throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MEDTRONIC, INC.,
` Petitioner,
`vs.
`NUVASIVE, INC.,
` Patent Owner.
`Patent Number: 8,361,156
`Issue Date: January 29, 2013
`Case: IPR2013-00506
`___________________________________
`MEDTRONIC, INC.,
` Petitioner,
`vs.
`NUVASIVE, INC.,
` Patent Owner.
`Patent Number: 8,187,334
`Issue Date: May 29, 2012
`Case: IPR2013-00507
`___________________________________
`MEDTRONIC, INC.,
` Petitioner,
`vs.
`NUVASIVE, INC.,
` Patent Owner.
`Patent Number: 8,187,334
`Issue Date: May 29, 2012
`Case: IPR2013-00508
`___________________________________
` Deposition of RICHARD A. HYNES, M.D., F.A.C.S.,
` taken at 100 Rialto Place, Suite 700, Melbourne,
` Florida, commencing at 8:49 A.M., Tuesday,
` September 30, 2014, before ANTHONY TRUJILLO,
` RMR, CRR
`
`Job No. 1928485
`PAGES 1 - 190
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`NUVASIVE 2037
`Medtronic v. NuVasive
`IPR2013-00506
`IPR2013-00507
`IPR2013-00508
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`

`
`A P P E A R A N C E S
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`C o u n s e l f o r P e t i t i o n e r :
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` B Y : J E F F E . S C H W A R T Z , E S Q .
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` F o x R o t h s c h i l d , L . L . P .
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` 1 0 3 0 1 5 t h S t r e e t , N W
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` S u i t e 3 8 0 E a s t
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` W a s h i n g t o n , D C 2 0 0 0 5
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` ( 2 0 2 ) 4 6 1 - 3 1 0 0
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` j e s c h w a r t z @ f o x r o t h s c h i l d . c o m
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`C o u n s e l f o r P a t e n t O w n e r :
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` B Y : M I C H A E L A . A M O N , E S Q .
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` F i s h & R i c h a r d s o n , P . C .
`
` 1 2 3 9 0 E l C a m i n o R e a l
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` S a n D i e g o , C a l i f o r n i a 9 2 1 3 0
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` ( 8 5 8 ) 6 7 8 - 5 0 7 0
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` a m o n @ f r . c o m
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`a n d
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` B Y : S T U A R T N E L S O N , E S Q .
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` F i s h & R i c h a r d s o n , P . C .
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` 3 2 0 0 R B C P l a z a
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` 6 0 S o u t h S i x t h S t r e e t
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` M i n n e a p o l i s , M i n n e s o t a 5 5 4 0 2
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` ( 6 1 2 ) 3 3 5 - 5 0 7 0
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` s n e l s o n @ f r . c o m
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` I N D E X
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`WITNESS PAGE
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`CALLED BY THE PATENT OWNER:
`
` RICHARD A. HYNES, M.D., F.A.C.S. 5
`
` DIRECT EXAMINATION BY MR. AMON................. 5
`
` CROSS-EXAMINATION BY MR. SCHWARTZ.............. 187
`
` NUVASIVE EXHIBITS
`
`The following exhibits were marked for identification:
`
`NUMBER PAGE
`
`NuVasive Declaration of Dr. Theodore G. 61
`
`Exhibit 2031 Obenchain, M.D., IPR2014-00034,
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` U.S. Patent 8,000,782
`
`NuVasive "The Relationship between Cross 68
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`Exhibit 2032 Sectional Area and Strength of
`
` Back Muscles in Patients with
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` Chronic Low Back Pain
`
`NuVasive Printout, U.S. News & World 77
`
`Exhibit 2033 Report
`
`NuVasive "Lumbar-Vertebral Body 82
`
`Exhibit 2034 Replacement
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`NuVasive "Lumbar - Minimally Invasive 87
`
`Exhibit 2035 Approach (PLIF)"
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`NuVasive Deposition Transcript Excerpt, 181
`
`Exhibit 2036 Hallett Matthews
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` I N D E X
` (Continued)
` The following exhibits were previously marked for
` identification and referenced:
`
`NUMBER PAGE
`MSD 1001 Declaration of Richard Hynes, 99
` M.D., Regarding U.S. Patent No.
