archive 48
`
`5
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`

`

`Page 6
`1 declaration and find whatever passages we might be
`2 discussing. If you have trouble doing that, I would
`3 ask that you please let me know.
`4 A. That's fine.
`5 Q. Okay, great.
`6 Dr. Hall-Ellis, I'd like to begin by asking
`7 you to turn to paragraph 33 of that reply
`8 declaration.
`9 Would you let me know when you get there?
`10 A. Okay. In paragraph 33, you say that you
`11 have obtained date-stamped copies of Voswinckel JAHA,
`12 J-A-H-A, all in caps, from The British Library, The
`13 Library of Congress, The Lane Medical Library at the
`14 Stanford University Medical Center, and the
`15 University of California-Davis Health Sciences
`16 Library.
`17 Do you see that?
`18 A. Yes.
`19 Q. Did you yourself -- and you attached those
`20 as Exhibits 1093 to 1096, correct?
`21 A. Yes.
`22 Q. Did you yourself go about photocopying those
`23 copies of the Voswinckel JAHA abstract from those
`24 libraries?
`
`Page 8
`1 this appeared, the volume number, the number of the
`2 issue, and the date.
`3 Q. And I'm sorry, what was that last part? The
`4 connection kind of broke up.
`5 A. The date.
`6 Q. The date, okay.
`7 A. I would have given pages also, which I see a
`8 page of -- I would have given the complete pagination
`9 as well.
`10 Q. And I'm sorry, you were looking at something
`11 when you said "I see a page."
`12 A. I'm looking at paragraph 33.
`13 Q. Okay. Okay, so basically, you would have
`14 provided -- I'm sorry, I'm still trying to find the
`15 page that you're referring to. Am I just missing it?
`16 Is there a page number? Oh, I see --
`17 A. The pages here are the pages -- let me get
`18 my glasses.
`19 Q. Now I think I see what you mean.
`20 A. You see? Okay.
`21 Q. You're referring to that page number that
`22 appears down towards the bottom of page 14 of your
`23 declaration that says it's Roman numeral III-295?
`24 A. That is correct.
`
`Page 7
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`Page 9
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`1 A. No.
`2 Q. Did you provide a citation to the Voswinckel
`3 JAHA abstract and ask someone to provide those copies
`4 to you?
`5 A. Yes.
`6 Q. Do you recall what citation you provided
`7 when you asked for these?
`8 A. Exact citation, I do not recall.
`9 Q. What do you recall about what you provided
`10 to the libraries when you asked for these copies?
`11 A. When I am searching for any document, the
`12 first step I take is to verify a complete citation,
`13 and that citation is the one I provide to anyone who
`14 is procuring an article or document for me.
`15 Q. So Dr. Hall-Ellis, let me ask again: What
`16 do you recall about what citation you provided in
`17 this instance to obtain these exhibits that you
`18 reference here at paragraph 33 of your declaration?
`19 MS. KANNAPPAN: Objection to form.
`20 BY THE WITNESS:
`21 A. Looking at paragraph 33, I can tell you I
`22 would have provided a list of each of the authors in
`23 the order they appeared on the article itself, the
`24 title of the article, the journal supplement in which
`
`1 Q. So that would have been part of what you
`2 provided to the libraries to seek these copies?
`3 A. Mm-hmm.
`4 Q. Okay. Let's skip ahead just a little bit in
`5 your declaration to paragraph 36, if you could.
`6 A. Okay. I'm there.
`7 Q. And I think probably you have to scroll to
`8 sort of the part of that paragraph 36 that's on
`9 page 17 of your declaration where you say that a POSA
`10 would have found Robert Voswinckel's name in the
`11 author index and would have further found Voswinckel
`12 JAHA.
`13 Do you see that? That's down at the bottom
`14 of that paragraph.
`15 A. I do see that, two, four, six, seven lines
`16 from the bottom of the paragraph.
