PATENT PROSECUTION SENSITIVE
`
`Page 1
`
` 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
`
`WARSAW2024
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00208
`
`
`
`Page 1
`
` 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
`
`WARSAW2024
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00208
`
`
`
`PATENT PROSECUTION SENSITIVE
`
`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.
`
`1
`2
`3
`
`4 5
`
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`08:47
`
`08:47
`
`08:48
`
`
`Page 2
`
`
`
`PATENT PROSECUTION SENSITIVE
`
`Page 7
`
`08:48
`
`08:48
`
`08:48
`
`08:48
`
`08:48
`
`08:48
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 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
`
`
`Page 3
`
`
`
`PATENT PROSECUTION SENSITIVE
`
`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
`
`10:32
`
`10:32
`
`10:33
`
`10:33
`
`10:33
`
`10:34
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`Page 4
`
`
`
`PATENT PROSECUTION SENSITIVE
`
`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
`
`10:34
`
`10:34
`
`10:34
`
`10:34
`
`10:35
`
`10:35
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`Page 5
`
`
`
`PATENT PROSECUTION SENSITIVE
`
`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.
`
`10:35
`
`10:35
`
`10:36
`
`10:36
`
`10:36
`
`10:37
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`Page 6
`
`
`
`.£%4U D2ZID9, .501 Dorado ct:. Aqoura CA '1301
`
`I ;2/j~/'i3- .
`\ .
`..
`..,.,,<i
`i;YtJ\J }'0 r./
`
`I~VOICB
`
`/
`
`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
`
`Z,Shl'
`.,,5h·
`2,51&"
`
`$ 18",50
`
`$ "2,50
`
`, .187,50
`
`1,Shl'
`
`$ 112,50
`
`2,5hl'
`
`• 187,50
`
`1,5hl
`
`$ 112,50
`
`2~,Qb~ $ 2.175.-
`
`.f
`)
`Case ND. CV 01-2373 GV
`
`Confidential-Attorneys' Eyes Only
`
`012739
`
`Michelson
`012739
`
`EXHIBIT
`r2t
`
`MNUV0005459
`
`
`Page 7
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
