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`EXHIBIT 3
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`EXHIBIT 3
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`Case 3:18-cv-00347-CAB-MDD Document 373-5 Filed 02/09/22 PageID.34583 Page 2 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`BEFORE HONORABLE CATHY ANN BENCIVENGO, JUDGE PRESIDING
`
`NUVASIVE, INC., a Delaware )
`Corporation, )
` )
` Plaintiff, ) CASE NO. 18CV0347-CAB-MDD
` )
` vs. ) SAN DIEGO, CALIFORNIA
` )
`ALPHATEC HOLDINGS, INC., a ) FRIDAY, NOVEMBER 12, 2021
`Delaware Corporation, and )
`ALPHATEC SPINE, INC., a )
`California corporation, )
` )
` Defendants. )
`
`
`
`
`COURT STENOGRAPHER'S TRANSCRIPT OF PROCEEDINGS
`MOTIONS IN LIMINE/PRETRIAL CONFERENCE
`PAGES 1-87
`
`
`
`P r o c e e d i n g s r e p o r t e d b y s t e n o g r a p h y , t r a n s c r i p t p r o d u c e d b y C A T
`s o f t w a r e
`____________________________________________________________
`M a u r a l e e R a m i r e z , R P R , C S R N o . 1 1 6 7 4
` F e d e r a l O f f i c i a l C o u r t S t e n o g r a p h e r
`o r d e r t r a n s c r i p t @ g m a i l . c o m
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`APPEARANCES:
`For the Plaintiff:
` Wilson Sonsini Goodrich and Rosati
` Erik J. Carlson
` 633 West Fifth Street, Suite 1550
` Los Angeles, CA 90071
` Wilson Sonsini Goodrich and Rosati
` Natalie Jordana Morgan.
` 12235 El Camino Real, Suite 200
` San Diego, CA 29130.
` Wilson Sonsini Goodrich and Rosati
` Morris Fodeman
` 1301 Avenue of the Americas, 40th Floor
` Newy York, NY 10019.
`
`For The Defendants:
` Winston & Strawn LLP
` Nimalka M. Wickramasekera
` 333 S. Grand Avenue
` Los Angeles, California 90071
` Winston & Strawn LLP
` Brian J. Nisbet.
` Saranya Raghaven.
` George C. Lombardi (telephonic appearance)
` 35 West Wacker Drive
` Chicago, Illinois 60601
`
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`to happen. And you can make objections as they examine their
`witnesses on direct about what they knew and didn't know and
`what they did and hopefully everyone can kind of keep this
`corralled into the right kind of questions.
`But we need to move on. All right. I don't even
`understand number four, irrelevant and unproven allegations of
`misconduct.
`ATTORNEY FODEMAN: I think that's the one I think I
`screwed us up on, Judge, if I may? That was the one I jumped
`in on Mr. Nisbet and I said I think we're copasetic --
`THE COURT: Where you saying that they can't ask Dr.
`Youssef how much he gets paid? Sure they can.
`ATTORNEY FODEMAN: That's number 4.
`THE COURT: Yes.
`ATTORNEY FODEMAN: And we're all good there, I think.
`THE COURT: So that one is moot.
`ATTORNEY FODEMAN: We never did number three.
`THE COURT: No.
`ATTORNEY MORGAN: And number three, I think, is
`narrowed somewhat as well by the papers. Like Your Honor
`mentioned, they agree they're not going to bring up other
`litigation between the parties, so that's good.
`Where there still seems to be a dispute though is they
`elicited at depositions, and we provided the testimony so this
`is not nebulous. We provided the deposition testimony that we
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`are worried they're going to try to bring out at trial where
`they're asserting that NuVasive had a general animosity towards
`Alphatec and that's the reason that they sued.
`And we have a number of cases that we've provided to
`Your Honor that why a patentee sues for infringement is just
`not relevant at all, period. And the case that they cited in
`response isn't a patent case, just not applicable. So we just
`think that this sort of sideshow should not be admissible at
`all, and we just want to keep it out because once they've rung
`that bell, its hard to unring it.
