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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.
`
`H CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
`
`
`Page 1
`
`WARSAW2026
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00208
`
`
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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.
`
`H CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
`
`
`Page 1
`
`WARSAW2026
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00208
`
`
`
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`WITH IT.
`
`SO I THINK EVEN THOUGH THE PERSON IS SITTING RIGHT
`
`HERE, I THINK HE'S ENTITLED TO READ THE DEPO. AND OF
`
`COURSE, IF SOMETHING COMES OUT IN THE DEPO THAT YOU DON'T
`
`LIKE, THEN YOU'VE GOT YOUR GUY HERE, YOU WILL PUT HIM ON AND
`
`STRAIGHTEN IT OUT.
`
`MR. SCHERKENBACH: FAIR ENOUGH. THANK YOU, YOUR
`
`HONOR.
`
`THE COURT: ANYTHING ELSE WE CAN RESOLVE BEFORE WE
`
`CALL OUR JURORS IN? I HATE TO SET A PRECEDENT BY CALLING
`
`THEM IN EARLY.
`
`SO WHY DON'T WE GO OFF THE RECORD FOR A MOMENT.
`
`THE RECORD CAN REFLECT THAT ALL OF OUR JURORS ARE
`
`BACK. THIS IS REALLY IMPRESSIVE. YOU'RE REALLY PUNCTUAL
`
`AND ON TIME WHEN. WHEN THAT HAPPENS, I REPORT YOU DOWN TO
`
`JURY LOUNGE THAT YOU'RE REALLY GOOD JURORS, AND THEN THEY
`
`INVITE YOU TO COME BACK AFTER A MONTH OR SO AND SERVE ON OUR
`
`JURY.
`
`IS THAT OKAY FOR ME TO DO THAT? I WON'T DO THAT.
`
`THANK YOU. WE APPRECIATE YOU BEING SO TIMELY.
`
`WE ARE, I GUESS, GOING TO CONTINUE ON WITH SOME MORE
`
`QUESTIONS FOR DR. MICHELSON.
`
`MR. DAUCHOT: WE ARE, YOUR HONOR. OKAY TO
`
`PROCEED?
`
`THE COURT: YES. GO AHEAD.
`
`H CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
`
`
`Page 2
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`BY MR. DAUCHOT:
`
`DIRECT EXAMINATION
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`DR. MICHELSON, GOOD MORNING.
`
`GOOD MORNING.
`
`YOU ARE STILL UNDER OATH.
`
`YES, SIR.
`
`TWO QUICK POINTS BEFORE WE PICK UP YOU WHERE WE LEFT
`
`YESTERDAY. ONE, YOU MENTIONED THAT A COMPANY CALLED
`
`SURGICAL DYNAMICS LICENSED YOUR '247 TECHNOLOGY?
`
`A
`
`Q
`
`YES.
`
`AND DO YOU REMEMBER THAT YOU RECEIVED ROYALTIES FROM
`
`SDI ON ITS RAY CAGE FOR THAT '247?
`
`A
`
`Q
`
`THAT'S CORRECT.
`
`AND YOU TESTIFIED THAT SOFAMOR DANEK AS WELL LICENSED
`
`THEIR '247 PATENT. THIS IS THE ONE, RIGHT?
`
`A
`
`Q
`
`YES.
`
`DO YOU RECALL IF THEY WERE PAYING YOU ROYALTIES ON
`
`INNER FIX AND NOVICE WITH RESPECT TO THAT PATENT?
`
`A
`
`Q
`
`YES.
`
`ALL RIGHT. I WANT TO SHIFT GEARS AND QUICKLY GO
`
`THROUGH THE CONCEPTION DATE OF THE TRANSLATERAL PATENT -- OR
`
`THE TRANSLATERAL IMPLANT.
`
`YOU WITH ME?
`
`I AM.
`
`APPROXIMATELY WHEN DID YOU INVENT THE TRANSLATERAL
`
`A
`
`Q
`
`H CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
`
`
`Page 3
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`IMPLANT?
`
`A
`
`Q
`
`IT WAS THE SEPTEMBER-OCTOBER 1993 TIME FRAME.
`
`ALL RIGHT. AND I WANT TO WORK THROUGH WITH THE JURY
`
`FAIRLY QUICKLY HOW IT IS THAT YOU RECALL THAT.
