Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Filing 1370

DECLARATION re #1369 MOTION in Limine To Preclude Roche From Using Unreliable Computer-Generated Models Of Peg-EPO At Trial Due To Roche's Selective Production Only Of Models That Were Created For This Litigation (=DECLARATION OF RENEE DUBORD BROWN) by Amgen Inc.. (Attachments: #1 Exhibit 1#2 Exhibit 2#3 Exhibit 3#4 Exhibit 4#5 Exhibit 5#6 Errata 6#7 Exhibit 7#8 Exhibit 8#9 Exhibit 9#10 Exhibit 10#11 Exhibit 11#12 Exhibit 12#13 Exhibit 13#14 Exhibit 14#15 Exhibit 15#16 Exhibit 16)(Gottfried, Michael)

Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Doc. 1370 Att. 5

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 1 of 16

EXHIBIT 5

Dockets.Justia.com

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 2 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ) ) Civil Action No. Plaintiff, ) 05 Civ. 12237 WGY ) vs. ) ) F. HOFFMANN-LA ROCHE LTD., a ) Swiss Company, ROCHE ) DIAGNOSTICS GmbH, a German ) Company, and HOFFMANN-LA ) ROCHE, INC., a New Jersey ) Corporation, ) ) Defendants. ) -----------------------------) AMGEN, INC.,

Friday, March 2, 2007 8:44 a.m. *** RESTRICTED ACCESS *** Videotaped Deposition of ANTON HASELBECK, Ph.D., held at the offices of Duane Morris, LLP, 380 Lexington Avenue, New York, New York 10168, pursuant to Notice, before Otis Davis, a Notary Public of the State of New York. (This transcript contains testimony designated confidential as per Section 5(c) of the Amended Protective Order. Please treat the entire transcript in accordance with the protective order.)

Amgen v. Roche

Page 1

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 3 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential MS. BEN-AMI: Objection. Calls for expert testimony. A. Since we only produce it with

our system, I have no information on how it would be using a gDNA-derived system. MR. GALVIN: We can take a break so we can change the tape. THE VIDEOGRAPHER: We're now off the record at 2:53. (Recess taken.) THE VIDEOGRAPHER: This marks the beginning of tape 6, volume 1 in the deposition of Dr. Anton Haselbeck. We are now on the record at 3:03. (Haselbeck Exhibit 34, CERA Physical and Chemical characterization slide presentation, Bates stamped R 005453580-005453608, marked for identification, as of this date.) Q. Dr. Haselbeck, let me hand you

what has been marked as Exhibit 34 to your deposition, bearing production numbers R 005453580 through 608. Do you recognize Exhibit 34?
Page 212

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 4 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential A. I do recognize the slides

produced here in Exhibit 34. Q. Was this a slide presentation

you prepared? A. I cannot say this with

certainty. It may be, but it could also be prepared by some of my colleagues. Q. A. Q. A. Can you turn to page 588. Yes. What is being depicted on 588? This represents an attempt

to -- or a picture of a computer simulation, at least one way of computer simulating the structure, three-dimensional structure of Roche 50-3821. Q. Do you know who prepared this

picture? A. I believe it has been prepared

by somebody from the computer or the structural modeling group in Penzberg, Germany. Q. Do you know who within the

structural modeling group was responsible for generating the pictures on 580?
Page 213

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 5 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential relating to EPO; is that right? And if I got that wrong, please explain. MS. BEN-AMI: Object to the form of the question. Mischaracterizes his prior testimony. No firsthand knowledge. A. I have not done the experiment,

so I cannot answer with certainty which data exactly have been used to come up with these pictures. Q. Have you had any discussion

with any of the people in the structural modeling group in Penzberg about how they were developing the three-dimensional model of Roche 50-3821? A. I was involved in discussions

to explore ways to model the structure. Q. And during those discussions,

did the individuals from the structural modeling group at Roche Penzberg indicate to you that they were using published data relating to the three-dimensional structure of EPO in order to model part of Roche 50-3821?
Page 219

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 6 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential also been published, correct?" A. I recall vaguely publications

describing binding sites. I would not be in a position to confirm that these are the true and only binding sites. I remember there are reports in the literature describing binding sites for EPO to EPO receptor. Q. Is it your understanding that

this structural modeling group at Roche made use of the published data regarding the binding sites between EPO and the EPO receptor to generate the depiction shown at 589 on Exhibit 34? A. This I do not know. I have

absolutely no information. If they were aware of the binding sites and used this information, I don't know. Q. The structural modeling group

at Roche, they are scientists, not artists, right? MS. BEN-AMI: Objection. Calls for interpretation. A. They are scientists.
Page 227

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 7 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential reflect that someone has lost my Exhibit 5, which I expect to be me. Q. If you turn to 705, is this one

of the other depictions that you were referring to? A. This is one of the others, but

this is still not the final one. Q. A. This is from July 2006. Yeah, but there has been

others. And again, here in my recollection, when I just look at it, I still see the wrong carbohydrate structures on this one. Q. On this depiction on page 705

of Exhibit 5, the PEG little beads or things on the tail look a lot thicker. A. Q. Yes. Is that more accurate, less

accurate, or just an alternative way to show it? MS. BEN-AMI: Object to the form. Calls for expert testimony and speculation. A. In my opinion, it's more
Page 232

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 8 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential accurate. Q. A. And why do you say that? To my understanding, it does

reflect more the size of the polymer than this little line on the other picture, which is, my understanding, not corresponding to the actual size of the polymer. Q. The PEG moiety in Roche 50-3821

accounts for roughly 50 percent of the molecular weight of the molecule, correct? MS. BEN-AMI: Object to the form. Mischaracterizes the prior testimony. Mischaracterization. Calls for speculation. A. The molecular weight in that

sense has nothing to do with structure and space. It's a completely different thing. Q. Does the depiction on 705 -How is the size of each PEG component modeled? MS. BEN-AMI: Object to the form. Calls for expert testimony, speculation, to the extent that the
Page 233

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 9 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential witness has already testified he has no firsthand knowledge. A. I have no firsthand knowledge

how this is done. Q. I'm just trying to understand.