`THE COURT: There's a line certainly with regard to
`infringement, it's a strict liability statute whether you knew
`or didn't know if you're infringing, you're infringing. So
`your motivations and bias are irrelevant. However, you can
`cross that line when it comes to your allegations of
`willfulness, and I think that if there's bias with regard to
`how it's postured that their behavior was willful because these
`people used to work for NuVasive and that's going to imply some
`kind of intentional theft, I think they're entitled to defend
`on that.
`
`ATTORNEY MORGAN: But, Your Honor, willfulness only
`looks at their subjective belief. That's what the question is.
`THE COURT: I'm saying if you open the door --
`ATTORNEY MORGAN: Understood.
`THE COURT: -- and I hear comments, argument, or
`
`
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`testimony that suggest these people left and deliberately went
`to steal the stuff because they don't like you because they
`weren't being treated fairly or whatever, they can respond to
`that.
`
`ATTORNEY MORGAN: Understood. If we open the door.
`Point taken, Your Honor.
`ATTORNEY NISBET: To clarify, Your Honor, the evidence
`that they cited in their report talking about crushing Alphatec
`and locking down surgeons, that's all still relevant to general
`credibility and bias of the witness. We can cross-examine the
`witness on whether or not what -- to attack their credibility
`on what they're saying as to general animosity, crushing
`Alphatec and locking down surgeons, correct?
`THE COURT: Usually some of stuff comes in the other
`way, you know, you've got some smoking gun thing of where the
`defendant goes yeah, we're going to just steal the stuff and
`run with it as opposed to the patent holder saying and we're
`going to drive them into the ground. Again, patent
`infringement is a strict liability statute. Whether their
`intention was to drive you out of business or not is really not
`relevant as to whether they prove you infringe.
`ATTORNEY NISBET: Right. We're not offering it for
`that. We're offering it -- we would be relying on that
`information to attack the credibility of their witnesses and
`also it's relevant to harm, right? They have made this -- in
`
`
`
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`the alleged damages, they've made this claim that but for our
`alleged infringement, they would have lost a bunch of sales the
`record is replete with information where they believe that harm
`is unrelated to our infringement. We stated that in our
`briefing, right? And so that is why we want to use the
`information that they have cited in their brief.
`THE COURT: I understand. And it's been an issue
`since the preliminary injunction in this case whether the
`people who are using or leaning toward trying and/or using
`Alphatec's systems chose to do so because they didn't like
`NuVasive's approach, or there was a falling out between them
`and the company, and it wasn't a choice that was driven in any
`way by you necessarily stealing them or just an alternative.
`So there is room, I suppose, to get in there when you
`get into these arguments about these redirected surgeons and
`why it's -- because at least for their lost profit claims, it's
`but for, and if the but for isn't really because you were
`selling a product but it's because they had a disintegrating
`relationship with NuVasive. And, again, this is just me kind
`of, I wouldn't say speculating but opining, you know, just
`generally if that's the kind of testimony, then, yes.
`But, again, you guys be quick on the trigger for an
`objection because it has to be related to something about that
`sort of issue in the case, why the relationships deteriorated.
`Because your doctors are all over the place with oh, these
`
`
`
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`people were wedded to you, they loved you, and then they
`suddenly went to Alphatec. And I heard from Alphatec from day
`one well, they may be weren't as wedded to you as you like to
`think they were. And if there's reasons for that that shows
`that those relationships were not solid, that there were issues
`with salespeople, whatever, they can go there. And if some of
`that also involves, you know, emails where they say we're going
`to cream these guys for this, then I suppose we'll have to deal
`with that when the time comes up.
`Okay. Are we down to pivot?
`ATTORNEY DEVINE: I would love to be. I'll be very
`brief. This motion came about because they put on their
`exhibit list some documents with definitions of pivot. They've
`designated some testimony from a former NuVasive employee who
`is an inventor where they tried to get him to define pivot,
`which gave us concern that we still have problems around pivot.
