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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`
`_____________________________
`)
`MEDTRONIC SOFAMOR DANEK, USA ) CASE NO. 08 CV 1512-MMA
`ET AL.,
`)
`)
`)
`)
`) AUGUST 30, 2011
`)
`) TUESDAY, 8:30 AM
`)
`) TRIAL - DAY ONE
`DEFENDANT.
`_____________________________)
`
`PLAINTIFF,
`
`VS.
`
`NUVASIVE, INC.,
`
`
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`
`
`
`
`FOR THE DEFENDANT:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`FISH & RICHARDSON, P.C.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`WARSAW2041
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00206
`
`Page 1
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`
`_____________________________
`)
`MEDTRONIC SOFAMOR DANEK, USA ) CASE NO. 08 CV 1512-MMA
`ET AL.,
`)
`)
`)
`)
`) AUGUST 30, 2011
`)
`) TUESDAY, 8:30 AM
`)
`) TRIAL - DAY ONE
`DEFENDANT.
`_____________________________)
`
`PLAINTIFF,
`
`VS.
`
`NUVASIVE, INC.,
`
`
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`
`
`
`
`FOR THE DEFENDANT:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`FISH & RICHARDSON, P.C.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`WARSAW2041
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00206
`
`Page 1
`
`
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` 2
`
`INDEX - 08 CV 1512
`
`MEDTRONIC V. NUVASIVE, 8/30/11
`
`
`
`WITNESSES:
`
`DR. GARY CARLIN MICHELSON
`
`
`
`
`
`OPENING STATEMENTS BY MR. DAUCHOT
`
`OPENING STATEMENTS BY MR. SCHERKENBACH
`
`
`
`PAGE:
`
` 110
`
` 39
`
` 80
`
`COURT'S PRELIMINARY INSTRUCTIONS
`
` 30
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`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 2
`
`
`
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`Q
`
`A
`
`Q
`
`DR. MICHELSON, I DON'T SEE TRANSLATERAL UP THERE?
`
`THAT'S CORRECT.
`
`LET'S SPEAK ABOUT THE TERM TRANSLATERAL. THAT'S A TERM
`
`IN OPENING STATEMENT WE SAW IN THE CONTEXT OF YOUR '973
`
`PATENT.
`
`TO YOUR KNOWLEDGE, WAS THAT A TERM SPECIFICALLY IN
`
`THIS AREA THAT EXISTED BEFORE THE TIME THAT YOU INVENTED
`
`THIS IMPLANT?
`
`A
`
`WELL TO THE BEST OF MY KNOWLEDGE, I ACTUALLY CREATED
`
`THAT WORD. WITH THE IDEA OF THE TRANSCONTINENTAL RAILROAD
`
`IN MIND, THAT'S WHY I PICKED THE WORD TRANSLATERAL THAT
`
`TRANSCONTINENTAL RAILROAD CONNECTED THE ATLANTIC OCEAN TO
`
`THE PACIFIC OCEAN AND CROSSED THE ENTIRE CONTINENT AND MY
`
`CONCEPT OF A TRANSLATERAL IMPLANT WAS AN IMPLANT THAT WOULD
`
`ACTUALLY BE CAPABLE OF SITTING ON THIS APOPHYSEAL RING ON
`
`ONE SIDE AND GOING ALL THE WAY ACROSS AND SITTING ON THE
`
`APOPHYSEAL RING ON THE OPPOSITE SIDE.
`
`Q
`
`CAN WE PUT UP SLIDE FIVE, DAVE? CAN YOU PRESS.
`
`DOES THAT DEPICT TRANSLATERAL AS YOU USED IT IN
`
`YOUR '973 PATENT.
`
`A
`
`YES. AND ALSO ONE OTHER THING. IT'S COMING IN
`
`ESSENTIALLY PERPENDICULAR TO WHAT WE CALL THAT MID SAGITTAL
`
`LINE, SO WHILE THIS WAS THE FRONT AND THAT WAS THE BACK AND
`
`THINGS WENT IN FRONT TO BACK, THIS IS COMING IN AT 90 DEGREE
`
`ANGLE TO THE OLD TECHNOLOGY.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 3
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`
`_____________________________
`)
`MEDTRONIC SOFAMOR DANEK, USA ) CASE NO. 08 CV 1512-MMA
`ET AL.,
`)
`)
`)
`)
`) AUGUST 31, 2011
`)
`) WEDNESDAY, 9:00 AM
`)
`) TRIAL - DAY TWO
`DEFENDANT.
`_____________________________)
`
`PLAINTIFF,
`
`VS.
`
`NUVASIVE, INC.,
`
`
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`
`
`
`FOR THE DEFENDANT:
`
`
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`FISH & RICHARDSON, P.C.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 4
`
`
`
`INDEX - 08 CV 1512
`
`MEDTRONIC V. NUVASIVE, 8/31/11
`
` 185
`
`
`
`WITNESSES:
`
`DR. GARY KARLIN MICHELSON
`
`DIRECT BY MR. DAUCHOT
`
`CROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. DAUCHOT
`
`RECROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. DAUCHOT
`
`PAGE:
`
` 189
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` 233
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` 282
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` 294
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` 304
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`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 5
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`Q
`
`EXPLAIN TO US WHAT RETROPERITONEAL LATERAL APPROACH TO
`
`THE SPINE WAS?
`
`A
`
`YES. SO I HAD MENTIONED YESTERDAY THAT IN DAYS GONE
`
`BY, SURGEONS WOULD SOMETIMES MAKE AN INCISION RIGHT THERE IN
`
`THE MIDDLE OF THE ABDOMEN AND GO STRAIGHT THROUGH WHERE THE
`
`INTESTINES ARE AND EVERYTHING ELSE, MOVE THOSE OUT OF THE
`
`WAY, AND GET TO THE SPINE.
