Planet Depos0
`
`We Make It Happen '"
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`CONFIDENTIAL
`SUBJECT TO PROTECTIVE ORDER
`
`Transcript of John Ferris
`
`Date: November 2, 2022
`Case: Slayback Pharma LLC -v- Eye Therapies LLC (PTAB)
`
`Planet Depos
`Phone: 888-433-3767
`Fax: 888-503-3767
`Email: transcripts@planetdepos.com
`www.planetdepos.com
`
`WORLDWIDE COURT REPORTING & LITIGATION TECHNOLOGY
`
`Slayback Exhibit 1051, Page 1 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 1 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`

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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`
`1 Cl to 4)
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`A P P E A R A N C E S
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`ON BEHALF OF THE PETITIONER, SLAYBACK PHARMA
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`LLC:
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`- -- -- --- -- --- -- --- -- -- --- -- --- -- -x
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`SLA YBACK PHARMA LLC,
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`Petitioner,
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`EYE THERAPIES LLC
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`10 ---------------------------------x
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`P.itent Owner
`
`Case No.
`IPR2022-00142
`U.S. Patent No.
`8,293,742
`
`** CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER **
`
`Deposition of John Ferris
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`Newark, New Jersey
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`Wednesday, November 2, 2022
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`9:40 a.m.
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`11
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`LINNEA P. CIPRIANO, ESQUIRE
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`Goodwin Procter LLP
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`620 Eighth Avenue
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`New York, New York 10018
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`212-813-8800
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`lcipriano@goodwinlaw.com
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`10
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`ON BEHALF OF THE PATENT OWNER, EYE THERAPIES
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`LLC:
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`CAITLIN O'CONNELL, ESQUIRE
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`BRYAN DINER, ESQUIRE
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`Finnegan, Henderson, Farabow, Garrett &
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`Dunner LLP
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`901 New York Avenue NW
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`Washington, District of Columbia 20001-4413
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`202-408-4004
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`19
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`20 Job No.· 468947
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`21 Pages 1-90
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`22 Reported by: Angela (Angie) Shaw-Crockett, CRR, RMR
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`20
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`21
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`22
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`ALSO PRESENT: Kristi McIntyre, In-House Counsel
`Bausch
`Enrique Casas, The Videographer
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`Deposition of John Ferris, held at:
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`I N D EX
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`Gibbons, P.C.
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`One Gateway Center
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`Examination of:
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`Page
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`John Ferris
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`CONTENTS
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`Newark, New Jersey 07102-5310
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`MS. CIPRIANO
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`973-596-4500
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`Pursuant to Notice, before Angela (Angie)
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`13 Shaw-Crockett, CRR, RMR, Notary Public in and for the
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`14 states of New York, New Jersey and Connecticut.
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`15
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`16
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`17
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`18
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`20
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`21
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`22
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`EXHIBITS
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`(Retained by the court reporter)
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`10 DEPOSITION
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`EXHIBIT
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`11 Exhibit 1045 Earnings Call Transcript
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`PAGE
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`54
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`12
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`13
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`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 2 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`Eye Therapies Exhibit 2214, Page 2 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`
`2 (5 to 8)
`
`7
`
`THE VJDEOGRAPHER: Here begins media
`1
`2 number 1 in the videotaped deposition of John Fenis
`3
`in the matter of Slayback Pharma LLC v. Eye Therapies
`4 LLC in the United States Patent and Trademark Office,
`5 case number IPR-2022-00142.
`6
`Today's date is November 2, 2022, the time
`7 on the video monitor is 9:40 a.m. The videographer
`8
`today is Enrique Casas, representing Planet Depos.
`9 This video deposition is taking place at One Gateway
`10 Center, Newark, New Jersey, 07102.
`11
`Would counsel please voice identify
`12 themselves and state whom they represent?
`13
`MS. CIPRIANO: Linnea Cipriano,
`14 representing petitioner.
`15
`MS. O'CONNELL: Good morning. This is
`16 Caitlin O'Connell from Finnegan, representing the
`1 7 patent owner and the witness, and with me is my
`18 colleague, Bryan Diner, also from Finnegan, and Kristi
`19 McIntyre from Bausch.