` 8,187,334
`MSD 1003 United States Patent Application 164
` Publication, Frey, et al.
`MSD 1023 Document By Alphatec Spine, 170
` Portal Access System Guided
` Lumbar Interbody Fusion
`MSD 1055 Second Declaration of Richard A. 11
` Hynes, M.D., IPR2013-00507
`MSD 1105 Michelson '973 Patent 142
`MSD 1115 U.S. Patent No. 8,361,156 150
`MSD 1117 "Posterior Lumbar Interbody 144
` Fusion Using Posterolateral
` Placement of a Single Cylindrical
` Threaded Cage"
`MSD 1118 Pre-Market Approval, 172
` IPR2013-00506; IPR2013-00508;
` Also Marked as Exhibit MSD 1016,
` 8/22/14
`MSD 1132 Maximum Access Surgery 148
` Transforaminal Lumbar Interbody
` Fusion, IPR2013-00506;
` IPR2013-00508. Also Marked as
` MSD 1030, 8/22/14
`MSD 1157 Declaration of Richard A. Hynes, 10
` M.D., IPR2013-00506
`MSD 1157 Exhibit In Matter IPR2013-00508 12
`MSD 1173 Excerpt of Transcript, 340
` Examination Under Oath of Hansen
` A. Yuan, M.D.
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` THEREUPON, the following proceedings were had
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` and taken at 8:49 a.m.:
`
` THE REPORTER: Do you solemnly swear or affirm
`
` that the testimony you are about to give shall be
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` the truth, the whole truth, and nothing but the
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` truth.
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` THE WITNESS: Yes.
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` RICHARD A. HYNES, M.D., F.A.C.S.,
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`having been first duly sworn or affirmed, testified
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`under oath as follows:
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` MR. AMON: And, Jeff, I don't know if you want
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` to state your appearance for the record.
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` MR. SCHWARTZ: Jeff Schwartz from
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` Fox Rothschild for Medtronic, the Petitioner, and
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` the IPRs 2013506, '507, and '508.
`
` MR. AMON: And Michael Amon of Fish &
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` Richardson on behalf of the Patent Owner, NuVasive,
`
` in the same matters.
`
` With me here today is Stuart Nelson, also with
`
` Fish & Richardson.
`
` DIRECT EXAMINATION
`
`BY MR. AMON:
`
` Q. Good morning, Dr. Hynes.
`
` A. Good morning.
`
` Q. Could you please state your full name for the
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`record.
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` A. Richard Hynes.
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` Q. And your business address, please?
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` A. 2222 South City Boulevard, Melbourne, Florida.
`
` Q. And what is your profession?
`
` A. I'm an orthopaedic spinal surgeon.
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` Q. Any other titles that you have besides
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`orthopaedic spinal surgeon?
`
` A. I'm the medical director of The B.A.C.K.
`
`Center.
`
` Q. Anything else?
`
` A. No.
`
` Q. Okay. Dr. Hynes, when was the last time that
`
`you had your deposition taken?
`
` A. I believe it was May.
`
` Q. And was that in this matter or in these series
`
`of matters?
`
` A. You mean any deposition?
`
` Q. Sorry, yes. Let me be more clear.
`
` When was the last time you had any -- any
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`deposition taken?
`
` A. Oh, I think I had a deposition two or three
`
`weeks ago.
`
` Q. Do you remember what -- was that in a
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`patent-related matter?
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` A. No.
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` Q. When was the last time you had your deposition
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`in a patent-related matter?
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` A. Yeah, I believe it was a deposition with you,
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`and I think it was May.
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` Q. Do you know how many depositions you've had
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`outside of patent-related matters since May to today?
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` A. Not offhand, no.
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` Q. Has it been more than one or two?
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` A. Yes.
`
` Q. As many as ten, possibly?
`
` A. I don't know.
`
` Q. Okay. Well, I just want to go over some of the
`
`ground rules. Really, you're fairly experienced at this
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`but just to remind you what's going to go on here today.