`
`BUT ALL THOSE ORGANS ARE SITTING IN WHAT LOOKS
`
`LIKE A DUFFEL BAG, AND WE CALL THAT THE "PERITONEAL CAVITY."
`
`SO AS SURGEONS WHO DID THE ACCESS, LIKE VASCULAR
`
`SURGEONS, GOT MORE SKILLFUL AND MORE FAMILIAR WITH DOING
`
`SURGERY FOR SPINE SURGEONS, THEY LEARNED TO GO AROUND THIS
`
`DUFFEL BAG AND SLIDE IT OVER.
`
`SO EVEN THOUGH THE INCISION WAS ON THE FRONT, THEY
`
`WERE KIND OF GOING TO THE SIDE AND GOING BEHIND THE DUFFEL
`
`BAG, MOVING IT OVER.
`
`SO RETRO JUST MEANS BEHIND. PERITONEAL MEANS THAT
`
`DUFFEL SAC. WE CALL IT THE "PERITONEUM."
`
`WHAT MR. BOYD IS SAYING IS VERY INTERESTING,
`
`BECAUSE THAT IS AN ANTERIOR RETROPERITONEAL APPROACH.
`
`ANTERIOR MEANS WE MADE THE INCISION IN THE FRONT, AND YET WE
`
`REACHED AROUND, MOVED THE DUFFEL BAG OVER, SO BEHIND -- WE
`
`MOVED IT TO THE SIDE, AND NOW WE DO THE SURGERY.
`
`THIS IS THE FIRST TIME HE'S EVER SEEN A LATERAL
`
`RETROPERITONEAL, WHERE YOU DON'T EVEN HAVE TO MOVE THE
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 6
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`PERITONEUM SAC. LEAVE IT ALONE. BUT YOU'RE SO FAR BEHIND
`
`IT, YOU JUST GO STRAIGHT IN.
`
`Q
`
`SO I UNDERSTAND, MAYBE I DON'T HAVE -- LET ME TRY THIS,
`
`DR. MICHELSON. WE DON'T HAVE A MODEL HERE. IF WE LOOK AT
`
`THE FRONT OF THE SPINE, RIGHT?
`
`A
`
`Q
`
`YES.
`
`OR ACTUALLY, LET'S LOOK AT THE SIDE OF THE SPINE.
`
`OKAY. WITH ME?
`
`A
`
`Q
`
`UH-HUH.
`
`WE'RE LOOKING AT THE SIDE HERE. SO THERE IS THE FRONT,
`
`ANTERIOR, THIS IS THE BACK. WE HAVE THESE BONY PROTRUSIONS
`
`OUT HERE, RIGHT?
`
`A
`
`Q
`
`YES.
`
`THE PERITONEAL SAC, JUST SO WE'RE CLEAR, DOES IT ATTACH
`
`ALONG THE SIDE LIKE THIS?
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`NO. IT LAYS UP AGAINST THE FRONT.
`
`THIS IS THE FRONT OF THE SPINE?
`
`WELL, THE FRONT WAS TOWARDS YOU, YOU SAID.
`
`RIGHT.
`
`YES. SO THE SAC DOESN'T GO ONTO THE VERTEBRAL BODIES.
`
`IT JUST LAYS UP. IT'S SELF-CONTAINED.
`
`Q
`
`SO THE IDEA IS TO MOVE THE SAC OUT OF THE WAY AS YOU
`
`ARE APPROACHING INTO THE SPINE?
`
`A
`
`WHEN WE DID AN ANTERIOR, FROM THE FRONT,
`
`RETROPERITONEAL DISSECTION TO GET THE SPINE, WHAT WE WERE
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 7
`
`
`
`08-CV-1512-MMA
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`MEDTRONIC SOFAMOR DANEK, USA, .
`ET AL., .CASE NO. 08-CV-1512-MMA
`.
`PLAINTIFF,
`.
`.
`V.
`. AUGUST 31, 2011
`.
`NUVASIVE, INC.,
`. WEDNESDAY, 1:30 P.M.
`.
`DEFENDANT.
`. TRIAL - DAY TWO
`. . . . . . . . . . . . . . . . . ..
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANTS:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`JOHN M. FARRELL, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`
`COURT REPORTER:
`
`JULIET Y. EICHENLAUB, CSR
`USDC CLERK'S OFFICE
`880 FRONT STREET, ROOM 4290
`SAN DIEGO, CALIFORNIA 92101
`JULIET_EICHENLAUB@CASD.USCOURTS.GOV
`REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER
`
`310
`
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`Page 8
`
`
`
`08-CV-1512-MMA
`
`INDEX - 08-CV-1512
`MEDTRONIC V. NUVASIVE, 8/31/11
`
`WITNESSES:
`
` DIRECT CROSS REDIRECT RECROSS
`
`DAVID ALAN SHARP
`PATRICK MILES
`
` 312
` 401
`
` 336
` 435
`
`361
`
`VIDEOTAPE DEPOSITION OF DR. SMITH
`VIDEOTAPE DEPOSITION OF DR. FOLEY
`READING OF DEPOSITION TESTIMONY OF DR. FOLEY
`
`PAGE 365
` PAGE 382
`PAGE 391
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
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`311
`
`Page 9
`
`
`
`08-CV-1512-MMA
`
`DOCUMENT ALSO LISTS DR. BERTINELLI, WHO WAS A SURGEON IN EUROPE
`THAT WAS BEING WORKED WITH AT THE TIME AS WELL.
`Q.
`DID YOU PERSONALLY WORK WITH DR. BERTINELLI?
`A.
`I KNEW, DR. BERTINELLI, YES.
`Q.
`NOW, WERE THE LONG METAL CAGES -- AND I BELIEVE YOU
`TESTIFIED THAT THE LONG METAL CAGES WERE NOT COMMERCIALIZED IN
`THE UNITED STATES. WERE THEY EVER COMMERCIALIZED ANYWHERE?
`A.