`20
`THE VJDEOGRAPHER: The court reporter today
`21 is Angie Shaw-Crockett, representing Planet Depos.
`22
`Would the reporter please swear in the
`
`1 company?
`2
`A Yes, I was.
`3
`Q So this will likely -- since it wasn't
`4 virtual, obviously, in your last deposition, this will
`likely go along the same lines as your last
`5
`6 deposition, but I'd like to go over some ground rules.
`7
`A Okay.
`8
`Q
`I'll be asking you questions today, and
`9 your answers are going to be recorded by the court
`10 reporter. I will try not to speak over you. I ask
`11 that you try not to speak over me, so we make her life
`12 a little bit easier. Your answers today will be under
`13 oath as if you were testifying in court.
`14
`Do you understand that?
`15
`A Yes.
`16
`Q
`Is there any reason that you can't answer
`17 my questions today trnthfully and fully?
`18
`A No.
`19
`Q During the course of the deposition, your
`20 counsel may make objections, but unless you've been
`21 instrncted not to answer, you'll need to answer my
`22 questions.
`
`6
`
`8
`
`1 witness.
`Do you understand that?
`1
`A Yes.
`2
`John Ferris, having been duly REMOTELY sworn,
`2
`Q
`If you don't understand my questions, I ask
`3
`3 testified as follows:
`that you ask me to clarify. I'll do my best. I'm
`4
`4 EXAMINATION
`5 BY MS. CIPRIANO:
`5 sure I'll have some questions that are not the best,
`6
`Q Good morning.
`6 but just ask me to clarify.
`7
`A Good morning.
`If you answer my question, I'm going to
`7
`8
`Q As I said, my name is Linnea. I'll be
`8 assume that you understood it; is that fair?
`9
`A Yes.
`9 asking you questions today.
`IO
`Could you please state your name for the
`10
`Q We'll take breaks from time to time.
`11 Please let me know if you need a break. But I do ask
`11 record?
`12
`A Sure. My name is John Ferris.
`12 that we fmish a question and answer before we take a
`13
`Q Have you ever been deposed before?
`13 break.
`14
`A
`I have.
`Does that make sense?
`14
`A Yes, that's fine.
`15
`15
`Q About how many times?
`16
`A One time.
`Q And you understand that while I am asking
`16
`1 7
`Q And when was that?
`17 questions, you are not permitted to discuss the
`18
`A That was about eight years ago.
`18 substance of your testimony with your attorneys.
`19
`Q Was that in your position at Bausch?
`19
`Do you understand that?
`20
`A
`It was at Bausch but in a different
`20
`A Yes.
`21 position.
`21
`Q Did you prepare for today's deposition?
`22
`A Yes.
`22
`Q Okay. Were you testifying on behalf of the
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 3 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`Eye Therapies Exhibit 2214, Page 3 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`9
`
`3 (9 to 12)
`
`11
`
`Q And at a high level, what did you do to
`1
`2 prepare?
`I reviewed my declaration and had some
`A
`3
`4 meetings yesterday with my lawyers.
`Q Did you speak with anyone besides lawyers
`5
`6 about your deposition?
`A No.
`7
`Q About how long did you prepare?
`8
`A About five hours.
`9
`Q Did you review documents other than your
`10
`11 declaration in preparation for this deposition?
`I reviewed the one market research study
`A
`12
`13 that was submitted along with my declaration, the
`14 Ipsos.
`Q Okay. Do you recall any other documents?
`15
`A No.
`16
`Q Let's -- I'm going to hand you -- the court
`17
`18 reporter is going to hand you a copy your declaration,
`19 which is Exhibit 2023 in the IPR.
`A Okay.
`20
`Q Do you recognize this as the declaration
`21
`22 that you prepared in connection with IPR2022-00142?
`10
`
`1 responsibilities?
`A So I'm primarily responsible for leading
`2
`the commercial organization for our consumer health
`3
`4 care products.
`Q Other than Lumify, what products does that
`5
`6 cover?