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` You understand that you've taken an oath to
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`tell the truth, the whole truth and nothing but the
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`truth, correct?
`
` A. Correct.
`
` Q. And you'll do that here today?
`
` A. Correct.
`
` Q. You understand that it is fully -- it is --
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`excuse me -- strike that.
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` You understand that it's important for you to
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`answer fully and accurately here today?
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` A. Yes.
`
` Q. And you'll do that?
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` A. Yes.
`
` Q. It's important, especially since we don't have
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`a videographer, for us to not speak over one another.
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`So if you'll extend me the courtesy of letting me finish
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`my question, I'll give you all the time that you need to
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`answer.
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` Can we agree on that, sir?
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` A. Yes.
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` Q. And, again, especially since we don't have a
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`videographer, it's important for you to give verbal
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`responses. A "yes" or a "no" or some other verbal
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`response.
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` Do you understand that, sir?
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` A. Yes.
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` Q. If for some reason you don't understand one of
`
`my questions, will you let me know and ask me to clarify
`
`my question?
`
` A. Yes.
`
` Q. If you don't ask me to clarify, I'm going to
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`interpret that as a sign that you understood my
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`question; is that fair?
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` A. I guess we'll have to see what the question is.
`
` Q. But if -- if you don't ask me for
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`clarification, is it fair to -- to -- to interpret that
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`as -- as a -- the fact that you understood my question?
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` A. I -- I suppose.
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` Q. If you need to take a break, as with before,
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`let me know. The only thing that I ask is that if
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`there's a question pending, that you answer the question
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`before we take a break.
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` Can we agree on that?
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` A. Yes.
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` Q. And I'll try to take a break about every hour,
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`hour and a half.
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` You understand that Mr. Schwartz, Medtronic's
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`counsel, may pose objections from time to time during
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`this deposition, but that unless he instructs you
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`specifically not to answer, I'm entitled to an answer to
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`my questions.
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` Do you understand that?
`
` A. Yes.
`
` Q. Is there any reason you can't give true,
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`accurate and complete testimony here today?
`
` A. No.
`
` Q. Dr. Hynes, do you consider yourself to be an
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`independent expert in these matters, or are you here as
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`an advocate for the Petitioner, Medtronic?
`
` A. Independent expert.
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` Q. And are you represented by counsel here today?
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` A. No.
`
` (Exhibit MSD 1157 was previously marked for
`
` identification.)
`
`BY MR. AMON:
`
` Q. Let me hand you -- and. . . I apologize for the
`
`killing of all the trees, but let me hand -- let me hand
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`you what has been previously marked as MSD 1157
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`in the -- the IPR matter 2013-00506. Ask you to take a
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`look at that, sir.
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` A. (Complies.)
`
` (Perusing document.)
`
` Q. Dr. Hynes, do you recognize MSD 1157 in the
`
`'506 matter?
`
` A. Yes.
`
` Q. What is MSD 1157?
`
` A. It's a second declaration.
`
` Q. And it's your second declaration, to be
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`specific, correct?
`
` A. That's correct.
`
` Q. Does this appear to be a complete copy of your
`
`second declaration submitted in the '506 matter? And --
`
`and sorry. Let me be more precise in my question.
`
` Does MSD 1157 that we've handed you here today
`
`in your deposition appear to be a complete copy of the
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`declaration that you submitted in the '506 matter?
`
` A. I mean, I can't attest to every page being
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`correct, since I don't have one to compare it to, but it
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`generally appears to be the -- the document, and the
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`exhibits.
`
` Q. Okay. And when you say "exhibits," you're
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`referring to the appendices that you attached, correct?
`
` A. Correct.
`
` (Exhibit MSD 1055 was previously marked for
`
` identification.)
`
`BY MR. AMON:
`
` Q. Let me hand you what has been previously marked
`
`as MSD 1055 in matter IPR 2013507. Ask you to take a
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`look at that.
`
` A. (Complies.) All right.
`
` Q. Dr. Hynes, what is MSD 1055 in the '507 matter?
`
` A. That's another second declaration of mine.
