`
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________
`
`MAKO SURGICAL CORP.,
`Petitioner,
`
`v.
`
`BLUE BELT TECHNOLOGIES, INC.,
`Patent Owner.
`_____________________
`
`
`
`IPR2015-00629
`
`U.S. Patent No. 6,757,582
`
`_____________________
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
`
`Patent Owner Blue Belt Technologies, Inc. moves to exclude certain
`
`portions of the cross-examination testimony of Patent Owner’s expert, Dr. Cleary.
`
`Specifically, two of the questions asked by Petitioner Mako Surgical Corp. were
`
`confusing and ambiguous, and referred to subject matter outside the scope of Dr.
`
`Cleary’s Declaration. Accordingly, Dr. Cleary’s answers to those questions should
`
`be excluded under Fed. R. Evid. 403 and 37 C.F.R. § 42.53(d)(5)(ii).
`
`On cross-examination, Dr. Cleary was asked the following:
`
`• “In general in robot-assisted surgery, redundant systems for safety are
`
`important, aren’t they?” (Cleary Dep.1 at 65:22–24) (“Question 1”); and
`
`• “And using a tracker could be one way to ensure that the bone -- that you
`
`would detect any motion of the bone, wouldn’t it?” (id. at 66:21–23)
`
`(“Question 2”).
`
`Patent Owner objected to Questions 1 and 2 as to form and scope. Id. at 66:1–2;
`
`66:25–67:1. Nevertheless, Petitioner relied on Dr. Cleary’s answers to Questions 1
`
`and 2 in its Reply. Petitioner’s Reply, Paper No. 13 (Feb. 19, 2016) (“Petitioner’s
`
`Reply”) at 7.
`
`
`
` 1 Transcript of Deposition of Dr. Kevin Cleary, Ex. 1016.
`
`
`
`
`
`
`
`Question 1—referencing robot-assisted surgery “[i]n general”—provides no
`
`context for important criteria, including: timeframe (before or after the filing date
`
`of U.S. Patent No. 6,757,582 (“the ’582 Patent”)); the type of surgery (involving
`
`the hip or another body part); and the type of system (autonomously executing or a
`
`lesser degree of robot assistance). Nor does Question 1 provide any metric by
`
`which Dr. Cleary was to assess the “importance” of redundant systems for surgery.
`
`Dr. Cleary’s answer to Question 1 should therefore be excluded as confusing the
`
`issues and ambiguous to the extent that Petitioner relies on it to support the
`
`allegation that the strain gauges described in Taylor2 output tracking data. See
`
`Petitioner’s Reply at 7. Dr. Cleary’s answer provides no indication whether he
`
`meant for his answer to be applied in that context. See Cleary Dep. at 66:4–11.
`
`Moreover, Dr. Cleary’s Declaration makes no mention of robot-assisted surgery
`
`“in general” or “redundant systems for safety.” Thus, Dr. Cleary’s answer to
`
`
`
` 2 Russell H. Taylor et al., An Image-Directed Robotic System for Precise
`
`Orthopaedic Surgery, IEEE Transactions On Robotics And Automation, Vol.
`
`10, No. 3, June 1994, Ex. 1008.
`
`
`
`2
`
`
`
`
`
`Question 1 should further be excluded as being outside the scope of his Declaration
`
`testimony.
`
`Question 2 is similarly problematic as it references a “tracker” used to
`
`“detect any motion of the bone” without providing context for the term “tracker.”
`
`Independent claim 1 of the ’582 Patent recites a “tracker,” “at least one first
`
`marker,” and “at least one second marker.” And although Question 2 refers to a
`
`“tracker,” Dr. Cleary’s answer refers to a “marker,” reflecting confusion about how
`
`“tracker” was used in Question 2. Cleary Dep. at 67:3–6. Nor does Dr. Cleary’s
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`Declaration testimony describe whether a “tracker” could be used in Taylor’s
`
`system. Instead, Dr. Cleary’s Declaration testimony establishes that Taylor does
`
`not disclose a “tracker” or “at least one first marker,” as recited in claim 1.
`
`Declaration of Dr. Kevin Cleary, Ex. 2004, ¶¶ 43–49.
`
`Accordingly, Patent Owner respectfully requests that the Board exclude Dr.
`
`Cleary’s answers to Questions 1 and 2 as confusing and ambiguous, as well as
`
`outside the permissible scope under Fed. R. Evid. 403 and 37 C.F.R.
`
`§ 42.53(d)(5)(ii).
`
`
`
`
`
`
`
`3
`
`
`
`
`
`Dated: March 9, 2016
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`By: /Brian M. Buroker/
`
`
`
`Brian M. Buroker (Reg. No. 39,125) (lead)
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, DC 20036-5306
`Telephone: 202.955.8500
`Facsimile: 202.467.0539
`bburoker@gibsondunn.com
`Attorney for Patent Owner Blue Belt
`Technologies, Inc.
`
`4
`
`
`
`
`
`
`
`CERFITICATE OF SERVICE
`
`The undersigned certifies service pursuant to 37 C.F.R. § 42.6(e) of a copy
`
`of this Motion to Exclude by electronic mail on March 9, 2016 on the counsel of
`
`record of the Petitioner:
`
`Matthew I. Kreeger, mkreeger@mofo.com
`
`Walter Wu, wwu@mofo.com
`
`
`
`Dated: March 9, 2016
`
`
`
`By: /Brian M. Buroker/
`
`
`
`Brian M. Buroker (Reg. No. 39,125)
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, DC 20036-5306
`Telephone: 202.955.8500
`Facsimile: 202.467.0539
`bburoker@gibsondunn.com
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