`It includes many products around the globe,
`A
`7
`8 hut some ofthem are our eye vitamin business,
`9 PreserVision and Ocuvite eye vitamins.
`(Reporter requests clarification.)
`10
`A PreserVision and Ocuvite are two ofthe
`11
`12 brand names, our contact lens solution business, other
`13 OTC eye drops.
`14 BYMS. CIPRL'\NO:
`15 Q So your declaration sets forth information
`16 based on your personal knowledge about Bausch's
`17 marketing and commercial efforts related to Lurnify,
`18 correct?
`A Yes.
`19
`20 Q And you're not providing any testimony in
`21 this case as an expert, right?
`MS. O'CONNELL: Objection, vague.
`
`22
`
`12
`
`A Yes, I do.
`1
`Q And at a high level, how did you prepare
`2
`3 your declaration?
`A So it was a collaborative process within
`4
`5 Bausch, with our legal team and with some ofthe
`6 content owners, market research, and other groups.
`Q What do you mean by "content owners''?
`7
`A So, for example, a market research study,
`8
`9 I'm not considered the content owner of that at
`1 O Bausch--+-Lomb. So the market research department
`11 would be. So ifwe asked for a market research study,
`12 they are the ones who would provide that.
`13 Q Did you draft the words in the document?
`I drafted many ofthe words in the
`A
`14
`15 document. I did not type the entire document.
`16 Q Are there any corrections that you'd like
`1 7 to make in your declaration?
`A At this time, no.
`18
`19 Q What is your current title?
`I am the senior vice president for the
`A
`20
`21 global consumer health business at Bausch-+-Lomb.
`22 Q And in your role, what are your
`
`A Can you clarify ffllat you mean by "expert"?
`1
`2 BYMS. CIPRIANO:
`Q Stn·e.
`3
`Are you an expert economist?
`4
`I'm not, but I have anM.B.A.
`A
`5
`Q And you're mt providing -- you're not
`6
`7 holding yourself out as an expert in this case as an
`8 economist, right?
`A A'> an economist, no. A'> a person very
`9
`10 familiarvlith and understanding ofthe marketing and
`11 commercialuation of OTC nonprescription products like
`12 Lumify, yes.
`13 Q You're not an ophthalrmlogist?
`A
`I'm not an ophthalmologist.
`14
`15 Q You're not a chemist?
`A
`I'm not a chemist.
`16
`17 Q You're not an expert in the fonrulation of
`18 eye drops?
`I'm not an expert in the formulation of
`A
`19
`20 eye drops.
`Q Your role in this case is not as an expert
`21
`22 in rmrketing overall, right?
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 4 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`Eye Therapies Exhibit 2214, Page 4 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`13
`
`4 (13 to 16)
`
`15
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`1 BY MS. CIPRIANO:
`MS. O'CONNELL: Objection, vague.
`A Can you clarify what you mean by "expert in 2
`2
`In publications in the scientific
`Q
`3 marketing," please?
`3
`literature.
`4 BY MS. CIPRIANO:
`4
`Are you aware that low-dose brimonidine has
`5
`Q All of the infonnation that you are
`5 been discussed in the scientific literature?
`6 providing is based on what you know in your job at
`6
`MS. O'CONNELL: Same objections.
`A So I'm not well-versed in all of the
`7 Bausch, correct?
`7
`8 scientific literature. And no, I'm not specifically
`8
`A And through my career, which includes
`9 20 years of marketing -- direct marketing experience. 9 aware ofthat.
`10 BY MS. CIPRL'\NO:
`1 O So I do believe I have significant expertise in the
`11
`Q Okay. And you didn't search for that when
`11 field of marketing, especially as related to OTC
`12 you were preparing your declaration, right?
`12 health care products.
`13
`A No, I did not.
`13
`Q
`Is the infonnation in your declaration
`14
`Q So this comparison in paragraph 5 of your
`14 based on your opinions about the market -- the
`15 declaration is not comparing Lumify with any known
`15 marketing of OTC health care products?
`16 redness reliever, just the commercially available
`16
`MS. O'CONNELL: Objection, vague.
`A No. I would not say it's based on my
`17 redness relievers, right?
