Case 3:18-cv-00347-CAB-MDD Document 395-3 Filed 03/10/22 PageID.34801 Page 1 of 7
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`EXHIBIT 3 TO NUVASIVE, INC.’S
`NOTICE OF LODGMENT OF WITNESS
`DEPOSITION DESIGNATION CLIP REPORTS
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`Case 3:18-cv-00347-CAB-MDD Document 395-3 Filed 03/10/22 PageID.34802 Page 2 of 7
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`NuVasive v. Alphatec - Video
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`Robinson, Scott (Vol. 01) - 10/29/2019
`1 CLIP (RUNNING 00:13:10.424)
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`SR-ALL
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`30 SEGMENTS (RUNNING 00:13:10.424)
`SR-ALL FINAL
`1. PAGE 7:19 TO 7:24 (RUNNING 00:00:11.066)
` 19 Q. Good morning, Mr. Robinson.
` 20 A. Hello.
` 21 Q. Would you please state and spell your
` 22 name for the record.
` 23 A. Scott Robinson. S-c-o-t-t,
` 24 R-o-b-i-n-s-o-n.
`2. PAGE 8:03 TO 8:06 (RUNNING 00:00:12.534)
` 03 Q. Who is your current employer?
` 04 A. Alphatec Spine.
` 05 Q. How long have you been employed there?
` 06 A. Since March of 2010; going on 10 years.
`3. PAGE 26:08 TO 26:17 (RUNNING 00:00:22.423)
` 08 Topic 2 is -- I'm just going to read
` 09 it -- "When and under what circumstances Alphatec
` 10 first became aware of each of the patents-in-suit
` 11 and what actions Alphatec took upon becoming aware
` 12 of the patents-in-suit."
` 13 Did I read that correctly?
` 14 A. Yes.
` 15 Q. Do you understand that you have been
` 16 designated by Alphatec to provide Alphatec's
` 17 knowledge with respect to that topic?
`4. PAGE 26:21 TO 27:08 (RUNNING 00:00:54.943)
` 21 THE WITNESS: Yes.
` 22 BY MS. DEVINE:
` 23 Q. What can you tell me about Topic 2?
` 24 A. There were -- as part of our development
` 25 procedure, we requested from our legal department
` 00027:01 an evaluation of the IP landscape. I know that
` 02 there were -- there were several patents, and I
` 03 believe they are listed in a document here
` 04 somewhere, that were in possession of our legal
` 05 department.
` 06 As far as what actions took place by
` 07 Alphatec, that would have been within our legal
` 08 department.
`5. PAGE 27:09 TO 27:12 (RUNNING 00:00:09.083)
` 09 Q. When you say as part of your development
` 10 procedure you requested an evaluation of the IP
` 11 landscape, at what point during the development
` 12 procedure was the request made?
`6. PAGE 27:20 TO 27:20 (RUNNING 00:00:02.180)
` 20 Q. My only question is what date?
`7. PAGE 27:23 TO 28:07 (RUNNING 00:00:36.212)
` 23 THE WITNESS: It was early 2013. The --
` 24 and it is -- I believe your question was at what
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`NuVasive v. Alphatec - Video
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` 25 part during the development?
` 00028:01 BY MS. DEVINE:
` 02 Q. Yes.
` 03 A. It is early in the development. So,
` 04 basically, when concepts are first established,
` 05 once a product has enough of a form to have
` 06 features that can be evaluated, we initiate a
` 07 conversation to evaluate existing IP.
`8. PAGE 33:01 TO 33:04 (RUNNING 00:00:09.332)
` 00033:01 Q. So you said that request to legal to
` 02 evaluate the IP landscape was made in early 2013;
` 03 is that right?
` 04 A. To the best of my knowledge.
`9. PAGE 58:11 TO 58:15 (RUNNING 00:00:15.159)
` 11 Q. So can you tell me, during the
` 12 development of the Battalion products, which job
` 13 title you held?
` 14 A. I believe I was a senior design engineer
` 15 and then a project engineer.
`10. PAGE 218:09 TO 218:10 (RUNNING 00:00:08.291)
` 09 So I'm asking did Alphatec actually adopt
` 10 features of XLIF in developing Battalion?
`11. PAGE 218:12 TO 218:24 (RUNNING 00:00:47.583)
` 12 THE WITNESS: I think, as you've stated,
` 13 I mean, they share some similar-looking features.
` 14 You know, a shim. Now you've mentioned a, you
` 15 know, a generally three-blade -- three primary
` 16 blades with an optional fourth blade. There are
` 17 probably other similarities that I don't want to
` 18 guess at what else be the same. I haven't -- I'm
` 19 not familiar enough with the Nuvasive system to be
` 20 able to answer.
` 21 BY MS. DEVINE:
` 22 Q. Did Alphatec adopt those directly from
` 23 XLIF, or is it just happenstance that there are
` 24 similarities?
