`
`Transcript of Stephen G. Davies,
`DPhil
`
`Date: October 28, 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 1050, Page 1 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`
`1
`
`1 (1 to 4)
`
`3
`
` C O N T E N T S
`EXAMINATION OF PROFESSOR STEPHEN G. DAVIES PAGE
` By Mr. Cassella 5
` By Ms. O'Connell 93
` E X H I B I T S
` (All Exhibits were previously marked.)
`SLAYBACK EXHIBITS PAGE
` Exhibit 1001 U.S. Patent 8,293,742 62
` Exhibit 1002 Sher Declaration 14
` Exhibit 1003 Laskar Declaration 14
` Exhibit 1004 U.S. Patent 6,294,553 54
` Exhibit 1006 Norden reference 58
` Exhibit 1007 U.S. Patent 6,242,442 63
` Exhibit 1009 Federal Register reference 65
` 1988, 21 CFR Parts 349/369
` Exhibit 1016 Griffith reference 69
` Exhibit 1031 Alphagan® NDA 41
` Exhibit 2020 Noecker Declaration 46
` Exhibit 2022 Davies Declaration 11
`
`
`
`
`1 2 3 4 5 6 7 8 9 1
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` ______________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ______________________
`
` SLAYBACK PHARMA LLC,
`
` Petitioner,
`
` V.
`
` EYE THERAPIES, LLC,
`
` Patent Owner.
`
`0
`
` ____________________
`
`1 2 3 4 5 6 7 8 9 1
`
`11
`
` Case IPR2022-00142
`
`12
`
` U.S. Patent No. 8,293,742
`
`13
`
` ______________________
`
`14
`
` Deposition of PROFESSOR STEPHEN G. DAVIES
`
`15
`
` Washington, DC
`
`16
`
` Friday, October 28, 2022
`
`17
`
` 9:08 a.m.
`
`18
`
`19
`
`
`
`
`
`20
`
`Job No.: 468946
`
`21
`
`Pages: 1 - 100
`
`22
`
`Reported By: Dawn M. Hart, RPR/RMR/CRR
`
`4
`
`1234567891
`
`P R O C E E D I N G S
` THE VIDEOGRAPHER: Here begins Media No.
`1 in the videotaped deposition of Dr. Stephen G.
`Davies, in the matter of Slayback Pharma, LLC, v.
`Eye Therapies, LLC, in the United States Patent
`and Trademark Office before the Patent Trial and
`Appeal Board, Case No. IPR2022-00142.
` Today's date is October 28th, 2022. The
`time on the video monitor is 9:08 a.m. The
`videographer today is Peyton Abrams, representing
`0
`Planet Depos. This video deposition is taking
`11
`place at Finnegan, Henderson, Farabow, Garrett &
`12
`Dunner, LLC.
`13
` Would counsel please voice identify
`14
`themselves and state whom they represent.
`15
` MR. CASSELLA: Good morning. This is
`16
`Chris Cassella of the law firm Goodwin Procter, on
`17
`behalf of the Petitioner.
`18
` MS. O'CONNELL: Good morning. This is
`19
`Caitlin O'Connell. I'm from Finnegan, on behalf
`20
`of the Patent Owner and witness. And with me is
`21
`my colleague Bryan Diner, also of Finnegan, and
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`2
`
` Pursuant to Notice, before Dawn M. Hart,
`RPR/RMR/CRR.
` A P P E A R A N C E S
` ON BEHALF OF THE PETITIONER:
` CHRISTOPHER J. CASSELLA, ESQUIRE
` GOODWIN PROCTER LLP
` 1900 N Street, Northwest
` Washington, DC 20036
` (202) 346-4000
` ON BEHALF OF THE PATENT OWNER AND THE
` WITNESS:
` CAITLIN E. O'CONNELL, ESQUIRE
` BRYAN C. DINER, ESQUIRE
` FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
` 901 New York Avenue, Northwest
` Washington, DC 20001
` (202) 408-4000
`ALSO PRESENT:
` Kristi McIntyre, Esquire, Bausch & Lomb
` Peyton Abrams, Videographer
` Diamante Parrish, Notary Public
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Slayback Exhibit 1050, Page 2 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`5
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Kristi McIntyre from Bausch.
