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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________________
` )
`SMITH & NEPHEW, INC., ) Case No.
` ) IPR2013-00629
` Petitioner, )
` ) Patent 7,806,896
` vs. )
` )
`BONUTTI SKELETAL INNOVATIONS LLC, )
` )
` Patent Owner. )
`___________________________________)
`
` TUESDAY, MAY 13, 2014
`
` VIDEOTAPED deposition of JAY B. MABREY, M.D.,
`taken at the offices of 1875 Pennsylvania Ave NW,
`Washington, D.C. beginning at 9:14 A.M., before
`Nancy J. Martin, a Registered Merit Reporter,
`Certified Shorthand Reporter.
`
`Exhibit 2003
`Smith & Nephew v.
`Bonutti Skeletal
`Innovations LLC
`Trial: IPR2013-00629
`
`212-279-9424
`
`VERITEXT REPORTING COMPANY
`www.veritext.com
`
`212-490-3430
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________________
` )
`SMITH & NEPHEW, INC., ) Case No.
` ) IPR2013-00629
` Petitioner, )
` ) Patent 7,806,896
` vs. )
` )
`BONUTTI SKELETAL INNOVATIONS LLC, )
` )
` Patent Owner. )
`___________________________________)
`
` TUESDAY, MAY 13, 2014
`
` VIDEOTAPED deposition of JAY B. MABREY, M.D.,
`taken at the offices of 1875 Pennsylvania Ave NW,
`Washington, D.C. beginning at 9:14 A.M., before
`Nancy J. Martin, a Registered Merit Reporter,
`Certified Shorthand Reporter.
`
`Exhibit 2003
`Smith & Nephew v.
`Bonutti Skeletal
`Innovations LLC
`Trial: IPR2013-00629
`
`212-279-9424
`
`VERITEXT REPORTING COMPANY
`www.veritext.com
`
`212-490-3430
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`Page 2
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`A P P E A R A N C E S :
` DAVIDSON, DAVIDSON & KAPPEL, LLC
` BY: CARY KAPPEL, ESQUIRE
` DAVID PETROFF, ESQUIRE
` 485 Seventh Avenue
` 14th Floor
` New York, New York 10018
` (212) 736-1940
` Representing Bonutti Skeletal Innovations
` LLC
`
` WILMER CUTLER PICKERING HALE and DORR LLP
` BY: JACOB S. OYLOE, ESQUIRE
` MICHAEL H. SMITH, ESQUIRE
` JAMES M. DOWD, ESQUIRE
` 1875 Pennsylvania Avenue NW
` Washington, D.C. 20006
` (202) 663-6093
` Representing Smith & Nephew and the
` deponent
` ALSO PRESENT:
` KIM JOHNSON, Legal Videographer
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` I N D E X
`TESTIMONY OF: JAY B. MABREY, M.D.
`BY MR. KAPPEL....................................6
`BY MR. OYLOE....................................87
`BY MR. KAPPEL...................................94
`
` - - -
` E X H I B I T S
` - - -
`NUMBER DESCRIPTION MARKED
`Exhibit BSI 2001 Geometric and Anametric 66
` Total Knee Replacement,
` Pages 180 and 181, 2 pages
`Exhibit BSI 2002 Figure 18 (Aand ) Sizing of 99
` the femoral implant and
` establishing formal component
` rotating during the mechanical
` technique, 1 page
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` DEPOSITION SUPPORT INDEX
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`DIRECTION TO WITNESS NOT TO ANSWER
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`REQUEST FOR PRODUCTION OF DOCUMENTS
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`QUESTIONS MARKED:
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` WASHINGTON, D.C., TUESDAY, MAY 13, 2014; 9:14 A.M.
` -OoO-
` THE VIDEOGRAPHER: My name is Kim Johnson
`representing Veritext. The date today is May 13,
`2014. The time is 9:14. This deposition is being
`held at WilmerHale located at 1875 Pennsylvania
`Avenue, Washington, D.C. The caption of this case is
`Smith & Nephew, Incorporated, v. Bonutti Skeletal
`Innovations, LLC. This case is filed in the U.S.
