`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________________________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________
` ZIMMER HOLDINGS, INC. and ZIMMER, INC.,
` Petitioner,
` V.
` BONUTTI SKELETAL INNOVATIONS LLC,
` Patent Owner.
`__________________________________________
` Case IPR2014-00191
` Patent 7,837,736
`__________________________________________
` Virtua Health & Wellness Building
` 401 Young Avenue - Suite 245
` Moorestown, New Jersey 08057
` October 11, 2014
` 8:54 A.M.
`
` ORAL DEPOSITION OF
` SCOTT D. SCHOIFET, M.D.
`
`Zimmer EXHIBIT 1022
`Zimmer Holdings, Inc. and Zimmer, Inc. v.
`Bonutti Skeletal Innovations LLC
`REPORTED BY:
`IPR2014-00191
`DEBRA SAPIO LYONS, RDR, CRR, CCR, CPE
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` October 11, 2014
`
` Oral deposition of
`Scott D. Schoifet, M.D., held at the
`Virtua Health & Wellness Building, 401
`Young Avenue - Suite 245, Moorestown, New
`Jersey 08057, before Debra Sapio Lyons, a
`Registered Diplomat Reporter, a Certified
`Realtime Reporter, a Certified LiveNote
`Reporter, an Approved Reporter of the
`United States District Court for the
`Eastern District of Pennsylvania, a
`Certified Court Reporter of the State of
`New Jersey, a Notary Public of the States
`of New Jersey, New York and the
`Commonwealth of Pennsylvania.
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`APPEARANCES:
` PAUL HASTINGS LLP
` BY: NAVEEN MODI, ESQUIRE
` PAROMITA CHATTERJEE, ESQUIRE
` 875 15th Street, N.W.
` Washington, D.C. 20005
` 202.551.1990
` naveenmodi@paulhastings.com
` mitachatterjee@paulhastings.com
` Counsel for Petitioner
` DAVIDSON, DAVIDSON & KAPPEL, LLC
` BY: CARY S. KAPPEL, ESQUIRE
` DAVID PETROFF, ESQUIRE
` 485 Seventh Avenue - 14th Floor
` New York, New York 10018
` 212.736.1940
` ckappel@ddkpatent.com
` dpetroff@ddkpatent.com
` Counsel for Patent Owner
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` Scott D. Schoifet, M.D.,
` having been first duly sworn, was
` examined and testified as follows:
` - - -
` COURT REPORTER: Stipulations?
` MR. KAPPEL: No.
` - - -
` E X A M I N A T I O N
` - - -
`BY MR. MODI:
` Q. Good morning, Dr. Schoifet.
` A. Good morning.
` Q. Would you please spell your
`full name for the record?
` A. Sure. It's Scott,
`S-C-O-T-T, Schoifet, S-C-H-O-I-F-E-T.
` Q. And what is your address?
` A. 19 Macclesfield Drive,
`Medford, New Jersey.
` Q. Have you ever testified
`before?
` A. I have.
` Q. So you understand you're
`under oath today --
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` SCOTT D. SCHOIFET, M.D.
` A. Yes.
` Q. -- like you would be in a
`Court of Law?
` A. Yes.
` Q. And I'm going to ask you
`questions and the answers will be
`transcribed.
` You understand that?
` A. Yes.
` Q. We'll take breaks
`frequently. I just ask if a question
`is pending, that you answer it before
`we take a break.
` Is that fair?
` A. Yes.
` Q. Of course your attorney may
`object, and if he has a privilege
`objection, then, of course, we'll take
`a break if you need to. You understand
`that?
` A. Yes.
` Q. And if he does object, you
`do need to answer unless he instructs
`you not to answer.
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` SCOTT D. SCHOIFET, M.D.
` Do you understand that too?
` A. Yes.
` Q. If a question is not clear,
`please let me know and I'll rephrase
`it; otherwise I'm going to assume you
`understand it.
` Is that fair?
` A. Yes.
` Q. We are going to try to only
`have one speaker at a time. I think
`she will definitely appreciate it, so
`do you understand that?
` A. Yes.