` THE VIDEOGRAPHER: The Court Reporter
`today is Dawn Hart, representing Planet Depos.
`Would the Notary please swear in the witness.
` PROFESSOR STEPHEN GRAHAM DAVIES
` being first duly sworn or affirmed to
`testify to the truth, the whole truth, and nothing
`but the truth, was examined and testified as
`follows:
` EXAMINATION BY COUNSEL FOR THE PETITIONER
`BY MR. CASSELLA:
` Q Good morning, Dr. Davies.
` A Good morning.
` Q As you just heard, my name is
`Chris Cassella. I represent the Petitioner in
`this case and I'll be taking your deposition
`today.
` Could you please state and spell your
`full name for the record?
` A Stephen Graham Davies. S-T-E-P-H-E-N,
`G-R-A-H-A-M, D-A-V-I-E-S.
` Q Dr. Davies, you're here to testify as an
`
`2 (5 to 8)
`
`7
`
`deposition, your counsel may make objections, but
`do you understand that unless you're instructed
`specifically not to answer, you must answer my
`questions to the best of your ability despite the
`objection?
` A Yes.
` Q As you can see, we have a Court Reporter
`transcribing everything that's being said today.
`This means that you and I both must make an effort
`to speak slowly and clearly so that the Court
`Reporter can transcribe every word. Do you
`understand?
` A I understand.
` Q We also need to be sure to give verbal
`answers to make sure we have a clear written
`record, so no head nods or hand gestures. Do you
`understand?
` A Yes.
` Q Okay. I'll try to take a five- to
`10-minute break once every hour or so, maybe a
`little less than an hour, and we can take a longer
`break for lunch if we get that far into the day.
`
`8
`
`6
`
`expert witness on behalf of the Patent Owner,
`Eye Therapies, LLC, in this matter, correct?
` A That's correct.
` Q And are you the same Dr. Davies who
`submitted the Declaration of Stephen G. Davies,
`DPhil, in support of Patent Owner's response in
`this matter?
` A I am, yes.
` Q Dr. Davies, have you been deposed
`before?
` A I have, yes.
` Q About how many times?
` A I've lost count. More than a dozen.
` Q So you're probably pretty familiar with
`the way these depositions work, but nonetheless,
`I'd like to go over some ground rules for your
`deposition today just so we're on the same page.
` You understand that I'll be asking you
`questions and your answers will be under oath as
`if you're testifying in court?
` A I understand that.
` Q Now, during the course of the
`
`If you need any additional breaks, please just let
`me know. The only thing that I ask is if there's
`a question pending, please answer that pending
`question before we break. Is that fair?
` A Okay.
` Q Please listen carefully to my questions
`and let me know if you don't understand my
`questions. If you answer my question, then I'll
`assume that you understood the question; is that
`fair?
`0
` A That's fine.
`11
` Q And do you understand that you are not
`12
`permitted to discuss the substance of your
`13
`testimony with your counsel at any time today?
`14
` A Yes.
`15
` Q Is there any reason that you cannot
`16
`testify truthfully and completely today?
`17
` A No.
`18
` Q Dr. Davies, did you do anything to
`19
`prepare for your deposition today?
`20
` A Well, I read my report, which I brought
`21
`with me, and I met with counsel yesterday.
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1234567891
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Slayback Exhibit 1050, Page 3 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`9
`
`3 (9 to 12)
`
`11
`document that's been stamped Eye Therapies Exhibit
`2022 in the bottom right-hand corner. Do you see
`that?
` A I see that, yes.
` Q Do you recognize this document?
` A Yes, it's my signed Declaration.
` Q Thank you.
` And could you please turn to page 24 of
`73, or I'm sorry, page 24 of your Declaration.
` A Okay.
` Q Which is page 26 of 73 of the entire
`document.
` Are you there?
` A I'm there, yes.
` Q Okay. Is that your signature on the
`bottom of page 24 of Exhibit 2022?
` A It is, yes.
` Q And you reviewed this Declaration before
`signing it, correct?
` A I did, yes.
` Q And by applying your signature to this
`Declaration, you were signaling that the contents
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` Q Who did you meet with yesterday?
` A Caitlin O'Connell, Bryan Diner, and
`Kristi McIntyre.