`
`CAN YOU TURN TO PX0284. IT'S IN THAT BINDER,
`
`DR. MICHELSON.
`
`MR. DAUCHOT: CAN WE PUT THAT UP ON THE SCREEN,
`
`PLEASE.
`
`BY MR. DAUCHOT:
`
`Q
`
`A
`
`Q
`
`A
`
`CAN YOU SEE IT? ARE YOU WITH ME, DR. MICHELSON?
`
`I AM.
`
`OKAY. WHAT ARE WE LOOKING AT HERE?
`
`WELL, DESIDER IMRE WAS THE MACHINIST WHO ACTUALLY MADE
`
`THE SET. AND HE SENT US AN INVOICE THAT WE RECEIVED AT MY
`
`OFFICE ON 12/26/93. AND THAT WAS AFTER TWO SETS OF
`
`INSTRUMENTS HAD ACTUALLY BEEN MADE.
`
`SO IF YOU LOOK DOWN THE INVENTORY, IT'S TWO OF
`
`THIS AND TWO OF THAT. THE REASON WAS THAT HE HAD MADE A SET
`
`PREVIOUSLY. AND AFTER WORKING WITH IT, I WAS NOT SATISFIED,
`
`SO I HAD HIM MAKE A SECOND SET. SO THAT'S THE INVOICE.
`
`Q
`
`LET'S FOCUS ON THE SECOND LINE. YOU HAVE TWO IMPLANTS
`
`24 BY 42 MILLIMETERS -- DO YOU SEE THAT -- WITH CAPS?
`
`A
`
`Q
`
`A
`
`YES.
`
`IS THAT A TRANSCRIPT OF YOUR TRANSLATERAL IMPLANT?
`
`THAT IS ONE OF THE EMBODIMENTS, YES.
`
`H CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
`
`
`Page 4
`
`
`
` 191
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`Q
`
`LET'S WORK BACKWARDS HERE -- WELL, ONE QUESTION: DID
`
`THE MACHINIST INVENT THE IMPLANT AND SELL IT TO YOU?
`
`A
`
`NO. HE ACTUALLY WORKED AT ANOTHER COMPANY AS A GENERAL
`
`MACHINIST. AND ON HIS OVERTIME OR SPARE TIME, WHEN HE
`
`WASN'T A FOREMAN AT THAT COMPANY, AS TIME PERMITTED, HE
`
`WOULD MAKE THINGS FOR ME. I WOULD GIVE HIM A DRAWING, HE
`
`WOULD MAKE IT, I'D REVIEW IT, HE'D CORRECT IT, HE'S REMAKE
`
`IT.
`
`MR. DAUCHOT: DAVE, CAN YOU BACK UP. I NEED TO
`
`SEE THE DATE ON THERE.
`
`BY MR. DAUCHOT:
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`HERE'S A DATE, 12/26/93. DO YOU SEE THAT?
`
`YES.
`
`THAT'S THE DATE THAT YOU RECEIVED THE INVOICE?
`
`CORRECT.
`
`SO BY THEN HE HAD MADE THESE?
`
`HE HAD MADE TWO SETS BY THEN.
`
`TWO SETS BY THEN.
`
`NOW, LET'S WORK BACKWARDS. HOW DOES THAT GET YOU
`
`TO, ROUGHLY -- I THINK YOU SAID SEPTEMBER OF '93?
`
`A
`
`IT WAS EITHER THE END OF SEPTEMBER OR THE BEGINNING OF
`
`OCTOBER.
`
`Q
`
`SO BASICALLY, YOU'RE SAYING FOR HIM TO HAVE MADE TWO
`
`SETS, YOU ARE WORKING BACKWARDS FROM SEPTEMBER '93, WHEN YOU
`
`APPROACHED HIM THE FIRST TIME?
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`H CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
`
`
`Page 5
`
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`A
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`WELL, LET ME GIVE YOU BETTER THAN MY SAYING YES. THE
`
`NORMAL ROYALTY THAT THESE COMPANIES WERE PAYING VETERANS IN
`
`THOSE DAYS WAS BETWEEN 3 AND 5 PERCENT. THE MOST SUCCESSFUL
`
`PRODUCT THAT DANEK HAD EVER HAD AT 5 PERCENT ROYALTY. THEY
`
`AGREED TO PAY A 10 PERCENT ROYALTY ON THIS PRODUCT, AND TO
`
`USE BEST EFFORTS AVAILABLE.