`YES. WE WERE ABLE TO GET THE LONGER IMPLANTS
`AVAILABLE IN THE MARKET IN EUROPE, I BELIEVE, IN THE FALL OF
`1998 OR MAYBE EARLY '99.
`Q.
`AND WHAT SIZES WERE COMMERCIALIZED?
`A.
`THE LENGTHS WOULD HAVE BEEN 35 AND 40 MILLIMETERS IN
`LENGTH.
`NOW, MR. SHARP, WHAT HAPPENED WITH THE LATERAL
`Q.
`INSTRUMENT PROJECT?
`A.
`SURE. AGAIN, IN LATE 2000, EARLY 2001, I TRANSFERRED
`THE PROJECT TO DIANA PARAMOUR, WHO IS ANOTHER MARKETING PERSON
`WITHIN THE GROUP. SHE WORKED ON THE FINAL COMMERCIALIZATION
`AND LAUNCHED THAT PROJECT IN THE FALL OF 2001. THERE WAS AN
`ADDITIONAL PROJECT GOING ON LOOKING AT LATERAL PLACEMENT, A
`PROJECT CALLED ELIF, THAT WAS BEING WORKED ON WITH DR. KEVIN
`FOLEY.
`YOU USED THE TERM "ELIF." WHAT DID THE TERM "ELIF"
`Q.
`STAND FOR?
`A.
`ELIF STANDS FOR EXTREME LATERAL INTERBODY FUSION.
`
`1 2 3 4 5 6 7 8 9
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`Page 10
`
`
`
`08-CV-1512-MMA
`
`BUT THE TRUTH, SO HELP YOU GOD?
`THE WITNESS: I DO.
`THE CLERK: PLEASE STATE YOUR FULL NAME FOR THE
`RECORD AND SPELL IT PLEASE.
`THE WITNESS: PATRICK MILES. LAST NAME, M-I-L-E-S.
`FIRST NAME, P-A-T-R-I-C-K.
`THE COURT: THANKS, MR. MILES. GO AHEAD AND HAVE A
`SEAT. MR. DAUCHOT?
`
`DIRECT EXAMINATION
`
`BY MR. DAUCHOT:
`Q.
`THANK YOU, YOUR HONOR.
`MR. MILES, GOOD AFTERNOON.
`GOOD AFTERNOON.
`THIS IS THE FIRST TIME WE MET?
`FIRST TIME YOU AND I MET?
`YES.
`I BELIEVE SO.
`YOU'VE BEEN DEPOSED IN THIS CASE BEFORE, THOUGH?
`I HAVE.
`I THINK MY COLLEAGUE, MS. WICKRAMASEKERA, DID THAT.
`DO YOU REMEMBER THAT?
`I DO.
`YOU BEGAN WORKING FOR NUVASIVE IN JANUARY 2001; AM I
`
`A.
`Q.
`A.
`Q.
`A.
`Q.
`A.
`Q.
`
`A.
`Q.
`RIGHT?
`A.
`
`YES.
`
`401
`
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`Page 11
`
`
`
`08-CV-1512-MMA
`
`AND YOU -- THAT'S WHEN MR. VALENTINE ALSO JOINED THE
`Q.
`COMPANY; CORRECT?
`A.
`IT IS.
`Q.
`AND YOU LEFT MEDTRONIC SOFAMOR DANEK IN APRIL OF
`2000; IS THAT ABOUT RIGHT?
`A.
`I BELIEVE SO; YEAH, LEFT MEDTRONIC.
`Q.
`AND WHEN YOU LEFT MEDTRONIC SOFAMOR DANEK, YOUR
`PRINCIPAL AREA OF WORK WAS WHAT WE CALL MINIMALLY INVASIVE
`SPINE SURGERY DEVICES; AM I RIGHT?
`A.
`YES; IT WAS THAT AND CERVICAL SPINE SURGERY.
`Q.
`AND WHEN YOU WORKED ON MINIMALLY INVASIVE SPINE
`SURGERY DEVICES FOR SOFAMOR DANEK, YOU DID SO WITH DR. FOLEY;
`AM I CORRECT?
`A.
`YES, I DID.
`Q.
`AND YOU ALSO WORKED WITH MR. MELKENT; AM I RIGHT?
`A.
`NOT DIRECTLY.
`Q.
`INDIRECTLY?
`A.
`INDIRECTLY, YES.
`Q.
`INDIRECTLY. ALL RIGHT.
`AND YOU ALSO WORKED WITH MR. BOYD?
`NOT COMMONLY.
`A.
`UNCOMMONLY?
`Q.
`IF THAT'S THE WAY YOU'D LIKE TO CHARACTERIZE IT. I
`A.
`DIDN'T SEE HIM VERY OFTEN.
`Q.
`OKAY.
`
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`402
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`Page 12
`
`
`
`08-CV-1512-MMA
`
`YES.
`YOU SEE THE REFERENCE TO ELIF?
`I DO.
`YOU SEE THE REFERENCE TO EXTREME LATERAL INTERBODY
`
`A.
`Q.
`A.
`Q.
`FUSION?
`I DO.
`A.
`IT'S STILL YOUR TESTIMONY YOU CAME UP WITH THE TERM
`Q.
`EXTREME LATERAL INTERBODY FUSION AFTER YOU JOINED NUVASIVE IN
`2001?
`THAT IS MY TESTIMONY.
`A.
`NOW, EXTREME LATERAL INTERBODY FUSION REFERS TO A
`Q.
`MEDICAL PROCEDURE; CORRECT?
`A.
`IT IS THE BRANDING THAT IS REFLECTED IN A MEDICAL
`PROCEDURE.
`Q.
`WILL YOU AGREE WITH ME THAT BEFORE YOU BRAND YOU NEED
`A PROCEDURE? THE PROCEDURE COMES FIRST; THE BRANDING COMES
`NEXT?
`A.
`Q.
