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` UNITED STATES DISTRICT COURT
` SOUTHERN DISTRICT OF CALIFORNIA
`WARSAW ORTHOPEDIC, INC.,
` Plaintiff,
` vs. Case No.
` 3:08-CV-1512 MMA (AJB)
`NUVASIVE, INC.,
` Defendant.
` /
`NUVASIVE, INC.,
` Counterclaimant,
` vs.
`MEDTRONIC SOFAMOR DANEK USA,
`INC.; WARSAW ORTHOPEDIC, INC.;
`MEDTRONIC PUERTO RICO OPERATIONS
`CO.; and MEDTRONIC SOFAMOR DANEK
`DEGGENDORF, GmbH,
` Counterclaim Defendants.
` /
`AND RELATED COUNTERCLAIM.
` /
` CONFIDENTIAL, PATENT PROSECUTION SENSITIVE
` Deposition of
` GARY MICHELSON, M.D.
` November 19, 2010
`
`Reported by LAURY WASOFF, CSR NO. 10995, RPR
`
` SHARI MOSS & ASSOCIATES
` Certified Shorthand Reporters
` 1838 El Camino Real, Suite 108
` Burlingame, California 94010
`
`
`Page 1
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`WARSAW2023
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00206
`
`
`
`PATENT PROSECUTION SENSITIVE
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`Page 6
` FRIDAY, NOVEMBER 19, 2010; LOS ANGELES, CALIFORNIA
` 8:46 A.M.
` -oOo-
`
` THE VIDEOGRAPHER: Good morning. We are on the record.
`The time is currently 8:46 A.M. This marks the beginning
`of tape No. 1 in Volume I of the deposition testimony of
`Gary Michelson, M.D. in the matter of Warsaw Orthopedic,
`Inc. v. Nuvasive pending before the United States District
`Court, Southern California District, Case No. 3:08-CV-1512.
` Today's date is November 19 of 2010, and the
`videographer is Michael Figari contracted by Eureka Street
`Legal Video, telephone (415) 215-2041.
` This deposition is being held at the LAX Marriott
`in Los Angeles, California and was noticed by Fish &
`Richardson for the defense and cross-complainant.
` Counsel, would you please introduce yourselves and
`state your appearances for the record.
` MR. SCHERKENBACH: Frank Scherkenbach and Neil Warren
`of Fish & Richardson for the defendant and counter-claimant
`Nuvasive.
` MR. DAUCHOT: Luke Dauchot here on behalf of the
`witness, the plaintiff, and the counter-defendants.
` THE VIDEOGRAPHER: Your reporter is Laury Wasoff of
`Shari Moss & Associates. Would she swear in the witness.
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`PATENT PROSECUTION SENSITIVE
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` GARY MICHELSON,M.D.,
` the witness herein, having been first duly
` sworn, deposed and testified as follows:
`
` EXAMINATION
`BY MR. SCHERKENBACH:
` Q Good morning, Doctor.
` A Good morning.
` Q You have obviously had your deposition taken a
`number of times before. Correct?
` A Yes.
` Q So you're familiar generally with the process of
`the deposition and how it works. Is that fair?
` A Yes.
` Q You understand that if you don't understand a
`question I ask, you can ask me to rephrase it and I'd be
`happy to do that. Okay?
` A Yes.
` Q And at the same time it's important you let me
`finish my question before you begin answering so that the
`court reporter can get down both my question and your
`answer. You understand that?
` A Yes.
` Q As usual we will probably go in about hour-long
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`PATENT PROSECUTION SENSITIVE
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`Page 64
`describes in some level of detail what was shown. Just at
`a high level again, if you were explaining it to a
`layperson, what is it you showed Danek at that meeting or
`told Danek at that meeting? What was the technology
`involved?
` A Well, I mean, some things I can remember quite
`clearly. And I guess I'll need to ask you a question. Do
`you want to turn this into a memory test or do you want my
`best testimony? Because if you want me to remember, I can
`only remember what I can remember.
