`Patent 8,399,514 B2
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _____________________________________
`
` COALITION FOR AFFORDABLE DRUGS V LLC;
` HAYMAN CREDES MASTER FUND, L.P.;
` HAYMAN ORANGE FUND SPC-PORTFOLIO A;
` HAYMAN CAPITAL MASTER FUND, L.P.;
` HAYMAN CAPITAL MANAGEMENT, L.P.;
` HAYMAN OFFSHORE MANAGEMENT, INC.;
` HAYMAN INVESTMENTS, LLC;
` NXN PARTNERS, LLC;
` IP NAVIGATION GROUP, LLC;
` J KYLE BASS; and ERICH SPANGENBERG,
` Petitioners,
` v.
` BIOGEN MA INC.,
` Patent Owner.
` ______________________________________
`
` Case No. IPR2015-01993
` Patent 8,399,514 B2
`
` DEPOSITION of RICHARD A. RUDICK, M.D., a witness
`called by counsel for the Petitioner, taken pursuant to
`the Federal Rules of Civil Procedure before Katherine A.
`Tevnan, RPR, CSR No. 129093 and Notary Public in and for
`the Commonwealth of Massachusetts, at the Offices of
`Finnegan, Henderson, Farabow, Garrett & Dunner, on
`Monday, August 29, 2016, commencing at 10:54 a.m.
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`202-220-4158
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`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`Page 1 of 113
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`Coalition Exhibit 1053
`Coalition v. Biogen
`IPR2015-01993
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`
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`August 29, 2016 Deposition of Richard A. Rudick
`Patent 8,399,514 B2
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`APPEARANCES:
`
` CARMICHAEL IP, PLLC
` (By Carol A. Spiegel, Esq.)
` 8000 Towers Crescent Drive, 13th Floor
` Tysons Corner, Virginia 22182
` 703-646-9249]
` carol@carmichaelip.com
` for the Petitioner.
`
` FINNEGAN, HENERSON, FARABOW, GARRETT & DUNNER, LLP
` (By Michael J. Flibbert, Esq.)
` 901 New York Avenue, NW
` Washington, DC 20001-4413
` 202-408-4000
` michael.flibbert@finnegan.com
` and
` (By Shana K. Cyr, PH.D.)
` Two Freedom Square
` 11955 Freedom Drive
` Reston, Virginia 20190-5675
` Patent 8,399,514 B2
`
`ALSO PRESENT: Wendy Plotkin (Biogen)
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`August 29, 2016 Deposition of Richard A. Rudick
`Patent 8,399,514 B2
`
` I N D E X
`Deposition of: Direct Cross Redirect Recross
`RICHARD A. RUDICK, M.D.
` By Ms. Spiegel 4
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` E X H I B I T S
`No. Page
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`August 29, 2016 Deposition of Richard A. Rudick
`Patent 8,399,514 B2
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` P R O C E E D I N G S
` MS. SPIEGEL: Good morning, Dr. Rudick. I
`am with Carmichael IP law firm and I am going to be
`asking you a series of questions today. All I ask is
`that you answer to the best of your ability. If there
`is anything about my question that you don't understand,
`just let me know and I will try to rephrase it or
`restate it to the best of my ability.
` If you need a break, any time, that's fine.
`This is not a marathon. The only thing I ask is if a
`question is on the table, please complete your answer
`before we break.
` And, as you know, a court reporter is
`transcribing everything we say, so it is important that
`you give verbal answers as opposed to a nod. And that
`neither one of us speak over each other. Is that okay?
` THE WITNESS: Fine.
` RICHARD A. RUDICK, M.D.
`
`a witness called for examination by counsel for the
`Petitioner, being first duly sworn, was examined and
`testified as follows:
`
` DIRECT EXAMINATION
`BY MS. SPIEGEL:
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` Q. Would you state your full name for the record,
`please?
` A. Richard Allen Rudick.
` Q. Do you understand that your testimony is being
`given under oath today?
` A. I do.
` Q. I may be referring to the patent at issue here by
`its last three digits, the '514 patent. Would you
`understand the abbreviation?
` A. Yes.
` Q. I might also refer to the interoffice proceeding
`that we are involved in as an IPR. Would that be okay?
` A. Yes.
