John W. Brantigan, M.D.
`4/7/14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`Page 1
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`MEDTRONIC SOFAMOR DANEK USA, INC.;
`WARSAW ORTHOPEDIC, INC.; MEDTRONIC
`PUERTO RICO OPERATIONS CO.; and
`MEDTRONIC SOFAMOR DANEK DEGGENDORF,
`GmbH,
`
`Plaintiffs,
`v. Case No. 3:08-CV-01512-MMA-AJB
`NUVASIVE, INC.,
`Defendant
`AND RELATED COUNTERCLAIMS
`__________________________
`
`DISCOVERY DEPOSITION
`OF
`JOHN W. BRANTIGAN, M.D.
`MONDAY, APRIL 7, 2014
`9:48 A.M.
` AT: 601 UNION STREET, SUITE 1624
`SEATTLE, WASHINGTON
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`JOB 72404
`REPORTER: DAVID HART
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`John W. Brantigan, M.D.
`4/7/14
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`Page 2
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` APPEARANCES
`
` Appearing on behalf of Plaintiff Warsaw:
` THOMAS MARTIN, ESQ.
` Martin & Ferraro
` 1557 Lake O'Pines Street, NE
` Hartville, Ohio 44632
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` -AND-
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` ALI-REZA BOLOORI, Ph.D.
` Kirkland & Ellis
` 333 South Hope Street
` Los Angeles, California 90071
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`John W. Brantigan, M.D.
`4/7/14
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`Page 3
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` APPEARANCES (Continuing)
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` Appearing on behalf of the Defendant:
` TODD MILLER, ESQ.
` Fish & Richardson
` 12390 El Camino Real
` San Diego, California 92130
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` -AND-
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` STEPHEN SCHAEFER, ESQ.
` Fish & Richardson
` 3200 RBC Plaza
` 60 South Sixth Street
` Minneapolis, Minnesota 55402
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` ALSO PRESENT:
` JONATHAN SPANGLER
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`John W. Brantigan, M.D.
`4/7/14
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` EXAMINATION INDEX
` EXAMINATION PAGE
` BY MR. MARTIN 5
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` EXHIBIT INDEX
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`EXHIBIT NO. DESCRIPTION PAGE
`Exhibit 2003 Brantigan U.S. Patent No. 4,834,757 155
`Exhibit 2004 Brantigan U.S. Patent 5,425,772 155
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`John W. Brantigan, M.D.
`4/7/14
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` DISCOVERY DEPOSITION
` JOHN W. BRANTIGAN, M.D.
` TAKEN ON
` MONDAY, APRIL 7, 2014
` 9:48 A.M.
`
` JOHN W. BRANTIGAN, M.D.,
` Having been first duly sworn, was examined and testified as
` follows:
`
` EXAMINATION 09:48
` BY MR. MARTIN: 09:48
` Q. Good morning, Dr. Brantigan. How are you? 09:48
` A. Good. Good morning. 09:48
` Q. Would you please state your full name and your 09:48
` present address for the record. 09:48
` A. John Wilder Brantigan. Street address is 2526 09:49
` Neck Point Road in Shaw Island, Washington. 09:49
` Q. Now, I know that you've been deposed before, but I'd 09:49
` just like to review a couple of the rules with you. 09:49
` We need audible answers for the court reporter. 09:49
` I can recognize the shaking of your head for "yes" or "no," 09:49
` but we want the record to reflect your answers audibly. 09:49
` We can't speak over each other. Again, the 09:49
` court reporter needs to be able to get down my complete
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`John W. Brantigan, M.D.
`4/7/14
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`Page 6
` question and your complete answer. I'll do my best to let 09:49
` you finish your answer, and I'd appreciate if you could do
` the same. Is that fair? 09:49
` A. Yes. 09:49
` Q. If you don't understand one of my questions, please 09:49
` let me know; otherwise, I will assume that you did 09:49
` understand me. Again, is that fair? 09:49
` A. Yes, it is. 09:49
` Q. From time to time, your counsel, I believe Mr. Miller 09:50
` here, will be interposing some objections, but unless he 09:50
` specifically instructs you not to answer the question, I'm 09:50
` entitled to an answer under the rules. Do you understand 09:50
` that as well? 09:50
` A. I understand. 09:50
` Q. With respect to breaks, we'll be taking breaks from 09:50
` time to time and likely every hour or so. If you need a 09:50
` break at any time, please let me know. I'll do my best to 09:50
` accommodate you. If I'm in the middle of asking a question 09:50
` or if I've posed a question, I'd like to get that question 09:50
` answered before we actually take a break. 09:50
` And I also want to just point out that this is 09:50
` not an endurance contest, so certainly don't feel compelled 09:50
` to just keep on rolling if you do need a break. 09:50
` Would you please tell me what you've done to 09:50
` prepare for today's deposition.