` Q. Do you have any questions
`before we begin?
` A. No, I don't.
` Q. Any reason you cannot
`testify completely and accurately
`today?
` A. No, there's not.
` Q. What did you do to prepare
`for this deposition today?
` A. I reviewed the -- the
`documents, the patent, '736, the patent
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` SCOTT D. SCHOIFET, M.D.
`history, the declaration by your
`expert, the -- I forget the name.
`The -- the case, the patent review that
`was done. I can't give you the exact
`terms without my declaration.
` Q. IPR, Inter --
` A. Yeah, the IPR review.
` Q. Anything else?
` A. To the best of my knowledge
`without re-looking at my declaration,
`that would be most of it.
` Q. So you obviously looked at
`your declaration?
` A. Yes, of course.
` Q. What about Walker?
` A. I reviewed Walker of course.
`It's hard for me to do this from memory
`sometimes.
` Q. I totally understand.
` And how long did you spend
`to prepare for your deposition?
` A. I spent quite a number of
`hours on it.
` Q. How many hours
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` SCOTT D. SCHOIFET, M.D.
`approximately?
` A. Many. It's hard for me to
`judge. Go back to records at home. I
`spent a long time reviewing the
`documents, looking at Walker, reading
`the dec -- reading the other
`declaration, reviewing the cases and
`the patent's quite extensive, so quite
`a long period of time.
` Q. And over what period did you
`prepare for the deposition?
` A. It was -- for the
`deposition, probably months. For the
`declaration, probably a month or two.
` Q. Did you talk to anyone to
`prepare for your deposition?
` MR. KAPPEL: Objection. I'm
` just going to caution the witness
` that you are not to disclose the
` substance of any communication with
` counsel.
` THE WITNESS: I had
` discussions with my attorneys.
`BY MR. MODI:
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` SCOTT D. SCHOIFET, M.D.
` Q. Which attorneys?
` A. The two present here.
` Q. Anyone else?
` A. About the case, no.
` Q. What is your general
`understanding of the subject matter
`that's at issue here?
` A. Subject matter is whether or
`not Walker anticipates the claims of
`the patent's Claims 21, 22 and 31.
` Q. And the patent that we're
`talking about is the '736 Patent; is
`that right?
` MR. KAPPEL: Objection,
` form.
` THE WITNESS: The patent
` that I reviewed -- well, I'm trying
` to remember. There's a lot of
` patents I reviewed, so I want to
` make sure we're talking about the
` right number. If you have the
` patent for me to look at, I can
` confirm it's the one I reviewed.
` I'd rather not do it by memory and
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` SCOTT D. SCHOIFET, M.D.
` give you a erroneous answer.
`BY MR. MODI:
` Q. This proceeding involves
`Bonutti and Zimmer; right?
` MR. KAPPEL: Objection,
` form.
` THE WITNESS: It involves
` the Walker patent and Claims 21, 22
` and 31.
`BY MR. MODI:
` Q. Do you have any
`understanding as to the parties that
`are involved in these proceedings?
` A. I'm not sure what you mean
`by "understanding."
` Q. Well, were you retained by
`someone for this IPR proceeding?
` A. I was retained by Bonutti
`Skeletal.
` Q. And you understand that this
`proceeding involves a patent owned by
`Bonutti Skeletal?
` A. I do.
` Q. What is the general subject
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` SCOTT D. SCHOIFET, M.D.
`matter of the patent -- of that patent?
` A. The patent is quite
`extensive and there's multiple subjects
`in it and multiple claims.
` Q. You mentioned Claims 21, 22
`and 31; right?
` A. I did.
` Q. What do those claims relate
`to?
` A. I can't recall from memory.
`If you want me to give you an accurate
`answer, I'd have to be reading it.
` Q. Have you had any design
`experience with any products?
` A. I have had design experience
`with Stryker.
` Q. So these are Stryker
`products?
` A. I've had design experience
`with Stryker products.
` Q. Any other products?
` A. No, not outside of Stryker.
` Q. And what was your first
`design -- design experience with
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` SCOTT D. SCHOIFET, M.D.
`Stryker?