`
`I'LL AGREE WITH THAT.
`YOU'LL AGREE WITH THAT. ALL RIGHT.
`IT'S A FACT, IS IT NOT, THAT NUVASIVE TRADEMARKED THE
`NAME XLIF ON JANUARY 31, 2001, MR. MILES?
`A.
`THAT DATE, I DON'T SPECIFICALLY RECALL.
`Q.
`YOU DON'T SPECIFICALLY RECALL. CAN YOU PUT THAT UP?
`THAT IS A TRADEMARK APPLICATION; DO YOU SEE THAT, MR. MILES?
`A.
`I SEE THE SHEET, YES.
`
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`Page 13
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`
`08-CV-1512-MMA
`
`ALL RIGHT. DAVE, CAN YOU BLOW IT UP? YOU SEE THAT
`Q.
`THE FILING DATE FOR THE APPLICATION IS JANUARY 31, 2001,
`MR. MILES?
`A.
`I DO.
`Q.
`AND DO YOU SEE THAT THE NAME BEING APPLIED FOR IS --
`LOOK AT THE TOP. WHAT DOES THAT SAY?
`A.
`IT'S X-L-I-F.
`Q.
`XLIF, STANDING FOR EXTREME LATERAL INTERBODY FUSION;
`AM I CORRECT, MR. MILES?
`A.
`THAT IS CORRECT.
`THE COURT: I'M NOT SURE WE IDENTIFIED THAT FOR THE
`RECORD. IS IT EXHIBIT PX2537?
`MR. DAUCHOT: IT IS, YOUR HONOR. THANK YOU FOR
`REMINDING ME.
`ALL RIGHT. MR. MILES, I HAVE NO FURTHER QUESTIONS.
`THE COURT: MR. SCHERKENBACH.
`MR. SCHERKENBACH: THANK YOU, YOUR HONOR.
`MR. MILES, DO ME A FAVOR AND SEE IF YOU CAN PULL THAT
`MICROPHONE A LITTLE CLOSER TO YOU.
`THE COURT: UNFORTUNATELY, THE CHAIR DOESN'T --
`THE WITNESS: FAIR ENOUGH. GOT IT.
`CROSS-EXAMINATION
`
`BY MR. SCHERKENBACH:
`Q.
`FIRST OF ALL, I DON'T BELIEVE YOU WERE ASKED TO TELL
`THE JURY WHAT YOUR TITLE IS AT NUVASIVE AND WHAT YOU DO.
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`Page 14
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` 443
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`
`_____________________________
`)
`MEDTRONIC SOFAMOR DANEK, USA ) CASE NO. 08 CV 1512-MMA
`ET AL.,
`)
`)
`)
`)
`) SEPTEMBER 1, 2011
`)
`) THURSDAY, 9:00 AM
`)
`) TRIAL - DAY THREE
`DEFENDANT.
`_____________________________)
`
`PLAINTIFF,
`
`VS.
`
`NUVASIVE, INC.,
`
`
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`
`
`
`FOR THE DEFENDANT:
`
`
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`FISH & RICHARDSON, P.C.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 15
`
`
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`
`INDEX - 08 CV 1512
`
`MEDTRONIC V. NUVASIVE, 8/31/11
`
`
`
`WITNESSES:
`
`PATRICK MILES
`
`CROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. DAUCHOT
`
`RECROSS BY MR. SCHERKENBACH
`
`
`
`ALEXIS V. LUKIANOV
`
`DIRECT BY MR. DAUCHOT
`
`CROSS BY MR. SCHERKENBACH
`
` 444
`
`PAGE:
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` 445
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` 501
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` 548
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`
`
`
`
`
`
`
`
`
`
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`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 16
`
`
`
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`
`WAS WORKING AT THE LABS AT SOFAMOR DANEK. HAVE YOU HEARD OF
`
`THAT TESTIMONY?
`
`A
`
`Q
`
`A
`
`I'VE HEARD OF THE TESTIMONY AND IT'S WRONG.
`
`BUT DR. FOLEY IS NOT BEING TRUTHFUL?
`
`IT'S NOT THAT HE'S NOT BEING TRUTHFUL. HE POORLY
`
`RECOLLECTIONS THE EXPERIENCE. AND E STOOD FOR ENDOSCOPIC.
`
`Q
`
`NOW YOU REMEMBER WE LOOKED AT A DOCUMENT YESTERDAY
`
`DATED JULY OF 2000, DO REMEMBER THAT? THE MEMO?
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`I DO.
`
`AND THAT WAS DATED JULY 2000?
`
`ARE YOU ASKING ME?
`
`YES, SIR.
`
`I BELIEVE IT WAS JULY 2000.
`
`THREE MONTHS AFTER YOU LEFT MEDTRONIC, CORRECT?
`
`YEAH. I LEFT IN APRIL, I BELIEVE.
`
`RIGHT. AND THAT DOCUMENT SAID ELIF STANDS FOR EXTREME
`
`LATERAL INTERBODY FUSION, DO YOU REMEMBER SEEING THAT IN THE
`
`DOCUMENT?
`
`A
`
`Q
`
`I DO. IT DOES NOT MEAN IT'S ACCURATE.
`
`I SEE. NOW DR. FOLEY ALSO TESTIFIED THAT HE WAS
`
`WORKING ON AN EXTREME LATERAL INTERBODY FUSION PROCEDURE IN
`
`THE LAB AT SOFAMOR DANEK. DO YOU KNOW OF THAT TESTIMONY?
`
`A
`
`I WORKED WITH DR. FOLEY ON PROCEDURES AND I'M AWARE
`
`THAT WE WERE WORKING ON ELIF, ENDOSCOPIC LATERAL INTERBODY
`
`FUSION.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 17
`
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`MR. DAUCHOT: YOUR HONOR, IS IT OKAY IF I QUESTION
`
`A LITTLE BIT FROM HERE?