`In reading their opposition, I understand that they're not
`going to continue to offer their prior construction that was
`rejected which said that there had to be a single pivot point
`for both blades and movement in only one plane. And so if
`we're on the same page about that, which it sounds like we are
`and we're going to universally apply Your Honor's construction,
`then I think we're fine.
`THE COURT: I hope you're going to apply my
`construction.
`
`
`
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`ATTORNEY WICKRAMASEKERA: Your Honor, I have no
`intention of applying anything but your construction. One
`point though, the inventor's testimony, their corporate
`designee, his testimony on this issue is admissible. They're
`admissions from NuVasive. They're admissions related to topics
`they put him up for. I'm not really sure why that would not be
`admissible, their inventor explaining what he thinks his
`invention was with respect to these patents. I don't see how
`that's not admissible.
`THE COURT: Well, the definition of pivot, I don't
`have the claim construction issue in front of me is, what it
`is. Whether or not your product pivots in accordance with the
`construction and if you have an opinion or a statement from
`their 30(b)(6) witness on that, then, yes, you can use that.
`ATTORNEY WICKRAMASEKERA: That's what we're intending
`to do. Other than that we're going to be applying Your Honor's
`construction which is nearly verbatim to what Dr. Sachs put in
`his report, so I don't know what the issue is.
`THE COURT: Okay. Your equitable estoppel defense.
`Go ahead.
`ATTORNEY MORGAN: So I hope to be extremely brief on
`this. They agree that this issue is not going to the jury.
`Their factual basis is that supposedly Alphatec showed its
`lateral system to NuVasive at this 2016 meeting and when
`NuVasive didn't immediately sue, they thought okay, we're fine
`
`
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`to continue to move forward, and we don't infringe.
`Putting aside whether or not that is a sufficient
`equitable estoppel case, and we don't think it is, that's not
`relevant to any of the issues in this case. Now they say it is
`relevant to willful infringement, but they have to have
`competent evidence to support that. If you look at what
`they've submitted to try to make these assertions, neither of
`the exhibits that they cite in their opposition identify either
`the squadron retractor, which is what is accused, by name, and
`they don't identify any features that are accused of infringing
`such that you could associate it with what's accused of
`infringement. It also doesn't picture a lateral system.
`They put up a corporate witness on this very topic,
`and that corporate witness said that he wasn't at the 2016
`meeting and he didn't talk to anyone that was.
`All of this information came from looking at a
`document that didn't explain itself and talking to counsel.
`And when we asked, What information did you obtain from
`counsel, they shut us down and said, Privileged, you can't talk
`about it. So they have no competent evidence to offer and they
`shouldn't be able to run this, what is an equitable theory in
`front of the jury when they agree that this is an issue, if it
`even amounts to that, that should be determined by Your Honor.
`And, in fact, just one more thing. The only evidence
`that has currently been taken in the case that relates to that
`
`
`
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`2016 meeting actually was from Pat Miles who testified that
`they had parts of an offering, but they didn't have what I
`would deem a full authoring. What else did they need? They
`needed a lot. So they just don't have evidence to run this.
`THE COURT: Okeydokey. Oh, more paper.
`ATTORNEY WICKRAMASEKERA: There's just a couple of
`things, Your Honor. This 2016 meeting was alleged in
`NuVasive's complaint. It debuted in sentence two of NuVasive's
`motion in limine. NuVasive specifically put Alphatec's
`financial condition in 2016 in play and suggests that Alphatec
`because it was in dire financial straights in 2016, which is
`true, that it then copied XLIF. The information though -- the
`evidence underlying their allegations don't demonstrate that.
`And, you know, again, I would like to draw Your
`Honor's attention to -- and I'm sorry about my voice. I am
`losing my voice and I'm slowly getting it back, so I don't know
`if I'm loud enough -- slide 34 and 35, those are the documents
`that were provided to NuVasive. I think I heard counsel say
`that the retractor wasn't included. It's there.
`Listed on slide 34, you can see the lateral retractor
`is there. It includes the features of the lateral retractor.