` A. It was Scorpio. For their
`minimally invasive Scorpio anterior
`referencing equipment, they had a set
`of instruments. That's my initial
`design experience.
` Q. And what time frame was
`that?
` A. That would have been around
`2003 or 2004.
` Q. And you referred to that as
`the Scorpio. Can you give us the name
`again?
` A. It was the anterior --
`minimally invasive surgical, MIS for
`short, anterior referencing
`instruments.
` Q. Can you generally describe
`those instruments?
` A. It would be difficult to
`generally describe them. There's a
`manual for those instruments you can
`look at.
` Q. What are they used for?
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` SCOTT D. SCHOIFET, M.D.
` A. They're using for performing
`a knee replacement.
` Q. Besides the Scorpio product,
`were you involved in any other products
`with Stryker?
` A. I helped design the anterior
`referencing instrumentation for the
`Triathlon Knee System and have been
`involved with the design of the
`Tritanium, T-R-I-T-A-N-I-U-M, knee
`replacements for tibial base plate for
`the Triathlon Knee System.
` Q. Going back to the Scorpio
`MIS product, what were your
`contributions in that design?
` A. For that product I designed
`the protective plate that was used for
`the patella specifically.
` Q. Was anyone else involved in
`the design?
` A. With the design, I need a
`clarification of that. Was anybody
`else with the design of the entire
`Scorpio system or of that product, the
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` SCOTT D. SCHOIFET, M.D.
`plate?
` Q. Let's start with the plate.
` A. No.
` Q. So that was just you?
` A. Uh-huh.
` Q. What if you made it broader,
`the product?
` A. I would have no answer to
`that. I don't know who was involved
`with it.
` Q. Have you ever worked with
`Dr. Bonutti?
` A. I've worked with him, yes.
` Q. In what capacity?
` A. We've been at meetings
`together. He's a consultant with
`Stryker. And we consider those
`meetings work where we're teaching
`other -- other surgeons.
` Q. Was Dr. Bonutti involved in
`the Scorpio MIS project?
` A. I assume so, but I can't
`give you a definitive answer. I wasn't
`involved in the beginning of that
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` SCOTT D. SCHOIFET, M.D.
`project.
` Q. But why do you assume that
`he was involved?
` A. He was using the instruments
`at the time that I was learning how to
`use the instruments as well.
` Q. Was he involved in the
`design of those instruments?
` MR. KAPPEL: Objection,
` form.
` THE WITNESS: I don't have
` direct knowledge of that. That's an
` assumption I made he was.
`BY MR. MODI:
` Q. And what's the basis of that
`assumption?
` A. That he was -- that he was
`using the instruments.
` Q. Going to the Triathlon
`products that you mentioned, I think
`there are two of them that you
`mentioned; right?
` A. Yes.
` Q. Let's start with the
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` SCOTT D. SCHOIFET, M.D.
`Triathlon anterior references --
`referencing MIS instrument. I hope I
`got that right.
` A. You did.
` Q. When did you work on that
`product?
` A. I'll be guessing on the time
`frame, but I think it was in 2006 to
`2007 range.
` Q. And what were your
`contributions there?
` A. They were manyfold. I was
`much more involved in the
`instrumentations. I would get early
`designs and comment on them and help
`spec with them changes, so it's too
`numerous for me to recount.
` MR. KAPPEL: I'm just going
` to make an objection and just a
` caution to the witness. I know
` we're now discussing your work with
` Stryker who is not a party to this
` proceeding and I don't know whether
` or not there are any confidentiality
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` SCOTT D. SCHOIFET, M.D.
` issues you may have with Stryker,
` but if you do, then you need to
` consider that when answering
` questions.
`BY MR. MODI:
` Q. Did anyone else -- let me
`withdraw that.
` Was anyone else involved in
`the Triathlon anterior referencing MIS
`instrument project?
` A. I wouldn't be privy to that.
` Q. What about Dr. Bonutti?
` A. I wasn't privy to who was in
`it. That would include Dr. Bonutti.
` Q. And then going to the last
`product you mentioned which I believe
`was the Triathlon tibial plate.
