Charles Branch, Jr, M.D., 4/23/2014
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`________________________
`NUVASIVE, INC.
` Petitioner,
` v. IPR2013-00395
`WARSAW ORTHOPEDIC, INC. Patent No. 8,444,696
` Patent Owner
`______________________________________
`
` Deposition of CHARLES BRANCH, JR., M.D.,
` at 200 West Second Street, Winston-Salem,
` North Carolina, commencing at 9:13 a.m.,
` Wednesday, April 23, 2014, before April
` Marsh, Shorthand Reporter, Notary Public.
`
`JOB No. 1835912
`PAGES 1 - 158
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`NUVASIVE 1018
`NUVASIVE 1117
`NuVasive v. Medtronic
`IPR2013-00395
`IPR2013-00396
`
`

`

`Charles Branch, Jr, M.D., 4/23/2014
`
`APPEARANCES OF COUNSEL:
`
`On behalf of the Petitioner:
` BY: TODD G. MILLER, Esq.
` Fish & Richardson, P.C.
` 12390 El Camino Real
` San Diego, California 92130-2081
` 858-678-5070
` miller@fr.com
`-and-
` BY: STEPHEN R. SCHAEFER, Esq.
` Fish & Richardson, P.C.
` 3200 RBC Plaza
` 60 South Sixth Street
` Minneapolis, Minnesota 55402
` Schaefer@fr.com
`
`On behalf of the Patent Owner:
` BY: NIMALKA WICKRAMASEKERA, Esq.
` Kirkland & Ellis, LLP
` 333 South Hope Street
` Los Angeles, California 90071
` 213-680-8400
` nimalka.wickramasekera@kirkland.com
`-and-
` BY: THOMAS H. MARTIN, Esq.
` Martin & Ferraro, LLP
` 1557 Lake O'Pines Street, Northeast
` Hartville, Ohio 44632
` 330-877-0700
` tmartin@martinferraro.com
`
`Page 2
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` I N D E X
`
`WITNESS: CHARLES BRANCH, JR., M.D.
`Examination Page
`By Mr. Miller 4
`
` EXHIBITS
`NUMBER DESCRIPTION PAGE
`
`Exhibit 1015 Picture 54
`Exhibit 1016 Picture 54
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` P R O C E E D I N G S
` * * * * *
` MR. MILLER: Good morning, Dr. Branch, my
` name is Todd Miller. I'm with the law firm of
` Fish & Richardson, and I represent NuVasive in
` this matter.
` MS. WICKRAMASEKERA: Nimalka Wickramasekera
` from Kirkland & Ellis on behalf of the witness
` and patent owner and with me is Tom Martin from
` Martin & Ferraro.
` MR. MILLER: And also with me is Tim
` Schaefer, also with Fish & Richardson.
` CHARLES BRANCH, JR., M.D.,
` having been duly sworn, testifies as follows:
` EXAMINATION
`BY MR. MILLER:
` Q. Would you state your full name, please.
` A. My name is the Charles Leon Branch, Jr.
` Q. And could you tell me what your home
`address is, please.
` A. My home address is Post Office Box 320, 690
`Burton, B-U-R-T-O-N, Road in Advance, North Carolina
`27006.
` Q. Thank you. And we talked briefly about
`this before we started. You've had your deposition
`Page 4
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`taken before?
` A. Yes, I have.
` Q. About how many times?
` A. Several. A dozen -- two dozen.
` Q. So I'm going to assume that you're familiar
`with the ground rules that we follow, but I'll go
`over a few of them just to make sure we're on the
`same page. All right?
` A. Perfect.
` Q. I'm going to be asking you questions today
`and you need to answer them. Do you understand that?
` A. Yes.
` Q. And for the court reporter's benefit, we
`just need to speak one at a time. So I'll wait for
`you to finish talking before I start talking and ask
`that you do the same. Okay?
` A. I will.
` Q. And the court reporter needs audible
`responses -- you've been really good at that --
`"yeses" and "noes," no "uh-huh" or "huh-uhs" or head
`nods. All right?
` A. I understand.