`17 Q. Okay. To your knowledge, have you provided
`18 any evidence in this proceeding that the author index
`19 that you're referring to there was available anywhere
`20 other than within the supplement itself, the abstract
`21 supplement itself?
`22 MS. KANNAPPAN: Objection to form.
`23 BY THE WITNESS:
`24 A. I'm not sure I'm really understanding what
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`1 you're asking me.
`2 I have provided parts of the index from the
`3 author index, so are you asking me if it's somewhere
`4 else?
`5 BY MR. HOUSTON:
`6 Q. Yeah, sure, that's --
`7 A. What are you asking me?
`8 Q. No problem, Dr. Hall-Ellis, I'll try to ask
`9 it more clearly, and thank you for clarifying when
`10 you don't understand something. That's no problem.
`11 What I'm asking is the author index that you
`12 refer to in this paragraph --
`13 A. Mm-hmm.
`14 Q. -- that appears in the volume of the
`15 supplement that is the same supplement in which the
`16 abstract itself appears, correct?
`17 A. Yes.
`18 Q. And what I'm asking is, have you provided
`19 any evidence that that author index was available
`20 anywhere else besides the supplement itself?
`21 A. You mean in lieu of or in addition to the
`22 listing of the program for the conference?
`23 Q. Right.
`24 A. I'm not sure I can answer that question. I
`
`1 interrupt me when I'm speaking.
`2 MR. HOUSTON: Please don't make speaking
`3 objections.
`4 BY MR. HOUSTON:
`5 Q. Dr. Hall-Ellis, I understand that you have
`6 provided excerpts from the author index from the
`7 supplement itself, correct?
`8 A. Yes.
`9 Q. Okay. Have you shown that that author index
`10 is available anywhere other than the supplement
`11 itself?
`12 MS. KANNAPPAN: Objection to form, all the
`13 previous objections.
`14 BY THE WITNESS:
`15 A. I don't know.
`16 BY MR. HOUSTON:
`17 Q. You don't know if you've shown that?
`18 A. I don't recall that I have written those
`19 words specifically.
`20 Q. Okay. As you sit here today, can you think
`21 of any other evidence you have provided to show that
`22 that author index was available somewhere besides the
`23 supplement itself?
`24 MS. KANNAPPAN: Objection to form.
`
`Page 11
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`Page 13
`
`1 have provided excerpts from the conference
`2 proceedings, the index from the publication. I -- I
`3 have no other idea what else it would take. I don't
`4 know the -- I don't know the answer.
`5 Q. Well, the answer was just yes or no.
`6 Have you provided any other evidence -- have
`7 you provided any evidence that the author index was
`8 available anywhere else?
`9 MS. KANNAPPAN: Objection to form, asked and
`10 answered.
`11 She doesn't have to answer yes or no if
`12 that's not what is going to answer the question.
`13 Go ahead, Dr. Hall-Ellis.
`14 MR. HOUSTON: Deepa, that was a speaking
`15 objection, so please --
`16 MS. KANNAPPAN: You are badgering the
`17 witness. I'm allowed to defend her. I'm saying
`18 objection, and I said form before, asked and
`19 answered.
`20 MR. HOUSTON: Deepa, that is a speaking
`21 objection. No, that is a speaking objection. You
`22 can object to form. Please leave it at that. Thank
`23 you.
`24 MS. KANNAPPAN: Counsel, please don't
`
`1 BY THE WITNESS:
`2 A. I can't answer that question.
`3 BY MR. HOUSTON:
`4 Q. I'm just asking if you can think of anything
`5 else. So is the answer no, you can't think of
`6 anything else?
`7 MS. KANNAPPAN: Objection to form.
`8 BY THE WITNESS:
`9 A. I have -- I have no further response at this
`10 time for that question. I cannot answer further.
`11 BY MR. HOUSTON:
`12 Q. Why can't you answer the question?
`13 A. Because I can't remember.
`14 Q. Okay. All right, fair enough. That -- you
`15 can just answer that way, if that's the case. That's
`16 fine.