`17
`18
`MS. O'CONNELL: Objection, vague.
`18 opinion. It's based on my knowledge and expertise,
`19 both directly with this product and then, again, over 19
`A Yes. And -- and as understood as eye
`20 doctors and what they are currently recommending or
`20 20-plus years of experience directly marketing,
`21 prescribing to their patients, yes.
`21 including official roles in marketing, vice president
`22 of marketing, product manager, et cetera.
`22
`
`14
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`16
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`1 BY MS. CIPRIANO:
`Q Okay. Let's tum to paragraph 5 in yow-
`2
`3 declaration.
`4
`A
`(Witness complies.)
`Q So at the end of paragraph 5, here you
`5
`6 state that -- the last paragraph, or the last sentence
`in paragraph 5, "It is backed by multiple clinical
`7
`8 trials with hundreds of patients and works differently
`9
`than other redness relievers."
`10
`Do you see that?
`11
`A Yes, I do.
`Q The "other redness relievers" that you were
`12
`13 referring to in this paragraph are other commercially
`14 available redness relievers, right?
`15
`A That is correct.
`Q Are you aware that formulations oflow-dose
`16
`17 brimonidine other than Lumify have been described in
`18 the literature?
`19
`MS. O'CONNELL: Objection. Outside the
`20 scope, vague.
`21
`A Can you clarify what literature you're
`22 ref erring to?
`
`1 BY MS. CIPRIANO:
`2
`Q And those would be the commercially
`3 available drops, right?
`4
`MS. O'CONNELL: Same objection.
`5
`A It would include commercially available
`6 drops. I would--you know, doctors always have the
`7 right to prescribe any product they want for any
`8 purpose, off-label. So, you know, when we use that
`9 term with--you know, within Bausch-- and you'll see
`10 it in many ofthe marketing materials -- it's in the
`11 context of, yes, approved products in the marketplace,
`12 hut, you know, doctors, I think, understand it to he
`13 there are other options as well.
`14 BYMS. CIPRL'\NO:
`15
`Q And the last phrase of that sentence we
`16 were just talking about ''works differently than other
`17 redness relievers," what is your understanding about
`18 why Lumify works differently than other redness
`19 relievers?
`20
`MS. O'CONNELL: Objection to the extent it
`21 calls for expert testimony or it's outside the scope
`22 of his declaration.
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 5 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`Eye Therapies Exhibit 2214, Page 5 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`17
`
`5 (17 to 20)
`
`19
`A So I'm not a medical expert. My
`1
`1 number has gro'M1 to 50 percent ofECPs recommending
`2 understanding is, when we - when we say "works 2
`redness relievers, with 85 percent of those
`3 differently," it refers to relieving redness without
`3
`recommendations being for Lumify."
`4 the side effects that are commonly associated with 4
`I'm just wondering where those numbers came
`5 other redness relievers on the market. And it is
`5 from.
`6 related, obviously, to the mechanism of action of
`6
`A Again, those -- it would come from the
`7 low-dose brimonidine itself.
`7 IQVIA survey and data and from our market research
`8 BY MS. CIPRIANO:
`8 department.
`9
`Q So it works differently than other redness
`Q Could you point me to a document that has
`9
`10 relievers because it's a different drug, right?
`10 that information?
`11
`A
`It works differently because it's a
`11
`A Point you to a document today?
`12 different drug, but there are many different drugs
`12
`It's in your declaration. And I just want
`Q
`13 that work the same way, in the same class of
`13 to know where it came from.
`14 medication. So it works differently than other
`14
`A Again, it came from the data survey IQVIA,
`15 approved products, yes.
`15 which is live data. We collect this data
`16 periodically. You know, it's a monthly or quarterly
`16
`Q Let's look at paragraph 7 of your
`17 basis. So it comes from our market research
`1 7 declaration.
`18
`A
`(Witness complies.)
`18 department.
`19
`Q
`In the second half of paragraph 7, you
`19
`Q Do you know if that is contained in an
`20 discuss some statistics about the habits of eye care
`20 exhibit in this IPR that was submitted?
`21
`A Off the top ofmy head, I don't believe it
`21 professionals.