`
`THE COURT: YES.
`
`BY MR. DAUCHOT:
`
`Q
`
`NOW DR. FOLEY TESTIFIED THAT HIS EXTREME LATERAL
`
`INTERBODY FUSION WORK TESTING, HE WAS TRYING TO APPROACH THE
`
`VERTEBRA, THE DISK SPACE FROM THE ANTERIOR PORTION SO THE
`
`FRONT PORTION OF THE SPINE. JUST ABOVE THE, OR JUST AHEAD,
`
`ANTERIOR TO THE BONES BACK HERE, LIKE THIS. AND I THINK HE
`
`MENTIONED A 70 PROCEDURE. ARE YOU FAMILIAR WITH DR. FOLEY'S
`
`70 PROCEDURE?
`
`A
`
`Q
`
`A
`
`UMM --
`
`WHILE HE WAS AT MEDTRONIC?
`
`NO. AND YOU HAD HAVE TAKEN OUT A VERTEBRAL ARTERY FROM
`
`THERE.
`
`Q
`
`SO IT'S YOUR TESTIMONY EVEN THOUGH DR. FOLEY IS SAYING
`
`HE WAS APPROACHING AND TESTING IN LABS AN APPROACH TO THE
`
`DISC SPACE AT A 70-DEGREE ANGLE LIKE THIS, THEN HIS
`
`TESTIMONY WAS INCORRECT?
`
`A
`
`I'M TELLING YOU I WAS WITH DR. FOLEY IN A LAB WHERE THE
`
`PATIENT WAS ON THEIR BELLY AND WE WERE PROBABLY AT A 45 TO
`
`60 DEGREE OFF MIDLINE. IT LOOKED NOTHING LIKE A LATERAL
`
`APPROACH.
`
`Q
`
`A
`
`SO HE WAS 60 OFF MID LINE?
`
`60 TO 75.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 18
`
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`Q
`
`A
`
`Q
`
`SIXTY TO 75, LIKE THE XLIF 60?
`
`SIMILAR.
`
`SIMILAR. SIMILAR TO THE XLIF 60 THAT YOU SAID YOU
`
`STARTED WORKING ON AT NUVASIVE, AM I CORRECT?
`
`A
`
`Q
`
`THAT'S CORRECT.
`
`THAT'S CORRECT. NOW YOU TESTIFIED THAT IN -- YESTERDAY
`
`WE SHOWED A PRESS RELEASE, NOVEMBER 2001, DO YOU REMEMBER
`
`THAT?
`
`A
`
`Q
`
`I DO.
`
`AND YOUR TESTIMONY YESTERDAY WAS THAT THE PRESS RELEASE
`
`WAS ABOUT XLIF 60, RIGHT? THE NOVEMBER 2001 PRESS RELEASE?
`
`A
`
`YEAH. THAT WAS MY EXPECTATION BASED UPON THE TIMING OF
`
`WHEN WE STARTED DOING LATERAL APPROACH SURGERY. AND.
`
`Q
`
`AND YOU SAID THAT THE NOVEMBER 2001, THE XLIF
`
`PROCEDURE, THE XLIF 60 WAS NOT SAFE AND REPRODUCIBLE. DO I
`
`HAVE THAT RIGHT?
`
`A
`
`Q
`
`THAT'S WHY DR. FOLEY NEVER COMMERCIALIZED IT.
`
`MY QUESTION WAS, WHEN YOU CAME OUT WITH THE
`
`NOVEMBER 2001 PRESS RELEASE AT NUVASIVE ABOUT THE XLIF
`
`PROCEDURE?
`
`A
`
`WHAT I SAID WAS IT WAS NOT SAFE IN THE HANDS OF THE
`
`MANY.
`
`THE COURT: WE'RE GOING TO TRY TO MAKE OUR LIVES
`
`EASIER AND ALSO MAKE OUR COURT REPORTER'S LIFE EASIER BY
`
`ALLOWING HIM TO COMPLETELY FINISH HIS QUESTIONS BEFORE YOU
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 19
`
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`OF TWO WEEKS, YOU'LL ALL BE EXPERTS, I THINK. ALL RIGHT.
`
`THE 973 PATENT, THAT'S THE FIRST PATENT AT ISSUE
`
`HERE. THE UNITED STATES PATENT AND TRADEMARK OFFICE AWARDED
`
`A PATENT TO AN INVENTOR CALLED DR. GARY MICHELSON.
`
`DR. MICHELSON A WITNESS FROM WHOM YOU'LL HERE.
`
`DR. MICHELSON IS A PIONEER IN SPINE SURGERY. HE LITERALLY
`
`CHANGED THE FACE OF SPINE SURGERY. HE HAS A TOTAL OF 250
`
`PATENTS AWARDED IN HIS NAME, AND HE WAS INDUCTED INTO THE
`
`NATIONAL INVENTORS HALL OF FAME FOR WHAT HE DID IN SPINAL
`
`SURGERY.
`
`WHAT'S THE TRANSLATERAL IMPLANT ABOUT? THE
`
`TRANSLATERAL IMPLANT IS AN IMPLANT, OKAY, THAT IS
`
`DIMENSIONED SO THAT IT CAN FIT THE ENTIRE WIDTH OF THE
`
`VERTEBRAE. SO WHEN I'M TALKING ABOUT THE WIDTH, FROM HERE
`
`TO THE OTHER SIDE. OKAY?
`
`AND IN ORDER TO -- GIVEN THIS DIMENSION, IT IS
`
`INSERTED TRANSLATERALLY. ALL RIGHT. IT'S AN ESPECIALLY
`
`DIMENSIONED IMPLANT, THAT GIVEN ITS DIMENSIONS, THEY ARE
`
`MADE AVAILABLE BY VIRTUE OF ITS TRANSLATERAL LOCATION ALLOWS
`
`FOR BETTER FUSION, OKAY, LESS SURGICAL TRAUMA, AND BETTER
`
`RESULTS, AND MORE STABILITY. AND WE'LL GET INTO THAT. IT'S
`
`A TRANSLATERAL IMPLANT.