` Q Let me ask a more specific question. The
`August/September '93 meeting, did you show them implants?
` A Yes. I showed them -- that I clearly remember.
`I showed them the threaded interbody spinal fusion
`implants. I actually showed them the instruments and the
`surgical procedure for doing it both anteriorly and
`posteriorly.
` Q But not laterally?
` A Not laterally.
` Q And is that because you had not yet conceived at
`that time of doing the procedure laterally? And I mean
`direct laterally.
` A That would be consistent with my best
`recollection.
` Q Dr. Michelson, I'm going to hand you what I'm
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`PATENT PROSECUTION SENSITIVE
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`Page 65
`marking as Exhibit 721. This is an invoice to Karlin
`Technology from Mr. Imre, production numbers MNUV0005459.
` A I'm sorry. What number did you just read me?
` Q There's multiple numbers on it. The one that
`applies to this case is the one at the extreme lower
`right.
` A Oh, I'm sorry. You're just talking about -- oh,
`I apologize.
` Q Just an identification number is all.
` A I apologize.
` (Exhibit 721 marked for identification.)
` Q BY MR. SCHERKENBACH: Have you seen this document
`before today?
` A I've seen this before.
` Q When is the last time you saw it?
` A A couple of days ago.
` Q This is one of the ones you looked at in prep for
`your deposition?
` A Yeah.
` Q And does this, in your view, relate to what you
`call the second generation of implants?
` A I think -- it would be yes on that.
` Q How can you tell?
` A Well, that's what it is. The dimensions are 24
`times 42. That was the original translateral implant I
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`PATENT PROSECUTION SENSITIVE
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`Page 66
`had made. And my actual -- I guess common name for these
`were jumbo implants because they were clearly jumbo'd in
`comparison to anything that was in existence before.
`There were never implants that were 42 millimeters long or
`24 millimeters in diameter. So I think the biggest
`threaded implants that we had before were either 18 or 20,
`and we never had anything I think that was longer than 28.
`So this thing was absolutely jumbo.
` Q Do you recall using the phrase "jumbo" in the
`second meeting with Danek in L.A., November/December '93?
` A I don't recall.
` Q The first iteration of the implant and
`instruments that you referred to, was it the same size as
`the second iteration? So 24 millimeters in diameter,
`42 millimeters in length?
` A That's my best recollection, yes.
` Q Do you recall what the changes were between the
`first iteration and the second?
` A I'm just trying to see if there was something
`here that reminds me. One of the things I do recall is
`that one of the original distracters that was made weighed
`so much I couldn't lift it. It was just this big long rod
`of steel. And I remember saying to Dezider "Do you think
`you could hollow this out a little bit?" You couldn't
`lift it.
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`
`.£%4U D2ZID9, .501 Dorado ct:. Aqoura CA '1301
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`
`4'2' premiere Ave.
`CA 9071Z
`
`Z ••• bl1nd inpleDt + insert
`
`2 8a.
`
`inplent ~2'x42 mm with Gf~
`
`, 8a 1n.p1ant d:r1vN' [24mal
`8a outer sleev ld..Z4 JIlJIlJ with O&'P
`1 sa Inner eleev ~Z1 mal
`, e. drl11 • 21 mm w1th 4river
`, e. Iliatractor if 24mmJ
`2 ea d1.traQtors
`, SA t •• th8~ di.tractor
`
`3 h1
`
`$ 225.-
`
`10,5h'
`
`$ 787,50
`
`3,5h"
`
`$ 262,50
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`Z,Shl'
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`2,51&"
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`$ 18",50
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`1,Shl'
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`$ 112,50
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`2,5hl'
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`• 187,50
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`1,5hl
`
`$ 112,50
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`2~,Qb~ $ 2.175.-
`
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`Case ND. CV 01-2373 GV
`
`Confidential-Attorneys' Eyes Only
`
`012739
`
`Michelson
`012739
`
`EXHIBIT
`r2t
`
`MNUV0005459
`
`
`Page 7