` A. The Tritanium.
` Q. Sorry. Right. The
`Tritanium tibial plate.
` A. Uh-huh.
` Q. When did you -- when were
`you involved in that project?
` A. That's ongoing.
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` SCOTT D. SCHOIFET, M.D.
` Q. When did it start?
` A. Probably three years ago.
` Q. And I'm not looking for any
`confidential information, so can you
`just generally describe what that
`product is?
` A. It's an uncemented base
`plate designed not to be used with
`cement; and the metal is a titanium.
`It's called Tritanium. It's porous
`metal.
` Q. Other than the products that
`we just discussed, have you had any
`design experience with any other
`products?
` A. Mostly designing the
`Tritanium patella which is part of that
`system, so that would include
`everything I've designed.
` Q. And aside from your work
`with Stryker, have you had any other
`design experience?
` A. Not to my recollection.
` Q. You indicated you've
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` SCOTT D. SCHOIFET, M.D.
`testified before; right?
` A. Correct.
` Q. How many times?
` A. Once to my knowledge.
` Q. And what proceeding was that
`for?
` A. It was another prior art.
` Q. Another inter partes review
`proceeding?
` A. Uh-huh.
` Q. Did it involve a patent
`owned by Bonutti?
` A. It did.
` Q. So you indicated you were
`retained by Bonutti Skeletal in this
`proceeding; right?
` A. Correct.
` Q. How did you -- how were you
`approached?
` MR. KAPPEL: I'm going to
` lodge an objection, caution the
` witness not to reveal the substance
` of any communication of counsel.
` THE WITNESS: My secretary
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` SCOTT D. SCHOIFET, M.D.
` received a phone call from the
` attorneys office Stroock & Stroock.
`BY MR. MODI:
` Q. So it was through Stroock &
`Stroock that you got involved in these
`pro -- in this proceeding?
` A. Initially. There was also a
`phone call from Dr. Bonutti as well.
` Q. And what was the phone call
`from Dr. Bonutti about?
` A. Both phone calls were asking
`to speak with me.
` Q. Okay. And then what did you
`discuss with Dr. Bonutti?
` A. Well, I discussed with
`Stroock & Stroock first about the --
`that there was a case, he was
`interested to see if I'd be interested
`in participating as an expert.
` Q. Okay. And then you said
`there was a discussion --
` A. I had --
` Q. -- following discussion with
`Dr. Bonutti?
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` SCOTT D. SCHOIFET, M.D.
` A. I had a discussion with
`Dr. Bonutti, asked me if I would be
`willing to give my time to be an expert
`in this case.
` Q. And was -- what else was
`discussed during that discussion with
`Dr. Bonutti?
` A. That was the discussion.
` Q. And I assume you said yes?
` A. I did.
` Q. Would you say you are
`friends with Dr. Bonutti?
` A. No.
` Q. What would -- how would you
`characterize your relationship with
`Dr. Bonutti?
` A. We characterize orthopedists
`we work with as colleagues. That's the
`term I would use.
` Q. How many times have you
`worked together with Dr. Bonutti?
` A. At meetings and such, it's
`somewhere between three and five.
` Q. Have you worked with him in
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` SCOTT D. SCHOIFET, M.D.
`any other connection?
` A. I did. When I initially
`wanted to learn how to do a minimally
`invasive technique, I asked my Stryker
`rep to -- who's -- who's doing it, and
`Dr. Bonutti was doing these
`quad-sparing techniques, so I flew out
`to Effingham to observe him do surgery.
` Q. In the meetings where you
`worked with Dr. Bonutti, what's your
`work been there?
` A. Usually we're instructors
`for Stryker, so a lot of them are
`surgical techniques. There are
`breakout sessions where we might
`discuss other topics as well.
` Q. And who are these -- who are
`you teaching at these meetings?
` A. Other surgeons.
` Q. Other than the initial
`discussion that you had with
`Dr. Bonutti, have you had any other
`discussion with him regarding the
`cases?
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` SCOTT D. SCHOIFET, M.D.
` A. I have not.