`
`Q
`
`DR. MICHELSON, LET'S TURN TO PX2338 AND PX0273 IN YOUR
`
`BINDER.
`
`DO YOU SEE THOSE?
`
`I DO.
`
`ARE THESE THE TWO LICENSES -- THE TWO AGREEMENTS THAT
`
`A
`
`Q
`
`GAVE SOFAMOR DANEK PERMISSION TO USE YOUR LATERAL
`
`INSTRUMENTATION AND YOUR LATERAL IMPLANTS AND YOUR LATERAL
`
`APPROACH?
`
`A
`
`Q
`
`CORRECT.
`
`DR. MICHELSON, BACK TO THE SPINE TECH AT ISSUE. DID
`
`YOU DISCLOSE YOUR TRANSLATERAL IMPLANT TO SPINE TECH?
`
`A
`
`Q
`
`I DID.
`
`AND YOU DISCUSSED IT, I THINK, YOU SAID WITH
`
`DR. KUSLICH?
`
`A
`
`Q
`
`A
`
`Q
`
`I DID.
`
`ABOUT WHEN?
`
`I KNOW WHEN IT WAS. IT WAS FEBRUARY OF 1994.
`
`AND YOU WERE GIVEN AN EXPLANATION AS TO WHY SPINE TECH
`
`WAS NOT INTERESTED?
`
`H CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT
`
`
`Page 6
`
`
`
`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 14, 2011
`.
`NUVASIVE, INC.,
`. WEDNESDAY, 1:30 P.M.
`.
`DEFENDANT.
`. TRIAL - DAY NINE
`. . . . . . . . . . . . . . . . . ..
`
`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
`
`2095
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`Page 7
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`
`
`08-CV-1512
`
`ANY OTHER WITNESSES FOR WARSAW?
`MR. DAUCHOT: YES, YOUR HONOR.
`MS. WICKRAMASEKERA: YOUR HONOR, WE CALL DR. SACHS.
`THE COURT: GOOD AFTERNOON, DR. SACHS. COME ON UP
`AND REJOIN THE STAND.
`ARE YOU GOING TO GO SEE THE PRESIDENT, TOO?
`THE WITNESS: I'M NOT IN THAT CATEGORY, SORRY.
`THE COURT: WE HAVE ALSO PREVIOUSLY SWORN YOU IN, SO
`WE DON'T HAVE TO DO THAT AGAIN. THAT WILL REMAIN
`THROUGHOUT THE BALANCE OF THE TRIAL.
`THE WITNESS: OKAY.
`THE COURT: GO AHEAD.
`DIRECT EXAMINATION
`
`BY MS. WICKRAMASEKERA:
`Q.
`GOOD AFTERNOON, DR. SACHS.
`A.
`GOOD AFTERNOON.
`Q.
`WE'RE SEEING YOU NOW FOR THE SECOND TIME?
`A.
`THAT'S RIGHT.
`Q.
`WE HEARD FROM YOU PREVIOUSLY ON THE SUBJECT OF
`INFRINGEMENT OF THE '973 PATENT AND INFRINGEMENT OF THE '933
`PATENT. CAN YOU TELL US WHY YOU'RE HERE TODAY?
`A.
`I'M HERE TO OFFER MY OPINION ON THE VALIDITY OF THE
`'973 PATENT.
`Q.
`WHAT'S YOUR OPINION ON THE VALIDITY OF THE '973
`PATENT?
`
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`Page 8
`
`
`
`08-CV-1512
`
`VERY TOP THAT SHOWS THE DATE AND WHO THE LETTER IS TO AND FROM.
`THANKS.
`BY MS. WICKRAMASEKERA:
`Q.
`DR. SACHS, CAN YOU TELL US WHAT DX5830 IS?
`A.
`THIS IS A COPY OF A LETTER OF CORRESPONDENCE BETWEEN
`DR. PAUL MCAFEE AND THE PEOPLE FROM SPINE TECH AND WHAT THE
`SUBJECT IS THAT DR. MCAFEE WAS ASKING SPINE TECH TO DEVELOP AND
`CREATE AND MAKE SOME SPECIALIZED INSTRUMENTS AND SPECIALIZED
`TOOLS THAT HE COULD USE FOR PERFORMING A LATERAL PROCEDURE ON
`HUMANS. SO THE DATE OF MARCH 1994 WAS WHEN THIS OCCURRED.