`Patent and Trademark Office before the Patent Trial
`and Appeal Board. Case No. IPR2013-00629. The name
`of the witness is Jay Mabrey.
` At this time, the attorneys present in the
`room will identify themselves and the parties they
`represent.
` MR. KAPPEL: Cary Kappel, Davidson Davidson &
`Kappel, representing Bonutti Skeletal Innovations.
` MR. PETROFF: David Petroff, Davidson
`Davidson & Kappel representing Bonutti Skeletal.
` MR. OYLOE: Jake Oyloe, WilmerHale,
`representing Smith & Nephew and the witness.
` MR. SMITH: Michael Smith, WilmerHale,
`representing Smith & Nephew and the witness.
` MR. DOWD: Jim Dowd, WilmerHale.
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` THE VIDEOGRAPHER: And our court reporter,
`Nancy Martin, representing Veritext, will swear in the
`witness and we can proceed.
` - - -
` JAY B. MABREY, M.D., after having been
` first duly sworn, was examined and testified as
` follows:
`
` EXAMINATION
`BY MR. KAPPEL:
` Q. Good morning, Dr. Mabrey.
` A. Good morning.
` Q. My name is Cary Kappel, and I represent the
`plaintiff -- the defendant in this case. Can you
`state your full name for the record.
` A. Jay Donald Mabrey.
` Q. During the course of this deposition I'll be
`asking you some questions. All you have to do is
`answer them truthfully and completely. If I ask you a
`question that doesn't make sense to you or is
`confusing, just let me know and I'll try to rephrase
`it. During the course of the deposition, your
`attorney may object from time to time. You should let
`him finish his objection before you answer because we
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` JAY D. MABREY, M.D.
`have a court reporter here, and she can't type down
`two people speaking at once. So, also, if I'm asking
`a question, let me finish before you start so that we
`don't have a confusing record. Is that okay?
` A. Okay. Fine.
` MR. KAPPEL: Let me hand you what has been
`previously marked as Exhibit S&N 1002.
` (Previously marked Exhibit 1002.)
`BY MR. KAPPEL:
` Q. Do you recognize this document?
` A. Yes.
` Q. And it is Exhibit 1002, a copy of the
`declaration signed by you?
` A. Yes.
` Q. I'd like you to turn to the Appendix A at the
`back of Exhibit 1002. It's actually separately
`stapled, if that makes it easier for you.
` A. Yes.
` Q. And is Appendix A a copy of your curriculum
`vitae?
` A. Yes.
` Q. And is that -- is this CV current as of
`today?
` A. Yes.
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` JAY D. MABREY, M.D.
` Q. Okay. Have you ever served as an expert
`witness before?
` A. Yes.
` Q. Okay. How many cases have you served as an
`expert witness?
` A. One or two. It's been over several years.
` Q. Okay. And were these -- were those one or
`two cases patent cases?
` A. The first one was, yes.
` Q. And what was the subject matter of the other
`case?
` A. I believe there was medical liability.
` Q. Let's start with the patent case. What was
`the technology involved in that case?
` A. A pneumatic compression foot pump. The
`parties involved were KCI v. Kinnamed.
` Q. Can you spell the second party?
` A. K-i-n-n-a-m-e-d.
` Q. And were you deposed in that case?
` A. No.
` Q. Did you ever testify in court in that case?
` A. No.
` Q. In the medical liability case, what were the
`parties involved, if you recall?
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` JAY D. MABREY, M.D.
` A. It involved a hip implant.
` Q. Okay. And were you deposed in that case?
` A. No.
` Q. And did you testify in court at all in that
`case?
` A. No.
` Q. Have you ever been deposed in any proceeding?
` A. Yes.
` Q. If you can recall, how many times you have
`been deposed?
` A. Two or three times.
` Q. But those were not -- I presume those were
`not cases in which you were serving as an expert
`witness?
` A. Correct.
` Q. So you were a fact witness in those cases?
` A. Correct.
` Q. Have you ever had occasion to submit any --
`well, let me recouch that. Leaving aside inter partes
`reviews that you have worked on for Smith & Nephew,
`have you submitted any other declarations to the
`United States Patent Office in any other proceedings?