` Q. So you haven't spoken to
`Dr. Bonutti about this proceeding after
`that initial discussion?
` A. I have not.
` Q. And you haven't talked to
`him about your testimony?
` A. I have not.
` Q. Are you being compensated
`for your time?
` A. I am.
` Q. What is your hourly rate?
` A. $1,250.00.
` Q. And who is compensating you?
` A. It's with Bonutti Skeletal
`Innovations.
` Q. Besides the IPR proceedings
`that you mentioned, have you done any
`other consulting work with Bonutti?
` A. No.
` Q. Have you been involved in
`any litigations?
` A. In our practice, an
`orthopedics litigation could be many,
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` SCOTT D. SCHOIFET, M.D.
`many things.
` Q. That's fair. Let me -- let
`me make that -- have you been involved
`in any litigations involving the
`Bonutti patents?
` A. Just the prior IPR that I
`mentioned. Let me amend that. I'm
`also involved with Desmarais for
`other -- against other companies. I
`think there's suits against Smith
`and -- Smith & Nephew and Biomet.
` Q. And these involve Bonutti
`patents?
` A. They involve Bonutti
`patents.
` Q. And what's your role in
`those cases?
` A. I'm -- my role is as an
`expert.
` Q. And have you given any
`testimony in those cases?
` A. I have not given testimony.
` Q. Have you submitted any
`expert reports?
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` SCOTT D. SCHOIFET, M.D.
` A. I have submitted an expert
`report.
` Q. What's -- what's the general
`subject matter?
` A. It was a -- it's a DePuy
`case.
` Q. And what did your report
`relate to?
` A. I have too many things. I
`can't recall exactly what the report
`related to without it in front of me.
`I could give you erroneous information.
` Q. So other than the DePuy
`case -- and I think you mentioned
`Biomet?
` A. I believe it was Biomet.
` Q. Other than the DePuy, Biomet
`and these IPR proceedings, have you
`done any other consulting work for
`Bonutti?
` A. I can't recall any others.
` Q. You mentioned Desmarais.
`How do you know Mr. Desmarais?
` A. I do not know Mr. Desmarais.
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` SCOTT D. SCHOIFET, M.D.
` Q. Okay. But you -- you said
`you've done work with Mr. Desmarais?
` A. I didn't say I did work with
`Mr. Desmarais.
` Q. So -- but I think his name
`was mentioned.
` A. That's the attorney. That's
`the firm.
` Q. Oh, got it. Okay. Okay.
` So are you working with
`anyone at that firm in particular?
` A. I'm working with an attorney
`with Desmarais, correct.
` Q. And what's his name?
` A. Alex Henriques.
` Q. Do you know when were you
`first retained by Bonutti for any of
`the legal proceedings?
` A. Could you repeat that?
` Q. Sure. You know, you've
`mentioned you've been involved in a
`bunch of legal proceedings with
`Bonutti, right, as an expert?
` A. Uh-huh.
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` SCOTT D. SCHOIFET, M.D.
` Q. What was the first time?
` A. The DePuy case I think was
`the first.
` Q. And --
` A. The --
` Q. Sorry. Go ahead.
` A. I'm sorry. It was with the
`Stroock & Stroock firm. And I believe
`there was a change of firms along the
`way.
` Q. Okay. Any rec --
`recollection as to the time frame?
` A. I'd be guessing somewhat,
`but I think it was about a year, in the
`last -- probably within the last year I
`started consulting work.
` Q. And you've been paid for all
`your consulting work for Bonutti;
`right?
` A. I have submitted invoices
`for all the consulting work.
` Q. And you've been paid for at
`least some of those invoices?
` A. Correct.
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` SCOTT D. SCHOIFET, M.D.
` Q. How much do you think you've
`been paid over the -- since you were
`first retained by Bonutti?
` A. I believe it's $10,000.00.
` Q. And how much is outstanding?
` A. I can't recall.
` Q. Is it more than 10,000?
` A. I would believe so.
` Q. More than 20?
` A. I can't answer that.
` Q. Have you ever done any legal
`consulting work for anyone other than
`Bonutti?
` A. Not that I can recall.