`Q.
`LET'S TURN TO DX5190, AND CAN WE BLOW UP THE TEXT AS
`WELL AS THE DATE?
`OKAY. DR. SACHS, CAN YOU TELL US WHAT WE'RE LOOKING
`
`AT HERE?
`THIS IS AN EXAMPLE OR THIS IS A COPY OF A REQUEST
`A.
`FROM, AGAIN, FROM DR. PAUL MCAFEE. WE CAN SEE HIS SIGNATURE
`DOWN AT THE BOTTOM OF THE PAGE DOWN HERE.
`MS. WICKRAMASEKERA: IF I CAN INTERRUPT YOU FOR A
`SECOND -- DAVE, CAN YOU PLEASE BLOW UP THE SECOND PARAGRAPH,
`FIRST SENTENCE; "THEREFORE, I AM REQUESTING A THREADED FUSION
`CAGE OF 8 MILLIMETERS IN DIAMETER BY 26 MILLIMETERS LONG."
`BY MS. WICKRAMASEKERA:
`Q.
`GO AHEAD, DR. SACHS; EXPLAIN WHAT THIS MEANS.
`A.
`THIS WAS A REQUEST THAT DR. MCAFEE HAD FILLED OUT AND
`SENT TO SPINE TECH THAT WAS ALSO TO BE USED FOR REGULATORY
`
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`
`
`08-CV-1512
`
`PURPOSES TO SUBMIT TO, TO SHOW THE FDA HE WAS REQUESTING A
`SPECIALIZED DEVICE, A CUSTOMED DEVICE TO BE MADE THAT HE CAN
`INSERT INTO THE SPINE. AND THE CONCEPT HERE IS THAT AT THE
`TIME THAT THIS IS BEING REQUESTED IN 1995, THE SPINE TECH
`CAGES, THE BAK CAGES WERE STILL UNDER FDA TRIAL INVESTIGATIONS.
`THEY HAD NOT BEEN CLEARED FOR OUT RIGHT SO THEY COULD BE SOLD
`ON THE MARKET. THEY WERE UNDER A CLINICAL INVESTIGATION STUDY.
`THAT MEANS THAT ACCORDING TO FEDERAL RULES, ANY TIME THAT ANY
`SURGEON WOULD BE USING A CAGE OUTSIDE OF THE STUDY, THE SURGEON
`WOULD HAVE TO HAVE A PRESCRIPTION AND AN INDIVIDUAL REQUEST
`THAT WOULD GO TO THE MANUFACTURER OR CORPORATE SPONSOR, AND
`THAT WOULD ALSO BE GOING THEN TO THE FDA, AND THE FDA WOULD
`CORRESPOND BACK AND GET PERMISSION TO USE THAT CUSTOMIZED
`DEVICE OUTSIDE OF THE CLINICAL TRIAL. AND THIS IS AN EXAMPLE
`OF THE INITIAL REQUEST THAT WAS MADE.
`Q.
`SO DR. SACHS, LET ME SEE IF I CAN JUST SUM UP WHAT
`YOU JUST SAID. IF DR. MCAFEE HAD USED A CUSTOM LONG CAGE
`BEFORE DR. MICHELSON, THERE WOULD BE SOME WRITTEN RECORD OF
`THIS?
`A.
`Q.
`PATENT?
`A.
`Q.
`
`THAT'S CORRECT.
`NOW DR. SACHS, IS DX5190 PRIOR ART TO THE '973
`
`NO, IT IS NOT.
`LET'S TURN TO PX226 NEXT.
`ACTUALLY, I AM SORRY. I DIDN'T ASK YOU WHY.
`
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`Page 10
`
`
`
`08-CV-1512
`
`THE REASON THAT IS BECAUSE WE SEE THE DATE THERE.
`A.
`THE DATE IS MARCH 1995 AND THAT DATE OCCURS AFTER THE, NOT ONLY
`THE FILING DATE OF THE PATENT OF '973 WITH THE EARLIEST FILING
`DATE WE KNOW AS FEBRUARY 27TH, 1995; AND WE KNOW THAT ALSO
`THERE'S A CRITICAL DATE. THE CRITICAL DATE THEN IS ONE YEAR
`PRIOR TO THAT FILING DATE WHICH IS FEBRUARY 27TH, 1994. SO
`THIS OCCURRED AFTER THE FILING DATE OF 1994, FEBRUARY 27TH.
