Case 3:18-cv-00347-CAB-MDD Document 350-3 Filed 11/06/21 PageID.32045 Page 1 of 11
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`EXHIBIT 3
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`DECLARATION OF TRENT D. TANNER
`IN SUPPORT OF
`NUVASIVE'S OPPOSITION TO
`DEFENDANTS' MOTIONS IN LIMINE NOS. 1-10
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`EXHIBIT 3
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`DECLARATION OF TRENT D. TANNER
`IN SUPPORT OF
`NUVASIVE'S OPPOSITION TO
`DEFENDANTS' MOTIONS IN LIMINE NOS. 1-10
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`Case 3:18-cv-00347-CAB-MDD Document 350-3 Filed 11/06/21 PageID.32046 Page 2 of 11
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`Case 2:08-cv-01307-AJS Document 569 Filed 02/06/12 Page 1 of 97
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF PENNSYLVANIA
`_______________________________
`UNIVERSITY OF PITTSBURGH OF THE
`COMMONWEALTH SYSTEM OF HIGHER
`EDUCATION,
`
` Plaintiff
` vs. Civil Action No. 08-1307
`VARIAN MEDICAL SYSTEMS, INC.,
` Defendant
`_________________________________
`
`PROCEEDINGS (Day 1)
`Transcript of Jury Trial proceedings, commencing on
`Monday, January 23, 2012, United States District Court,
`Pittsburgh, Pennsylvania, before Honorable Arthur J. Schwab,
`United States District Judge.
`
`APPEARANCES:
`For the Plaintiff: WILLIAM QUINN, Esquire
` ARTHUR STROYD, Esquire
` ELIZABETH STROYD WINDSOR, Esquire
`For the Defendant: HENRY SNEATH, Esquire
` WILLIAM ANTHONY, Esquire
` MATTHEW POPPE, Esquire
` Virginia S. Pease
`Reported by:
` Sandra Wenger
` Official Court Reporters
` 619 USPO & Courthouse
` Pittsburgh, Pennsylvania 15219
` 412.208.7385.
`
`Proceedings recorded by mechanical stenography. Transcript
`produced by computer-aided transcription.
`
`EXHIBIT 3
`Page 18
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`I N D E X
`PLAINTIFF WITNESSES DIRECT CROSS REDIRECT RECROSS
`Mark A. Nordenberg
` By Mr. Quinn 57
` By Mr. Anthony 70
`Joel S. Greenberger, M.D.
` By Miss Windsor 75
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`EXHIBIT 3
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`MONDAY MORNING SESSION, JANUARY 23, 2012, 11:25 A.M.
`* * * * *
`(Whereupon, the jury selection was had,
`and the following was had in open Court.)
`THE COURT: All right. The eight of you may stand
`and be sworn.
`THE CLERK: Would each of you stand and please raise
`your right hand?
`
`(Whereupon, the jury was sworn in.)
`THE CLERK: You may be seat.
`THE COURT: Anything on the record before I read the
`preliminary charge, behalf the plaintiff?
`MR. QUINN: No, Your Honor.
`THE COURT: Defendant?
`MR. SNEATH: No, Your Honor.
`THE COURT: One thing. As people go in and out will
`you please close the door? Because, otherwise, we just hear a
`lot of traffic out in the hall. So, I would appreciate if you
`do that as a courtesy to my staff, so she doesn't have to keep
`getting up and down closing doors.
`Ladies and gentlemen of the jury, welcome. It's
`good to see you. Glad we didn't lose the wonderful coat in
`the back row. Cutting edge of fashion.
`So, thank you. We'll spend some time together.
`Usually patent cases take many, many weeks, many, many,
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`EXHIBIT 3
`Page 20
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`Varian Medical Systems, a company that manufactures and sells
`medical equipment, including equipment used to treat cancer
`patients. I'll refer to the parties as Pitt and as Varian.
`Pitt alleges that Varian makes and sells products
`that infringe U.S. patent No. 5,727,554 which the parties
`refer to and I will refer to as patent '554. Imagine me
`having to satisfy all those numbers all the time so, it's
`patent 554.