` Q. And we'll take breaks about every hour or
`whenever you need them. One thing that you may not
`be familiar with is, in this procedure, you can't
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`Charles Branch, Jr, M.D., 4/23/2014
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`talk about the substance of your deposition with
`counsel during the breaks. All right?
` A. I understand.
` Q. I don't know if that's a new rule to you or
`not. Some courts vary. This one is very strict
`about that. So they're not being rude when they say
`they can't talk to you about your deposition. Okay?
` A. I understand.
` Q. And do you understand that you're here
`testifying under oath?
` A. I do.
` Q. And that's the same oath that you would
`give if you were in a court, right?
` A. I understand.
` Q. Is there any reason that you can't give
`full and complete testimony today?
` A. Not that I'm aware of.
` Q. The purpose of the deposition is so that I
`can get your best and complete testimony. So if
`there's anything I ask you during the deposition that
`you don't understand, just ask me to clarify my
`question and I'll do that. Okay?
` A. I will.
` Q. And if you decide that there's something
`that you need to add or amend today, just go ahead
`Page 6
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`1
`and tell me that you need to do that and we'll let
`2
`you do that. All right?
`3
` A. I will.
`4
` Q. All right. Now, in terms of depositions
`5
`that you've given in the past, have any of those
`6
`involved patents?
`7
` A. No.
`8
` Q. Have any of those involved Medtronic or any
`9
`of its affiliated companies?
`10
` A. No.
`11
` Q. If I say "Medtronic" today, will you
`12
`understand that that includes the whole variety of
`13 Medtronic entities, including Warsaw Orthopedic,
`14 Medtronic Sofamor Danek -- they have a lot of them --
`15
`Puerto Rico, Cayman Islands, the works?
`16
` A. I do. I understand.
`17
` Q. Okay. Great. Your prior depositions --
`18
`have any of those involved medical devices? And I'll
`19
`exclude malpractice.
`20
` A. Right. Not other -- so outside of a
`21
`medical malpractice or injury condition, no.
`22
` Q. Okay. Who do you work for today?
`23
` MS. WICKRAMASEKERA: Objection to form.
`24
` THE WITNESS: I presume you're asking who
`25
` is actually paying for my time here?
`Page 7
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`BY MR. MILLER:
` Q. Let me be clear. Who is your employer
`outside of this deposition?
` A. I work for Wake Forest University Baptist
`Health System.
` Q. And what kind of work do you do for Wake
`Forest?
` A. I'm an academic neurosurgeon. I practice
`neurosurgery, which includes spinal surgery. I train
`young physicians to be neurosurgeons, and I'm the
`administrator for the department of neurosurgery, or
`chief or chair of neurosurgery at Wake Forest Baptist
`Health.
` Q. I saw on your CV, I believe, that you were
`in the department of pediatrics?
` A. I have a joint appointment,
`cross-appointment in the department of pediatrics as
`well because of my interest in pediatric trauma and
`the care of children who have been injured.
` Q. Do you do pediatric scoliosis surgery?
` A. I do not because I have a partner who does,
`so I encourage him to develop his expertise and help
`him when he needs me.
` Q. Do you do spine fusion surgery on adults?
` A. Yes.
`Page 8
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` Q. How long have you been doing spine fusion
`surgery on adults?
` A. 30 years.
` Q. In performing spine fusion surgery, do you
`use spine fusion implants?
` A. Yes, I do.
` Q. And how long have you used spine fusion
`implants in spine fusion surgery?
` A. Since about 2000.
` Q. And whose implants do you use -- spine
`fusion implants?
` A. The majority of the spinal implants I use
`are developed and produced my Medtronic.
` Q. Have you used any non-Medtronic spinal
`fusion implants?
` A. In the course of my career, I believe I
`have, but not recently.
` Q. Do you know any particular Medtronic
`implant that you use?
` A. Yes, I do.
` Q. What would those be?
` A. Capstone, Capstone Control, Solera, again,
`are -- the range of spinal fusion devices, or just
`interbodies implants?
` Q. Just the interbody implants.