`Q.
`DR. SACHS, IS DX5190 PUBLICLY KNOWN?
`A.
`NO. IT WAS NOT PUBLICLY KNOWN EITHER.
`Q.
`LET'S TURN TO PX226. DR. SACHS, THIS IS DR. MCAFEE'S
`1998 ARTICLE. ARE YOU FAMILIAR WITH PX226?
`A.
`YES, I AM.
`Q.
`MY FIRST QUESTION IS, IS THIS PRIOR ART TO THE '973
`PATENT?
`NO, IT IS NOT PRIOR ART.
`A.
`WHY NOT?
`Q.
`AGAIN, IT WAS NOT IN THE PUBLIC SPHERE AND PUBLICLY
`A.
`KNOWN UNTIL 1998 WHEN IT WAS PUBLISHED.
`MS. WICKRAMASEKERA: LET'S TURN TO FIGURE ONE ON PAGE
`THREE. AND IF WE COULD ZOOM IN, DAVE, ON THE BOTTOM TWO
`PICTURES, ACTUALLY JUST THE BOTTOM RIGHT.
`BY MS. WICKRAMASEKERA:
`Q.
`DR. SACHS, IS THIS A STANDARD BAK SAGE?
`A.
`NO. IT IS NOT A STANDARD CAGE.
`Q.
`CAN YOU EXPLAIN?
`
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`2174
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`Page 11
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`
`
`08-CV-1512
`
`WHAT WE'RE LOOKING AT IS A CAGE SIMILAR TO WHAT I
`A.
`DESCRIBED BEFORE. THIS IS A CUSTOM DESIGN CAGE. WE CAN SEE
`IT'S NOT TAPERED ON JUST ONE END. IT'S MORE SYMMETRICAL AND
`TAPERED ON BOTH SIDES. SO ITS' A CUSTOM DEVICE. IT'S NOT THE
`STANDARD CAGE.
`Q.
`SO DR. SACHS, CAN I CROSS THE BAK CAGES OFF THE
`LIST?
`A.
`Q.
`
`YES, PLEASE.
`ALL RIGHT.
`DR. SACHS, WE'RE GOING TO SHIFT GEARS A LITTLE BIT.
`YOU HEARD DOCTOR MICHELSON TESTIFY -- ACTUALLY, I FORGOT TO
`CROSS OFF THE '247 PATENT TOO IT LOOKS LIKE. WE TALKED ABOUT
`THAT EARLIER. CAN I CROSS THAT OFF THE LIST?
`A.
`WE DID COVER THAT.
`Q.
`ALL RIGHT.
`DR. SACHS, YOU HEARD DR. MICHELSON TESTIFY REGARDING
`THE BENEFITS OF THE TRANSLATERAL DEVICE. WHAT IS THE EARLIEST
`DOCUMENT IN WHICH YOU'VE SEEN THESE BENEFITS EXPRESSED IN THE
`RECORD?
`THE EARLIEST DOCUMENT THAT I REMEMBER WAS A MEMO
`A.
`PREPARED BY MR. LARRY BOYD WHEN HE WAS WORKING AT SOFAMOR
`DANEK. I THINK WE HAVE A COPY OF THAT.
`Q.
`CAN WE PULL UP PX114, AND CAN YOU JUST BLOW UP THE
`TOP THERE. THIS IS THE LARRY BOYD MEMO FROM JANUARY 11TH TO,
`AMONG OTHER PEOPLE, TO JOHN PAFFORD AND DAVE BRUMFIELD AND YOU
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`Page 12
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` 2213
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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.,
`)
`)
`)
`)
`) SEPTEMBER 15, 2011
`)
`) THURSDAY, 9:00 AM
`)
`) TRIAL - DAY TEN
`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 13
`
`
`
` 2215
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`SAN DIEGO, CALIFORNIA, SEPTEMBER 15, 2011, THURSDAY, 9:00 AM
`
`--0O0--
`
`THE COURT: THE RECORD CAN REFLECT ALL PARTIES AND
`
`COUNSEL ARE PRESENT AND THE JURY IS BACK. MR. SCHERKENBACH
`
`HAS SOME MORE QUESTIONS, I THINK?