`Specifically, Pitt claims that Varian's RPM gating
`system, as well as a combination of the RPM gating system and
`Varian's clinac linear trilogic linear accelerators infringe
`the '554 patent.
`In addition, Pitt alleges that the Varian's
`infringement of that patent has been willful. The concept of
`willful infringement is something I will explain to you
`shortly.
`
`This Court has already ruled that the Varian's
`products at issue in this case do, in fact, infringe the '554
`patent. Because Varian's infringement of the patent has
`already been established, that is not an issue for you to
`decide. Instead, the only purpose of this trial and the only
`issue you are to decide is whether Varian's infringement of a
`patent was willful.
`Whether Varian's infringement is willful relates
`to the amount of damage Pitt is entitled to recover in the
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`EXHIBIT 3
`Page 21
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`lawsuit. If you decide that Varian willfully infringed the
`claims of Pitt's patent, then it's my job to decide whether
`or not to award increased damages to Pitt.
`I want to make it very clear. Although I've already
`determined that Varian's products infringe the patent, I could
`be incorrect of that and there will be an appellate Court that
`will review that.
`In addition, Varian has other defenses that will be
`raised and tried in another case. So, you should not in a
`sense hold it against them how I've ruled. That ruling you
`needed to know to understand what you are doing. But you need
`to judge the willfulness trial in this case in this decision
`without regard in a sense to my prior determination. And, as I
`said, Varian has other defenses that they will raise in some
`other context.
`So, you're now going to see a video of a patent
`system. We're showing this to you so you will see the entire
`system and how it works, but you're just going to decide this
`one piece of that. But trying to ask you to decide a piece of
`this process without understanding the whole process, I felt,
`was unfair to you. I have no popcorn for you, but you at
`least have comfortable seats, even though they're not high-
`back. This runs, approximately, twenty minutes, if I'm
`correct? Seventeen. And, so, if you will pay attention,
`we're going to show you this documentary. You will not need
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`EXHIBIT 3
`Page 22
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`any 3-D glasses. You may roll.
`(Whereupon, the video was played.)
`THE COURT: So, the jury has now viewed Federal
`Judicial Center's video entitled, An Introduction to the
`Patent System, which was prepared around October, 2002. It's
`Video Tape No. 4342, Version 2. They were also given the
`related sample patent recommended by the Federal Judicial
`Center, and that document I've marked as Court Exhibit No. 1.
`Ladies and gentlemen, to help you follow the
`evidence I will now give you a summary of the parties'
`positions. As I've stated above, the parties in this case are
`Pitt, the patent holder, and Varian, the alleged infringer.
`The case involves United States Patent 5,727,554,
`obtained by five inventors who transferred those inventions
`to Pitt. For your convenience, as I mentioned earlier, the
`parties and I will refer to this patent as the '554 patent.
`Pitt filed suit in this Court seeking money damages
`from Varian for allegedly infringing the '554 patent by
`making, using, selling, and offering for sale in the United
`States, products that Pitt argues are covered by claims 20,
`21, 22, 25, 26, 36, and 38 of the '554 patent.
`Varian initially argued in this case that its
`products did not infringe the '554 patents. I've determined,
`however, that the products do, in fact, infringe those claims
`of the '554 patent. In particular, I've determined that the
`
`EXHIBIT 3
`Page 23
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`RPM respiratory gating system alone and in combination with
`Varian's clinac trilogy linear accelerator infringe Pitt's
`'554 patents.
`I've also determined that Varian's non-infringement
`arguments are unreasonable for the purpose of this case. You
`must accept as binding my determination that the Varian
`products infringed the '554 patents and that Varian's non-
`infringement arguments are not reasonable.
`Varian argues that claims 2, 20, 21, 22, 25, 26, 36
`and 38 of the patent are invalid. I will instruct you as to
`the ways in which the patent may be invalid. In general,
`the patent is invalid if it is not new, it is obvious in view
`of the state of the art at the relevant time, or the
`description of the patent does not meet certain criteria.