`
`NEXT SLIDE, PLEASE.
`
`NOW, DR. MICHELSON RECEIVED CLAIMS ON A
`
`TRANSLATERAL IMPLANT, LIKE I MENTIONED. AND HERE ARE TWO
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 20
`
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`EXAMPLES OF THE CLAIMS. THERE ARE MORE CLAIMS BEING
`
`INSERTED. I'M TALKING ABOUT A TRANSLATERAL SPINAL IMPLANT
`
`WITH A NUMBER OF DIMENSIONAL PROPERTIES. OKAY?
`
`AND, FOR EXAMPLE, SOME OF THE CLAIMS HAVE SPECIFIC
`
`LENGTHS. IT'S REQUIRED. AND THEN THERE'S ANOTHER ONE ABOUT
`
`HAVING A RECTANGULAR SHAPE, WHICH HELPS WITH STABILITY
`
`ISSUES, AND WE'LL GET INTO THAT.
`
`BUT THERE ARE A NUMBER OF CLAIMS. THESE ARE JUST
`
`A COUPLE OF EXAMPLES.
`
`NOW, WHY ARE WE HERE?
`
`IN 2003, NUVASIVE LAUNCHED WHAT IS CALLED ITS
`
`"X-LIFT PROCEDURE" WITH A SPINAL IMPLANT -- LINE OF SPINAL
`
`IMPLANTS CALLED "COROENT XL." ALL RIGHT?
`
`NEXT SLIDE.
`
`TO THE RIGHT WE HAVE NUVASIVE'S BROCHURE ABOUT ITS
`
`IMPLANT. THAT IMPLANT IS A TRANSLATERAL IMPLANT. IT WAS
`
`DESIGNED FOR THE UNIQUE EXTREME LATERAL APPROACH.
`
`IF YOU LOOK AT THE MICHELSON PATENT AND THE
`
`DESCRIPTION IN THE MICHELSON PATENT, THEREFORE, THERE EXISTS
`
`A NEED FOR SPINAL FUSION IMPLANT THAT IS INSERTED FROM THE
`
`TRANSLATERAL APPROACH TO THE SPINE.
`
`NEXT SLIDE.
`
`"NUVASIVE'S COROENT IMPLANT PROVIDES A LARGE
`
`ANATOMICAL SHAPE FOR MAXIMUM SURFACE AREA ENGAGEMENT AND
`
`STRUCTURAL STABILITY BY THE VIRTUE OF ITS TRANSLATERAL
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 21
`
`
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`
`ATTENDED THE PRESENTATION OF THE TECHNOLOGY. THIS IS GOING
`
`BACK IN JANUARY OF '94.
`
`WHAT DID THEY SAY THEN ABOUT THE TECHNOLOGY?
`
`MICHELSON TECHNOLOGY EXPANDS THE PRODUCT OFFERING THAT WE
`
`CURRENTLY HAVE AND GIVES THE COMPANY ACCESS TO A BROAD RANGE
`
`OF TECHNOLOGY, FROM ANTERIOR, FROM THE POSTERIOR, AND THE
`
`LATERAL, AMONG OTHER THINGS.
`
`AND REMEMBER AT THIS POINT IN TIME, THE INTERBODY
`
`FUSION APPROACHES WERE BEING ATTACKED FROM THE FRONT OR THE
`
`BACK. WHAT THEY NOTICED, COMPARED TO THE RELATIVELY LIMITED
`
`CURRENT OFFERING OF INTERBODY FUSION DEVICES IN THE SPINAL
`
`IMPLANT MARKETPLACE, SOFAMOR DANEK HAS THE OPPORTUNITY TO
`
`DEVELOP A FULL LINE OF INTERBODY FUSION TO ADDRESS A
`
`COMPLICATED RANGE OF SPINAL CONDITIONS.
`
`AND THERE ARE OTHER DOCUMENTS LIKE THAT, THAT
`
`YOU'LL SEE AT TRIAL.
`
`SO WHAT'S THE POINT? THE POINT IS THAT BACK THEN,
`
`INDIVIDUALS SUCH AS MR. LUKIANOV AND OTHERS, BECAUSE THE
`
`DECISION WAS MADE TO LICENSE THE MICHELSON TECHNOLOGY,
`
`BELIEVED THAT THIS TECHNOLOGY WAS INNOVATIVE, CREATIVE. AND
`
`YOU'LL HEAR TESTIMONY TO THIS EFFECT.
`
`TODAY, IT'S A DIFFERENT STORY. TODAY THE STORY
`
`IS, NOW THAT NUVASIVE USES IT, IS THAT THE PATENT WAS A
`
`MISTAKE. THE PATENT SHOULD NOT HAVE BEEN GRANTED BY THE
`
`PATENT OFFICE.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 22
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`MEDTRONIC SOFAMOR DANEK, USA, .
`ET AL., .CASE NO. 08-CV-1512-MMA
`.
`PLAINTIFF,
`.
`.
`V.
`. SEPTEMBER 1, 2011
`.
`NUVASIVE, INC.,
`. THURSDAY, 1:30 P.M.
`.
`DEFENDANT.
`. TRIAL - DAY THREE
`. . . . . . . . . . . . . . . . . ..
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANTS:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`JOHN M. FARRELL, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`
`COURT REPORTER:
`
`JULIET Y. EICHENLAUB, CSR
`USDC CLERK'S OFFICE
`880 FRONT STREET, ROOM 4290
`SAN DIEGO, CALIFORNIA 92101
`JULIET_EICHENLAUB@CASD.USCOURTS.GOV
`REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER
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`08-CV-1512
`
`INDEX - 08-CV-1512
`MEDTRONIC V. NUVASIVE, 9/1/11
`
`WITNESSES:
`
` DIRECT CROSS REDIRECT RECROSS
`
`ALEXIS LUKIANOV
`ANTHONY MELKENT
`DR. BARTON SACHS
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` 592
` 652
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`579
` 568
` 625 648
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` 650
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`08-CV-1512
`
`WHERE EVERYONE ELSE HAD FAILED TO DO SO. AND SO FOR ME IT WAS
`A VERY INTERESTING CHALLENGE, AND IT'S ONE THAT I JUMPED ON.