`
`MR. SCHERKENBACH: I DO, YOUR HONOR.
`
`DIRECT EXAMINATION (CONTINUED)
`
`BY MR. SCHERKENBACH:
`
`Q
`
`A
`
`Q
`
`GOOD MORNING, DR. SACHS.
`
`GOOD MORNING, MR. SCHERKENBACH.
`
`I WANT TO PICK UP WHERE WE LEFT OFF YESTERDAY AND TRY
`
`TO BE AS EFFICIENT AS WE CAN HERE. WE WERE TALKING ABOUT
`
`WHETHER THE IMPLANTS CLAIMED IN THE '933 PATENT REQUIRE ANY
`
`PARTICULAR INSERTION HOLES.
`
`DO YOU RECALL THAT DISCUSSION, GENERALLY?
`
`A
`
`Q
`
`YES, I DO.
`
`OKAY. I WANT TO START THIS MORNING BY LOOKING AT A FEW
`
`OF THE FIGURES OF THE '973 PATENT. FIRST OF ALL, FIGURE 20
`
`WHICH IS DDX 2038. YOU ARE FAMILIAR WITH THIS FIGURE FROM
`
`THE '973 PATENT, ARE YOU?
`
`A
`
`Q
`
`YES, I AM.
`
`THIS IS AN ALTERNATIVE EMBODIMENT OF THE TRANSLATERAL
`
`SPINAL FUSION IMPLANT, RIGHT?
`
`A
`
`Q
`
`YES, SIR.
`
`THIS EMBODIMENT LIKE DR. BRANTIGAN'S DEVICE, IS
`
`09:03:00
`
`09:03:04
`
`09:03:20
`
`09:03:36
`
`09:03:48
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`
`Page 14
`
`
`
` 2255
`
`09:56:25
`
`09:56:40
`
`09:56:57
`
`09:57:09
`
`09:57:23
`
`09:57:34
`
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`
`BY MS. WICRAMASEKERA:
`
`Q
`
`DAVE, CAN YOU PULL UP SAR 30 AGAIN.
`
`NOW, DR. SACHS, THIS IS THE SLIDE THAT
`
`MR. SCHERKENBACH SHOWED YOU YESTERDAY, RIGHT? DO YOU SEE IN
`
`THE CORNER IT SAYS, DDX 2058?
`
`A
`
`Q
`
`YES, MA'AM.
`
`DAVE, CAN YOU HIGHLIGHT UNDER THE '973 PATENT. IT SAYS
`
`FIGURE 2. NO, TURN BACK, PLEASE. IT'S UNDER THE '973. I
`
`GUESS YOU CAN'T HIGHLIGHT IT.
`
`DO YOU SEE THAT UNDER THE '973 PATENT IT SAYS
`
`"FIGURE 2"?
`
`A
`
`Q
`
`YES.
`
`SO YESTERDAY MR. SCHERKENBACH REPRESENTED TO YOU THAT
`
`THE IMAGE IN THIS SLIDE IS FIGURE 2 OF THE '973 PATENT?
`
`A
`
`Q
`
`YES, HE DID.
`
`CAN WE TURN TO SAR 31.
`
`SO, DR. SACHS, WHEN YOU MADE YOUR NEW SLIDE, DID
`
`YOU CHANGE MR. SCHERKENBACH'S REPRESENTATION THAT IT WAS
`
`FIGURE 2 OF THE '973 PATENT?
`
`A
`
`Q
`
`NO, I DID NOT.
`
`LET'S TALK ABOUT WHERE YOU GOT THE ACTUAL DIMENSIONS
`
`FROM. BECAUSE YOU TESTIFIED THAT THESE WERE COMMERCIAL
`
`CAGES, AND SO YOU GOT THE DIMENSIONS FROM THERE.
`
`LET'S LOOK AT THE SUPPORT FOR THIS. YOU SEE UNDER
`
`IMPLANT B, IT SAYS, "26 BY 8"?
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`
`Page 15
`
`
`
` 2256
`
`09:57:38
`
`09:57:53
`
`09:58:15
`
`09:58:33
`
`09:58:56
`
`09:59:07
`
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`A
`
`Q
`
`A
`
`YES, MA'AM.