`17 Have you provided any evidence, to your
`18 recollection, Dr. Hall-Ellis, have you provided any
`19 evidence that this author index was available online
`20 somewhere?
`21 A. The journal is available online, the
`22 supplements are available online. I do not know the
`23 date they were online.
`24 Q. So let's talk about that statement just a
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`Page 16
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`1 little bit, or the next to last statement.
`2 You said the supplements are available
`3 online?
`4 A. Mm-hmm, I did say that.
`5 Q. Okay. Have you provided evidence of where
`6 the supplement is available online in your
`7 declaration?
`8 A. No.
`9 Q. The one that's in front of you?
`10 A. No.
`11 Q. Okay. I would ask you to flip forward in
`12 your declaration to paragraph 49, please.
`13 A. 49. I see that. It is on page 26, is that
`14 correct?
`15 Q. That is correct, yes. And perhaps -- mostly
`16 on page 26, that's correct.
`17 A. Okay. I see that.
`18 Q. And there you discuss a copy of the JAHA
`19 supplement containing the Voswinckel JAHA abstract
`20 that was obtained from The British Library and
`21 attached as Exhibit 1093.
`22 Do you see that?
`23 A. Yes.
`24 Q. Now if we flip the page and go to your
`
`1 A. Let's see here. Window. Document share.
`2 Okay.
`3 Q. Just one moment, Dr. Hall-Ellis, it's still
`4 uploading, it looks like.
`5 Okay, Dr. Hall-Ellis. If you are in Exhibit
`6 Share under the folder that says Marked Exhibits, you
`7 should now see one that is labeled Exhibit 1116.
`8 A. I do see that.
`9 Q. Okay. Let me know when you're able to
`10 download that and view it.
`11 A. Let me see here. I see that here. I have
`12 it in front of me. It's all of two pages mm-hmm.
`13 Q. To begin with, Dr. Hall-Ellis, do you have
`14 an understanding of what -- what the legal term
`15 "declaration" refers to?
`16 MS. KANNAPPAN: Objection to form.
`17 BY THE WITNESS:
`18 A. Why don't you tell me.
`19 BY MR. HOUSTON:
`20 Q. Dr. Hall-Ellis, I -- I'm not here to testify
`21 for you. I just would like to understand what your
`22 understanding is of the term "declaration," if you
`23 have one.
`24 MS. KANNAPPAN: Objection to form.
`
`Page 15
`1 paragraph 50, let me know when you're able to do
`2 that.
`3 A. I have that.
`4 Q. In paragraph 50, you mention -- you mention
`5 that you have obtained a research librarian's
`6 declaration regarding the Voswinckel JAHA's public
`7 availability from The British Library.
`8 Do you see that?
`9 A. Yes.
`10 Q. Did you yourself obtain this declaration?
`11 A. No.
`12 Q. Why do you say "I obtained a research
`13 librarian's declaration"?
`14 A. I read the declaration from the librarian at
`15 The British Library.
`16 Q. So I'm going to try to -- well, I'm going to
`17 share that exhibit. That exhibit there you refer to
`18 as 1116, correct? The declaration --
`19 A. That's what it says. Okay, now I'm going to
`20 have to go to Exhibit Share, is that correct?
`21 Q. Dr. Hall-Ellis, yes, that is correct, but
`22 just give me one moment. It takes me a moment to
`23 introduce it, so just let me do my thing on my end
`24 and then --
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`Page 17
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`1 BY THE WITNESS:
`2 A. I believe I understand what they are.
`3 BY MR. HOUSTON:
`4 Q. Okay. What is your understanding of what
`5 the term "declaration" means?
`6 A. This is a statement which is true, based on
`7 evidence, and written for a specific purpose.
`8 Q. Okay. So that's why you refer to this as a
`9 declaration then, I take it?
`10 A. Yes. It is signed by the individual who
`11 prepared it.
`12 Q. Okay. So if we look at the top of this
`13 document at Exhibit 1116, it appears to be addressed
`14 to a Robert Minn at Cooley.