` A. I have not, no.
` Q. Do you currently teach at Texas A&M?
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` JAY D. MABREY, M.D.
` A. I teach at Baylor University Medical Center,
`and I am a professor of surgery at Texas A&M, and I
`hold that title because Texas A&M medical students
`rotate through our facility. So I don't teach at
`Texas A&M.
` Q. Okay. So they rotate through the facility at
`Baylor; is that --
` A. In Dallas, correct.
` Q. Okay. All right. So describe for me what
`your responsibilities are at Baylor as the chief -- or
`where you're teaching at Baylor.
` A. I'm the chief of orthopedic surgery, and I
`oversee educational activities at the medical center.
`I serve on several committees and also serve as system
`champion for various aspects of medical care, such as
`the electronic health record and best practices. I
`interface with all the practicing surgeons and also
`conduct a tri-monthly grand rounds staff meeting, and
`I also conduct an advisory council every three months
`as well. I'm at the disposal of the president of the
`hospital and the president of the healthcare system as
`a resource for anything regarding orthopedics.
` I have medical students that rotate through
`my practice. They come to my clinic and to my
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` JAY D. MABREY, M.D.
`operating room. We have orthopedic residents who
`rotate through our clinic and operating rooms from the
`University of Texas Southwestern, and I'm responsible
`for teaching them when they're in my presence. And I
`also have a clinical practice that focuses on hip and
`knee replacement.
` Q. Okay. Describe for me, on a day-to-day
`basis, what your clinical practice involves.
` MR. OYLOE: Objection to form.
` THE WITNESS: I have a private practice with
`one partner. I have clinic 2-1/2 days a week. At
`those clinics I receive referrals from all over the
`healthcare system and from a three or four statewide
`area. My clinical practice focuses on total hip and
`total knee replacement, total hip revision, knee
`revision, knee arthroscopy and hip arthroscopy.
`During those clinics I see referrals from the Health
`Texas Provider Network. I treat a variety of
`conditions, but I focus on hip and knee. On days that
`I'm not in my clinic I have 2-1/2 days of operating
`room. Mondays I perform hip and knee arthroscopy, and
`then Wednesdays and Fridays are full days devoted to
`hip and knee replacement, hip and knee revision,
`gluteal tendon repair.
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` JAY D. MABREY, M.D.
`BY MR. KAPPEL:
` Q. In your previous answer you made a
`distinction between knee replacement and knee
`revision.
` A. Yes.
` Q. Can you explain for me what each entails and
`how they differ?
` A. Total knee replacement involves the de novo
`replacement of an arthritic or injured knee joint with
`a metal and polyethylene prosthesis. Total knee
`revision involves the repair or replacement of an
`existing total knee replacement with another knee
`replacement or the removal of that existing knee
`replacement for infection and replacement with a
`polymethyl methacrylate spacer.
` REPORTER MARTIN: With a what? I'm sorry.
`Poly?
` THE WITNESS: Polymethyl methacrylate. You
`could write PMMA.
` REPORTER MARTIN: I'm sorry.
` MR. KAPPEL: It's okay.
` Q. Okay. Turning to the second page of your CV,
`I noticed that it indicates that you presently consult
`or work for Parcell Labs, Exactech, and Mabrey Medical
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` JAY D. MABREY, M.D.
`Templates; is that correct?
` A. Correct.
` Q. What are your current responsibilities at
`Parcell Labs?
` MR. OYLOE: Objection to form.
` THE WITNESS: For Parcell Labs I serve as a
`consultant in obtaining human synovial tissue.
`Actually, human synovial fluid at the time of primary
`total knee replacement. Parcell Labs then takes that
`fluid and extracts the stem cells to produce a
`commercial product. I'm not involved in the
`development of the product. The president of the
`company is a friend, and I offered to help her with
`that.
`BY MR. KAPPEL:
` Q. Okay. I see you list your position at
`Exa- -- as Exactech as "design consultant"; is that
`correct?
` A. Yes.
` Q. What is the nature of your work for Exactech?