` Q. I will probably say "MS" instead of "multiple
`sclerosis". Is that okay?
` A. Yes.
` Q. I will probably refer to Gadolinium as capital G,
`little D, and pronounce it as Gd, would that be okay?
` A. Gadolinium, yes. Gd would be fine.
` Q. Is there any reason you can't give full and
`truthful testimony today?
` A. No.
` Q. Are you taking any medications that would impair
`your ability to testify today?
` A. No.
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` Q. Have you provided any declarations in any other
`patent matters other than the one that you submitted in
`the application that became the '514 patent?
` A. Could you specify which one you are referring to
`so I can answer that question?
` Q. Well, we'll just do it this way. I am going to
`start by handing a copy of a document premarked as
`Biogen Exhibit 2044. This is the declaration that I am
`going to be referring to today. Just take a quick look
`at it and confirm that this is the declaration that you
`submitted in this IPR proceeding?
` A. Yes, this is it.
` Q. Can you confirm that it is your signature on page
`35 of 36, and I am talking about the little numbers in
`the lower left-hand corner (indicating)?
` A. Yes, that is my signature.
` Q. Looking at your declaration, are you aware of any
`errors or mistakes in your declaration?
` A. No, I am not.
` Q. Did you review your declaration before signing
`it?
` A. Yes.
` Q. I am handing you a copy of a document premarked
`as Biogen Exhibit 2045, which is the curriculum vitae
`that was attached to your declaration. Looking at your
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`CV, are you aware of any errors or mistakes in your CV?
` A. No, I am not.
` Q. If you look at page 16 of 36 of your declaration,
`I am going to be looking at paragraph 32. In there you
`refer to a declaration you wrote in July of 2012 that
`was submitted to the patent office as part of the
`application that became the '514 patent. Do you see
`that?
` A. Are you referring to paragraph 32? Because I am
`not seeing it there.
` Q. I am referring to paragraph 33.
` A. Oh, okay. 33.
` Q. On page 16 of 36?
` A. Okay.
` Q. It is about halfway down.
` A. Yes. Yes. I see that.
` Q. So my previous question about, have you provided
`any declarations in any other patent matters other than
`the one you submitted to the U.S. Patent Office during
`prosecution of the application that became the '514
`patent. That's the declaration I am referring to.
` A. I understand. In addition to the July 2012
`declaration on this matter, I have done one other
`declaration in a separate patent matter related Biogen.
` Q. Is the separate patent matter related to
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`Tecfidera or BG-12?
` A. No.
` Q. Have you provided any expert reports in any
`patent matters other than what you have done for the
`Biogen?
` A. No.
` Q. Have you done expert reports for any matters
`other than patent matters?
` A. Yes.
` Q. Could you give me a general description of what
`they were?
` A. I participated as an expert witness for the
`lawyers of a woman who was suing her employer for
`discrimination and I was providing testimony regarding
`her MS.
` Q. Just a general description was fine.
` Have you ever been deposed before?
` A. Yes.
` Q. When?
` A. I would have to consult my calendar, but maybe
`one year ago.
` Q. What kind of case was that?
` A. This was the other patent matter that I
`mentioned.
` Q. Did you prepare for your deposition today?
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` A. Yes.
` Q. What did you do to prepare?
` A. I met with these attorneys (indicating) to learn
`about the matter at hand. I prepared my declaration and
`the appendix material, identified the appendix material.
`I read through the appendix material. And I read
`carefully through my declaration.
` Q. Do you recall reviewing anything other than those
`documents you just referred to?
` A. There are two documents that are not listed in
`the appendix that I looked at. One is the '514 patent
`and the other is a publication by Kappos and Lancet on a
`Phase 2 study of Tecfidera. Other than that, no.
` Q. When you say that you spoke with counsel, you are
`talking of the counsel present at this deposition?
` A. Correct.
` Q. Did you meet with anyone else besides counsel or
`was anyone else besides counsel present when you
`prepared for the deposition?
` A. No.
` Q. How long did you meet with counsel to prepare for
`the deposition?
` A. I would have to look back at my calendar, but I
`would give an estimate of eight hours.
` Q. Do you have any questions before we begin?
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` A. No.
` Q. You received a Bachelor of Science in Zoology
`from Ohio University in Athens, Ohio; is that correct?