`Page 9
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`Charles Branch, Jr, M.D., 4/23/2014
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` A. So the Capstone and Capstone Control are
`the two implants that I use almost exclusively.
` Q. Do you use the CLYDESDALE?
` A. I do not.
` Q. Do you do lateral access surgery?
` A. Seldom.
` Q. When you do -- well, and I use lateral
`access or lateral approach. Do they mean the same
`thing to you?
` A. They do.
` Q. And when you do a lateral approach spinal
`fusion surgery, what sort of technique do you use?
` MS. WICKRAMASEKERA: Objection to form.
` THE WITNESS: I have infrequently used that
` approach in my clinical practice, but in cadaver
` and training and other environments have used
` the DLIF -- what we call DLIF with an expandable
` retractor and transpsoas approach, and then more
` recently what I will call OLIF or an oblique
` anterolateral fusion that enters the lateral
` spine with retraction of the psoas muscle in a
` posterior direction.
`BY MR. MILLER:
` Q. In an OLIF, do you go through the psoas?
` A. No.
`Page 10
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`1 Michelson.
`2
` And subsequently, to read I think what is
`3
`called an IPR, which is a document that challenges
`4
`the validity of a patent, and then the responses from
`5
`Dr. Brantigan in the matter as well, and then
`6
`ultimately, to generate my own opinion with regard to
`7
`the concerns that were addressed regarding the
`8
`validity of the patent in the IPR or IPRs. I think
`9
`there were two of them. Is that direct?
`10
` Q. You're correct.
`11
` A. Okay.
`12
` Q. So you saved me a question about using the
`13
`last three numbers of the patent. So we'll call
`14 Michelson patent '696. And you've read that '696
`15
`patent?
`16
` A. I have.
`17
` Q. Cover to cover?
`18
` A. Yes.
`19
` Q. How many times?
`20
` A. I'm not sure. Several.
`21
` Q. Do you know what a patent file history is?
`22
` A. I believe I do. I've tried to come to
`23
`understand that.
`24
` Q. What is that?
`25
` A. I think that's a -- it's a set of dates and
`Page 12
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` Q. Do you retract the psoas?
`2
` A. Yeah.
`3
` Q. I take it that you're being compensated for
`4
`your time working on this case?
`5
` A. Yes.
`6
` Q. What is your hourly rate?
`7
` A. $700 per hour.
`8
` Q. How many hours have you worked on this
`9
`case?
`10
` A. Approximately 40.
`11
` Q. Will you be charging your normal hourly
`12
`rate for the time you spend in deposition today?
`13
` A. Yes, I will.
`14
` Q. When did you begin working on this case?
`15
` A. I believe March the 1st is -- in or around
`16 March 1st, February 28th/March 1st is my
`17
`recollection. It may have been the 15th of February,
`18
`but I don't have that absolutely in front of me.
`19
` Q. Could you describe generally the work that
`20
`you've done on this case?
`21
` A. I have had the opportunity to read and
`22
`study a variety of patents that relate to spinal
`23
`implants, both spinal fusion implants and spinal disc
`24
`implants that drive back to the mid-1990s, including
`25
`the -- what I'll refer to as the '696 patent of Dr.
`Page 11
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`numbers or a trail. It's on the front page of the
`2
`patent that sort of tells when the first filing
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`occurred.
`4
` And then when there's continuations or
`5 modifications or additions to that particular
`6
`patents, those are memorialized in this sort of
`7
`stream of dates on the front page of the patent.
`8
` Q. Got you. I'm going to show you. I'm going
`9
`to show you what has been previously marked as
`10
`Exhibit 1002. And under -- on the first page of
`11
`Exhibit 1002, it says, "Related U.S. application
`12
`data." Is that what you were referring to as the
`13
`patent file history?
`14
` A. That's what I was referring to.
`15
` Q. Now, did you read -- I believe you did --
`16
`the NuVasive's request for an inter partes review?
`17
` A. I did.
`18
` Q. And did you read the -- do you understand
`19
`that that request refers to prior art patents?
`20
` A. I believe I did. I've got the -- yes. I
`21
`had to stop there.
`22
` Q. All right. And, for example, the Senter
`23
`771 patent. Did you read the Senter patent?