` A. Two products. The first product is the CR
`Plus cruciate retaining knee. This is a knee
`replacement that has a variable slope polyethylene
`insert, and I was on the original design team for that
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` JAY D. MABREY, M.D.
`product.
` The second area that I'm consulting is on the
`Logitech posterior stabilized knee with a modular
`cross bar.
` And the third project I'm involved with is
`the GPS guidance system for Exactech for performing
`total knee replacement. Computer navigation.
` Q. Finally, I see -- well, you list yourself as
`CEO of Mabrey Medical Templates from 1989 --
` A. Yes.
` Q. -- to the present; is that correct?
` A. Yes.
` Q. And what is the nature of your work for
`Mabrey Medical Templates?
` A. It's medical art. I started back -- as a
`company to produce templates, literally plastic
`templates with the outlines of various anatomical
`parts to aid physicians describing injuries in the
`emergency room or describing their surgeries, as we
`would cut out these plastic templates, and they were
`sold at medical schools. Now, with the advent of the
`electronic medical record, that has fallen by the
`wayside, and now I focus on computer graphics and
`animation of surgical procedures using animation
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`software.
` Q. Okay. You seem to have a lot of activity.
`So let me ask you if I've missed any other
`professional activities that you are currently
`involved in?
` A. None, other than my official functions as the
`chief of orthopedics and as a professor of orthopedic
`surgery.
` Q. Okay. On Page 2 of your CV you note that you
`consulted for Howmedica between 1995 and 1997; is that
`correct?
` A. Correct.
` Q. And describe for me the work that you did for
`Howmedica.
` A. I was basically on surgeon panels and
`provided them with feedback for various adult
`reconstruction products.
` Q. Can you list for me the products that you can
`recall?
` A. There were several. I remember one was a
`hydroxyapatite coated acetabular component.
` Q. Let me back up. So what exactly is that used
`for?
` A. That's used in total hip replacement, and the
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` JAY D. MABREY, M.D.
`acetabular component is a dome shaped piece of metal
`that fits into the pelvis and receives the head of the
`prosthesis. Hydroxyapatite is a bone-like coating and
`encourages on-growth of bone onto the implant and
`stabilizes it. What I remember, I wasn't impressed.
`It was rubbing off on my fingers.
` Q. Okay. Did you do any -- did you do any
`consulting work regarding any knee replacement
`products for Howmedica?
` A. No, none that I can recall.
` Q. Okay. And continuing on Page 2 of your CV, I
`note that you were a consultant for Smith & Nephew
`between 1991 and 1997; is that correct?
` A. Yes.
` Q. Describe for me the work that you did for
`Smith & Nephew in that time frame.
` A. I served as a lecturer at some of their
`medical meetings and also an instructor at some of
`their cadaver labs.
` Q. So in the cadaver labs you were providing
`instruction to other physicians; is that correct?
` A. Overseeing surgery at the time, yes.
` Q. And what types of surgeries were you
`overseeing?
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` JAY D. MABREY, M.D.
` A. Total hip replacement.
` Q. Again, on Page 2 of your CV I see that you
`consulted for -- and I'll mispronounce this for sure.
`DePuy.
` A. DePuy.
` Q. DePuy. Easier than I thought. Between 2000
`and 2004; is that correct?
` A. Correct.
` Q. And please describe for me the work that you
`did for DePuy in that time frame.
` A. I was asked to provide feedback on their
`surgical robotics system. It was a knee navigation
`system.
` Q. From your previous answers I gather that you,
`over your career, performed told knee replacement
`surgeries; is that correct?
` A. Yes.
` Q. When did you first perform a total knee
`replacement surgery? I don't need an actual date, but
`approximate year will be fine.
` A. Can you clarify "participate" or conduct as
`the primary surgeon?
` Q. Let's start with participate in a total knee
`replacement surgery.
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` A. 1978.
` Q. And was that while you were in medical
`school?
` A. Yes.
` Q. And when was the first occasion -- again,
`just year will be fine -- that you were a primary
`physician at total knee replacement surgery?
` A. 1985, 1986.
` Q. When was the first time you were a primary
`physician at partial knee replacement surgery?