`Again on page 35, the lateral retractor is there. It includes
`points that Alphatec is now raising in this case as
`non-infringement defenses. Those points and features regarding
`the retractor are there. NuVasive saw the retractor.
`
`
`
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`This meeting, whether we raise our equitable estoppel
`to the jury is not the issue here because we have already said
`we aren't going to, and we don't know why they would think we
`are going to. The evidence is relevance. The evidence is
`relevance. Relevance to rebut their allegation that we tried
`to shop ourselves to them and that we desperately needed to get
`out of this financial state by copying their product.
`This directly rebuts that. Because if we were copying
`their product why on earth would we have gone in and shown it
`to them in 2016? And to prevent Alphatec from providing this
`evidence, which they don't suggest any reason why this is
`prejudicial to them, other than it directly rebuts their
`allegations. It's relevant.
`They've alleged these facts in their own complaint.
`They have pointed Your Honor to them repeatedly throughout this
`litigation, and they're in the first paragraph of their motion
`in limine. There is nothing prejudicial in here.
`THE COURT: Is there a dispute that this meeting took
`place and that these slides were shown at the meeting?
`ATTORNEY WICKRAMASEKERA: We used these slides with
`their former chairman and CEO. We deposed him on them. In
`fact, he has internal documents that they've produced after
`that where he says he considered purchasing Alphatec, again, a
`second time based on the products. That's in the deposition
`testimony. How would he know about the products if he didn't
`
`
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`see them?
`THE COURT: Okay. In terms of secondary
`considerations of non-obviousness, are you going to argue they
`copied your products?
`ATTORNEY MORGAN: Yes, Your Honor. Because they are a
`
`copy.
`
`THE COURT: Well, then they get to put on a slide that
`they says went and showed them to you because it is
`counterintuitive that somebody who is copying a product would
`go and meet with the people they're ripping off and say here is
`what we're going cell.
`ATTORNEY MORGAN: Yes, Your Honor. Just one point.
`There is nothing on these slides that says this is the squadron
`retractor, and they have no witness that says that it is.
`THE COURT: You can examine them on that, but I'm not
`going to preclude them from using these slides, at least with
`regard to contradictory evidence that they're somehow backdoor
`copiers. Because it is counterintuitive to say oh, I'm going
`to go steal your stuff and go meet with the company and say
`here's the stuff we're going to sell.
`ATTORNEY MORGAN: I understand, Your Honor. The
`dispute lies thought that these are not those products. That's
`where the dispute lies so.
`THE COURT: All right. So to that extent the motion
`is denied.
`
`
`
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`filed. So just file a notice of withdrawal of the exhibit,
`whatever number it was, and substitution for the new one.
`ATTORNEY CARLSON: Thank you, Your Honor. Last point,
`so the local rules have a default deadline for briefs on
`disputed issues of law seven days before the trial, and our
`read is that that's motions in limine, so we're not doing any
`more briefs.
`THE COURT: No, we're done. I know I'll get some, but
`I don't want any more. I don't do contentions of fact and law.
`You're done. They did their 282 disclosures of prior art which
`is nice and, you know, I think we're good. I think we have
`enough filing in this case.
`ATTORNEY CARLSON: Thank you, Your Honor.
`THE COURT: Okay. Excellent. Well, this will be fun.
`(Court in at 4:06 p.m.)
`CERTIFICATE OF OFFICIAL COURT STENOGRAPHER
`I, Mauralee Ramirez, federal official court stenographer, in
`and for the United States District Court for the Southern
`District of California, do hereby certify that pursuant to
`Section 753, Title 28, United States Code that to the best of
`my ability, the foregoing is a true and correct transcript of
`the stenographically reported proceedings held in the
`above-entitled matter and that the transcript page format is in
`conformance with the regulations of the Judicial Conference of
`the United States.
` Dated this 18th day of November 2021
`
`S/ Mauralee Ramirez________________
`Mauralee Ramirez, CSR No. 11674, RPR
`Federal Official Court Stenographer
`
`
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