` Q And for about how long did you meet with
`them?
` A We discussed my report for about four
`hours, probably, five hours.
` Q And did you review any other documents
`to prepare for your deposition today?
` A I looked at the ones attached to my
`report, or the, in the Appendix C, the things that
`I had done, looked at. I looked at a few other
`things as well.
` Q Do you recall specifically which
`documents those would have been?
` A Not specifically, no.
` Q Did you review any of the Petitioner's
`expert Declarations?
` A I looked -- I read, again, Dr. Laskar's
`report, Dr. Sher's report.
` Q Okay. Other than the attorneys you just
`mentioned, did you discuss your anticipated
`
`1234567891
`
`10
`
`testimony with anyone else?
` A No.
` Q So no one at Eye Therapies, LLC?
` A I don't think I know anybody at
`Eye Therapies, LLC.
` Q Anyone at any Bausch & Lomb entity?
` A Well, only Kristi McIntyre.
` Q Okay. Did you speak with any of the
`Patent Owner's other experts?
` A No.
` Q Dr. Davies, I believe you testified
`earlier that you submitted a Declaration in this
`matter; is that right?
` A I did, yes.
` Q Okay. I'm going to hand you a copy of
`your Declaration.
` MR. CASSELLA: And I have four copies,
`so I don't --
` MR. DINER: We can share.
` (A discussion was held off the record.)
`BY MR. CASSELLA:
` Q And, Dr. Davies, I just handed you a
`
`of the Declaration were true and correct to the
`best of your knowledge; is that right?
` A That's correct.
` Q How did you prepare this Declaration?
` A By reading Dr. Laskar's report and
`responding to the chemistry aspects therein.
` Q Did you write the first draft of this
`report?
` A I certainly wrote the first draft of my
`experience and qualifications, et cetera. Some of
`0
`the, any of the legal parts were supplied by the,
`11
`by counsel, and then all of the science part comes
`12
`from me in, while I'm explaining to counsel what
`13
`my opinions were.
`14
` Q And just for clarity, if I refer to
`15
`"report" and/or "Declaration," will you understand
`16
`that those are the same thing?
`17
` A I understand that.
`18
` Q Okay. So out of an abundance of
`19
`caution.
`20
` Sitting here today, are you aware of any
`21
`inaccuracies in this Declaration?
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`12
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Slayback Exhibit 1050, Page 4 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`13
`
`4 (13 to 16)
`
`15
`
`your, next to the entry for Declaration of
`Dr. Sher and Dr. Laskar, at the end of that, those
`entries you say "and the materials cited therein."
` A Okay.
` Q Do you see that?
` A I see that.
` Q And what do you mean when you say you
`considered the materials cited therein?
` A Well, I considered -- I didn't read all
`of them, all of the references therein, but I
`looked at the ones that were relevant to the
`chemistry, that I thought were relevant to the
`chemistry discussion in those reports.
` Q And do you recall which of those
`materials were relevant to the chemistry as you
`put it?
` A I think it was essentially Griffith.
` Q Is Griffith the only reference cited in
`either Sher or Laskar that you reviewed?
` A I don't recall. I'd have to look
`through my report and see what I cite.
` Q So when you reviewed the Declarations of
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` A I don't believe so.
` Q Could you please turn to Appendix C of
`your Declaration. I believe it begins on page 70
`of 73.
` A (Complying.)
` Q Are you there?
` A Do you mean 70 or 71?
` Q 71 I guess is the actual substance of
`Appendix C.
` A I'm there, yes.
` Q Okay. And what is Appendix C?
` A This is the list of materials I
`considered when preparing my report.
` Q Did you review all of the documents
`listed here in preparing your Declaration?
` A I believe so.
` Q And does this list contain all of the
`documents you reviewed in preparing your
`Declaration?
` A I believe so.
` Q Did you consider any documents that are
`not listed here that you reviewed in preparing
`
`1234567891
`
`14
`
`your Declaration?
` A I don't believe there are any.
` Q Who provided the materials listed in
`Appendix C that you considered?
` A Well, counsel provided the patent and
`the expert Declaration of Dr. Sher and Dr. Laskar.