` MR. OYLOE: Objection to form.
` THE WITNESS: To the best of my recollection,
`I was not part of that partial knee replacement -- or
`not involved in the partial knee replacement.
`BY MR. KAPPEL:
` Q. Okay. So let's back up. Have you ever
`performed a partial knee replacement?
` A. No.
` Q. On your CV on Page 2, you list work for
`Source Medical as a consultant between 2001 and 2004;
`is that correct?
` A. Yes.
` Q. Describe for me the work that you did for
`Source Medical.
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` JAY D. MABREY, M.D.
` A. I was asked to provide comments on their
`plans for a physical therapy program. I don't believe
`I received any compensation for that.
` Q. What type of physical therapy program were
`you advising on?
` A. For hip and knee replacements.
` Q. Approximately how many -- well, let's start
`in the present day. Can you tell me in --
`approximately how many total knee replacement
`surgeries did you perform as a primary physician in
`2003 -- I'm sorry -- 2013?
` A. Between 80 and 100.
` Q. And would that estimate of 80 to 100 in a
`year be accurate for prior years as well?
` A. The year before, most likely.
` Q. Were there years in which you think you
`performed far less than that?
` A. Yes.
` Q. Okay. What years would those be?
` A. 2004 I was recruited to become the chief of
`orthopedics at Baylor University Medical Center, which
`is in a new city and I had to basically establish a
`new orthopedic practice.
` Q. Is there a particular brand and model of knee
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` JAY D. MABREY, M.D.
`prosthesis that you use in your practice?
` MR. OYLOE: Objection. Compound.
` THE WITNESS: Are you asking for all
`prostheses?
`BY MR. KAPPEL:
` Q. Yes. Tell me.
` MR. OYLOE: Same objection.
` THE WITNESS: In my practice I use knee
`prostheses from Exactech, based in Gainesville,
`Florida. Smith & Nephew, based in Memphis, Tennessee,
`and DePuy Johnson & Johnson, Warsaw, Indiana.
` REPORTER MARTIN: Where in Indiana?
` THE WITNESS: Warsaw, Indiana.
`BY MR. KAPPEL:
` Q. Turning to Page 7 of your declaration,
`paragraph 13 you state that you are being compensated
`at your normal consulting rate for your work; is that
`correct?
` A. Correct.
` Q. And what is that rate?
` A. $500 per hour.
` Q. Approximately how much time did you spend
`preparing your declaration?
` A. 30, 35, 40 hours.
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` JAY D. MABREY, M.D.
` Q. Please describe for me the steps that you
`took in preparing the declaration.
` MR. OYLOE: Objection. I'll just caution you
`that you can discuss the drafting, but don't reveal
`any communications with counsel.
` THE WITNESS: I reviewed the patents in
`question, and I performed independent research at two
`separate medical libraries. I performed on-line
`searches and I -- through Google and the on-line
`medical database. I then retrieved papers, chapters
`of books, made copies, and reviewed those and then
`reviewed my findings with counsel.
`BY MR. KAPPEL:
` Q. Are you familiar with the term "prosecution
`history" as it relates to a patent?
` A. No.
` Q. Okay. Did you review a record of the
`proceedings before the patent office that led to the
`granting of U.S. Patent 7,806,894?
` MR. OYLOE: Objection to form.
` THE WITNESS: I reviewed multiple documents.
`I don't remember assigning them a particular title.
` (Pause in proceedings.)
` MR. KAPPEL: I'm going to hand you what's
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` JAY D. MABREY, M.D.
`been previously marked as Exhibit S&N 1014.
` (Previously marked Exhibit 1014.)
` (The witness reviewed Exhibit 1014.)
`BY MR. KAPPEL:
` Q. Do you recognize this document?
` A. No, I don't.
` MR. KAPPEL: I'd like to refer you to
`Exhibit 1002, which is your declaration at Page 22.
`And, in particular, the end of Paragraph 45.
` (The witness reviewed Exhibit 1002.)
`BY MR. KAPPEL:
` Q. Do you see that passage?
` A. Yes.