`15 Do you see that?
`16 A. Yes, I do.
`17 Q. Would it be your understanding that that is
`18 who obtained this document?
`19 A. My understanding is he is the person to whom
`20 this was addressed.
`21 Q. Okay, fine. And this appears to be a
`22 statement or a document from a Ms. S. Rampersad. I'm
`23 not sure if I'm pronouncing that correctly, but do
`24 you see that?
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`1 A. I do see that name, yes.
`2 Q. Do you know Ms. Rampersad?
`3 A. No.
`4 Q. Do you have an understanding of who she is
`5 or who she works for?
`6 MS. KANNAPPAN: Objection to form.
`7 BY THE WITNESS:
`8 A. She works for The British Library. She
`9 works for their research service. In this country,
`10 that would be the interlibrary loan and research
`11 division.
`12 BY MR. HOUSTON:
`13 Q. So at the very bottom of page 1 of this
`14 Exhibit 1116 --
`15 A. Mm-hmm.
`16 Q. -- it looks like maybe it's part of a web
`17 address, but I see a reference to something that says
`18 BIPC-research@bl.uk.
`19 Do you see that?
`20 A. I do.
`21 Q. Is that referring to this -- I already
`22 forgot the word you used so I apologize, but is that
`23 referring to that group that you analogized to the
`24 interlibrary loan department at The British Library?
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`Page 20
`1 librarian and expert in this case, are communications
`2 from the librarians at The British Library something
`3 you rely on as generally being accurate and truthful?
`4 A. Yes.
`5 Q. And why is that?
`6 A. There is no reason to believe that the
`7 preeminent library in the United Kingdom would not
`8 tell the truth.
`9 Q. Have you ever seen a communication from a
`10 librarian from The British Library that you felt like
`11 was not telling the truth?
`12 MS. KANNAPPAN: Objection to form.
`13 BY THE WITNESS:
`14 A. I would not speculate. My experience says
`15 the answer is no.
`16 BY MR. HOUSTON:
`17 Q. Okay. Just one moment, Dr. Hall-Ellis,
`18 while I introduce another exhibit, so just give me
`19 one moment and I'll let you know when you can search
`20 for that.
`21 A. I'm going to go back.
`22 Q. Okay, Dr. Hall-Ellis, back in the Exhibit
`23 Share, you should now see an exhibit that is labeled
`24 2092.
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`Page 19
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`Page 21
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`1 A. Yes, it's their e-mail address.
`2 Q. Okay. I was specifically asking about that
`3 group, that BIPC-Research?
`4 A. Yeah, it's their -- their e-mail address and
`5 their phone number, should you want that.
`6 Q. Okay. Have you interacted with people from
`7 this group in the past?
`8 A. Yes.
`9 Q. Okay. In what context, if I may ask,
`10 without going into anything that might be
`11 confidential?
`12 A. The British Library has a very large and
`13 rich collection of resources. Sometimes I ask that
`14 they supply a document to me that I either cannot get
`15 for some reason or I can get more easily from them
`16 than another library.
`17 Q. Have you asked this group for statements
`18 similar to what is contained in this Exhibit 1116 in
`19 the past?
`20 A. Yes. Yes.
`21 Q. Okay. And have you generally relied on
`22 those statements as being truthful?
`23 A. Absolutely.
`24 Q. So in your capacity as a professional
`
`1 A. Okay.
`2 Q. Let me know when you're able to see that
`3 exhibit.
`4 A. All right. This is an e-mail.
`5 Q. First of all, are you able to open it,
`6 Dr. Hall-Ellis?
`7 A. I do see this rather -- looks like an
`8 e-mail, old e-mail you might say.
`9 MS. KANNAPPAN: One second. I'm going to
`10 lodge objections on the record to this exhibit to the
`11 extent that it is a violation of the Board's order
`12 from a couple weeks ago during our teleconference.
`13 You can go ahead and ask your questions,
`14 Counsel.