` A. Yes.
` Q. You received an M.D. degree from Case Western
`Reserve University School Of Medicine in Cleveland,
`Ohio; is that correct?
` A. Correct.
` Q. Do you specialize in neurology?
` A. Yes.
` Q. Are you an expert in the field of immunology?
` A. I would consider myself an expert.
` Q. On what basis?
` A. On the research work that I have done over the
`years. I don't have a formal degree in immunology but I
`have enough knowledge to understand much of it and
`conduct research on it.
` Q. Are you an expert in the field of cell biology?
` A. No.
` Q. Are you an expert in the field of molecular
`biology?
` A. No.
` Q. Are you an expert in the field of statistics?
` A. I don't have formal training or a degree in
`statistics but I have some working knowledge of
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`statistics based on my research over the years.
` Q. Are you an expert in the field of pharmacology?
` A. No.
` Q. Are you an expert in the field of regulatory
`affairs for drug development?
` A. No.
` Q. Do you have any experience designing protocols
`for clinical trials?
` A. Yes.
` Q. Would you explain, please.
` A. I could give two examples, if that would be
`useful.
` Q. Certainly.
` A. I participated as one of the two principal
`investigators in designing a study of interferon beta 1A
`for multiple sclerosis. This was in the late 1980's.
`This study was eventually funded by the National
`Institutes of Health. And was in relapsing forms of
`multiple sclerosis. This was partially supported by
`Biogen at the time and this led to an application for
`licensing of what became known as Avonex, a treatment
`for multiple sclerosis.
` I was also involved in the design of studies of a
`drug called natalizumab, also for relapsing multiple
`sclerosis. This led to regulatory approval of what
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`became known as Tysabri for MS.
` Q. When you say you were involved in the design of
`these clinical trials, could you explain to me a little
`bit more about what design elements you provided, that
`is, for example, type of study group, the randomization,
`the dose selection? Would you give me a general idea,
`please, of what elements of the clinical trial you
`designed?
` A. Well, for the original Avonex study, the first
`one I mentioned, I was the co-principal investigator
`along with a doctor named Lawrence Jacobs who was in
`Buffalo, New York. I had just moved to the Cleveland
`clinic. So I was in Cleveland, he was in Buffalo and we
`wrote the entire protocol, determining every aspect of
`the protocol from the test article, which was interferon
`beta 1A, to the dose of the test article, the dosing
`regimen, the patient population, the outcome measures,
`the design of the study. That was such determined by
`myself and Dr. Jacobs.
` Q. Do you have any experience in preparing or
`submitting an investigational new drug application to
`the United States Food and Drug Administration?
` A. I don't, no.
` Q. In paragraph 6 of your declaration, it would be
`on page 3 of 36, in the second sentence you talk about
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`an investigator-initiated clinical trial. What is an
`investigator-initiated clinical trial?
` A. This is a study that was initiated as it says or
`started by the investigators as opposed to a company.
`So this particular study, as I mentioned, Dr. Jacobs and
`I wrote the protocol, designed and wrote the protocol
`and applied to the NIH for funding. So that's
`considered investigator-initiated.
` Q. Did you receive support from Biogen for that
`trial?
` A. Yes, we did.
` Q. What type of support?
` A. The proposed protocol for the -- from the NIH
`didn't anticipate some of the safety monitoring that
`would be needed for an application to the NIH, so after
`that grant was made, meaning after the funding was
`allocated by the NIH, we approached Biogen for support
`and specifically we requested that Biogen file and hold
`the IND and assist with monitoring the study. And in
`the process Biogen requested that we add certain
`laboratory monitoring that would be needed for
`submission for the FDA.
` Q. Do you happen to recall what dose of Avonex has
`been approved by the FDA and by what means of
`administration?
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` A. Yes. 30 micrograms by intramuscular
`administration once weekly.
` Q. Have you or a person under your direct
`supervision ever administered Avonex at other than the
`FDA-approved dosage at the time of administration?
` A. Yes. After the Avonex study was completed, I
`participated in two subsequent studies that tested a
`different dose and compared it with 30.
` Q. You also stated that you received support from
`Biogen over the years, can you just give me a general
`outline of what that support was?