` Q. And do you see the reference to "'896 patent
`file history, April 30, 2007, Response, Page 13
`(Exhibit 1014)." Do you see that?
` A. Yes.
` Q. Okay. A moment ago you told me you didn't
`know -- have an understanding of the word -- well,
`actually, let me rephrase that because I said
`"prosecution history."
` What did you mean by "the patent file
`history" at the end of Paragraph 45?
` MR. OYLOE: Objection to form.
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` JAY D. MABREY, M.D.
` THE WITNESS: Most likely, terminology
`provided to me by counsel as part of our collaborative
`effort.
`BY MR. KAPPEL:
` Q. Okay. So you couldn't tell me, sitting here
`today, what a patent file history is?
` MR. OYLOE: Objection to form.
` THE WITNESS: I don't recall the term.
`BY MR. KAPPEL:
` Q. So you do not know what is in a patent file
`history other than, I guess, Exhibit 1014?
` MR. OYLOE: Objection. Mischaracterizes.
` THE WITNESS: Whatever the contents were that
`I reviewed months ago.
`BY MR. KAPPEL:
` Q. Did you review Exhibit 1014 during the course
`of preparing your declaration?
` MR. OYLOE: Objection to form.
` THE WITNESS: I did at some point, months
`ago. I don't remember the time offhand.
`BY MR. KAPPEL:
` Q. Do you know whether or not you reviewed any
`other portion of the patent file history while you
`were preparing this report?
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` JAY D. MABREY, M.D.
` MR. OYLOE: Objection to form.
` THE WITNESS: I'm sorry. Could you clarify
`what you mean by "any other part of the patent file
`history."
`BY MR. KAPPEL:
` Q. Do you know whether or not Exhibit 1014 is
`the only documents in the '896 patent file history?
` MR. OYLOE: Objection to form.
` THE WITNESS: I know I reviewed several
`documents in the past, and I have not memorized them.
` MR. KAPPEL: I'm handing you what's been
`previously marked as Exhibit S&N 1001, which is
`United States Patent Number 7,806,896.
` (Previously marked Exhibit 1001.)
` (The witness reviewed Exhibit 1001.)
`BY MR. KAPPEL:
` Q. Do you recognize that document?
` A. Yes, I do.
` Q. Is this a document that you reviewed in
`preparation -- in preparing your declaration?
` A. Yes, it is.
` Q. Have you read the entirety of Exhibit 1001?
` A. At one point I went through the entire
`document.
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` JAY D. MABREY, M.D.
` Q. How many times would you say you read through
`Exhibit 1001?
` A. Twice perhaps.
` Q. I'd like to refer you to your declaration,
`Exhibit 1002, Page --
` MR. KAPPEL: Why don't we take a five-minute
`break.
` MR. OYLOE: Okay.
` THE VIDEOGRAPHER: Off the record at 10:01.
` (A recess was taken from 10:01 a.m.
` to 10:08 a.m.)
` THE VIDEOGRAPHER: We are back on the record
`at 10:08.
` MR. KAPPEL: Dr. Mabrey, I'd like to refer
`you to Paragraph 16 of your declaration, which is on
`Page 7. And the last sentence of Paragraph 16 reads,
`"This definition is consistent with the '896 patent
`specification," and you cite to the '896 patent's"
`Column 38, Lines 9 to 18.
` Q. Is that correct?
` A. Yes.
` Q. And did you choose that citation or that
`passage in your declaration?
` MR. OYLOE: Objection to form.
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` JAY D. MABREY, M.D.
` THE WITNESS: Yes.
`BY MR. KAPPEL:
` Q. Why did you choose that passage?
` MR. OYLOE: Objection to form.
` (The witness reviewed the document.)
` THE WITNESS: Just to define the term
`"guide." He refers to the "femoral cutting guide,"
`"tibial resection guide" in Lines 14 and 15.
`BY MR. KAPPEL:
` Q. How does that tell you that a cutting guide
`should be a guide that has a guide surface and that
`the term "guide surface" should mean a surface that
`guides a cutting instrument?
` MR. OYLOE: Objection to form.
` THE WITNESS: That's my definition of a
`guide. That's the way I use it in my practice.