`15 BY MR. HOUSTON:
`16 Q. So, Dr. Hall-Ellis, I will suggest to you
`17 that I'm going ask you sort of about the last e-mail
`18 in this chain, not the part that's up at the top, and
`19 to direct that discussion, I'll first ask you to
`20 scroll to the very bottom of the e-mail that's on
`21 sort of the top of page 2.
`22 A. I see that. I have no idea -- what is it
`23 you want me to see here?
`24 Q. I just want to know when you're there.
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`1 A. I'm there.
`2 Q. Okay. Do you see that it's signed by Mr. --
`3 I presume that's Mr.
`4 It's signed by Rupert Lee from the BIPC
`5 Research Service at The British Library.
`6 Do you see that?
`7 A. I do.
`8 Q. Do you know Mr. Lee?
`9 A. No.
`10 Q. So you don't have any recollection of
`11 interacting with him?
`12 A. I believe I have seen his name in the past.
`13 I do not know him.
`14 Q. Now I'd like to ask you, do you see the two
`15 numbered paragraphs that appear sort of starting in
`16 the middle of page 1 of this exhibit?
`17 A. I do.
`18 Q. Okay. I'd like to ask you to just take a
`19 minute and review those first two paragraphs that
`20 begin right below the line "In answer to your
`21 questions."
`22 Could you review those two paragraphs and
`23 just let me know when you're done?
`24 MS. KANNAPPAN: While Dr. Hall-Ellis is
`
`1 BY MR. HOUSTON:
`2 Q. Okay. So Dr. Hall-Ellis, my question would
`3 be, do you have any reason to take -- to believe that
`4 the statements that are in this e-mail are not true?
`5 MS. KANNAPPAN: Objection to form.
`6 BY THE WITNESS:
`7 A. They are incomplete, but they are true.
`8 BY MR. HOUSTON:
`9 Q. Okay, thank you.
`10 I'd like you to turn to paragraph 60 of your
`11 declaration now, please.
`12 A. Okay, let me find that.
`13 Q. I understand. Take your time.
`14 A. These are very long documents. All right,
`15 number 60. Okay, I am on page 35.
`16 Q. Very good. One moment while I find the line
`17 I want to direct your attention to. You can review
`18 that paragraph in the meantime. Just give me one
`19 moment.
`20 Okay. Dr. Hall-Ellis, it's hard -- I guess
`21 it's the sixth line up from the bottom.
`22 A. Oh.
`23 Q. On page 35.
`24 A. "For example"?
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`1 doing that, I'd like to lodge an objection that this
`2 seems to be an incomplete exhibit.
`3 BY THE WITNESS:
`4 A. Okay. So I have read these paragraphs.
`5 What would you like to ask?
`6 BY MR. HOUSTON:
`7 Q. My question would be, having read those
`8 paragraphs from Mr. Lee at The British Library --
`9 A. Mm-hmm.
`10 Q. -- do you have any reason to not take these
`11 statements from Mr. Lee as being true, just as you
`12 did take the statements from Ms. Rampersad as being
`13 true?
`14 MS. KANNAPPAN: Objection to form.
`15 BY THE WITNESS:
`16 A. I would say that these paragraphs are on the
`17 same e-mail, but they don't necessarily speak to the
`18 same issue, and that there are pieces of library
`19 operations that one who does this work would
`20 understand that are not articulated and that really
`21 color what is included here.
`22 So were this presented to me as how the
`23 world works in this context, I would say incomplete
`24 response.
`
`1 Q. Correct.
`2 A. Is that where you are?
`3 Q. Yes. Yes, thank you.
`4 So you say that you conducted a search on
`5 PubMed?
`6 A. Mm-hmm.
`7 Q. And that you found the JAHA supplement, is
`8 that correct?
`9 A. That is correct.
`10 Q. Can you tell me about when you conducted
`11 that search on PubMed?
`12 A. Sometime late January of 2022 before
`13 finalizing this declaration.