`Q.
`AT THE TIME YOU GOT THE CALL FROM THE RECRUITER, WERE
`YOU WORKING AT WARSAW ORTHOPEDIC?
`A.
`NO.
`Q.
`WERE YOU WORKING AT SOFAMOR DANEK?
`A.
`NO, I LEFT A FEW YEARS BEFORE.
`Q.
`ALL RIGHT.
`AT THE TIME YOU JOINED NUVASIVE, '99, WHERE WAS THE
`COMPANY LOCATED?
`A.
`IT WAS LOCATED IN SCRIPPS RANCH IN SAN DIEGO.
`Q.
`HOW MANY EMPLOYEES DID IT HAVE?
`A.
`17, 18, SOMETHING LIKE THAT.
`Q.
`SO YOU WERE LIKE NUMBER 18 OR NUMBER 19?
`A.
`YES.
`Q.
`HOW MANY EMPLOYEES TODAY?
`A.
`TOTAL FAMILY SIZE, OR WE CALL IT THE NUVA FAMILY, IS
`OVER 1100 PEOPLE, GLOBALLY.
`Q.
`AND AT THE TIME YOU JOINED, IT HAD THE INS NERVE
`SURVEILLANCE TECHNOLOGY?
`A.
`YES.
`Q.
`MOVING FORWARD IN TIME, FROM WHEN YOU JOINED THE
`COMPANY IN '99 TO WHEN THE COMPANY ANNOUNCED, RELEASED XLIF,
`XLIF 90, AS WE HAVE HEARD IT CALLED. WHAT'S THAT PERIOD OF
`TIME? HOW MANY YEARS IS THAT?
`
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`08-CV-1512
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`WELL, FROM '99 TO 2003, WHEN WE DID THE FULL LAUNCH
`A.
`AT NASS, NORTH AMERICAN SPINE SOCIETY MEETING, ONE OF THE MOST
`IMPORTANT SPINE MEETINGS THAT SURGEONS ATTEND. IT WAS ACTUALLY
`HERE IN SAN DIEGO. IT WAS USUALLY EXCITING FOR US, BUT IT WAS
`ABOUT FOUR YEARS.
`Q.
`AND WHEN WAS -- MAXCESS WAS INTRODUCED IN LATE 2003;
`IS THAT RIGHT?
`A.
`WELL, YES.
`Q.
`SO THAT WOULD HAVE BEEN ABOUT A FOUR-YEAR PERIOD AS
`WELL TO DEVELOP MAXCESS?
`A.
`THAT'S RIGHT.
`Q.
`AND COROENT?
`A.
`COROENT.
`Q.
`THAT CAME LATER STILL, DIDN'T IT?
`A.
`COROENT WAS 2004.
`Q.
`BETWEEN THE TIME YOU LEFT SOFAMOR DANEK, AT THE END
`OF '95, AND THE DAY MEDTRONICS SUED YOU IN THIS LAWSUIT IN
`2008, DID ANYONE FROM SOFAMOR DANEK OR MEDTRONIC SOFAMOR DANEK,
`OR MEDTRONIC, EVER SUGGEST TO YOU THAT YOU OR YOUR COMPANY HAD
`MISAPPROPRIATED ANYTHING FROM THEM?
`A.
`NO.
`Q.
`IN FACT, AFTER YOU LEFT THE MEDTRONIC COMPANIES, DID
`THEY ENGAGE YOU AS A CONSULTANT?
`A.
`YES.
`Q.
`TELL US ABOUT THAT.
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`574
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`Page 26
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`TREMENDOUS REPUTATION.
`
`DR. FOLEY WORKED WITH MEDTRONICS SOFAMOR DANEK ON
`
`MINIMALLY INVASIVE TECHNIQUES. REMEMBER THE RETRACTOR THAT
`
`I TALKED ABOUT AND HOW TO APPROACH THESE THINGS SO YOU DON'T
`
`HAVE TO CUT A PATIENT WIDE OPEN TO GET TO THE SPACE?
`
`MINIMALLY INVASIVE STUFF, IMPORTANT STUFF.
`
`THE MINIMALLY INVASIVE PROCEDURES THAT DR. FOLEY
`
`WAS WORKING ON, HE WAS WORKING WITH SOFAMOR DANEK EMPLOYEES,
`
`INCLUDING AN INDIVIDUAL NAMED PATRICK MILES. PATRICK MILES,
`
`WHICH YOU'LL SEE IN A SECOND, WAS AMONG THOSE WHO LEFT
`
`SOFAMOR DANEK.
`
`HE JOINED NUVASIVE IN 2001, AND TODAY HE IS
`
`PRESIDENT OF THE AMERICAS. YOU WILL HEAR EVIDENCE THAT
`
`DR. MILES WORKED ON PRECISELY THE SAME SORT OF TECHNOLOGY
`
`THAT HE WAS WORKING ON BACK WHEN HE WAS AT SOFAMOR DANEK.
`
`SO WE HAVE ALL OF THIS WORK GOING ON.
`
`NEXT SLIDE. THANKS, DAVE.
`
`IN JULY OF 1999, MR. LUKIANOV JOINS NUVASIVE. HE
`
`HAD LEFT SOFAMOR DANEK IN 1995. THE CHARGE THAT MR.
`
`LUKIANOV HAD WAS TO TURN THE COMPANY AROUND. IT WAS NOT
`
`DOING WELL. AND MR. LUKIANOV DID DO THAT. HE WAS
`
`EXTRAORDINARILY SUCCESSFUL AT IT.