`BY MR. KAPPEL:
` Q. This passage that you cited does not include
`the term "guide surface," does it?
` A. It doesn't use the word "surface," no.
` Q. When we spoke previously, I believe you
`stated you spent 30 to 35 hours preparing this
`declaration; is that correct?
` MR. OYLOE: Objection. Mischaracterizes.
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` JAY D. MABREY, M.D.
`BY MR. KAPPEL:
` Q. How much time did you spend -- I'll withdraw.
` How much time do you estimate you spent
`preparing this declaration?
` A. Again, I don't remember the exact amount of
`time. Several hours.
` Q. Several?
` A. Yes.
` Q. So it could have been -- what would be the
`range that you would define "several hours"?
` A. 30, 40, 50 hours.
` Q. Okay. And did you draft this declaration?
` MR. OYLOE: Objection to form.
` THE WITNESS: Could you clarify, please.
`BY MR. KAPPEL:
` Q. Did you type the words that are written in
`this declaration?
` A. I did not type this out on my computer.
` Q. Okay. Did you dictate the words to someone
`else who was typing this out on the computer?
` A. I did not dictate.
` Q. I'd like you to describe for me the
`process -- be careful not to disclose any
`attorney-client communication -- of how this 68-page
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` JAY D. MABREY, M.D.
`declaration, the text of it was prepared.
` A. I had several E-mail exchanges with counsel.
`I had several phone exchanges with counsel, and I had
`one in-person meeting with counsel. During that time
`the document was being drafted. My input was on
`paper. I provided feedback and corrected several
`drafts.
` Q. Great.
` I'll refer you to Page 33 of your
`declaration. The second sentence on Page 33 begins,
`"A person of ordinary skill in the art." Do you see
`that?
` A. Yes.
` Q. Please describe for me what you mean by
`"person of ordinary skill in the art."
` MR. OYLOE: Objection to form.
` THE WITNESS: I would define the art here as
`the art of knee replacement surgery, someone with
`ordinary skill in the art would be someone who
`performs knee replacement surgery. Someone who has
`completed with residency and most likely fellowship in
`joint replacement.
`BY MR. KAPPEL:
` Q. When you refer to "a person of ordinary skill
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` JAY D. MABREY, M.D.
`in the art" at Page 33, are you referring to someone
`with that experience today in 2014?
` MR. OYLOE: Objection.
` THE WITNESS: No.
`BY MR. KAPPEL:
` Q. In what time frame would that person have the
`skill you described?
` A. At the time of the Delp article.
` REPORTER MARTIN: Delp?
` THE WITNESS: Delp, D-e-l-p. I'm dropping my
`voice again. Sorry.
` MR. KAPPEL: I'd like to refer you now to
`Paragraph 45 of your declaration, which is on Page 22.
`That paragraph begins "Of the 112 columns of material
`in the specification, only a few description
`paragraphs even arguably relate to the purportedly
`novel features of the claimed invention."
` Q. Do you see that?
` A. Yes.
` MR. OYLOE: Can I just -- sorry to interrupt.
`What page number again?
` MR. KAPPEL: 22.
` MR. OYLOE: 22. Sorry.
`BY MR. KAPPEL:
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` JAY D. MABREY, M.D.
` Q. Please list for me the paragraphs that you
`are referring to in that sentence.
` MR. OYLOE: Objection to form.
` THE WITNESS: So that would be Column 3,
`Paragraph 4. "A cut on a bone in the patient may be
`completed using previously cut surfaces as a guide for
`the cutting tool."
`BY MR. KAPPEL:
` Q. Okay. Now, continuing on Paragraph 45 of
`your declaration, you continue, and that's "Applicant
`appears to have relied -- without explanation -- on
`this disclosure for the conclusion that: 'The present
`invention provides a means for cutting bone, where the
`guide member is free of extramedullary or
`intramedullary members.'" Do you see that?
` A. Yes.
` Q. And is that what you call the purportedly
`novel features that you're referring to in the first
`sentence of Paragraph 45?
` MR. OYLOE: Objection. Form.
` THE WITNESS: One of the purpor
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