` A. I believe I have commented on that in the
`declaration. If you give me one moment.
` Q. Take your time. All the time you need.
` A. So on page 4 of 36 in paragraph 7 I cited two
`grants from Biogen, one for $70,000. That was from 1993
`to 1995. And it was to study immuno effects of Avonex.
`And another from 1994 to 2001 for $624,900, which was to
`study the long-term effects of Avonex in the patients
`who were in the NIH study.
` Q. You mentioned another drug, natalizumab. If you
`would correct my pronunciation, please?
` A. Natalizumab.
` Q. What kind of drug is that? I mean, you said
`Avonex was an interferon. What kind of drug is this?
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` A. Natalizumab is a monoclonal antibody.
` Q. Do you happen to recall how it is administered
`and at what dosage, what dose?
` A. Natalizumab is administered at 300 milligram,
`once monthly, intravenously.
` Q. To the best of your knowledge have you or any
`person under your direct supervision administered
`Natalizumab at other than the FDA-approved dose at the
`time of administration?
` A. No. We treated hundreds of patients under my
`direction. We adhere to the FDA-approved dosage.
` Q. You have used the term pivotal to describe
`clinical studies in your declaration. If you need to
`refresh your memory, it would be in paragraph 6 and
`paragraph 5. My question for you is, what does pivotal
`mean?
` A. I don't know if pivotal actually has a formal
`definition but I used it synonymously with registration
`study or Phase 3 study.
` Q. To mean what? That it was a Phase 3 study?
` A. Yes. I used it as a synonymous term to Phase 3
`or registration study.
` Q. Have you ever heard of a product called Rebif,
`R-E-B-I-F?
` A. Yes.
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` Q. Do you know what that is?
` A. Yes.
` Q. Can you tell me?
` A. Rebif?
` Q. Yes.
` A. Rebif is a form of recombinant interferon beta
`1A.
` Q. It is used for what indication?
` A. It is used for relapsing forms of MS.
` Q. If you know, could you tell me how it is
`administered and at what dose?
` A. I don't recall the exact dosage. I would have to
`look that up.
` Q. That's fine.
` A. I do know it is administered by subcutaneous
`injection three times each week.
` Q. Have you ever prescribed Rebif?
` A. Rebif?
` Q. Sorry.
` A. Yes, I have.
` Q. To the best of your knowledge have you or anyone
`under your supervision ever administered Rebif at other
`than the FDA-approved label dose at the time of
`administration?
` A. Yes. I am aware of that.
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` Q. Could you give me a general explanation of that?
` A. Sure. At the full dose of Rebif patients often
`have side effects characterized as flu-like symptoms and
`generally it is common practice to start at half a dose
`and gradually increase the dose to the full dose over
`two weeks or three weeks or a month. That would be
`typical practice for Rebif.
` Q. You have used MRI to diagnose and treat patients
`with MS for quite some time. Can you give me just a
`rough idea for how long you have been using MRI as a
`diagnostic and treatment tool?
` A. Yes. I remember exactly how long. In 1985 my
`institution which was University of Rochester got the
`MRI machine. I started using it to start diagnosing MS
`immediately.
` Q. In paragraph 25 of your declaration, that's on
`page 12 of 36 at the top, you say that "MRI scans are
`generally used to detect damaged areas of the nerve
`(lesions or scars) to aid in the diagnosis" of MS. Do
`all patients with MS have abnormal MRI scans?
` A. For all practical purposes, yes.
` Q. What do you mean for all practical purposes?
` A. MRI is used in the diagnostic criteria for MS.
`So patients who meet the diagnostic criteria have
`abnormal MRI scans.
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` Q. According to paragraph 6 of your declaration, you
`have participated in clinical trials and in clinical
`research protocols in the field of MS, translational
`research, outcome measures, magnetic resonance imaging
`(MRI), clinical trials and biomarkers. Now that's
`bridges pages 3 to 4 of your declaration. It is
`paragraph 6 and it is the part that bridges pages 3 to 4
`of your dec.
` A. Yes, I see that.
` Q. What's the difference between a clinical trial
`and a clinical research protocol?