`24
` A. I read a patent that Senter applied. I
`25
`don't recall whether it was 771.
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`Charles Branch, Jr, M.D., 4/23/2014
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` Q. All right. We only have one Senter patent.
`I'll show it to you during the course of the day.
` A. If that's the one you're referring to, I
`read that, yes.
` Q. All right. Did you review any of Dr.
`Brantigan's patents?
` A. Yes.
` Q. Do you remember how many of those patents
`you reviewed?
` A. At least two.
` Q. And Dr. Kim's patent?
` A. Yes.
` Q. Dr. Michelson's prior art patent, the '037?
` A. Yes.
` Q. The Wagner patent, did you read that?
` A. Yes.
` Q. Steffee patent?
` A. Yes.
` Q. Tropiano patent?
` A. No.
` Q. Did you read Dr. Brantigan's deposition
`transcript in this matter?
` A. I did.
` Q. And when did you do that?
` MS. WICKRAMASEKERA: I'm sorry, the
`Page 14
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` question is when or why?
` MR. MILLER: When.
` THE WITNESS: Last week or sometime in the
` last two weeks. It seems like it was a few days
` after he gave his deposition, but I can't recall
` the exact date.
`BY MR. MILLER:
` Q. Did you review it before you wrote your
`report in this matter?
` A. No.
` Q. So you reviewed Dr. Brantigan's deposition
`after you submitted your report?
` A. No. I wrote the majority of my report.
` Q. Right.
` A. And then I read the patent -- I read his
`deposition transcript, and I believe made a few
`comments in my declaration based on that.
` Q. Now, you're familiar with -- that the --
`withdrawn.
` You know that the patent board has declared
`the two interferences requested -- I'm sorry, the two
`inter partes reviews requested by NuVasive?
` A. I understand that the inter parte review is
`an action that NuVasive takes challenging the
`validity of the patent, and that the board has
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`accepted some of those terms, and that's why we're
`here today.
` Q. Right. Now, did you review the board's
`decision instituting the inter partes review?
` A. I may have, but I'm not sure I fully
`understand that technical detail.
` Q. Okay. Are you represented by counsel
`today?
` A. I am.
` Q. Who is that?
` A. Tom Martin with Martin & Ferraro and
`Nimalka Wickramasekera.
` Q. Wow, you did very well with that name. It
`took me many years.
` Who contacted you about working on this
`case?
` A. I believe Nimalka did.
` Q. And what, if anything, were you told about
`this case before you decided to work on it?
` A. I was told that there was a patent or
`intellectual property discussion, and they asked me
`if I would be willing to review the patents, and the
`IPR was raised, and offer an opinion based on my
`experience as a spine surgeon and, to some degree,
`implant developer, during the time frame that these
`Page 16
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`particular patents were filed.
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` MS. WICKRAMASEKERA: And, Dr. Branch, I
`3
` just want to caution you, to the extent that you
`4
` can't recall the substance of the conversations
`5
` that occurred before or after the retention, be
`6
` careful about not revealing the substance of
`7
` communications that we had regarding the patent
`8
` and the proceeding after you retained us.
`9
`BY MR. MILLER:
`10
` Q. So you were contacted by
`11 Ms. Wickramasekra -- Nimalka, and then did you take
`12
`some time to decide whether you wanted to work on
`13
`this matter?
`14
` A. I remember that we had a phone call, and
`15
`that Mr. Martin and Ms. Wickramasekra, and I think
`16
`several, helped me understand what the extent of this
`17
`was, and I determined that I would help.
`18
` Q. Did you review any of the documents before
`19
`agreeing to help?
`20
` A. I can't recall.
`21
` Q. Have you spoken with anyone else about this
`22 matter other than Tom or Nimalka?
`23
` A. No.
`24
` Q. Have you spoken with any other lawyers
`25
`about this matter?
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`Charles Branch, Jr, M.D., 4/23/2014
`
`1
` A. No.
`2
` Q. Why did you decide to get involved in this
`3 matter?
`4
` A. I thought it was an opportunity to both
`5
`come to understand how patent and intellectual
`6
`property litigation or concerns were dealt with.