`
`DR. SACHS, WHERE DID YOU GET THIS DIMENSION FROM?
`
`THAT WAS DIMENSION THAT WAS PROVIDED -- IT WAS A
`
`DIMENSION THAT WAS ORDERED BY DR. MCAFEE -- EXCUSE ME -- IN
`
`HIS -- IN HIS SPECIAL CUSTOM REQUEST ORDER THAT WAS FOR
`
`HUMAN IMPLANTATION, THE STUDY THAT HE SAID HE WAS DOING.
`
`Q
`
`CAN WE TURN TO DX 5190. CAN YOU PLEASE HIGHLIGHT IN
`
`THE SECOND PARAGRAPH, DAVE.
`
`DO YOU SEE THE FIRST SENTENCE SAYS, "THEREFORE, I
`
`AM REQUESTING A THREADED FUSION CAGE OF 8 MILLIMETERS IN
`
`DIAMETER BY 26 MILLIMETERS LONG?" AND IS THIS THE SUPPORT
`
`YOU ARE REFERRING TO, DR. SACHS?
`
`A
`
`Q
`
`THAT IS THE SUPPORT THAT I WAS REFERRING TO.
`
`NOW, DAVE CAN WE TURN BACK TO SAR 31.
`
`NOW LET'S TALK ABOUT IMPLANT C. DR. SACHS, WHERE
`
`IN THE SPINE DOES THE 247 PATENT INDICATE THAT YOU SHOULD
`
`IMPLANT C? WHAT REGION OF THE SPINE IS IT DESIGNED FOR?
`
`A
`
`IT WAS DESIGNED AS AN INTERIOR OR POSTERIOR IMPLANT FOR
`
`THE LUMBAR SPINE.
`
`Q
`
`NOW, DR. SACHS, I THINK WE HAVE HEARD A LOT OF
`
`TESTIMONY IN THIS CASE REGARDING THE BAK CAGE?
`
`A
`
`Q
`
`YES, MA'AM.
`
`THE BAK CAGE IS A COMMERCIAL EMBODIMENT OF THE 247
`
`PATENT?
`
`A
`
`YES, IT IS.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`
`Page 16
`
`
`
` 2257
`
`09:59:07
`
`09:59:17
`
`09:59:35
`
`09:59:54
`
`10:00:04
`
`10:00:21
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`Q
`
`A
`
`Q
`
`A
`
`DR. SACHS, I SEE YOU HAVE DIMENSIONS 26 BY 17?
`
`YES.
`
`WHERE DID YOU GET THESE DIMENSIONS FROM?
`
`THOSE ARE DIMENSIONS THAT WERE MANUFACTURED BY SPINE
`
`TECH FOR THE BAK CAGE. AND THE BAK CAGE, AGAIN, WAS
`
`LICENSED TECHNOLOGY FROM THE '247 PATENT.
`
`SO I WAS BEING CONSISTENT, AND I WAS NOT BEING
`
`MISLEADING. I BELIEVE I WAS TRYING TO SHOW MORE CLEARLY
`
`WHAT THE ACTUAL DEVICES WOULD LOOK LIKE AS OPPOSED TO THE
`
`MISREPRESENTATION THAT WAS PROVIDED AND PRESENTED TO ME
`
`BEFORE.
`
`Q
`
`DAVE, CAN WE TURN TO DX 5017. AND CAN YOU PLEASE
`
`HIGHLIGHT THE HEAD-ON IMAGE WHERE IT SAYS "SPINE TECH 17
`
`MILLIMETERS." THERE YOU GO.
`
`DR. SACHS, IS THIS WHERE YOU GOT THE DIAMETER
`
`FROM?
`
`A
`
`YES, I DID.
`
`MS. WICRAMASEKERA: NO FURTHER QUESTIONS, YOUR
`
`HONOR.
`
`THE COURT: IN LIGHT OF THOSE, ANYTHING ELSE?
`
`ALL RIGHT. IT LOOKS LIKE YOU ARE ALL DONE. YOU CAN
`
`STEP DOWN.
`
`ANY OTHER WITNESSES FOR WARSAW?
`
`MS. WICRAMASEKERA: NO, YOUR HONOR.
`
`THE COURT: AND THEN WE HAVE HEARD ALL THE
`
`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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