`
` Q. And as far as you can tell, does it generally
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`appear to be a complete copy of your declaration,
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`including all appendices?
`
` A. Yes.
`
` Q. Let me hand you what has been previously --
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` MR. NELSON: You want all three?
`
` MR. AMON: What has been previously marked as
`
` MSD 1157 in matter IPR 2013-508.
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` (Exhibit MSD 1157 was previously marked for
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` identification.)
`
` THE WITNESS: (Perusing document.) Okay.
`
` There's a couple of different things here. Is this
`
` all one package?
`
`BY MR. AMON:
`
` Q. It is all one package.
`
` A. Okay.
`
` Q. We didn't find a clip big enough to bind it all
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`together.
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` A. (Perusing document).
`
` MR. AMON: Jeff, there's a document that I
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` think is incorrectly --
`
` MR. SCHWARTZ: I gave you an extra piece.
`
` MR. AMON: All right. My mind is -- I thought
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` it was, but never mind.
`
`BY MR. AMON:
`
` Q. Yeah, that -- as far as we understand, that's
`
`Part 2. And then I believe that that third larger
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`section is Part 3 to your declaration.
`
` A. Okay.
`
` Q. But I'm not -- you would know the order better
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`than I.
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` A. Okay. This was like this, so I'll put it back
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`that way (indicating).
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` Q. Yeah, I believe that's correct.
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` Dr. Hynes, do you recognize MSD 1157 in matter
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`IPR 2013508?
`
` A. Yes.
`
` Q. And what is this?
`
` A. It's a second declaration of mine.
`
` Q. In the '508 matter?
`
` A. Yes.
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` Q. And does it appear to -- does MSD 1157 in the
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`'508 matter, based on your review, appear to be a
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`complete copy of the declaration that you submitted in
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`that matter?
`
` A. Yes.
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` Q. Dr. Hynes, did you write the entirety of MSD
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`1157 in the '506 matter?
`
` A. Okay. You're asking about '507 and '506?
`
` Q. I'm just asking about '506. So let's take
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`these one at a time. '506, which is MSD 1157.
`
` A. Essentially, these -- this is my declaration so
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`I am responsible for the content.
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` Q. Did you sit at the computer and actually type
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`out the declaration?
`
` A. Some things I did, yes.
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` Q. And who typed up the other portions?
`
` A. I don't know. Mr. Schwartz handled that.
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` Q. Do you remember specifically what portions you
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`wrote of the Exhibit MSD 1157 in the '506 matter?
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` A. I think it depends on what you mean by "wrote."
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`I mean. . .
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` Q. Which portions you sat at a computer and typed
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`out yourself.
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` A. I don't recall actually sitting at a computer,
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`specifically, and typing out. I could have been making
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`hand notes and it could be verbal conversations. But
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`I'm the author, right? It's my declaration.
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` Q. Dr. Hynes, if you turn in MSD 1157, in the '506
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`matter, to Page 37.
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` A. Okay. I don't want to get these all mixed up.
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` Q. Yeah.
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` A. So give me a second.
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` Q. No problem.
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` A. So what page was that?
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` Q. Thirty-seven of the actual volume of the
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`declaration.
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` A. Okay.
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` Q. At Page 37 of Exhibit MSD 1157 in the '506
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`matter, is that your signature on Page 37?
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` A. Yes.
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` Q. And it indicates on Page 37 that you signed
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`this on September 5th, 2014; is that correct?
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` A. Yes.
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` Q. Dr. Hynes, did you review this declaration
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`before signing it?
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` A. Yes.
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` Q. Do you remember when you reviewed this
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`declaration?
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` A. Not specifically, no.
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` Q. Did you review this declaration in its entirety
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`before September 5th, 2014?
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` A. Yes.
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` Q. Do you remember how long before September 5th
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`you reviewed it?
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` A. No.
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` Q. Did you review prior drafts of this
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`declaration?
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` MR. SCHWARTZ: Objection. Form. Assumes facts
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` not in evidence.
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`BY MR. AMON:
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` Q. Strike that. Let me re- -- let me ask a more
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`precise question.