`Griffith's was listed in Dr. Laskar's report so I
`don't remember if I downloaded that or not, or
`they gave it to me. The file wrapper counsel gave
`me. And I believe I produced the Mendoza
`document.
` Q And you mentioned Exhibits 1002 and
`1003, which were the Declaration of Dr. Sher as
`Exhibit 1002 and the Declaration of Dr. Laskar
`which is Exhibit 1003. Did you review those
`Declarations in their entirety?
` A I believe so, yes.
` Q And for each of those Declarations,
`you've considered the materials cited therein; is
`that right?
` A Can you repeat that question?
` Q Sure. In your Exhibit C, and under
`
`Dr. Sher and Dr. Laskar, if either of them had
`cited a reference, you did not then go to that
`reference and review that reference separately,
`outside of what was cited in the body of those
`Declarations?
` A Well, I certainly did Griffith.
` Q Okay. Any others that you can recall?
` A I don't recall.
` Q I believe earlier you testified that you
`had not spoken with any of Patent Owner's other
`0
`experts in preparation for this deposition.
`11
` Did you speak with any other Patent
`12
`Owner's experts in preparation for your
`13
`Declaration?
`14
` A No.
`15
` Q Did you speak with anyone other than
`16
`your attorneys in preparing your Declaration?
`17
` A No, I don't believe so.
`18
` Q So no one at Eye Therapies or Bausch &
`19
`Lomb, other than perhaps counsel, in-house counsel
`20
`at Bausch & Lomb?
`21
` A Other than counsel at Bausch & Lomb, I
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`16
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Slayback Exhibit 1050, Page 5 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`17
`don't know anybody else at Bausch & Lomb, and I
`know nobody at Eye Therapies.
` Q Dr. Davies, could you please turn to
`Appendix A of your Declaration. I believe it
`begins on page 27 out of 73.
` A Okay, I'm there.
` Q Okay. And I guess on page 28 of 73 is
`the beginning of the substance of that appendix.
` What is Appendix A to your Declaration?
` A It's my curriculum vitae.
` Q When was this CV created?
` A At a date very close to the date I
`signed my Declaration, so around August 2022.
` Q Okay. So the CV was current as of the
`date you signed your Declaration; is that right?
` A I believe so.
` Q Is it still current?
` A Probably not. I will have had more
`publications since August.
` Q Okay. Would you be willing to provide
`an updated CV to Petitioner?
` A Of course.
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Oxford, first as a lecturer, then as a Professor,
`and then as a Waynflete Professor of Chemistry.
` During that time, I was also employed as
`a fellow at New College, Oxford, where I undertook
`chemistry teaching to a subset of the
`undergraduates in the chemistry course at Oxford.
` Q And are you currently employed, sir?
` A I'm retired from my university post, but
`I'm still currently employed at my tutorial post
`at New College.
` Q And, Dr. Davies, you consider yourself
`to be an expert in organic chemistry and medicinal
`chemistry; is that right?
` A That's correct, yes.
` Q And I believe you state that in
`paragraph 1 of your Declaration.
` A That's correct.
` Q Now, Dr. Davies, you're not a medical
`doctor; is that right?
` A That is correct.
` Q And you're not an ophthalmologist?
` A That's correct.
`
`5 (17 to 20)
`
`19
`
`1234567891
`
`18
`
` Q And you've never treated patients for
` Q I think counsel and I can discuss that
`any disease or condition of the eye; is that
`after the deposition, perhaps.
`right?
` So looking at the first page of your CV,
` A Apart from myself, I have eyes and they
`it looks like you have a Ph.D., or I guess the
`need occasional treatment, but --
`English equivalent of a Ph.D. in chemistry; is
` Q Fair enough. But you've never treated a
`that correct?
` A It's an Oxford equivalent of a Ph.D.
`patient; is that right?
` A No, I haven't.
` Q An Oxford equivalent of a Ph.D., okay.
` A And I do have that, yes.
` Q And you've never administered the drug
`brimonidine to a patient; is that correct?
` Q And you are not an attorney, sir; is
`0
` A I have not, no.
`that right?
`11
` A I'm not an attorney, no.
` Q And you are not an expert in treatment
`12
`methods for the eye; is that right?
` Q Could you give me a very high level
`13
` A I'm not an expert, no. Other than
`summary of your employment history?