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`John W. Brantigan, M.D.
`4/7/14
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`Page 7
` MR. MILLER: You can describe that generally, 09:51
` but if you need guidance on the boundaries of
` attorney-client privilege or work product, we can talk about 09:51
` it. Generally, you can respond. 09:51
` THE WITNESS: I believe this deposition relates 09:51
` to a declaration that I've made in a patent issue, the '696 09:51
` patent. And in order to prepare for this deposition, I have 09:51
` reviewed my declaration; I have discussed it with my 09:51
` attorneys with regard to the key issues that may arise. 09:51
` BY MR. MARTIN: 09:51
` Q. To whom did you speak? 09:51
` A. Mr. Todd Miller, Mr. Jonathan Spangler, and Steve 09:51
` Schaefer. 09:51
` Q. When did you speak with them? 09:52
` A. Yesterday. 09:52
` Q. Did you speak with them prior to yesterday, in 09:52
` preparation for this deposition? 09:52
` A. Yes, I did. 09:52
` Q. Can you tell me when? 09:52
` A. I'm really not sure of the date. We did one other -- 09:52
` we did have one other session in anticipation of the 09:52
` deposition. It was several months ago. 09:52
` Q. I see. 09:52
` Did you talk to anyone other than counsel, 09:52
` regarding your preparation for this deposition?
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`John W. Brantigan, M.D.
`4/7/14
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`Page 8
` A. Not about the substance. 09:52
` Q. Did you review any documents other than your
` declaration, in preparation for today? 09:52
` MR. MILLER: You can answer that "yes" or "no." 09:52
` THE WITNESS: Yes, I did. 09:52
` BY MR. MARTIN: 09:52
` Q. What other documents did you review? 09:53
` MR. MILLER: I'm going to -- I think that 09:53
` question calls for attorney work product in that it seeks -- 09:53
` the way it's phrased, it's somewhat ambiguous, but it 09:53
` appears to seek the identification of documents by counsel. 09:53
` Perhaps if you can narrow it up to avoid that objection, 09:53
` I'll withdraw it. 09:53
` BY MR. MARTIN: 09:53
` Q. Did any of the documents that you were shown refresh 09:53
` your recollection about anything? 09:53
` MR. MILLER: Objection. Object to form. 09:53
` THE WITNESS: The review refreshed my memory 09:53
` regarding the details of the declaration. 09:53
` BY MR. MARTIN: 09:53
` Q. Did you review documents that were not exhibits to 09:53
` your declaration? 09:53
` MR. MILLER: Again, "yes" or "no." 09:53
` THE WITNESS: No. 09:53
` BY MR. MARTIN:
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`John W. Brantigan, M.D.
`4/7/14
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` Q. Okay. Thank you. 09:53
` How much time do you estimate that you spent
` preparing for today's deposition? In total. The prior 09:54
` session from some months ago and today. 09:54
` A. I think about eight hours yesterday; about four hours 09:54
` just on my own reviewing the declaration; and the previous 09:54
` session that I mentioned, I believe that was about an 09:54
` eight-hour session. 09:54
` Q. Have you seen the U.S. Patent and Trademark Office's 09:54
` decisions to institute the IPR 395 and IPR 396? 09:54
` A. I have not seen those documents. 09:54
` Q. Do you understand that when I say "IPR," that's an 09:54
` inter partes review regarding the '696 patent? 09:55
` A. Yes, I understand that. 09:55
` Q. As part of the process, you provided a declaration, 09:55
` giving an opinion that certain of the claims in the '696 09:55
` patent were obvious. Is that correct? 09:55
` A. That's correct. 09:55
` Q. There were a number of proposed grounds in your 09:55
` declaration whereby you suggested, that in the IPR 395, 09:55
` Claims 1 through 6 were obvious in view of a number of 09:55
` combinations of art. And the same way, again, in IPR 396; 09:55
` there were a number of combinations of art that render 09:55
` Claims 7 through 12 obvious. Is that your recollection? 09:56
` A. I don't understand or I'm not familiar with the IPR
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`4/7/14
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`Page 10
` documents, but within that framework, I believe your 09:56
` statement is correct.