`7
` So partly from an educational curiosity
`8
`perspective, partly because there was a request for
`9
`assistance that I thought I could be of assistance
`10
`with, with my unique position as a surgeon, developer
`11
`for spinal devices.
`12
` Q. Do you know who Gary Michelson is?
`13
` A. I know him well because of the realm that
`14
`I've worked in, but I'm not sure that I've ever met
`15
`him.
`16
` Q. What do you mean you know him well, but you
`17
`haven't met him?
`18
` A. His name has been associated with spinal
`19
`devices for decades. And so as someone who was
`20
`involved in the development or use of spinal fusion
`21
`technology over the last several decades, Dr.
`22 Michelson's name is very much a part of the landscape
`23
`of spinal fusion devices.
`24
` Q. I take it you've never been in surgery with
`25
`him?
`Page 18
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`in a spinal surgery journal by Dr. Michelson?
`2
` A. Not recently.
`3
` Q. Ever?
`4
` A. I can't recall.
`5
` Q. Have you ever reviewed an article submitted
`6
`for a publication by Gary Michelson?
`7
` A. I can't recall.
`8
` Q. Have you ever collaborated with Gary
`9 Michelson on developing any medical technology?
`10
` A. No.
`11
` Q. Who would you -- withdrawn.
`12
` We talked a bit about the report that you
`13
`generated in this matter. And I'd like you to
`14
`describe the process by which that report was
`15
`generated or created.
`16
` A. As we've discussed, I was engaged by Tom
`17 Martin and his firm to read and understand and offer
`18
`an opinion. They provided me with this collection of
`19
`patents, the IPRs and the declarations. I was asked
`20
`to read those, and I did.
`21
` And then we had discussions on the
`22
`telephone about the meaning of those. And then I
`23
`generated my opinions in reference to the IPRs. And
`24
`then we generated a document that is my declaration.
`25
` Q. And how many hours did -- how many hours
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` A. I've not ever been in surgery with him.
` Q. And you attend major spine conferences
`throughout the U.S.?
` A. I do.
` Q. And, in fact, you chair some of those?
` A. I do.
` Q. And you attend conferences abroad as well?
` A. I do.
` Q. And you attend lectures that are given at
`these conferences?
` A. I do.
` Q. Have you ever heard Gary Michelson give a
`lecture at a spine conference?
` A. I may have. I honestly cannot recall.
`You're asking me to think back 30-plus years.
` Q. Right.
` A. So the answer would be not recently.
` Q. Ever?
` A. I don't know.
` Q. And you review the medical literature about
`spine surgery?
` A. I do.
` Q. And you edit some of those journals?
` A. I do.
` Q. Have you ever reviewed any article written
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`did you spend on the preparation of your declaration,
`excluding the time that you spent reviewing
`documents?
` MS. WICKRAMASEKERA: Objection to form.
` THE WITNESS: It's difficult to sort out
` exactly, to parse out review documents,
` preparation of declaration, because the
` formulation of opinion and declaration was --
` they were almost seamless.
` So I believe I submitted an invoice for my
` time in March that was in the realm of
` 20-plus -- 24 hours or so, and I think, again,
` some of that is reading. Some of that is
` formulating an opinion. Some of that is
` interacting on the telephone to develop an
` understanding. All of those were elements of
` formulating the opinion.
`BY MR. MILLER:
` Q. All right. And I think you said that
`you've worked about 40 hours in total on this case?
` A. 40, 50. I'm not sure. I didn't look at --
`the last several weeks I have spent a lot of time
`reviewing my declaration and fine tuning my
`declaration and the documents and preparing for
`today.
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`

`Charles Branch, Jr, M.D., 4/23/2014
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` Q. All right. How much time did you review
`specifically in preparation for your deposition
`today?
` A. 15, 20 hours.
` Q. And I take it you met with counsel to
`prepare for your deposition?
` A. I did.
` Q. And how many days -- when did you do that?
` A. Yesterday, the afternoon of the prior day,
`and Saturday a week ago for several hours.