`22 was included in an exhibit.
`22
`Do you see that?
`
`18
`
`20
`
`A Yes.
`1
`MS. O'CONNELL: If you'd like a copy of
`Q Specifically, you say ''Less than 10 percent
`2
`that IQVIA data, we can provide that to you. We can
`2
`3 take that up off-line, but...
`3 of ECPs recommended any redness relievers to their
`4 patients."
`MS. CIPRIANO: Is it an exhibit in the IPR?
`4
`5
`A Yes, that's correct.
`MS. O'CONNELL: Not currently.
`5
`6
`MS. CIPRIANO: Okay.
`Q Did you collect -- personally collect the
`6
`7 data that supports this statement?
`7 BY MS. CIPRIANO:
`8
`A No, I did not personally collect the data.
`If we could look at the next paragraph, the
`8
`Q
`9 The data is collected. It's standard -- or, a (ypical
`9 next section of your declaration talks about some of
`1 O process for companies such as Bausch-+-Lomb, through
`10 the marketing materials for Lumify.
`11 third parties, who will conduct those surveys.
`11
`Am I understanding that? It's the section
`So in this instance, the company was called
`12
`12 that starts with the letter "B" there.
`13 "IQVIA," which is well-known in the industry as -- for
`Am I understanding that correctly?
`13
`14 their expertise in collecting this type of
`14
`A Yes, it describes their commercial
`15 information.
`15 strategy, working on reducing redness using low-dose
`16
`16 brimonidine. Correct.
`Q Did you provide in your declaration the
`17
`Q Are you aware of any marketing materials
`17 data that supports these statements?
`18
`A I'm not sure I understand the question.
`18 that high light the pH of Lumify?
`19 Could you clarify, please?
`19
`MS. O'CONNELL: Objection, vague.
`20
`A So I'm not personally familiar or can't
`20
`Q Sure.
`21 recall if there are any marketing materials that
`21
`So you make statements about '1ess than
`22 10 percent of ECPs," and then the next sentence, '1l1at
`22 include the pH of Lumify. There may or may not be.
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 6 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`Eye Therapies Exhibit 2214, Page 6 of 52
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`21
`
`6 (21 to 24)
`
`1 BY MS. CIPRIANO:
`Q But you're not aware of any?
`2
`2
`A No.
`3
`3
`Q Are you aware of any marketing materials
`4
`4
`5
`that discuss using Lumify to treat red eye resulting
`5
`6
`from Lasik?
`6
`MS. O'CONNELL: Objection, vague,
`7
`7
`Q You've never worked at Ipsos, right?
`8
`8
`foundation.
`I have not.
`9
`9
`A Again, I'm not familiar with every
`A
`10 marketing piece that's ever been developed for Lumify.
`Q Do you have any personal knowledge of how
`10
`11 Some ofthem may have been developed prior to my time 11 Ipsos maintains its documents?
`12 specifically leading this part of our organi1ntion.
`12
`A Can you clarify what you mean by
`13 So I can't -- I don't think I could give you a good
`13 "maintain"?
`14 answer one way or the other whether those marketing
`Q Sure.
`14
`15 materials would exist or not.
`15
`I mean, you have a section in your -- in
`16 BYMS. CIPRL'\NO:
`16 your declaration at the end that talks about how
`17 Bausch maintains its documents and keeps its figures.
`1 7
`Q But sitting here today, you're not aware of
`18 any?
`18
`Do you have that same information about how
`19
`A No. I'm not aware, personally.
`19 Ipsos maintains and retains its documents?
`20
`MS. O'CONNELL: Objection, foundation, and
`20
`Q And are you aware of any marketing -- any
`21 to the extent it calls for speculation.
`21 marketing materials that discuss using Lumify to treat
`22
`A No, I don't know how Ipsos maintains their
`22 red eye resulting from chronic red eye?
`
`1 documents, but the Ipsos is a company that they're
`2 well-known in our industry for completing surveys such
`3 as this and for high-quality research and data.
`4 BY MS. CIPRIANO:
`5
`Q So let's take a look at this study. And I
`6 believe it's Exhibit 2156 in the IPR.