` MR. MILLER: Tom, just for clarity: There's a 09:56
` lot of numbers floating around -- 09:56
` MR. MARTIN: Okay. 09:56
` MR. MILLER: -- and then 395 and 396, that's 09:56
` just a whole new set of numbers. 09:56
` MR. MARTIN: Oh. I didn't realize that -- 09:56
` sometimes we all get caught up in our own jargon associated 09:56
` with our business. So I'll try to drop out some of the -- 09:56
` some of the numbers and the jargon, to the best I can. But 09:56
` thank you, Todd. 09:56
` BY MR. MARTIN: 09:56
` Q. You submitted declarations in two separate cases, 09:56
` both associated with the 39 -- the '696 patent. Excuse me. 09:56
` Is that correct? 09:56
` A. That's correct. 09:56
` Q. One of your declarations was directed to Claims 1 09:56
` through 6 of the '696 patent, and the other was directed to 09:57
` Claims 7 through 12 of the '696 patent. Is that correct? 09:57
` A. That's correct. 09:57
` Q. Do you understand that the patent office has narrowed 09:57
` down the combinations of art that are available in this 09:57
` proceeding to -- in considering the validity of the claims? 09:57
` MR. MILLER: Objection. Form.
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`4/7/14
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` MR. MARTIN: Let me see if I can clean that up a 09:57
` little bit.
` BY MR. MARTIN: 09:57
` Q. You proposed a number of grounds by which you could 09:57
` object to the claims in the '696 patent. Do you understand 09:57
` that the patent office has put under consideration some of 09:57
` your grounds while not keeping some of the others that you'd 09:57
` proposed alive in the case, so to say? 09:58
` MR. MILLER: Objection. Form. 09:58
` THE WITNESS: I understand that some of my 09:58
` grounds will be discussed today and some will not, and I 09:58
` don't understand the full basis of why that is. 09:58
` BY MR. MARTIN: 09:58
` Q. Okay. Do you understand, that for Claims 1 through 09:58
` 6, that there are three grounds of rejection that will be 09:58
` considered by the board at this time? 09:58
` A. I have not reviewed any documents from the board to 09:58
` reflect that. 09:58
` Q. Okay. 09:58
` MR. MARTIN: Let's go ahead and mark ... 09:59
` I'd like to mark for Exhibit -- Brantigan 09:59
` Exhibit No. 1 the declaration of John Brantigan directed to 09:59
` the IPR 395, Claims 1 through 6. 09:59
` MR. MILLER: Tom, let's go off the record for 09:59
` one second.
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`John W. Brantigan, M.D.
`4/7/14
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`Page 12
` (Whereupon, a discussion was held off the 09:59
` record.)
` MR. MARTIN: All right. Well, thank you, 10:03
` Mr. Miller. 10:03
` We're going to introduce the declaration of 10:03
` Dr. John Brantigan for IPR 395 as Exhibit -- NuVasive 1001 10:04
` and the declaration for Dr. John Brantigan for IPR 396 as 10:04
` NuVasive 1101. 10:04
` Dr. Brantigan, here are copies of your two 10:04
` declarations. 10:04
` Mr. Miller, would you like copies? 10:04
` MR. MILLER: Sure. Thank you. 10:04
` THE WITNESS: So a question. This is 1 through 10:04
` 6 and this is 6 through 12; correct? 10:04
` MR. MILLER: Yes. 10:04
` Are you -- I'm assuming, given that these are 10:04
` going to be bearing the existing exhibit numbering from the 10:04
` filing, that we're not going to need to attach these to the 10:04
` deposition transcript. 10:04
` MR. SCHAEFER: There's no need to. 10:04
` MR. MARTIN: I don't see any reason to. 10:04
` MR. MILLER: Then I think it might help 10:05
` Dr. Brantigan simply to write "Claims 1 through 6" on this 10:05
` one and "7 through 12" on that one just so that he doesn't 10:05
` get them mixed up.
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` MR. MARTIN: Thank you. That's a fine 10:05
` suggestion.