` Q. All right. And you met all day yesterday?
` A. It was about 12 hours yesterday, I believe.
` Q. That sounds like a fun day.
` A. It was a very educational day.
` Q. Doctor, do you consider yourself to be an
`expert in patent claim drafting?
` A. No.
` Q. Do you consider yourself to be an expert in
`patent claim interpretation?
` A. No.
` Q. Do you have any education or training in
`patent claim interpretation?
` A. Over the last 20 years that have included
`product development and the development of
`intellectual property documents, I believe I have
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`learned. I've had an education in this field. But I
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`have not had a formal university or course in this
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` Q. Describe how a patent claim should be
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`interpreted, as you understand the process.
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` MS. WICKRAMASEKERA: Objection to form.
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` THE WITNESS: A claim is the -- is a set of
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` words that describe a unique element of the
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` invention. I think that's a great way to stop.
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` It describes a unique element of the
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` invention that the patent opener or applicant
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` believes distinguishes this from other
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` technology, and therefore, identifies this
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` unique element as a protectable entity.
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` That would -- that's my way of saying it.
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`BY MR. MILLER:
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` Q. All right. Have you heard of the phrase,
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`claim construction or claim interpretation?
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` A. I've heard those terms.
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` Q. Have you done any of either of those, claim
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`interpretation, claim construction, in forming your
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`opinions in this matter?
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` A. I believe I have, but I'm not sure what you
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` Q. I'm now not understanding what you don't
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`understand.
` MS. WICKRAMASEKERA: Objection to form.
` THE WITNESS: Claim interpretation,
` understanding or going through a claim sort of
` in a line-by-line or component-by-component
` method to determine why that claim makes this
` device unique would be my understanding of claim
` construction or interpretation.
` And then taking that and applying it to an
` argument or a concern that that claim does not
` make that product unique, I guess is -- or
` comparing that claim to the claim of another
` prior art or comparable or related product, and
` determining the similarities or differences
` between the two would be my understanding of
` this process.
`BY MR. MILLER:
` Q. Okay. And how did you go about
`understanding or getting an understanding of the
`words of the claim to determine whether it was
`describing something unique?
` A. Reading it over again. Reading it, having
`discussions with the patent attorneys who actually
`constructed the wording, comparing it with the
`wording of other documents, taking those words and
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`looking at them as, okay, what do they describe? And
`then taking that realm of understanding and trying to
`form an opinion about whether this other device or
`collection of devices or claims is similar or
`different, teaches toward or against this particular
`claim.
` That's -- I'm not sure I'm explaining that
`well, but I tried to.
` Q. Okay. What do you view as the unique
`features in the '696 patent?
` MS. WICKRAMASEKERA: Objection to form.
` THE WITNESS: This device is a spinal
` fusion implant. It participates in the fusion
` process. The fusion occurs through the implant.
` It conforms to the anatomic endplates of the
` vertebral bodies above and below the disc.
` It has ratchetings or surface elements that
` facilitate insertion of the device in one
` direction and resist motion in another
` direction.
` There are elements that insert and rotate
` that facilitate lordosis or the anatomical
` configuration of the spine. I think -- did I
` get all of them?
` I believe the convexity -- the convexity
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`Charles Branch, Jr, M.D., 4/23/2014
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` that sort of engages the anatomic endplate, the
` ratcheting surfaces through the implant. Those
` are the, I guess, unique features.
`BY MR. MILLER:
` Q. Why is conformity of the implant with the
`endplate of the vertebral body important?
` A. Ultimately, fusion occurs from the
`stabilizing of an otherwise or previously mobile
`space.
` The more a fusion implant device eliminates
`motion and facilitates regrowth or growth of bone,
`the more likely it is to be associated with a fusion.
`Anatomic endplates have some features that are --
`that merit preservation. And while certain
`techniques teach a carpentry that manipulates that or
`cuts away or disrupts that endplate feature for
`potential benefit, a spinal fusion implant that
`actually engages the anatomic endplate in a
`meaningful way reduces or eliminates motion, engages
`the vertebral body or element without -- in its
`natural state or in the state that it comes in.
