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`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
`MEDTRONIC, INC., )
` ) Case IPR2014-00034
` Plaintiff, ) Case IPR2014-00073
` ) Case IPR2014-00074
` VS. ) Case IPR2014-00075
` ) Case IPR2014-00081
`NUVASIVE, INC., ) Case IPR2014-00087
` )
` Defendant. )
`_____________________________)
`
` DEPOSITION OF PATRICK S. MILES
` San Diego, California
` Thursday, September 4, 2014
`
`Job No: 83789
`Reported by: NIKKI ROY
` CSR No. 3052
`
`TSG Reporting - Worldwide 877-702-9580
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
`MEDTRONIC, INC., )
` ) Case IPR2014-00034
` Plaintiff, ) Case IPR2014-00073
` ) Case IPR2014-00074
` VS. ) Case IPR2014-00075
` ) Case IPR2014-00081
`NUVASIVE, INC., ) Case IPR2014-00087
` )
` Defendant. )
`_____________________________)
`
` DEPOSITION OF PATRICK S. MILES
` San Diego, California
` Thursday, September 4, 2014
`
`Job No: 83789
`Reported by: NIKKI ROY
` CSR No. 3052
`
`TSG Reporting - Worldwide 877-702-9580
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` THE WITNESS: That it responded to the
`requirements of the respective surgery.
`BY MR. OLIVER:
` Q. And how did it do that?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: You would have to tell me
`exactly what implant you're describing.
`BY MR. OLIVER:
` Q. The CoRoent XL implant.
` A. There are multiple CoRoent XL implants.
` Q. Different sizes?
` A. Yes.
` Q. Okay. Can you give me an example of one?
` A. One of -- one of many. In terms of a size,
`do you want a size?
` Q. Sure.
` A. 10 by 22 by 55.
` Q. Okay. And what features of that particular
`implant were specialized so as to pioneer the market
`for lateral transpsoas interbody fusion?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: One of them was that there is
`an anti-expulsion mechanism.
`BY MR. OLIVER:
` Q. And what's an anti-expulsion mechanism?
`
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` A. In the -- a screw that engaged the
`intervertebral body.
` Q. Is there a screw that engaged the
`intervertebral body?
` A. Yes.
` Q. What features did you personally design of
`the CoRoent XL implant?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: 10 years ago, I wrote the
`requirements for it. I don't specifically recall the
`individual contributions to the specific implants in
`2004 or 5.
`BY MR. OLIVER:
` Q. And turn to page 8 of that declaration,
`still within the same paragraph 10. Do you see in
`the second and third lines, it says (reading):
` The total CoRoent XL implant
` revenues from 2005 through 2013
` totaled hundreds of millions of
` dollars.
` Do you see that?
` A. Yes.
` Q. Yes. When you refer to the hundreds of
`millions of dollars of revenue, does that include all
`interbody fusion products?
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` MR. MILLER: Objection; form and scope.
` THE WITNESS: I'd say the intended
`reflection of that statement is the entire portfolio
`of CoRoent XL.
`BY MR. OLIVER:
` Q. Does it exclude, for instance, biologics?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: The intended reflection of
`that communication was to demonstrate commercial
`success, which is the end of that sentence, and so
`the intention was to -- to communicate that -- that
`the acceptance of the procedure was very high.
`BY MR. OLIVER:
` Q. I'm asking specifically about the number you
`mention you mentioned, hundreds of millions of
`dollars. Is that for implant sales alone or does it
`include other sales?
` MR. MILLER: Objection; scope.
` THE WITNESS: I don't recall exactly whether
`the hundreds of millions of dollars meaning have we
`sold -- have we sold -- have we created a lot of
`revenue from the procedure? We have. You know, the
`intent was that oftentimes the currency of what
`people pay for is the implant, and so I think I was
`intending to say there was great commercial success
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`based upon a revenue contribution.
`BY MR. OLIVER:
` Q. Okay. And revenue contribution from the
`implant?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: The intent of that comment was
`to communicate commercial success. And -- and did we
`generate revenue with a myriad of implants? We did.
`Beyond that, I -- I'm not sure exactly what you're
`getting at.
`BY MR. OLIVER:
` Q. Okay. That's fine.
` Can you turn to, in the binder in front of
`you, Exhibit 1032. Can you identify this document?
` A. It appears like a 10-K.
` Q. From NuVasive?
` A. It appears as such.
` Q. And it's from 2005; is that correct?
` A. Yes.
` Q. Can you turn to page 18 of that document?
`The middle paragraph there, beginning "Our fixation
`system," do you see that?
` A. I do.