You said you think this depiction of the PEG component is more accurate than the other depiction, and I'm just trying to understand: Is there a scientific basis, is there a data basis for your view? MS. BEN-AMI: Calls for expert testimony. A. I believe there is a scientific

basis for different pictures. Q. basis? A. Q. I do not know. Is it based on the measurement And what is that scientific

of the size of these chemical components? MS. BEN-AMI: Objection. Asked and answered. He just said "I do not know." A. I have absolutely --

absolutely, I have no information on how
Page 234

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 10 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential this is done. This is not my expertise, and there is nothing else I can tell you. Q. So you believe this picture is

better than this picture, but beyond that, you can't tell me why? A. I cannot tell you why when you

ask for the details. I still do believe this is more accurate because it is based on the true situation a polymer would be in. But I have no information on the details, how this is calculated, based on what, and so on. Q. You said that the July 2006

version was still not correct and that you've seen better versions; is that correct? A. Q. That's correct. When have you seen these better

versions? A. Towards the end of 2006 I

believe, I don't know exactly the date, when I was shown a modified version. Q. A. And who showed you that? I think I have seen it the
Page 235

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 11 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential first time in a presentation given by either the modeling people or it could have been through Michael Jarsch. He could have presented me with the new structures. Q. Dr. Haselbeck, when you saw

this new version of the Roche 50-3821 depiction, was it in an animated form or was it a piece of paper like this? A. I have seen a piece of paper

like this and I have also seen an animated version, yes. Q. You saw this in late 2006,

correct? A. Late 2006, last quarter of 2006

somewhere. I don't recall exactly when I have seen those data. Q. Do you know the name of the

person in the modeling group that would have shown you this if it wasn't Michael Jarsch? A. Q. I don't recall. Did they provide you with an

electronic copy, forward to you an e-mail? A. I think those data are stored
Page 236

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 12 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential on a common drive. I think they are not sent back and forth by e-mail because of the size of the data. I think they are stored on a common drive, which is accessible to me and others. Q. And you can access that and

click on it and see the animation? A. Yes. MR. GALVIN: Counsel, again, we request the production of the model and images and animation files that Dr. Haselbeck saw in late 2006. We request that they be produced in their electronic data format. MS. BEN-AMI: I think everything gets produced electronically, doesn't it? MR. GALVIN: We want not a picture of it, but the program. MS. BEN-AMI: Yesterday you said you had no models even though you had a document with a model in it. Today he has at least two models, production has been going on,
Page 237

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 13 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential first time in a presentation given by either the modeling people or it could have been through Michael Jarsch. He could have presented me with the new structures. Q. Dr. Haselbeck, when you saw

this new version of the Roche 50-3821 depiction, was it in an animated form or was it a piece of paper like this? A. I have seen a piece of paper

like this and I have also seen an animated version, yes. Q. You saw this in late 2006,

correct? A. Late 2006, last quarter of 2006

somewhere. I don't recall exactly when I have seen those data. Q. Do you know the name of the

person in the modeling group that would have shown you this if it wasn't Michael Jarsch? A. Q. I don't recall. Did they provide you with an

electronic copy, forward to you an e-mail? A. I think those data are stored
Page 236

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 14 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential on a common drive. I think they are not sent back and forth by e-mail because of the size of the data. I think they are stored on a common drive, which is accessible to me and others. Q. And you can access that and

click on it and see the animation? A. Yes. MR. GALVIN: Counsel, again, we request the production of the model and images and animation files that Dr. Haselbeck saw in late 2006. We request that they be produced in their electronic data format. MS. BEN-AMI: I think everything gets produced electronically, doesn't it? MR. GALVIN: We want not a picture of it, but the program. MS. BEN-AMI: Yesterday you said you had no models even though you had a document with a model in it. Today he has at least two models, production has been going on,
Page 237

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 15 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Anton Haselbeck, Ph.D. - Confidential I think today is the last day of major production, and then there is some cleanup production over the next week. So we'll look and see if it was produced, why don't you look and see if it was produced, and let's see where we are. MR. GALVIN: I know the native file was not produced. MS. BEN-AMI: Do you know for sure? MR. GALVIN: Yes. MS. BEN-AMI: Do you know whether the copy was produced? MR. GALVIN: That I don't know. MS. BEN-AMI: I would be much more happy with these requests if when I ask for color copies of notebook pages from Amgen, Amgen would give them to me. But nonetheless, we will look. Q. I believe you mentioned

yesterday you thought some models of three-dimensional structures of Roche
Page 238

Amgen v. Roche

Case 1:05-cv-12237-WGY

Document 1370-6

Filed 10/14/2007

Page 16 of 16

USDC - Depo: Haselbeck, Anton RESTRICTED-ACCESS CONFIDENTIAL 3/2/2007 8:44:00 AM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Amgen v. Roche

CERTIFICATE STATE OF NEW YORK : ss. COUNTY OF NEW YORK ) )

I, OTIS DAVIS, a Notary Public within and for the State of New York, do hereby certify: That ANTON HASELBECK, Ph.D., the witness whose deposition is hereinbefore set forth, was duly sworn by me and that such deposition is a true record of the testimony given by the witness. I further certify that I am not related to any of the parties to this action by blood or marriage, and that I am in no way interested in the outcome of this matter. IN WITNESS WHEREOF, I have hereunto set my hand this 6th day of March 2007.

_______________________ OTIS DAVIS
Page 273