`14 And I would point out that, in reviewing
`15 yesterday, it is not the 113th result, it is the
`16 152nd result.
`17 Q. Okay.
`18 A. So that typographical error does need to be
`19 corrected, please.
`20 Q. Okay. That's on the record. Thank you for
`21 that.
`22 Going back to when you conducted the search,
`23 I just want to clarify. You did not attempt -- it
`24 appears that you did not attempt to use something
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`1 like the Internet Archive to show that such a search
`2 would return the supplement as of the year 2006 or
`3 before; is that correct?
`4 MS. KANNAPPAN: Objection to form.
`5 BY THE WITNESS:
`6 A. That is correct.
`7 BY MR. HOUSTON:
`8 Q. Okay. And then also, using PubMed, you are
`9 not saying that you were able to actually locate the
`10 Voswinckel JAHA abstract, correct?
`11 MS. KANNAPPAN: Objection to form.
`12 BY THE WITNESS:
`13 A. I am saying what it says here, using these
`14 three terms and getting those results is what I have
`15 said.
`16 BY MR. HOUSTON:
`17 Q. Right, and here's -- that gets to what I
`18 want to clarify.
`19 So you say that you found the JAHA
`20 supplement.
`21 A. Mm-hmm.
`22 Q. The clarification I would like from you is,
`23 are you saying you found the entire supplement, like
`24 the contents of the supplement on PubMed, or just
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`Page 27
`1 that you found the citation to the supplement?
`2 MS. KANNAPPAN: Objection to form.
`3 BY THE WITNESS:
`4 A. I believe here that I attached the results
`5 of my search and they're an exhibit, and we should
`6 probably look at that.
`7 BY MR. HOUSTON:
`8 Q. Okay. Just give me one moment and I should
`9 be able to populate that.
`10 A. Okay.
`11 Q. Okay, Dr. Hall-Ellis, if you refresh your
`12 Marked Exhibits folder you should now see --
`13 A. Okay.
`14 Q. -- Exhibit 1117. Please let me know when
`15 you're there.
`16 A. Right, and you'll notice my search key at
`17 the top. This is fairly long, unfortunately, because
`18 there's a lot to be retrieved. If you scan down,
`19 152, you will see that the abstracts are here.
`20 Q. Well, so that gets to my question.
`21 A. Mm-hmm.
`22 Q. Are you saying that you can click on that
`23 and see the actual abstracts?
`24 A. I believe so.
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`1 Q. Have you shown --
`2 A. Yeah, because if do you it right now, it
`3 says you are going to go to this site at the National
`4 Library of Medicine. So the answer is yes.
`5 Q. Okay. Have you shown the results of that
`6 anywhere in your declaration?
`7 MS. KANNAPPAN: Objection to form.
`8 BY THE WITNESS:
`9 A. No.
`10 BY MR. HOUSTON:
`11 Q. Okay. Okay, let's turn to paragraph 62 of
`12 your declaration. You have to go back to your
`13 declaration.
`14 A. Back and forth is pretty exciting.
`15 All right, I'm on page 36.
`16 Q. Yes. And unfortunately, Dr. Hall-Ellis, you
`17 will see this is a very long paragraph; it spans
`18 three pages. I would like to give you a moment just
`19 to scan that and familiarize yourself with that
`20 paragraph 62.
`21 I will tell you that I'm going to ask
`22 questions more about towards the end of that
`23 paragraph, but please take a moment to scan it so
`24 that you are familiar with it.
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`1 A. All right.
`2 Okay, so this is a long paragraph, and where
`3 would you like to start asking?
`4 Q. Sure. Well, first of all, let me kind of
`5 start with a little bit of foundation.
`6 You say that the Voswinckel JAHA abstract
`7 was cited by a March 2005 article by Roxana Sulica
`8 and Michael Poon, correct?
`9 A. I do say that, yes.
`10 Q. Did you find any other citations to the
`11 Voswinckel JAHA abstract besides this article by
`12 Sulica and Poon?