` Q. It states, (reading):
` Our fixation systems have been
`
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`Page 120
` SAN DIEGO, CALIFORNIA, THURSDAY, SEPTEMBER 4, 2014
` 1:34 P.M.
`
` THE VIDEOGRAPHER: We're back on the record
`at 1:34 p.m.
`
` EXAMINATION
`BY MR. OLIVER:
` Q. Mr. Miles, I'm going to hand you a document
`here I've just labeled as Exhibit 1053.
` (The document referred to was marked
` by the CSR as Deposition Exhibit 1053
` (507) for identification and attached
` to the deposition transcript hereto.)
`BY MR. OLIVER:
` Q. Look at that document.
` MR. MILLER: Justin, could I have a copy of
`that?
` MR. OLIVER: Yeah.
` MR. MILLER: Thank you.
`BY MR. OLIVER:
` Q. Do you recognize that document?
` A. Not really.
` Q. Do you see that it says NuVasive on the top
`left corner?
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` A. I do.
` Q. Does it appear to be a NuVasive press
`release?
` A. It looks like a -- a screen capture of the
`website.
` Q. Of NuVasive?
` A. It says www.nuvasive.com below, so I
`presume.
` Q. Okay. Can you look on the second page of
`that document. The end of the second line there's a
`reference to a Triad, NuVasive's Triad.
` Do you see the Triad?
` A. The word "Triad," I see that, yes.
` Q. Do you know what the Triad is?
` A. Back in 2001 we had a -- a machined
`allograft product line named Triad.
` Q. And was that an intervertebral implant, the
`Triad?
` A. Yes. There were multiple intervertebral
`implants.
` Q. Okay. And were they inserted in the XLIF
`procedure?
` A. We had them for PLIF, for TLIF. And we had
`them for A, C, D, F. And we had them for XLIF.
` Q. Okay. And do you recall what the shape of
`
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`that implant was?
` A. It was a C-shaped implant based upon the --
`the bone structure of the femur.
` Q. Okay. So it's C-shaped in that the C was
`around the axis of the spine when it was implanted?
` A. No.
` Q. How was it C-shaped then?
` A. It was C-shaped based upon the inner
`medullary canal of the fume.
` Q. Okay. And it was an intervertebral implant?
` MR. MILLER: I'm just going to object to
`form and scope.
` THE WITNESS: What's the question again?
`BY MR. OLIVER:
` Q. It was an intervertebral implant?
` MR. MILLER: Same objections.
` THE WITNESS: No.
`BY MR. OLIVER:
` Q. It wasn't an intervertebral implant?
` A. Do you mean inner body implant? Was it used
`in the inner body space?
` Q. Yes.
` A. Yes.
` Q. Okay. Do you know approximately how long it
`was?
`
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` MR. MILLER: Objection; scope, form.
` THE WITNESS: How long what was?
`BY MR. OLIVER:
` Q. How long the Triad implant was?
` A. There were multiple --
` MR. MILLER: Objection to form.
` THE WITNESS: Sorry.
` MR. MILLER: Go ahead.
` THE WITNESS: There were multiple Triad
`implants.
`BY MR. OLIVER:
` Q. And what did their lengths range from?
` MR. MILLER: Objection; scope.
` THE WITNESS: To the best of my
`recollection, from 6 millimeters in length to 30 to
`35 millimeters in length.
`BY MR. OLIVER:
` Q. Okay. And they were inserted laterally in
`the XLIF procedure?
` A. They were inserted in A, C, D, F. They were
`inserted in PLIF. They were inserted in TLIF. They
`were inserted in XLIF.
` Q. And the XLIF is a lateral procedure; is that
`correct?
` A. Yes. There's XLIF 60 and XLIF 90, and so
`
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`there's a postero-lateral procedure and a lateral
`procedure.
` Q. Okay. I'm going to hand you an exhibit
`already marked Exhibit 1055.
` (The document referred to was marked
` by the CSR as Deposition Exhibit 1055
` (507) for identification and attached
` to the deposition transcript hereto.)
`BY MR. OLIVER:
` Q. Do you recognize this document?
` MR. MILLER: Justin, what is this an exhibit
`to?
` MR. OLIVER: What is this an exhibit to?
` MR. MILLER: Yes. Where was it marked? Oh,
`what proceeding is this?
` MR. OLIVER: 507 proceeding.
` MR. SCHAEFER: This is clearly out of scope.
`The 507 proceeding --
` MR. OLIVER: Excuse me. Who is defending
`this deposition?
` MR. SCHAEFER: I am speaking. I'm the lead
`attorney.
` MR. OLIVER: To me, he is defending this
`deposition. There should be only one person
`objecting.
`
`TSG Reporting - Worldwide 877-702-9580
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`
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