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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF INDIANA
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`BONUTTI RESEARCH INC., and )
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`JOINT ACTI~!~ SYSTEMS, INC. )
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`PlaintiI%
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`-vs-
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`) Case No.
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`) 1 : 14-cv-00609-SEB-MJD
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`LANTZ MEDICAL, INC., )
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`)
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`Defendant )
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`DEPOSITION OF RENEE D. ROGGE, produced, sworn and
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`examined on behalf of the Plaintift;, on April 10, 2015, at
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`Rose-Hulman Institute of Tectmology, 5500 Wabash Avenue,
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`Tene Haute, Indiana, before Karen K. Keim, CRR, RPR,
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`CSR-IL, CCR-MO.
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`2
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`INDEX
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`EXAMINATION
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`Page 2
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`APPEARANCES:
`FOR THE PLAINTIFFS:
`MR. ROBERT M. EVANS, JR.
`MR. MICHAEL HARTLEY
`Senniger Powers
`100 North Broadway
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`17th Floor
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`St. Louis, MO 63102
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`MR. LUCAS WENTHE
`Joint Active Systems, Inc.
`2600 South RaJ~ey Street
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`Effingham, IL 62401
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`FOR THE DEFENDANTS:
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`MR. J. BLAKE HIKE
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`MR. JACQUE WILSON
`Carson Boxberger
`301 W. Jefferson BoulevaJ’d
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`Suite 200
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`Fort Wayne, IN 46802
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`Reported by:
`KaJ’en K. Keim
`Certified Realtime Reporter
`Illinois CSR No. 84-1577
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`Missouri CCR No. 1328
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`Videographer:
`JoaJ~ne Connor, CLVS
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`Page
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`IT IS HEREBY STIPULATED AND AGREED by
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`between Counsel for ttxe Plaintift; and Counsel for the
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`Defendant that this deposition may be taken in shor tSund by
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`KAREN K. KEIM, CRR, RPR, CSR-IL, CCR-MO, mxd afle~vards
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`h-anscribed into typewriting, and the sigmatm-e of the
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`Witness Name
`3 RENEE DENISE ROGGE
`Examination By Mr. Evans ......................... 5
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`Examination By Mr. Hike .......................... 98
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`Further Examination By Mr. Evans ................. 102
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`EXHIBITS
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`Exhibit
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`Page
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`Exhibit No. 52 Marked for Identification
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`14
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`(Exhibit attached to transcript.)
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`Witness is rese~ced.
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`START TIME: 11:29 A.M.
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`VIDEOGRAPHER: We are now onthe record. This
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`is the videotuped evidence deposition of Renee Rogge, PhD.
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`Today’s date is April 10tb, 2015, and the local thne is
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`11:29 a.m.
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`This is the case of Bonutti Research
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`Incorporated and Joint Active System Incorporated versus
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`Lmxtz Medical, Incorporated. The case number is
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`1:14-cv-00609-SEB-MJD, pending in the US Dishict Couri for
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`the Southern District of h~diana.
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`This deposition is being held at the
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`Rose-Hulmm~ Instilute ofTectmology, Tene Haute, Indiana.
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`My name is Joanne Connor, Ceriified Legal Video Specialist
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`associated witt~ PohhnanUSA Couri Reporiing located at 10
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`South Broadway, St. Louis, Missouri. The Couri Reporter is
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`i (Pages i to 4)
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`Bonutti Research, Inc. - Exhibit 2003
`Lantz Medical Inc. v. Bonutti Research Inc. - IPR2015-00993
`Page 1
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`Karen Keim, also ~vith PohhnanUSA Court Repol~ing.
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`Counselors, would you state your appearances
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`for the record, please?
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`MR. EVANS: Robert Evans with Smmiger Powers,
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`here for the Plaintiff~, Bonu~i Research and Joint Active
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`Systems.
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`MR. HARTLEY: Michael HaOley, alsowith
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`Smmiger Powers, for Plaintifik
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`any pending question before we take a break.
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`A I will do the best I can.
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`Q Okay. Fair enough.
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`aN/IN. EVANS: How long is the tape?
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`VIDEOGRAPHER: Two hours.
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`aN/IN. EVANS: Two hours.
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`The tapes are two hours. We generally take
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`8 breaks before then. We usually shoot for about every hour
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`MR. ¥¥~’NTHE: Lucas Wenthe from Joint Active
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`9
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`to take a break, or so. We’ll just see how it goes.
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`Systems and Bonu.i Technologies.
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`MR. HIKE: Blake Hike, Carson Boxberger, on
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`behalf of Defendant Lantz Medical.
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`A Fair enough.
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`Q What is your educational background?
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`MR. YVILSON: Jacque Wilson, Carson Boxberger,
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`on behalf of the Defendant
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`13 engineering, Tulane University, and a PhD in biomedical
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`14 engineering from the University of Iowa.