`Do you recognize this as Exhibit 2156 that
`7
`8 was submitted in the IPR?
`9
`A Yes,Ido.
`
`MS. O'CONNELL: Objection, vague,
`foundation.
`2
`A Again, I'm not familiar with every piece of
`3
`4 marketing material that's ever been developed for
`5 Lumify, so I can't tell you whether those materials
`6 exist or don't.
`7 BYMS. CIPRIANO:
`8
`Q But sitting here today, you're not aware of
`9 any?
`10
`A No, I'm not aware.
`11
`Q
`If we can tum to paragraph 14 of your
`12 declaration.
`A
`(Witness complies.)
`13
`Q You discuss what you call
`14
`right?
`Yes, that's correct.
`In that first sentence, you state that
`
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 7 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 7 of 52
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`
`7 (25 to 28)
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`PLANET DEPOS
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`Slayback Exhibit 1051, Page 8 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 8 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`29
`
`8 (29 to 32)
`
`4
`5
`
`A
`Q
`A
`Q
`
`(Witness complies.)
`Are you there?
`This one (indicating)?
`Yeah.
`
`2
`3
`
`MS. O'CONNELL: Same objections.
`
`22
`
`MS. O'CONNELL: Objection, vague,
`
`foundation.
`A Could you he more specific, please?
`BY MS. CIPRIANO:
`
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
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`Slayback Exhibit 1051, Page 9 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 9 of 52
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`1
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`33
`
`9 (33 to 36)
`
`35
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`Q Okay. We can put away Exhibit 215 6.
`1 7
`(Witness complies.)
`A
`18
`Q For now, if we could look at your
`19
`20 declaration. And turn to paragraph 19, please.
`21
`A
`(Witness complies.)
`22
`Q
`It's on page 13.
`
`A
`Q
`
`A Okay.
`1
`Q And there you refer to an exhibit after
`2
`3 that first sentence, Exhibit 2068.
`Do you see that?
`4
`5
`I see that.
`6
`I'd like to take a look at this document.
`7
`Do you recognize this as the document that
`8 was marked 21 -- excuse me -- Exhibit 2068 and
`9 referenced in paragraph 19 of your declaration?
`10
`A Yes, I do.
`11
`Q So the second sentence in paragraph 19 of
`12 your declaration, I'll just read it so we're on the
`13 same page.
`14
`"It was specifically highlighted in
`15 Bausch's earnings as an integrated platform that
`16 uniquely positions Bausch +-Lomb to establish it as a
`17 plus-$100-million brand and as a product that Bausch
`18 expects to grow both internationally and through
`19 additional products."
`20
`Do you see that?
`21
`A Yes, I do.
`22
`Q So you cite to page 15 of Exhibit 268, and
`PLANET DEPOS
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`
`Slayback Exhibit 1051, Page 10 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 10 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`37
`
`10 (37 to 40)
`
`39
`
`1 brand name is most -- is associated with low-dose
`1 I'd like to take a look at that page.
`2
`A
`(Witness complies.)
`2 hrimonidine, 0.025 percent. Line extensions could
`include other products marketed under the name Lumify
`Q Are you there?
`3
`3
`4
`A Yes.
`that may include low-dose hrimonidine or -- and other
`4
`5 active ingredients or other formulations; so, for
`Q So this reference to the "$100-million
`5
`6 example, preservative free or other products that
`6 brand," does that represent the entire international
`7 might fit under the Lumi fy brand name.
`7 market?
`8
`A At the time, it represented almost
`Q So line extensions would be versions, or
`8
`9 exclusively U.S. sales. We were just starting to
`9 products, that are different from Lumify as it is
`10 launch the product internationally.
`10 currently sold right now, right?
`Q So at the time of this, Lumify was already
`MS. O'CONNELL: Objection, vague.
`11
`11
`12
`A Would offer additional benefits than Lumify
`12 a $100-million brand?
`13
`A That's correct.
`13 today, I think, is a more accurate statement.
`14 BYMS. CIPRL'\NO:
`Q
`14
`Just so we're on the same page, you said
`Q And in order to offer additional benefits,
`15 "at the time."