`
`WHAT DID HE DO?
`
`NEXT SLIDE.
`
`WELL, IN JANUARY OF 2000, MR. MILES, OUR MINIMALLY
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 27
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`INVASIVE PERSON WHO WORKED WITH DR. FOLEY, LEFT.
`
`IN 2000, MR. VALENTINE, THE PERSON WHO HANDLED A
`
`NUMBER OF THINGS IN OUR WHAT WE CALL INTERBODY GROUP AT
`
`SOFAMOR DANEK -- IT WASN'T JUST LATERAL, BUT INTERBODY
`
`AGAIN, DEALING WITH THIS AREA, LEFT.
`
`AND DR. FOLEY WAS ASKED BY MR. LUKIANOV TO START
`
`CONSULTING FOR NUVASIVE. IN FACT, MR. LUKIANOV INVITED
`
`DR. FOLEY TO JOIN THE NUVASIVE BOARD OF DIRECTORS. THAT'S
`
`HOW HIGHLY HE THOUGHT OF DR. FOLEY. AND DR. FOLEY DID NOT
`
`DO THAT.
`
`NEXT SLIDE.
`
`IN 2001, JANUARY, MR. VALENTINE AND MR. MILES
`
`JOINED NUVASIVE.
`
`NEXT SLIDE, PLEASE.
`
`IN 2001 TO 2003 -- IT'S ACTUALLY A SHORTER TIME
`
`FRAME, AND YOU'LL HEAR EVIDENCE WHY IT IS A SHORTER TIME
`
`FRAME -- NUVASIVE COMES OUT, LAUNCHES A MINIMALLY INVASIVE
`
`PROCEDURE WITH MAXCESS RETRACTORS FOR MINIMALLY INVASIVE
`
`WORK, THE RETRACTORS I TALKED ABOUT, A TRANSLATERAL SURGICAL
`
`APPROACH, THE ONE THAT DR. MICHELSON HAD NOTED IN HIS
`
`PATENT, THE COROENT PRODUCT, THE PRODUCT THAT TELLS THE SAME
`
`THINGS THAT DR. MICHELSON PATENT DID, AND A PRODUCT CALLED
`
`NEURO VISION, A WAY OF NERVE MONITORING AS YOU'RE COMING IN.
`
`NEXT SLIDE, PLEASE.
`
`THE WHOLE THING LAUNCHES IN OCTOBER OF 2003 AFTER
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 28
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`PATENT INFRINGEMENT? NO. NO.
`
`AND BY THE WAY, THE MICHELSON TRANSLATERAL IMPLANT
`
`IS USED IN AREAS THAT HAVE NOTHING TO DO WITH THE PSOAS
`
`MUSCLE. ALL RIGHT.
`
`NERVE MONITORS, THERE'S ANOTHER POINT AT WORK
`
`HERE. WE ARE ACCUSED OF INFRINGING THE NUVASIVE 236 PATENT,
`
`A PATENT ON NERVE MONITORING. NO ONE IN THIS COURTROOM WILL
`
`SAY THAT NUVASIVE WAS THE ONE TO INVENT NERVE MONITORING.
`
`YOU WON'T HEAR THAT. NERVE MONITORING HAS BEEN AROUND FOR A
`
`LONG, LONG TIME. NOT AN ISSUE.
`
`AND NUVASIVE ITSELF DOESN'T USE THE NERVE
`
`MONITORING PROCESS. THEY PATENTED IT IN 236. DOESN'T USE
`
`IT.
`
`NOW, DOES THAT EXCUSE US, ASSUMING IT DID
`
`INFRINGE, THE FACT THAT NUVASIVE DOESN'T USE THIS INVENTION
`
`WOULD GIVE US THE RIGHT TO USE IT? NO. NO. THAT'S NOT THE
`
`POINT.
`
`THE POINT IS WE'RE NOT USING WHAT THEY PATENTED.
`
`WE'RE NOT USING WHAT THEY SAY WE COPIED. DO YOU FOLLOW ME?
`
`THEY'RE ARE NOT PRACTICING THE 236. WE'RE ACCUSED OF
`
`COPYING WHAT THEY HAVE BY PRACTICING THE 236. IT'S A
`
`DIFFERENT SYSTEM. THERE ARE A NUMBER OF NEURO MONITORING
`
`PROCESSES OUT THERE.
`
`LET ME DIG INTO THE INFRINGEMENT ON THE 236.
`
`NEXT SLIDE.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 29
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`YOU'LL GET MORE DETAIL ABOUT THIS LATER.
`
`A KEY TO THE 236 IS THAT THE NERVE SIGNAL --
`
`WHAT'S NEURO MONITORING? NEURO MONITORING, YOU HAVE A PROBE
`
`THAT EMITS A SIGNAL. OKAY? AND AS THE PROBE COMES IN, YOU
`
`ARE GOING THROUGH TISSUE. IF THAT SIGNAL HITS A NERVE, THE
`
`NERVE REACTS.
`
`A MONITOR PICKS UP THE REACTION. WHEN THE MONITOR
`
`PICKS UP THE REACTION, YOU KNOW THAT YOU ARE CLOSE TO A
`
`NERVE, AND THAT HELPS THE SURGEON AVOID THE NERVE, IF THE
`
`SURGEON WISHES TO GO ABOUT IT THAT WAY.
`
`THE PARTICULAR TECHNIQUE IN A 236 THAT NUVASIVE
`
`DOESN'T PRACTICE REQUIRES THAT ARE AS SOON AS THE MONITOR
`
`PICKS UP A RESPONSE FROM THE NERVE, THAT THE SIGNAL STOP.
`
`OKAY. THAT'S THE INVENTION. AND IT REQUIRES THAT
`
`THE SIGNAL STOP FOR SAF
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