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` Dr. Hynes, did you review drafts of Exhibit MSD
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`1157 in the '506 matter before September 5th, 2014?
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` A. Yes.
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` Q. Do you remember how many drafts of Exhibit MSD
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`1157 you reviewed?
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` A. No.
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` Q. Do you remember how much time you spent
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`reviewing those drafts?
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` A. Not -- not as we sit here today, no.
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` Q. Can you give me an estimate of time that you
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`spent reviewing those drafts?
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` A. It's hard for me to know because there's --
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`there's three different declarations. I can't re- --
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`recall, really, how much time I spent with each one.
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` Q. Okay. Can you give me an estimate of the
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`aggregate time that you spent reviewing all three
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`declarations?
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` A. It would just be a guess.
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` Q. What's your best guess?
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` A. I hate to speculate.
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` Q. I'm sure you do. We all do.
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` But what's your best guess?
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` A. More than five hours and less than 15.
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` Q. So somewhere between 5 and 15 hours total
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`reviewing the entirety of Exhibits MSD 1157, MSD 1055,
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`in the '507 matter and MSD 1157 in the '508 matter,
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`correct?
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` A. As a speculation, yes.
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` Q. In reviewing drafts of -- and we'll take them
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`as a unit -- MSD 1157 in the '506 matter, 1055 in the
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`'507 matter, and MSD 1157 in the '508 matter, did you
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`ask that changes be made to the original drafts that you
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`received?
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` A. I think there was a back and forth between me
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`and Mr. Schwartz and -- and so we worked together to
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`create a coherent document.
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` Q. I'm not sure that answers my question.
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` Are there specific changes that you asked to be
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`made to the drafts that you originally received?
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` A. There were changes made and by mutual
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`agreement, the changes were made.
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` Q. And you anticipated my next question, which is:
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`Do you know if those changes were, in fact, made, the
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`changes that you suggested to each of the exhibits, MSD
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`1157, 1055, and 1157 respectively?
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` A. And I can't point now to a specific change, but
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`there were changes made and there were some changes not
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`made.
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` Q. So I just want to make sure I understand your
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`testimony.
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` There were changes that you suggested that were
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`not incorporated into the drafts; is that correct?
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` MR. SCHWARTZ: Objection to form.
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` Mischaracterization of prior testimony.
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` THE WITNESS: Not -- not exactly. You know,
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` it's like anything that you work on, that you read
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` again or look again and you make changes. Because
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` it's a work in progress.
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` Q. So I just want to make sure what you testified
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`before is, "I can't point now to a specific change, but
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`there were changes made and there were some changes not
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`made."
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` That's what you testified two minutes ago,
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`correct?
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` A. About a minute ago.
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` Q. Fair point.
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` That's what you testified about a minute ago
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`and let me ask a complete question.
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` About a minute ago, you testified there were
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`changes -- strike that.
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` About -- about now -- about a minute-and-a-half
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`ago, you testified: "And I can't point to a specific
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`change, but there were changes made and there were some
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`changes not made." Correct?
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` A. That's correct.
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` Q. When you were reviewing the drafts and the
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`final versions, did you review those alone or in the
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`presence of Medtronic's lawyers?
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` MR. SCHWARTZ: Objection to form.
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` THE WITNESS: Um, alone.
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` Q. Dr. Hynes, did you review your second
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`declaration, which -- which are MSD 1157 in the '506
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`matter; MSD 1055 in the '507 mater; and MSD 1157 in the
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`'508 matter, in preparing for your deposition today?
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` A. Yes.
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` Q. Do you remember when you reviewed those?
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` A. The actual finished declaration?
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` Q. Yes.
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` A. Well, certainly, after -- after they were
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`prepared in preparation for this deposition.
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` Q. Do you remember when you reviewed the second
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`declaration that you submitted in preparation for this
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`deposition?
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` A. Um, I mean, the last time I looked at this
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`material was this morning, so I have recently read
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`the -- the draft.
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` Q. And before this morning, when was the last time
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`you had reviewed Exhibits MSD 1157, 1055, and 1157?
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` A. Well, parts and pieces throughout the last week
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`or two.