`14
`methods.
` A I did, immediately after I finished my
`15
`DPhil, I became a postdoctoral fellow in organic
` Q Could you please turn to Appendix B of
`16
`chemistry for two years. And then I became
`your Declaration, and I think the substance of
`17
`another type of postdoctoral fellow for another
`this appendix begins on page 32 of 73.
`18
` A (Complying.)
`year doing natural product chemistry. Then I
`19
`became a member of the French Scientific Civil
` Q Just let me know when you're --
`20
` A That's correct, I'm there, yes.
`Service for a couple of years in Paris, before
`21
`being invited back and employed by University of
` Q What is Appendix B?
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`20
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Slayback Exhibit 1050, Page 6 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`21
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
` A It's a list of my publications.
` Q And when was this list created?
` A Sometime just before I signed my
`Declaration, so sometime in August.
` Q Are there any updates to this list of
`publications?
` A There may well be. I'd have to look how
`many publications have been published since
`August. I see I must have produced this list of
`publications after I produced my CV since in that
`gap I'd already got two more.
` Q Would you be willing to provide an
`updated publications list to Petitioner?
` A Of course. Yes.
` Q Counsel and I can discuss off the
`record.
` Dr. Davies, you've never published any
`research on brimonidine; is that right?
` A I have not, no.
` Q And you've never been involved in any
`clinical trials of brimonidine; is that correct?
` A I have not, no.
`
`6 (21 to 24)
`
`23
`
`involved.
` Q But not an expert in pharmaceutical
`formulation; is that right?
` A Not an expert.
` Q Okay, thank you.
` Could we please flip to Appendix D of
`your Declaration, which begins at page 73 of 73.
` A (Complying.)
` Q And --
` A I'm there.
` Q Okay. And what is Appendix D?
` A It's a list of deposition/trials I've
`been involved in between 2016 and 2020. So --
`sorry, up to date, up to the time I signed my
`report, which is August 2022.
` Q Okay. So in the top of the page there
`it has the years 2016 to 2020. Is that -- that is
`inaccurate?
` A Sorry, that's a typo on the top.
` Q Okay. So this list actually covers 2016
`through 2022, then?
` A It would, yes.
`
`22
`
` Q Okay. So there are no updates to this
` Q You are not an expert in ophthalmology;
`Appendix D?
`is that right?
` A I don't believe so.
` A I am not an expert in ophthalmology.
` Q Okay. So you have not testified at
` Q And you are not a pharmaceutical
`deposition or trial other than today in 2022?
`formulator; is that right?
` A I don't recall having done so. I'd have
` A I have been involved in formulation of
`to check.
`pharmaceuticals.
` Q Okay. We would appreciate if you'd
` Q You've never been principally employed
`checked, and if there are any updates to this
`as a pharmaceutical formulator; is that correct?
` A I have not, no.
`list, we'd request that you please provide a copy
`0
`of that.
` Q You've never formulated a pharmaceutical
`11
` A No problem.
`for ophthalmic use; is that correct?
`12
` A I have not, no.
` Q Okay. Let's turn to Section II of your
`13
`Declaration, and I believe it begins on page 7 of
` Q You've never formulated eyedrops; is
`14
`73.
`that right?
`15
` A (Complying.)
` A That's correct.
`16
` I'm there.
` Q And you've never designed a formulation
`17
` Q And this is the Legal Standards Section
`for the drug brimonidine; is that right?
`18
` A I have not, no.
`of your Declaration, correct?
`19
` A That's correct.
` Q And you are not an expert in
`20
` Q And your counsel provided you with these
`pharmaceutical formulation; is that right?
`21
` A I'm not an expert, but I said I've been
`legal standards in this section of your
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1234567891
`
`24
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Slayback Exhibit 1050, Page 7 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`25
`
`7 (25 to 28)
`
`27
`
`response to Dr. Sher's anticipation or obviousness
`opinions; is that right?
` MS. O'CONNELL: Objection. Vague.
`Asked and answered.
` A Well, insofar as any of his opinions
`relate to chemistry I am.
` Q Are you providing an opinion in your
`Declaration that the '742 patent was either not
`anticipated or not obvious?
` A I'm providing an opinion as to the
`Chemistry Sections of Dr. Laskar's report.
