By Eric Schweibenz
On November 22, 2013, ALJ Theodore R. Essex issued the public version of Order No. 32 (dated November 13, 2013) in Certain Omega-3 Extracts from Marine or Aquatic Biomass and Products Containing the Same (Inv. No. 337-TA-877).

According to the Order, Respondents Enzymotec Ltd.; Enzymotec USA; Olympic Seafood AS; Olympic Biotec Ltd.; Avoca, Inc.; Rimfrost USA, LLC; Bioriginal Food & Science Corp.; Aker BioMarine AS; Aker BioMarine Antarctic AS; and Aker BioMarine Antarctic USA, Inc. (collectively, “Respondents”) filed a motion to compel Complainants Neptune Technologies & Bioressources Inc. and Ascati Pharma Inc. (collectively “Neptune”) to produce certain documents and persons for depositions.  Specifically, Respondents sought depositions of Mr. St-Jean and Mr. Tremblay.  Followings the 16-day government shutdown, the parties provided the ALJ with a status update that withdrew Respondents request to compel the production of documents. 

Respondents sought to compel the deposition of Mr. St-Jean because he performed work for Neptune that Neptune used to distinguish the patent-at-issue from prior art during reexamination at the USPTO.  Respondents argued that Neptune’s corporate witness on this topic gave inadequate testimony.  More particularly, Respondents asserted that Neptune’s corporate witness stated that only Mr. St-Jean could answer specific questions about the testing.  As to Mr. Tremblay, Respondents argued that Neptune’s corporate witness gave “generic and scripted” answers regarding Neptune’s manufacturing process.  Furthermore, Respondents asserted that several of Neptune’s witnesses stated that Mr. Tremblay was the person with the most knowledge about Neptune’s manufacturing process.

In opposition, Neptune argued that the testimony of Neptune’s corporate witnesses was adequate and any further testimony would be cumulative and unnecessary.  Regarding Mr. St-Jean, Neptune argued that Neptune’s corporate witness directed the testing-at-issue by providing Mr. St-Jean with explicit instructions.  As to Mr. Tremblay, Neptune asserted that his testimony would be cumulative of that provided by Neptune’s corporate witness because the corporate witness gave “full responses providing great detail about each step of the process.”

ALJ Essex granted Respondents’ Motion to Compel as to Mr. St-Jean.  ALJ Essex determined that Neptune’s corporate witness gave inadequate testimony on the issue of the testing used during reexamination.  ALJ Essex noted that Neptune’s corporate witness stated, “I think we need to get the information from Mr. St-Jean one way or another.”  As to Mr. Tremblay, ALJ Essex denied Respondents’ Motion to Compel because it was “not so facially inadequate to warrant compelling Mr. Tremblay’s deposition.”  Accordingly, ALJ Essex granted-in-part and denied-in-part Respondents’ Motion to Compel.