` Q. Do you have any patents?
` A. I do not.
` Q. Other than the Bonutti cases
`that we've been discussing, do you have
`any experience with patents?
` A. Once when I was a resident I
`was looking to patent a type of cement.
`I was talking to a patent attorney.
`Never went anywhere.
` Q. Why didn't it go anywhere?
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` SCOTT D. SCHOIFET, M.D.
` A. There was already prior art.
` Q. What is your understanding
`of prior art?
` A. My understanding, especially
`from that, was that somebody else had
`already come up with something
`extremely similar to what you're trying
`to patent.
` Q. And you didn't try to patent
`anything after that?
` A. No, I gave up.
` Q. So other than this one
`experience for -- of trying to get a
`patent and the Bonutti cases, have you
`had any other experience with patents?
` A. No.
` MR. MODI: I'm going to hand
` you what's been marked previously as
` Exhibit 1002.
` (Exhibit 1002, United States
` Patent Number 5,755,801, was
` previously marked for
` identification.)
` THE WITNESS: Okay.
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` SCOTT D. SCHOIFET, M.D.
`BY MR. MODI:
` Q. Can you please identify
`Exhibit 1002 for us?
` A. It's Patent Number 5,755,801
`by Walker.
` Q. And this is the Walker
`patent we were referring to earlier
`today?
` A. I believe so.
` Q. Can I have you turn to sheet
`two -- or that has the Figures 2, 2a
`2b, 2c in Exhibit 1002? Let me know
`when you're there.
` A. I'm there.
` Q. These figures show an Item
`50 and an Item 51.
` Do you see those?
` A. I do.
` Q. And Item 50 is referred to
`as an abutment?
` MR. KAPPEL: Objection,
` foundation.
`BY MR. MODI:
` Q. Is that right?
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` SCOTT D. SCHOIFET, M.D.
` A. A semi-circular abutment,
`50.
` Q. So Item 50 is referred to as
`an abutment?
` MR. KAPPEL: Objection,
` form.
` THE WITNESS: To the best of
` my knowledge, it says it's a
` semi-circular abutment.
`BY MR. MODI:
` Q. And where are you reading
`this from?
` A. Column 4, Line 24, 23 and
`24.
` Q. Would you agree Item 50 is
`upstanding or upright?
` A. I can't tell from the
`two-dimensional picture.
` Q. And the two-dimensional
`picture you're referring to?
` A. 2a.
` Q. So what would you need to
`have to -- for you to say whether it's
`an upstanding -- it -- it's up --
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` SCOTT D. SCHOIFET, M.D.
`upstanding or upright?
` MR. KAPPEL: Objection,
` foundation.
` THE WITNESS: I would not
` know what I'd need to have. I can
` comment on what's in front of me.
`BY MR. MODI:
` Q. Okay. So based on the
`figure, it's your testimony that
`abutment 50 is -- you cannot tell that
`it's upstanding or upright; is that
`right?
` A. Based on Figure 2a of the
`patent, you cannot tell whether it's
`upstanding or upright.
` Q. Do any of the other figures
`help you?
` A. No.
` Q. Anything else in the
`disclosure that helps you?
` A. I'm not sure what you mean
`by anything else in the disclosure.
` Q. In the document.
` A. In this document? Referring
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` SCOTT D. SCHOIFET, M.D.
`to what's in the patent, it calls
`Figure 50 a semi-circular abutment, so
`I assume it meant -- I assume that
`Figure 50, it says here, it's
`controlled by a semi-circular abutment,
`50 -- not Figure 50 -- 50 which is in
`Figure 2a.
` Q. My question is: Does any --
`in the patent, looking at this patent,
`can you tell us whether abutment 50 is
`upstanding or upright?
` MR. KAPPEL: Objection,
` form.
` THE WITNESS: It says very
` clearly to me in that sentence that
` it's a -- in Figure 2a, 50 is a
` semi-circular abutment.
` MR. MODI: Can you read back
` my question, please?
` (The following portion of
` the record is read by the Court
` Reporter:
` "QUESTION: My question is:
` Does anything in the patent, looking
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