` Q Sir, nowhere in your Declaration do you
`say that the '742 patent was either not
`anticipated or is not obvious; is that right?
` A I don't believe I make those statements.
` Q Okay. And Section III C of your
`Declaration, which begins on page 11 of 73.
` A I'm there.
` Q In this section, you're discussing the
`parties' contentions with respect to claim
`construction; is that right?
` A Sorry, can you repeat that question?
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Declaration; is that right?
` A That's correct, yes.
` Q And these legal standards relate to
`obviousness; is that right?
` A (Reviewing.)
` That's correct, yes.
` Q Okay. And in Section III of your
`Declaration, which I believe begins on page 8 of
`73.
` A I'm there.
` Q Now, you're not providing an opinion on
`the obviousness of the '742 patent; is that right?
` A I'm not providing an opinion on the
`validity of the '742 patent.
` Q And do you understand that obviousness
`falls under the umbrella of patent validity or
`invalidity?
` A It would be part of it, I guess, yes.
` Q And I believe you just referenced
`paragraph 18 of your Declaration where you
`expressly state that you were not asked to opine
`on validity; is that right?
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`26
`
` A I was asked to opine on the chemistry
` Q In this section you're discussing the
`aspects of Dr. Laskar's report.
`parties' contentions with respect to claim
`construction; is that right?
` Q You're aware that Petitioner's expert,
` A I believe so, yes.
`Dr. Sher, actually did provide opinions on
` Q But you are not providing an opinion on
`anticipation and obviousness in his Declaration;
`claim construction for either the term "about
`is that right?
` A I believe so.
`.025 percent" or the term "ocular condition"; is
`that correct?
` Q So you would agree with me, sir, that
` A I believe other experts will be dealing
`you're not providing a response to Dr. Sher's
`with those.
`anticipation or obviousness opinions; is that
`0
` Q Right. So you are not providing an
`right?
`11
` A I'm providing an opinion on Dr. Laskar's
`opinion on claim construction; is that right?
`12
` A I'm not providing opinion on those terms
`chemistry statements in his report.
`13
`in my report.
` Q Okay, I understand that, but would you
`14
` Q In Section III B, the previous page in
`agree with me, sir, that you're not providing a
`15
`your Declaration, are you there?
`response to Dr. Sher's anticipation or obviousness
`16
` A Yes.
`opinions?
`17
` Q And in this section, you're discussing
` MS. O'CONNELL: Objection. Vague.
`18
`the person of ordinary skill in the art, also
`Asked and answered.
`19
` A What I'm providing is my opinion on
`known as a POSA, a P-O-S-A; is that right?
`20
` A That's correct, yes.
`Dr. Laskar's Chemistry Section in his report.
`21
` Q And in paragraphs 19 and 20, you explain
` Q So you are not providing an opinion in
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`28
`
`Slayback Exhibit 1050, Page 8 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`29
`what you understand to be Patent Owner's experts,
`Dr. Noecker's and Dr. Williams', opinions
`regarding a POSA; is that right?
` A That's correct.
` Q And in paragraph 21, you provide
`Dr. Noecker's definition of a POSA; is that right?
` A That's correct.
` Q And do you agree with Dr. Noecker's
`definition?
` A I do, yes.
` Q Did you ever formulate your own
`definition of a POSA separate and apart from
`Dr. Noecker's definition?
` A I've formulated a definition of a POSA
`that would be very close in other cases that is
`very close to what is, Dr. Noecker states in
`paragraph 21.
` Q Just to clarify, I was referring to a
`POSA definition for this matter. Have you ever
`formulated your own definition of a POSA for this
`matter separate and apart from Dr. Noecker's
`definition?
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`evaluating ophthalmic formulations, administering
`ophthalmic formulations, running clinical trials
`related to such formulations and/or treating
`patients using such formulations; is that right?
` A Well, a member of any team doing drug
`discovery and development would contain an organic
`chemist and medicinal chemist.
` Q But you're not a medical doctor; is that
`right?
` A I am not a medical doctor.
` Q And you are not a pharmaceutical
`formulator with the qualifications that you
`outline in paragraphs 19 and 20; is that right?
` A Lines 19 and 20 of -- paragraphs 19 and
`20, or lines 19 and 20?