`Whether the claims of the '554 patent are, in fact,
`invalid is not something for you, that you will be asked to
`decide. We will deal with that matter at a later time.
`Instead, your job in this case is to consider the evidence
`presented by the parties and determine independently whether
`Pitt has proven that the Varian patent invalidity defenses are
`unreasonable.
`Again, I will not ask you to determine whether or
`not the claims are, in fact, invalid. Your job will be to
`decide whether or not Pitt has proven that the Varian
`invalidity defenses are unreasonable and, if so, whether or
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`EXHIBIT 3
`Page 24
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`not you find that Varian is a willful infringer. Your
`findings on whether or not Varian is a willful infringer is
`the one I will take into account later in this case.
` I've already determined, as I mentioned, the
`meaning of the claims of the '554 patent. You have been given
`a document referring to those meanings. For a claim term for
`which I have not provided you with a definition, you should
`apply an ordinary meaning. You are to apply my definitions to
`these terms throughout the case. However, my interpretation
`of the language of the claim should not be taken as an
`indication that I have a view regarding Varian's invalidity
`defense.
` You are to decide whether or not Pitt has proven
`that the Varian invalidity defenses are unreasonable and, if
`so, whether Varian willfully infringed the patent. Those
`issues are for you to decide. I have provided, I will provide
`you with more detailed instruction on the meaning of the
`claims before you retire to deliberate your verdict.
` I'm going to talk about the other view of the
`applicable law. Some of this will repeat what you saw on the
`video. In deciding the issues I just discussed, you will be
`asked to consider specific legal standards. I will give you
`an overview of those standards now and review them in more
`detail before the case is submitted to you for your verdict.
` You will be asked to decide whether Pitt has
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`EXHIBIT 3
`Page 25
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`even discuss the case among yourselves until you deliberate at
`the end of the case on your verdict. You should simply not
`talk about this case with anyone.
`And if you pass any of the lawyers or witnesses,
`they shouldn't talk to you. And if they don't say good
`morning, something like that, they're not being rude. They
`just don't want any misunderstanding. Elevator door opens,
`they're in the elevator, you walk in, they walk out, again,
`there is nothing personal. They just shouldn't be in the same
`elevator, which is why you wear badges until you leave the
`building. Once you leave the building, you should take your
`badges off for security purposes.
`Second, do not read or listen to anything touching
`on this case, about this case. If anyone should talk to you,
`I would appreciate it if you would bring to it my attention,
`or to my deputy clerk, or to one of the law clerks.
`Third, do not try to conduct any Internet research,
`or other research, or conduct any investigation. And please
`keep an open mind. Do not form any opinion until all the
`evidence is in. And as I said earlier, it takes a while to
`get the whole case in. So, you need to keep your mind open as
`all the evidence comes in throughout the case.
`If there is any logistical issues, deal
`with my Deputy Clerk, Beth, who does an excellent job. And
`please be here early enough so that we can start. Doesn't
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`EXHIBIT 3
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`look like there's going to be very much bad snow. So, we've
`got a fairly good week in that regard. I realize some of you
`come very long distances.
`I appreciate you being on the jury. I don't know
`whether you were planning to get selected or not as part of
`your master plan for the week, but it turned out that way and
`I'm pleased to have you here. I appreciate your good attitude
`and that you smile at least at half of my jokes. I appreciate
`that more than most do.
`So, we're making progress. Be safe and we'll see
`you tomorrow. Thank you.
`THE CLERK: All rise.
`(Whereupon, Court was adjourned on the
`twenty-third day of January, 2012.)
`
` - - -
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`C E R T I F I C A T E
` - - -
`I certify by my original signature herein
`that the foregoing is a correct transcript from the record of
`proceedings in the above-entitled matter.
`
` s/Virginia Pease
` s/Sandra Wenger
` Official Court Reporter
`DATED: January 23, 2012
`*****NOT CERTIFIED WITHOUT ORIGINAL SIGNATURE*****
`
`EXHIBIT 3
`Page 27
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