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` Q. As you sit here today, do you agree with
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`everything that's written in MSD 1157 in the '506
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`matter?
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` A. I think we'd have to go through that line by
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`line to answer that one.
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` Q. So there are things that you don't agree with
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`in your own declaration, as you sit here today?
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` A. There were things that were stated by another
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`expert, for example, that I disagree with and that's in
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`these declarations. There's things like that. There
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`may be other things in some of the appendices I don't
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`agree with, necessarily.
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` Q. Fair point.
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` Dr. Hynes, in preparing for the deposition here
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`today, did you review all of the documents that are
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`attached as appendices to your declaration; for example,
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`for MSD 1157 in the '506 matter?
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` A. 1157?
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` Q. Yeah, 1157 in the '506. It's that one, yes.
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` A. In this one (indicating)?
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` Q. Yeah. Did you review all the documents that
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`are attached as appendices in preparing for this
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`deposition here today?
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` A. (After perusing document) Yes.
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` Q. Did you review all appendices for MSD 1055 in
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`the '507 matter in preparing for this deposition here
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`today?
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` A. (After perusing document.)
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` MR. AMON: It's a good thing we don't have a
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` videographer.
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` (Discussion off the record.)
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` THE WITNESS: Yes.
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` Q. And did you prepare -- did you review all the
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`appendices to Exhibit MSD 1157 in the '508 matter in
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`preparing for this deposition here today?
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` A. (After perusing documents.) Yes.
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` Q. Besides Exhibits MSD 1157 in the '506 matter,
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`MSD 1055 in the '507 matter, and MSD 1157 in the '508
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`matter, did you review other documents in preparing for
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`this deposition here today?
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` A. I may have.
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` Q. Well, do you remember, as you sit here today,
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`reviewing documents besides your second declarations in
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`preparing for this deposition?
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` A. I remember looking at some of the references
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`and reviewing some references, but I don't recall which
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`ones.
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` Q. And when you say "references," what do you mean
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`by "references"?
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` A. Perhaps an article in one of the bibliographies
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`or some reference.
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` Q. Do you remember looking at the prior art that
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`is the basis for the Board's Institution of Inter
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`Parte's review with respect to the '156 and '334
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`matters?
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` A. Not recently, no.
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` Q. Did you review your deposition transcript
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`previously taken in these matters in preparing for this
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`deposition here today?
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` A. I read it after it was transcribed, but -- so I
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`have prepared, yes.
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` Q. Okay. Do you know when the last time you
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`reviewed that deposition transcript is?
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` A. Some time in the last few months.
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` Q. Do you know if you've reviewed it in the last,
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`say, three weeks? And let me strike that. Let me ask a
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`more precise question.
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` Do you know if you've reviewed your deposition
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`testimony previously taken in these matters in the last
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`three weeks?
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` A. I think in the last three weeks I may have
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`reviewed some part, not in whole.
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` Q. Dr. Hynes, did you review the deposition
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`transcript of a Mr. Loc Joss [phonetic] in preparing for
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`this deposition here today?
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` A. I reviewed a declaration or an affidavit,
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`something to that effect.
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` Q. Do you know if you reviewed his deposition
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`transcript?
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` A. I don't recall it, no.
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` Q. Dr. Hynes, as you sit here today, are you aware
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`of any mistakes in MSD 1157 in the '506 matter that you
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`would like to correct?
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` A. There is one word somewhere in one of these
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`three documents that I'll -- if we get to it, I'll --
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`I'll point it out.
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` Q. Does that one word make a substantive --
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`substantive difference to you -- to the opinions that
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`you've expressed in MSD 1157?
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` A. Yes. It actually is the reverse -- it's a word
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`that was left out. It was omitted.
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` Q. Okay. Do you know what word was omitted?
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` A. I think "not," if I recall.
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` Q. And do you have an idea where that is located?
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` A. I -- I did yesterday, but I've forgotten. I
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`assume we'll get to it at some point, and I'll point it
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`out.
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` Q. Same question with respect to MSD 1055 in the
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`'507 matter: Are there any mistakes that you're aware
`
`of that you would like to correct before we proceed?