`15
`16 it would have to have some difference to the Lumify
`That was -- this presentation was in the
`16
`17 formulation as it currently stands?
`17 frrst quarter of2022?
`18
`A So the -- it's our first quarter 2022
`MS. O'CONNELL: Objection, vague. Calls
`18
`19 financial results. So I think -- I believe the date
`19 for speculation. Outside the scope.
`20 of - the actual date of the presentation would have 20
`A It could. Or some line extensions are --
`21 been April of 2022.
`21 for example, it might he a packaging variation --
`22 could also he a line extension. So it could or could
`Q Okay. Got it.
`22
`
`1 not.
`2 BY MS. CIPRIANO:
`Q You can put that document away for now.
`3
`4
`A
`(Witness complies.)
`Q
`5
`I'd like to tum back to your declaration.
`6
`A
`(Witness complies.)
`Q
`7
`Just the next page that we were -- from
`8 where we were just talking in paragraph 20 of your
`9 declaration.
`10
`11
`12
`
`So it's page 16 of the exhibit, slide 15 of
`the financial results document.
`2
`There's a reference at the bottom of the
`3
`left-hand side of the slide, "Expect to launch Lumify
`4
`5 in several international markets and grow franchise
`6 through line extensions."
`7
`Do you see that?
`8
`A Yes.
`9
`Q Now, these line extensions would be
`10 products that are different from Lumify, right?
`11
`MS. O'CONNELL: Objection, vague. Outside
`12 the scope.
`13
`A Can you clarify what you mean by "different
`14 than Lumify"?
`15 BY MS. CIPRIANO:
`16
`Q So in order to be -- I guess, let me ask a
`17 question.
`18
`Do you understand what "line extensions"
`19 means in this slide?
`A Yes.
`20
`21 BY MS. CIPRIANO:
`Q What does it mean to you?
`21
`A So Lumify is a brand name. Currently, that 22
`Q Now, you don't point to any documents in
`22
`PIANET DEPOS
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`16
`17
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`Slayback Exhibit 1051, Page 11 of 52
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`Eye Therapies Exhibit 2214, Page 11 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`41
`
`11 (41 to 44)
`
`43
`
`that sentence.
`
`declaration.
`
`Q Now, did you cite to any of those business
`18
`19 plans or strategic plans in your dee laration in this
`20 IPR?
`21
`A Well, I did specifically cite to the
`22 exhibit that we had just reviewed, 2068, which --
`
`18 BYMS. CIPRL'\NO:
`19
`
`1 where we -- we stated "exceeding our expectations."
`2 And our expectations for it to grow to he a
`3 $100-million-plus brand. And I relied on my general
`4 knowledge and understanding of the business and the
`5 expectations and, you know, my expertise over years.
`6
`So Lumify has been on the market for less
`7
`than four years at this point -- or, just about four
`8 years. So to achieve sales of$108 million by the end
`9 of fiscal year 2021 is a significant achievement.
`10
`The number of$100-miUion brands within a
`11 company like Bausch-+-Lomh -- it's in the exhibit --
`12 there aren't that many. This is already a top-ten
`13 product, just within a couple of years oflaunch.
`14 So -- with a very high market share, close to a
`15 50 percent market share in a category.
`16
`And it has helped almost double the sales
`17 ofthat category that --you know, in its -- to
`18 someone from my experience and my role within the
`19 company and knowledge of OTC products and the OTC
`20 redness-reliever category, it's pretty much common
`21 knowledge that Lumify exceeded expectations.
`22
`Q Let's take a look at paragraph 21 of your
`
`20
`MS. O'CONNELL: Objection, vague,
`21 foundation.
`22
`PLANET DEPOS
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`
`Slayback Exhibit 1051, Page 12 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 12 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`
`12 (45 to 48)
`
`18-
`
`MS. O'CONNELL: Objection, vague.
`
`19BYMS. CIPRIANO:
`Q Did you look at any of those documents in
`21 preparation for your declaration?
`22
`A Specifically in preparation for today, no.
`
`But I'm -- through the course of business, I do review
`those.