` Q Paragraphs.
` A So can you repeat the question again.
` Q You are not a pharmaceutical formulator
`with the qualifications that you outline in
`paragraphs 19 and 20; is that right?
` A I'm not a formulator, no. But I'm a mem
`-- I would be the member of the team with
`
`8 (29 to 32)
`
`31
`
`32
`
`experience in chemistry design, and design.
` Q Okay. So you're not a medical doctor,
`and you're not a formulator; is that fair?
` A Well, I have, as I've said before, been
`involved in formulation projects.
` Q You've never been principally employed
`as a formulator; is that right?
` A That's correct.
` Q And you would not qualify as a POSA
`under Petitioner's definition; is that correct?
`0
` A Well, the Petitioner's definition
`11
`describes a team, and a member of that team would
`12
`be a chemist or medicinal chemist, and/or
`13
`medicinal chemist, and I would qualify in that
`14
`position.
`15
` Q Where in Petitioner's definition do you
`16
`see that the team would be a chemist or medicinal
`17
`chemist, and/or medicinal chemist -- sorry, let me
`18
`rephrase.
`19
` Where in Petitioner's definition, which
`20
`you quote in paragraph 22 of your Declaration,
`21
`where in that paragraph do you see that the POSA
`22
`PLANET DEPOS
`888.433.3767 | WWW.PLANETDEPOS.COM
`
`1234567891
`
`30
`
` A I didn't need to because I agree with
`Dr. Noecker's definition.
` Q Okay. And you've provided Petitioner's
`definition of a POSA in paragraph 22; is that
`right?
` A That's correct, yes.
` Q Dr. Davies, you would not qualify as a
`POSA under either Dr. Noecker's definition or
`Petitioner's definition; is that right?
` MS. O'CONNELL: Objection. Vague.
` A Well, under Dr. Noecker's definition, he
`has scientists with experience with chemistry
`developing and designing and/or evaluating
`ophthalmic formulations.
` I'm a chemist, a medicinal chemist. I
`don't have specific experience in those area -- in
`that -- in ophthalmic formulations, but in terms
`of designing active compounds to treat conditions,
`I have a lot of experience.
` Q So you are one of the, quote, other
`scientists and/or clinicians who have experience
`with chemistry developing, designing and/or
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`Slayback Exhibit 1050, Page 9 of 53
`Slayback v. Eye Therapies - IPR2022-00142
`
`

`

`Transcript of Stephen G. Davies, DPhil
`October 28, 2022
`33
`
`9 (33 to 36)
`
`35
`two members of that team. There will be other
`members of that team.
` Q And, sir, I'm just asking, does
`Petitioner's definition explicitly state who those
`other members of the team would be?
` MS. O'CONNELL: Objection. Asked and
`answered.
` A It only states what two of the members
`would be. It doesn't state what the other members
`would be, but my experience would be that there
`would always be a chemist, medicinal chemist.
` Q But Petitioner's definition explicitly
`states that the team would include a medical
`doctor and a pharmaceutical formulator; is that
`correct?
` A It states that they would be two of the
`members of the team, yes.
` Q And you are neither a medical doctor nor
`a pharmaceutical formulator; is that correct?
` A I'm not experience -- an expert in
`pharmaceutical formulation, but I have been
`involved in pharmaceutical formulation.
`
`1234567891
`
`0
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`was comprised of a team and one of those team
`members was a person with a background in organic
`or medicinal chemistry?
` A Well, it says, in lines 1 and 2, that a
`POSA was a composite person on a team that
`included a medical doctor and a pharmaceutical
`formulator. It would also include other people
`with other expertises.
` Q Where do you see that language, sir,
`that it would include other people with other
`expertises?
` A That's how I'm reading what the
`statement says. It doesn't say that it would be
`exclusively a medical doctor and a pharmaceutical
`formulator. It says a team which would include.
`It would also, in my experience, include a chemist
`and medicinal chemist.
` Q So that's your interpretation of
`Petitioner's definition; is that right?
` A That's how I read that definition.
` Q But Petitioner did not explicitly state
`that in their definition; is that fair?
`
`36
`
`34
`
` A It says what it says. It would be a
` Q But you've never been p