`
` A. I think that's -- it may run throughout all of
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`them, the same -- same error or same omission.
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` Q. So, to be clear, the omission that you're
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`talking about, and that you referenced a moment ago in
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`your testimony, is consistent throughout all three of
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`your second declarations submitted in the three
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`different matters?
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` A. It -- it may be.
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` Q. Any other mistakes that you're aware of in any
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`of the second declarations?
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` A. You know, there may be a -- a medical term
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`that's not used by a term or agreement by everyone,
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`so -- I can't point to one specific but there may be
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`some disagreement in language and vocabulary.
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` Q. Any of those other disagreements in language or
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`vocabulary that substantively affect your opinions?
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` A. Not really, no.
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` Q. Dr. Hynes, a moment ago -- and I'm sorry, I
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`forgot to ask you this -- you indicated that you
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`reviewed the declaration of a Mr. Joss [phonetic],
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`correct?
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` A. A document [sic]? I'm not sure I can recall
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`exactly which document [sic] it was. I don't think it
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`was a deposition transcript.
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` Q. Okay. Were you aware that Mr. Joss [phonetic]
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`had been deposed in this matter?
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` A. I know that he was involved in this matter.
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`I'm not sure of all the parts that he was involved in.
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` Q. I'm not sure that answers my question.
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` Were you aware that he had been deposed in this
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`matter, before today?
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` A. I -- I don't have an opinion one way or the
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`other. I don't recall. He may have been.
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` Q. Do you know if you asked Medtronic's lawyers
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`for a copy of Mr. Joss's [phonetic] deposition testimony
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`in preparing for this deposition here today?
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` MR. SCHWARTZ: Objection to the extent that the
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` question seeks communications between Dr. Hynes and
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` counsel, that would be work product and I instruct
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` him not to answer.
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` THE WITNESS: I'm going to follow his
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` instruction when he asks me not to answer.
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`BY MR. AMON:
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` Q. So let me be very clear, Dr. Hynes. I'm not
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`asking you for the communication as to whether --
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`what -- what Mr. Schwartz, Medtronic's lawyer, may or
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`may not have told you. I'm just asking you very simply:
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`Did you ask Medtronic's lawyers for a copy of Mr. Joss's
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`[phonetic] deposition testimony?
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` MR. SCHWARTZ: And, again, to the extent that
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` that question seeks communications between the
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` witness and counsel, I instruct you not to answer on
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` the basis of attorney work product.
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` Q. So are you going to follow Mr. Schwartz's
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`instructions?
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` A. Yeah, I think we can assume that I'm going to
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`follow that every time through the whole day so you
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`don't have to ask me. You can just assume that I'm
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`going to do that.
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` Q. I -- I appreciate that, but it's part of my
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`job; I have to ask.
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` A. All right.
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` Q. I have to make the record.
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` Dr. Hynes, how much time have you spent total
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`working on these IPR matters to date?
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` A. IPR matters. The entire process?
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` Q. The entire process.
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` A. I don't -- I don't know.
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` Q. Do you have an estimate?
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` A. No.
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` Q. Is it more than 50 hours?
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` A. I really don't know.
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` Q. Do you have an estimate of how much time you've
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`spent working on these matters since you were last
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`deposed in May of this year?
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` A. I don't -- I don't have a direct recall of the
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`amount of time. I -- I don't know.
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` Q. Have you submitted invoices to Medtronic for
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`the work that you've spent working in total on these
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`matters?
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` A. No.
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` Q. You haven't submitted any invoices for the work
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`done in these matters?
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` A. Yes, I have.
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` Q. Okay. Do you know the total dollar amount of
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`the invoices that you've submitted to date?
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` A. No.
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` Q. Do you have an estimate of the total dollar
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`amount that you've submitted for the work on these
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`matters to date?
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` A. I -- I didn't come prepared with that
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`information.
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` Q. I appreciate that you didn't come prepared, but
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`do you have an estimate of the total dollar amount that
`
`you've submitted for the work done in these IPR matters
`
`to date?
`
` A. I don't.
`
` Q. What's your best guess as to what you've bille

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