`13 MS. KANNAPPAN: Objection to form.
`14 BY THE WITNESS:
`15 A. I don't recall.
`16 BY MR. HOUSTON:
`17 Q. Do you recall searching for other citations
`18 to the Voswinckel JAHA abstract?
`19 MS. KANNAPPAN: Objection to form.
`20 BY THE WITNESS:
`21 A. Yeah. But I don't need a whole list.
`22 BY MR. HOUSTON:
`23 Q. Okay. Dr. Hall-Ellis, I'm just asking do
`24 you recall any other citations to Voswinckel JAHA
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`1 abstract besides Sulica and Poon?
`2 MS. KANNAPPAN: Objection to form.
`3 BY THE WITNESS:
`4 A. I have seen many, because Voswinckel is an
`5 extremely prolific author, so I would say yes, but I
`6 don't remember how many and I don't remember
`7 specifics.
`8 BY MR. HOUSTON:
`9 Q. Okay. I might have asked my question a
`10 little bit inartfully. Let me try again.
`11 I'm asking specifically about citations to
`12 the Voswinckel JAHA abstract. Do you recall any
`13 other articles besides the Sulica and Poon one that
`14 cite to the Voswinckel JAHA abstract?
`15 MS. KANNAPPAN: Objection to form.
`16 BY THE WITNESS:
`17 A. No, it's been too long.
`18 BY MR. HOUSTON:
`19 Q. Okay. Now towards the end of this
`20 paragraph 62, it's the part that's all the way on
`21 page 38 of your declaration.
`22 Let me know when you're there.
`23 A. All right.
`24 Q. Okay. There you say: The fact that Sulica
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`Page 31
`1 2005 cites Voswinckel JAHA further establishes that
`2 this reference can be and was found by persons of
`3 ordinary skill in the art prior to May 15, 2006.
`4 Do you see that statement?
`5 A. I do.
`6 Q. Are you saying that the only way the Sulica
`7 authors could have known about the JAHA abstract and
`8 therefore cite to it is if they found it by searching
`9 as a person of ordinary skill in the art would in a
`10 library?
`11 MS. KANNAPPAN: Objection to form.
`12 BY THE WITNESS:
`13 A. No.
`14 BY MR. HOUSTON:
`15 Q. Okay. So they may have found it or been
`16 aware of it by other -- for other reasons, correct?
`17 MS. KANNAPPAN: Objection to form.
`18 BY THE WITNESS:
`19 A. Yes.
`20 BY MR. HOUSTON:
`21 Q. For example, the authors on this Sulica
`22 paper may have been working with one or more authors
`23 from the Voswinckel JAHA abstract, and therefore
`24 known about the abstract in that way, correct?
`
`1 MS. KANNAPPAN: Objection to form.
`2 BY THE WITNESS:
`3 A. I would not speculate.
`4 What I do know is that this group of
`5 researchers interested in this topic is quite
`6 well-known, they're well-known to each other.
`7 Awareness of the work of each of those people is
`8 likely to be known by others. Beyond that, I would
`9 not speculate.
`10 BY MR. HOUSTON:
`11 Q. Okay. I'm going to introduce another
`12 exhibit. Give me one moment.
`13 Okay, Dr. Hall-Ellis, back in the Exhibit
`14 Share window, I'm not sure why it didn't appear at
`15 the top. In my screen it's kind of right in the
`16 middle, but you should see an exhibit that is 2093.
`17 A. I do, and it's in the middle of mine as well
`18 for reasons that make sense only to the software.
`19 Q. Okay. Please let me know when you're able
`20 to open it.
`21 A. All right. I'm seeing some other article
`22 from some other journal. How nice. How nice.
`23 MS. KANNAPPAN: One second, Dr. Hall-Ellis.
`24 I'm going to object to this exhibit also to
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`1 the extent that it's a violation of the Board's order
`2 from the 3-1 teleconference, and you can continue to
`3 ask questions, but we reserve our right to exclude
`4 all