` A. Clinical trial is more, a more narrow. It is one
`type of clinical research protocols. Clinical research
`protocols could include observational studies of the
`natural history of a condition, health economics
`research, aspects of the condition. That's a very broad
`term. Clinical trials means you are testing and
`interventioned.
` Q. What is translational research?
` A. As I have used the term, there are many
`definitions of this, but as I have used the term, it is
`taking basic research, knowledge or findings, and
`testing them in the patients to determine the clinical
`relevance of the research finding.
` Q. In paragraph 7 of your declaration, and I am
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`looking at the top of page 5 of 36, you said that you
`transitioned to Biogen in 2014. Do you see that
`sentence? What do you mean by "transitioned"?
` A. That's a long way of saying I switched to Biogen.
` Q. What's the full name of your employer?
` A. Biogen.
` Q. When did you start working at Biogen?
` A. I believe it was May 8, 2014.
` Q. What is your job title and your job
`responsibilities at Biogen?
` A. I am a vice president of development sciences and
`my job responsibility is director of a group called the
`Value-Based Medicine Group.
` Q. Are your job responsibilities limited to multiple
`sclerosis?
` A. Yes.
` Q. Where did you work prior to being hired at
`Biogen?
` A. I worked at the Cleveland Clinic Foundation.
` Q. At page 4 of your CV, about 4/5 of the way toward
`the bottom, you say you were on the Biogen Idec,
`SURPASS, all in capital letters, Advisory Board from
`2009 to 2011. What is the SURPASS Advisory Board and
`what did it do?
` A. SURPASS was a study that was started but never
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`completed. The purpose of the study was to determine
`the best treatment for patients who had MS disease
`activity despite one of the disease-modifying therapies.
`I was chairman of the advisory committee which was a
`group of doctors that was advising Biogen on the study.
` Q. Did the study involve Tecfidera or BG-12?
` A. No.
` Q. On pages 6 to 7 of your CV you list a number of
`research grants in which you participated. Can you give
`me an idea of which ones were supported by Biogen?
` A. I will need to look through this, if you give me
`a moment.
` Q. Sure.
` A. None of the grants on page 6 were supported by
`Biogen either partially or fully.
` Q. Okay.
` A. On page 7 of 70, the fifth one down was supported
`in relatively small part by Biogen. That was the Avonex
`Phase 3 pivotal trial. The dollar amount listed there
`was the NIH budget.
` The grant halfway down listed as $70,000 was to
`study immune effects of interferon. This was supported
`entirely by Biogen. By the way, all of the support on
`all of these grants, none of this went to me. This all
`went to my institution. The institution used it to pay
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`the expenses on the research grants that I directed.
` The next one down, $624,900 was supported
`entirely by Biogen to do a follow-up study from the
`original Avonex patients. Nothing else on page --
`sorry?
` Q. This might continue to page 8.
` A. Nothing else on page 7 was supported by Biogen.
` Page 8, nothing on page 8 was supported by
`Biogen.
` Q. Do you recall how many times you were principal
`investigator of a Biogen-sponsored project or clinical
`trial?
` A. I believe it would be two. One was, I was the
`coordinating investigator or chairman of the advisory
`committee for the SENTINEL trial which was one of two
`natalizumab studies. That trial was designed by and
`supported entirely by Biogen and I was the chairman of
`the advisory committee of the academic investigators.
` The second would be the follow-up study of the
`original Avonex patients in which I directed the recall
`of those patients and the reassessment roughly eight
`years following the original clinical trial. Those were
`the two studies that I recall being the lead
`investigator.
` Now, in addition, I was the lead academic
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`investigator for the SURPASS trial but that really never
`got off the ground. So that trial never actually
`enrolled patients or completed.
` Q. Still looking at your CV, on page 10 to 16, you
`have listed selected presentations. Presentation number
`30, presentation number 36, presentation number 60 and
`presentation number 67 took place out of the country,
`Sweden, Canada, Australia. My question for you is: Did
`Biogen pay your expenses in whole or in part to give
`these presentations? Again, that's presentation 30?
` A. I would need to go back and look at my records.
`I can comment on each of them individually. 30, I don't
`really know because this was a symposium at the ECTRMS
`meeting which is an annual meeting for multiple
`sclerosis that occurs in Europe. I ordinarily would pay
`may own expenses but I might participate in an
`educational symposium while there. I can't answer 30.