` So it's actually, I think, desirable to
`accomplish that goal as opposed to depend on a
`carpentry that manipulates the implant.
` Q. What do you mean by "engaging the endplate
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`desiccation of the disc in an attempt by the body to
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`correct or stabilize that with osteophyte formation
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`or calcification of the annulus, so that over time
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`you can actually have a disc with biconvex --
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`biconcave appearance that may have an injury to the
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`annulus where a disc is ruptured and that over time
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`that disc may actually settle. And as it settles,
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`those endplates flatten out.
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` So at different time points on the cascade,
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`significant concavity is present or minimal concavity
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`is present. And an implant that is stabilizing that
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`space would best function, you know, in a different
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`configuration at different element end points on that
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`cascade.
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` Q. Let me see if I can ask you a question to
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`see if I can make sure I understand what you're
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`saying.
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` So if the endplates are concave, then
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`having a convex implant between them, that convex
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`shape of the implant would preclude the implant from
`21 moving around once it's insert, right?
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` MS. WICKRAMASEKERA: Objection to form.
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` THE WITNESS: That implant is likely to
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` have a tight fit, if I can use that term.
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`BY MR. MILLER:
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`in a meaningful way"?
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` A. There's a term that's used in a lot of this
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`that says, "bears up against it." It is touching or
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`bearing up against the endplate over a -- over the
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`entire implant or to some degree over a significant
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`area of the endplate so that it both supports a load,
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`resists motion, corrects an anatomical deformity or
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`preserves a good anatomical position and facilitates
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`growth from one bone to the other.
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` That would be the meaningful engagement.
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` Q. Does the convex shape -- convexity on the
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`top and convexity on the bottom of the implant
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`contribute to allowing the implant to not move once
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`it's inserted between the vertebral bodies?
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` A. It can.
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` Q. What do you mean by "it can"?
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` A. In an anatomic condition where the
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`endplates are modest or moderately degenerated or the
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`disc is moderately degenerated -- let me back up.
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` You understand that the disc degeneration
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`is a cascade of events that begins with disruption of
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`vertebral body or disruption of the casing around the
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`disc that allows for abnormal motion, and then
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`subsequently, there is a settling of the disc or
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` Q. Okay. And a tight fit with help prevent
`the implant from moving around once it's inserted?
` A. Correct.
` Q. And I think what I also understood was that
`some patients have convex endplates -- sorry, con --
`withdrawn.
` I understand that some patients will have a
`concave endplate shape, right? Yes?
` A. Correct.
` Q. And some patients will have a flat endplate
`shape?
` A. Correct.
` Q. And ideally, the implant, in your view,
`conforms to the shape of the patient's endplates?
` A. Correct.
` Q. And conformity with the -- of the implant
`with the patient's endplate is important so that
`there is maximal bearing of the implant surface to
`the endplate surface, right?
` A. I believe that's a correct statement.
` Q. The endplates also can vary in size from
`patient to patient. Is that right?
` A. Correct.
` Q. And even within a single patient, the size
`of the endplate can vary depending on which level of
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`Charles Branch, Jr, M.D., 4/23/2014
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`the spine we're at?
` A. That's correct.
` Q. And the concavity or flatness of the
`endplate of a patient's vertebrae can vary depending
`on where we are in the patient's spine?
` A. Correct.
` Q. And the concavity of the patient's
`implant -- endplates -- withdrawn.
` The concavity of the patient's endplates
`can depend on the patient's condition, the severity
`of the disc degeneration. Is that correct?
` A. Correct.
` Q. And so what was perhaps a healthy concave
`endplate can over time and degeneration become
`essentially a flat endplate?
` A. Correct.
` Q. Now, in understanding the words of the --
`let me actually back up.
` Do you understand what a patent claim is,
`like where it is in the patent?
` A. Yes.
` Q. Okay. And you understand those are the
`numbered paragraphs at the end of the patent?
` A. Correct.
` Q. Did you review any documents in trying to
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`understand what the words of the claims of the '696
`patent mean?
` A. No, that was actually my own reading and
`understanding and then a discussion with the
`attorneys who wrote the patent in an