` BY MR. MARTIN: 10:05
` Q. Dr. Brantigan, if you take a look at the declaration 10:05
` for Claims 1 through 6, and in particular, take a look at 10:06
` Paragraphs 6 through 8. In particular, within Paragraphs 6 10:06
` through 8, there's a reference to you studying the '696 10:06
` patent of Dr. Michelson. Can you tell me what you -- the 10:06
` extent to which you studied Dr. Michelson's patent, the 10:06
` amount of time you put into it and what your understanding 10:06
` was of what was disclosed within the '696 patent. 10:06
` MR. MILLER: Objection. Form. 10:06
` THE WITNESS: I spent many hours reviewing the 10:06
` patent, and I believe that what I've found was reviewed in 10:07
` these documents. It's a very complicated disclosure, and 10:07
` although the words seem obscure at first reading, I think 10:07
` the claims hold together as a coherent presentation, however 10:07
` complex, and these documents reflect my understanding of the 10:07
` claims and disclosure. 10:07
` MR. MARTIN: Thank you. 10:07
` BY MR. MARTIN: 10:07
` Q. Now, in Paragraphs 12 and 13, you specifically get 10:07
` into the claims of the '696 patent; correct? 10:07
` MR. MILLER: Objection. Form. 10:07
` MR. MARTIN: Let me try that again.
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` BY MR. MARTIN: 10:08
` Q. The heading before Paragraphs 12 and 13 states
` "Interpretations of the '696 Patent Claims at Issue." 10:08
` Correct? 10:08
` A. That is a paragraph heading. Yes. 10:08
` Q. And you make reference to the broadest reasonable 10:08
` construction in light of the specification of the patent, in 10:08
` which appears in the first sentence; correct? 10:08
` A. Yes, I do. 10:08
` Q. Do you know what the difference is between Claims 1 10:08
` and 4 in the '696 patent? 10:08
` MR. MILLER: Objection. Form. 10:08
` THE WITNESS: I would like to refer to the '696 10:08
` patent specification. 10:09
` MR. MARTIN: Okay. We'll introduce as NuVasive 10:09
` Exhibit No. 2 -- I misspoke. It's NuVasive 1002, is the 10:09
` Michelson '696 patent. 10:09
` MR. MILLER: Thank you. 10:10
` THE WITNESS: Would you repeat your question, 10:10
` please? 10:10
` MR. MARTIN: Yes. 10:10
` BY MR. MARTIN: 10:10
` Q. I'd like to know if, when you read Claims 1 and 4 for 10:10
` purposes of doing your obviousness analysis, did you view 10:10
` them as essentially being directed to the same subject
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`Page 15
` matter, or do you see there a difference between Claims 1 10:10
` and 4 that impacted your analysis?
` MR. MILLER: Objection. Form. 10:10
` THE WITNESS: I believe the subject matter is 10:10
` the same. I believe that there are distinctions between 10:10
` those claims. They're not identical. 10:10
` MR. MARTIN: Thank you. 10:10
` BY MR. MARTIN: 10:10
` Q. Do you know the difference, as you sit here, between 10:10
` Claims 4 and Claim 10? 10:11
` A. Would you repeat the question, please? 10:11
` Q. Yes. 10:11
` Just generally speaking, what's the difference in 10:11
` the coverage or claim scope between Claim 4 and Claim 10? 10:11
` MR. MILLER: Objection. Form. 10:11
` THE WITNESS: I have a difficult time sitting 10:11
` here and answering that without my marked-up copy in which I 10:11
` have parsed out the meaning of every different line. And I 10:11
` can do that again for you if you wish, but it'll take me 10:11
` about a half an hour to parse out the differences. There 10:11
` are differences in which she defines different variations of 10:12
` the implant. 10:12
` BY MR. MARTIN: 10:12
` Q. Without going through and marking up the claims and 10:12
` doing a word-by-word comparison, do you have a general
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`John W. Brantigan, M.D.