`
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 13 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 13 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`49
`
`13 (49 to 52)
`
`51
`
`1 BY MS. CIPRIANO:
`
`mischaracterizes his testimony.
`A Yes. Could you clarify the question for
`me, please?
`
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
`
`Slayback Exhibit 1051, Page 14 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`Eye Therapies Exhibit 2214, Page 14 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`
`14 (53 to 56)
`
`55
`
`Q Yes.
`A
`(Witness reviews document.)
`Okay. Thank you.
`Q So you said you've never seen this document
`5 as it's put together here. But you see the title of
`6 the -- at least the bold print at the top of the
`MS. CIPRIANO: Does it make sense to take a 7 document -- is "Bausch Health Companies (BHC) 6
`7
`8 quick break now? We've been going for about an hour. 8 November '18/2018 Q3 Earnings Call Transcript."
`THE WITNESS: That's fme by me.
`9
`Do you see that?
`9
`THE VIDEOGRAPHER: We are going off the 10
`A Yes, I see that.
`11 record. The time is 10:40 a.m.
`Q Are you aware that Bausch holds periodic
`11
`12 calls with investors about how the company is doing?
`12
`(Recess.)
`A Yes, I am.
`13
`13
`THE VIDEOGRAPHER: We are back on the
`14 record. The time is 10:57 a.m.
`Q And these are typically called "earnings
`14
`15 BY MS. CIPRIANO:
`15 calls," correct?
`Q Welcome back.
`16
`A That's correct.
`16
`17
`A Thank you.
`Q And do you have any role in preparing for
`17
`18 earnings calls at Bausch?
`A As a - so as a commercial leader in the
`19
`20 organization, and, for example, in my current role,
`21 yes, we provide -- we provide summaries of our
`22 quarterly business results to senior leadership, and
`
`1 then senior leadership prepares these commentaries.
`2
`Q Okay. Now, were you -- you weren't in your
`3 current role in 2018, correct?
`4
`A That's correct.
`5
`Q Okay. So you didn't personally have an
`involvement -- or, let me step back.
`6
`7
`Did you have a personal involvement in
`8 preparation for the 2018 Q3 earnings call?
`9
`A Again, in my previous role, I would have
`10 provided input and shared business results for the
`11 U.S. vision care business but not for Lumify.
`12
`Q Okay. Soifwetakealookatthe
`13 document, at the beginning, there's a list of people.
`14 It starts with Art Shannon, Senior Vice President,
`15 Head Investor Relations and Communications.
`That's someone at Bausch, correct?
`16
`A That's correct.
`17
`Q Then Joe Papa, Chairman and Chief Executive
`18
`19 Officer at Bausch, conect?
`20
`A That's correct.
`21
`Q Does this appear to you to be the
`22 transcript from the earnings call that was held for --
`PLANET DEPOS
`888.433.3767 I WWW.PLANETDEPOS.COM
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`MS. CIPRIANO: Okay. I'd like to mark a
`13
`14 document. We're going to mark it as Exhibit 1045.
`15
`(Exhibit 1045 was received and marked for
`16 identification, as of this date.)
`1 7 BY MS. CIPRIANO:
`Q So I'll give you a second to look at it. I
`18
`19 apologize that we need a microscope to see any of the
`20 words on this page, the way that it was printed.
`21
`A Yeah. Please give me a few minutes. I
`22 have not seen this before.
`
`Slayback Exhibit 1051, Page 15 of 52
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`Eye Therapies Exhibit 2214, Page 15 of 52
`Slayback v. Eye Therapies - IPR2022-00142
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`CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER
`Transcript of John Ferris
`November 2, 2022
`57
`
`15 (57 to 60)
`
`59
`
`1 specifically state to the time period.
`2 BY MS. CIPRIANO:
`Q Okay. And when you say --
`3
`
`on November 6, 2018, for Q3 2018?
`2
`MS. O'CONNELL: Objection, foundation.
`A So I am familiar with Bausch's earnings
`3
`4 calls and, again, from other companies. It's a very
`5 common practice. It's actually a requirement for
`6 publicly traded companies.
`I can't state specifically whether every
`7
`8 word in