`12. PAGE 219:01 TO 219:13 (RUNNING 00:00:47.594)
` 00219:01 THE WITNESS: I think kind of as
` 02 previously stated, I mean, I -- we ended up going
` 03 with a three-blade design because that's what we
` 04 got the most feedback on from the -- you know, what
` 05 at the time was an undeveloped team. But later on
` 06 we had a surgeon team that had the most to say
` 07 about a three-blade retractor.
` 08 BY MS. DEVINE:
` 09 Q. Did the original idea of trying a
` 10 three-bladed retractor come from Nuvasive's XLIF?
` 11 A. I wouldn't be able to say where its
` 12 origins were. There were multiple three-blade
` 13 retractor systems on the market at that time.
`13. PAGE 228:07 TO 228:12 (RUNNING 00:00:22.229)
` 07 Q. The court reporter has handed you a
` 08 document marked Robinson Exhibit 12, which is Bates
` 09 numbered ATEC LLIF 000137018 to 137039. And,
` 10 Mr. Robinson, take your time, and my question is
` 11 just going to be:
` 12 Do you recognize this documents?
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`14. PAGE 228:13 TO 229:02 (RUNNING 00:01:01.658)
` 13 A. I believe I do recognize this document,
` 14 yes.
` 15 Q. Okay. What is it?
` 16 A. It's a business case presentation that
` 17 was very likely given to our leadership team. The
` 18 date on the cover would tell me that we had a
` 19 business project management office that would have
` 20 been making decisions on what products to -- what
` 21 products were in product development they were
` 22 going to continue funding and which ones they were
` 23 not going to continue funding. So either Bryan or
` 24 Jon would have given this presentation to a group
` 25 of mostly executive level Alphatec employees to
` 00229:01 make a case to continue working on our lateral
` 02 program.
`15. PAGE 229:07 TO 229:22 (RUNNING 00:01:00.884)
` 07 Q. If you turn to Page 137020, which is
` 08 Page 3 of the presentation, do you see the two
` 09 graphics of the patient positioning on that page?
` 10 A. Yes, I do.
` 11 Q. Do you know where those are from?
` 12 A. I don't. I mean, I see images like that
` 13 all the time. Just fairly generic patient
` 14 positioning images.
` 15 Q. Would it surprise you to know that come
` 16 from Nuvasive literature?
` 17 A. I don't know if surprise is the word. I
` 18 guess it depends on the scope of the Nuvasive
` 19 literature.
` 20 Q. What do you mean?
` 21 A. I think by this point Nuvasive had
` 22 published a book about lateral surgery.
`16. PAGE 229:23 TO 229:24 (RUNNING 00:00:05.703)
` 23 Q. Can you turn to the seventh page of the
` 24 PowerPoint, which is Bates labeled 137024. Do you
`17. PAGE 229:25 TO 230:19 (RUNNING 00:00:39.827)
` 25 see that there appears to be a slide on top of a
` 00230:01 slide?
` 02 A. I do.
` 03 Q. Do you know why that is?
` 04 A. I don't.
` 05 Q. Do you see that the slide on top the
` 06 slide states: "Massive OUS potential"?
` 07 A. Yes.
` 08 Q. And underneath that, there's some header
` 09 that says, "Develop and expand across Latin
` 10 America."
` 11 Do you see that?
` 12 A. Yes, I do.
` 13 Q. And three bullet points down it says,
` 14 "Currently in nine countries."
` 15 Do you see that?
` 16 A. Yes.
` 17 Q. Was Alphatec currently in nine countries
` 18 with the lateral procedure as of the date of this
` 19 presentation, June 2014?
`18. PAGE 230:21 TO 231:13 (RUNNING 00:00:38.711)
` 21 THE WITNESS: Not to my knowledge.
` 22 BY MS. DEVINE:
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` 23 Q. So do you know what that references?
` 24 A. I -- what "currently in nine
` 25 countries" --
` 00231:01 Q. Mm-hmm.
` 02 A. -- references?
` 03 Q. Mm-hmm.
` 04 A. No, I don't know any specifics about
` 05 that, no.
` 06 Q. Do you think it could be Nuvasive?
` 07 A. I believe that's a possibility.
` 08 Q. Are you aware that Nuvasive tends to
` 09 market with purple?
` 10 A. I am aware, yes.
` 11 Q. And this slide within a slide here is
` 12 colored with Nuvasive purple, correct?
` 13 A. Close enough, yes.
`19. PAGE 231:14 TO 231:15 (RUNNING 00:00:07.285)
` 14 Q. Does Alphatec regularly present to
` 15 management with information about Nuvasive?