`4/7/14
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`Page 16
` understanding of the difference, if any, between the claims 10:12
` grouped together as 1 through 6 and those grouped together
` as 7 through 12, as far as the general scope of the claims? 10:12
` MR. MILLER: Objection. Form. 10:12
` THE WITNESS: Yes, I do. 10:12
` BY MR. MARTIN: 10:12
` Q. Could you tell me what your understanding is of the 10:12
` general distinction between the first six claims and then 10:12
` the second six claims. 10:12
` A. I can tell you the distinction of the varieties of 10:12
` claims here in that some of the claims describe lordotic 10:12
` implants; some of the claims describe ratcheting added; some 10:12
` of them describe convex surfaces; and some of them describe 10:13
` an insert-and-rotate feature. And there are combinations of 10:13
` those that are referred to. Basically, all possible 10:13
` combinations of those features are described in the claims. 10:13
` Q. You mentioned ratcheting as one of the distinctions, 10:13
` in your answer that you just gave me. Is it your 10:13
` understanding, as you sit here today, that any of these 10:13
` claims don't require ratcheting? 10:13
` A. That's difficult to answer exactly, because certainly 10:13
` some of the illustrations do not require ratchetings. For 10:14
` example -- I mean, I think it's apparent that Figure 1 has 10:14
` no ratchetings; Figure 2, 3, and 4 do not; Figure 5 does 10:14
` not; Figure 14 and 13 do not; Figure 15 and 16 do not; and
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`John W. Brantigan, M.D.
`4/7/14
`
`Page 17
` the Figures 19, 20, and 21, which describe the insert and 10:14
` rotate, do not show ratchetings, even though the
` specifications for the insert-and-rotate claims describe 10:14
` ratchetings. 10:14
` Q. Thank you. However, my question asked about the 10:14
` claims, not the figures. And so maybe to assist you in 10:14
` answering that question, would you please turn to Column 13 10:15
` of the '696 patent and, in particular, look at Line 47 10:15
` within Claim 1. 10:15
` Do you see in Column 13, starting at Line 47, 10:15
` that Claim 1 has a portion of the claim directed to the 10:15
` ratcheting feature? 10:15
` A. Yes, it does. 10:15
` Q. Let's take a look at Column 14, Lines 52 to 57. That 10:15
` Independent Claim 4 also includes ratcheting. 10:15
` A. Yes, it does. 10:15
` Q. Thank you. 10:15
` With respect to Independent Claim 7, looking at 10:15
` Column 16, Line -- starting at Line 4, you can see that 10:16
` ratcheting is included within Claim 7 as well; correct? 10:16
` A. Correct. 10:16
` Q. And Independent Claim 10, looking at Column 17, 10:16
` Line 14, also includes ratcheting, I believe. Is that 10:16
` correct? 10:16
` A. That's correct.
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`4/7/14
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`Page 18
` Q. Good. Okay. So all of the claims require the 10:16
` ratcheting feature.
` MR. MILLER: Objection. Form. 10:16
` BY MR. MARTIN: 10:16
` Q. Is that correct, Doctor? 10:16
` A. Oh. I accept that. Yes. 10:16
` Q. With respect to the declarations that I placed in 10:16
` front of you, your declarations for these two IPRs, who 10:16
` drafted the declarations? 10:16
` MR. MILLER: Objection. Form. 10:16
` THE WITNESS: I don't know. 10:16
` BY MR. MARTIN: 10:16
` Q. Did you draft the declarations? 10:16
` A. I did not type the declarations. No. 10:16
` Q. What was your role in their preparation? 10:16
` A. In preparation for these declarations, I 10:17
` independently studied the patent for many hours; I reviewed 10:17
` the relevant comparative patents; I formed my opinion about 10:17
` the obviousness. At that point, I had discussions with my 10:17
` attorneys, who advised me on the legal tests and the 10:17
` comparisons that needed to be made in order to reflect the 10:17
` legal argument. 10:17
` It was an iterative process. I had the technical 10:17
` competence in this field. Obviously, I'm not a lawyer. 10:17
` Together, we framed my opinions in the form of a legal
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`John W. Brantigan, M.D.
`4/7/14
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`Page 19
` discussion. 10:17
` Q. Did you find any of the references that you used in
` your declaration? 10:17
` A. Did I locate them myself? 10:17
` Q. Did you locate them yourself. Yes, sir. That's the 10:17
` question. 10:17
` A. A number of them were already in my possession from 10:17
` my background in this field. 10:18
` Q. Of course. I imagine ones where you're the inventor. 10:18
` A. Well, and others as well. I have filed patents on my 10:18
` own and was aware of the technology in the field and what 10:18
` other people were doing. 10:18
` Q. Did you suggest any of these references to your 10:18
` counsel for use in your declaration, or were they provided 10:18
` to you? 10:18
` A. I believe I made