` Q. How about 36?
` A. 36, this was a meeting where Biogen would have
`covered my expenses. What was the next one?
` Q. 60.
` A. This is also a meeting where Biogen would have
`covered my expenses.
` Q. The last one was 67?
` A. 67, yes, this was a meeting where Biogen would
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`have covered my travel expenses.
` Q. Do you own stock in Biogen?
` A. Yes.
` Q. Do you own stock futures in Biogen?
` A. No.
` MS. SPIEGEL: Is this a good place to take a
`break, or would you like to keep going?
` MR. FLIBBERT: Take a short break, if you
`want.
` (Recess taken)
`BY MS. SPIEGEL:
` Q. Your CV lists a number of publications that you
`authored or coauthored over the years. It goes from
`about page 16 to 36 in your CV. In some of these
`publications you are listed as the first author and in
`others as the last author and then there is the in-
`between author. Could you tell me if you know what the
`significance is as to the placement of your name as
`author?
` A. The first author and the last author have the
`most significance in terms of directing the project.
`The middle author is generally -- imply a contribution
`to the work in some way or to the writing of the paper
`or editing of the paper.
` Q. In paragraph 15 of your declaration, that's
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`bridging pages 7 to 8, you say that you have been
`engaged as an expert consultant for pharmaceutical
`companies including Biogen and a number of other
`agencies. Do you see that?
` A. Yes.
` Q. Were any of these expert consults related to
`Tecfidera or BG-12?
` A. No.
` Q. In paragraph 24 of your declaration, that would
`be on page 11, you state that "The progress and severity
`of MS in an individual are also unpredictable". Do you
`see that?
` A. Yes.
` Q. Then you go on to talk about relapsing-remitting
`MS, which is abbreviated RRMS, secondary progressive MS
`with the abbreviation SPMS, and primary progressive MS
`with the abbreviation PPMS. Do you see that?
` A. I do.
` Q. Could you briefly tell me how RRMS, SPMS and PPMS
`are related? Are these different diseases?
` A. The vast majority of people who have MS
`experience what we call relapses. These are attacks of
`MS with symptoms. The attack then subsides over a few
`weeks and the patient recovers to some extent. Then
`this could come back with another attack. Those are
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`relapses and remissions. This affects up to 90 percent
`of people with MS. Over the years this typically
`happens when a person is 30 years old or 35 years old.
`Over the years and decades the relapses become less
`common, less frequent. And as a person ages into their
`60's and 70's they can sometimes get progressively worse
`without any more relapses. That is then called
`secondary progressive MS. That's the same person and
`same disease, just two different stages of the
`condition.
` The distinction between those two categories is
`very indistinct. Sometimes difficult to know exactly
`when a person has switched to the secondary category.
`My opinion is the progressive MS is the same disease but
`it has a different pattern. It is a minority of cases,
`maybe 10 percent, then in that particular category the
`patient never does experience one of these attacks or
`relapses. But usually a little later in life, in the
`40's or 50's, there is a gradual walking problem. The
`MRI scan and spinal fluid which you get by lumbar
`puncture is exactly the same as MS. So my opinion is it
`is the same condition but with a slightly different
`pattern.
` Q. Are you aware of any other patterns or categories
`of MS?
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` A. There was a category that was called progressive
`relapsing, which was the second type I mentioned, but
`then the person would have an attack. That category was
`eliminated in the most recent classification
`publication. Those were the only three categories.
` Q. Is it possible to have a benign form of MS?
` A. Well, I think this does relate to what I said in
`paragraph 24 about the variability of MS. So within
`these categories, like relapsing and progressive, there
`is also variability in how bad the disease is. So there
`are patients that have very mild MS and don't become
`disabled. Some doctors call that benign MS. I don't
`care for the term myself.
` Other people with MS get severely disabled just
`in a few years and go into a wheelchair or even a
`nursing home. Some people will call that malignant MS.
`This just refers to the extreme variability between
`people and how bad the disease is.
` Q. Is MS a disease found only in humans?
` A. Yes, it is. It is a human disease.
` Q. Is MS strictly a disease of adults say 18 to 20
`or older or do children get MS as well?
` A. Children can get MS much less commonly.
` Q. Would you expect that a metho