`20. PAGE 231:17 TO 231:21 (RUNNING 00:00:19.576)
` 17 THE WITNESS: I'm not sure where that
` 18 slide came from. I would say that generally any
` 19 company has some idea of what the competition is up
` 20 to just as a case to be aware of the landscape in
` 21 which we're doing business.
`21. PAGE 232:08 TO 233:04 (RUNNING 00:00:38.820)
` 08 Q. So Page 10, which is Bates labeled
` 09 137027. Are you on that page?
` 10 A. Yes.
` 11 Q. And it states: "What is the project
` 12 scope?"
` 13 Do you see that?
` 14 A. Yes.
` 15 Q. And it states: "Retractor system."
` 16 Do you see that?
` 17 A. Yes.
` 18 Q. And it states: "Access system
` 19 specifically designed to create a safe reproducible
` 20 surgical pathway."
` 21 Do you see that?
` 22 A. I do, yes.
` 23 Q. Are you aware that Nuvasive markets its
` 24 XLIF system as a safe reproducible system?
` 25 A. Only generally, no specifics.
` 00233:01 Q. What retractor is pictured here?
` 02 A. I believe that's a MAS retractor.
` 03 Q. Which is the Nuvasive retractor, correct?
` 04 A. It's the Nuvasive retractor.
`22. PAGE 233:05 TO 233:11 (RUNNING 00:00:33.877)
` 05 Q. So this team of Bryan Larsen and Jon
` 06 Costabile was presenting to management the project
` 07 scope of LLIF with a picture of the Nuvasive MAS
` 08 retractor, correct?
` 09 A. Without knowing to what end they wanted
` 10 an image on the slide, they were showing an image
` 11 of a MAS retractor during a management update.
`23. PAGE 233:21 TO 234:02 (RUNNING 00:00:17.417)
` 21 Q. But this particular slide is about a
` 22 retractor system, correct?
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` 23 A. This slide has a question stated: "What
` 24 is project scope?" And it has a picture of a
` 25 retractor, yes.
` 00234:01 Q. And it's the Nuvasive retractor, correct?
` 02 A. It's the Nuvasive retractor.
`24. PAGE 234:03 TO 234:16 (RUNNING 00:00:29.657)
` 03 Q. And then next slide, Slide 11, continues
` 04 "What is project scope?"
` 05 Do you see that?
` 06 A. I do.
` 07 Q. And it says, "Implant system," correct?
` 08 A. It does.
` 09 Q. You know what implants are pictured
` 10 there?
` 11 A. Those look Nuvasive implants.
` 12 Q. Correct. So in presenting to management
` 13 on the LLIF project, Alphatec employees pictured
` 14 the Nuvasive retractor as the scope of the
` 15 retractor system, and the Nuvasive implants as the
` 16 scope of the implant system, correct?
`25. PAGE 234:19 TO 234:20 (RUNNING 00:00:03.958)
` 19 THE WITNESS: I think they're just images
` 20 to support a conversation.
`26. PAGE 238:06 TO 238:08 (RUNNING 00:00:10.502)
` 06 Q. Can you think of any reason why this
` 07 Alphatec would define the project scope of the LLIF
` 08 retractor system as Nuvasive MAS retractor?
`27. PAGE 238:11 TO 238:23 (RUNNING 00:00:56.235)
` 11 THE WITNESS: I don't know -- I don't
` 12 know who this presentation specifically was given
` 13 to or what the goal was in mind when they put this
` 14 image in this presentation under "What is project
` 15 scope?" I know that the scope of the lateral
` 16 system that we developed was considerably more than
` 17 what is listed here as a retractor system, an
` 18 implant system, and a training program under these
` 19 titles of "What is scope?" And whatever commentary
` 20 was given verbally when this presentation was
` 21 presented, I have no way to speak to, I wasn't in
` 22 the room. It wasn't that -- our best effort to
` 23 replicate what image is here was the conversation.
`28. PAGE 238:25 TO 239:05 (RUNNING 00:00:28.055)
` 25 Q. Is this shocking to you?
` 00239:01 A. Shocking? Shocking, no. I would say
` 02 that some of the executives in the room probably
` 03 didn't know what a lateral retractor was, and a
` 04 Google Image search in 2014 would have put a
` 05 picture of some retractor front and center, so...
`29. PAGE 239:06 TO 239:15 (RUNNING 00:00:35.046)
` 06 Q. It's awfully coincidental that this
` 07 presentation has a lot of Nuvasive information in
` 08 it, though, right?
` 09 A. That's fair. There's information about
` 10 Nuvasive. There's information about -- about
` 11 several other companies. I mean, there were former
` 12 Nuvasive employees at Alphatec at the time. There
` 13 are several different -- there are several
` 14 different plans highlighted, several different
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` 15 competitors discussed. And listed here, Nuvasive
`30. PAGE 239:16 TO 239:16 (RUNNING 00:00:04.584)
` 16 was the market leader, so...
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