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`VIDEOGRAPHER: Wouldthe CourtRepol~er please
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`Q When did you earn the bachelor’s from
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`A I have a bachelor’s degree in biomedical
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`s~vear in the ~vitness, and ~ve can proceed.
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`18
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`RENEE DENISE ROGGE,
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`of la~vful age, being produced, s~vorn and examined on behalf
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`20
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`of the Plaintiff;, deposes and says:
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`DIRECT EXAMINATION
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`QUESTIONS BY MR. EVANS:
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`Q ¥¥1mt is your full ~alile?
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`A Renee Denise Rogge.
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`Q What is your current address?
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`16 Tulane?
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`A 1996; and 2000 for the University of Iowa.
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`Q What was your thesis on for your PhD?
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`A I worked on the biomechanics of distal
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`radius fractures and distal radius fracture stability.
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`Q What was your first employment after you
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`earned your PhD?
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`A I worked at Mercer University.
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`Q Forhow long?
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`A Four years.
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`A 1810 North Seventh Street, Terre Haute,
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`3 Indiana.
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`Q Dr. Rogge, haveyou ever been deposed
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`before?
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`A
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`I have not.
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`Q Okay. So here’s how- it works. I’m sure
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`counsel has explained it to you. But, briefly, I’ll be
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`asking you a series of questions today. I’d appreciate it
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`Q Starting in what, 2000?
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`A 2000, that’s correct.
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`Q To 2004?
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`A Yes. I started at Rose in 2004.
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`Q And you’ve been here ever since?
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`A That’s correct.
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`Q How many grad students do you currently
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`supervise?
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`if you’d give me full and complete answers to the extent
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`A I have one that is defending and one that
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`i i you can. If at any point you don’t understand a question,
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`i i defended earlier this year; so I have three active that
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`something seems unclear to you, feel free to tell me that
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`will be graduating this year, but two have finished their
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`13 defenses and one is pending.
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`13 and I’ll be happy to rephrase any question. Is that fair?
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`A Yes.
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`Q But ifyou don’t te]] me you don’t
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`understand a question, I can’t know- to rephrase it. So
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`i 7 feel free to speak up. Fair enough?
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`A Yes.
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`Q And the other thing is this is not an
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`endurance contest, so if at any point you want to take a
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`break, just say, "I need to take a break." You don’t have
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`to explain why. Just say, "I want to take a break," and
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`we’ll take a break. 7he only thing I would say, though, if
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`there is a question pending, I’d like to get an answer to
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`Q In what areas of research are they
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`15 currently involved with or are you currently involved with
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`16 with them or whoever?
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`A With them the current one is doing --
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`looking at how to compare cadaveric tibia to -- so there’s
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`19 a composite tibia model that’s used, that we’re trying to
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`validate against cadaveric tissue in cut and uncut states.
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`So once you do a cut to put an implant in and then you put
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`the implant in, making sure that this composite model is
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`representative of what a human would behave like, human
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`tissue would behave like.
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`2
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`(Pages 5 to 8)
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`Bonutti Research, Inc. - Exhibit 2003
`Lantz Medical Inc. v. Bonutti Research Inc. - IPR2015-00993
`Page 2
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`Q So the point of the composite model is so
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`you can model implants?
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`A Consistently.
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`Q Consistently; and then you can beVter
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`project how it’s actually going to perform when you implant
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`it in an actual human; is that fair?
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`A Not exactly. What the point of the
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`composite is is so that you know any design changes you
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`make with the implant are a function of the implant and not
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`the material you’re putting them in. There’s so much
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`variability in humans that if you start putting them in
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`different people then you’ll get different responses. It
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`1 Mooresville to assess if there was something we could do in
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`the clinic, not necessarily an orthopedic surgeon, but a
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`family practice doctor, for example, could have a patient
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`stand on a force plate or a cheap version of a force plate,
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`and by looking at their sway -- so, as you move left to
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`right and front to back -- if you could predict whether or
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`not when you open the j oint up if there is going to be sign
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`of instability; so your ACL was going to be sacrificed if
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`you’re going to need a total knee or partial knee. So that
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`could help -- cheaper diagnostics to predict what was going
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`to happen when you opened the joint up.
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`Q And how did that research work out?
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`has nothing to do with the design of the implant and
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`everything to do with the fact that there’s human
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`variability.
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`Q I see.
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`A So we’re trying to know -- right now the
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`composites are validated for doing procedures on them, but
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`once you cut them, it changes the integrity of the
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`with what human bone would behave like.
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`Q Understood.
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`Okay. That was one. What were the other two?
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`A Very different We work with a horse
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`A Very messy. There was a lot of-- humans
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`are -- there’s a lot of variability in humans. What they
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`found were that the sway -- there’s a lot more sway
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`with indicated ACL injuries were going to be present. So
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`he took data before the surgery and then took the surgeon’s
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`18 notes after the surgery and confirmed that if there was
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`19 more sway, there was likely an ACL injury involved as well.
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`So he looked at a lot of variables, but that was the most
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`impactful finding.
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`Q So, a force plate is something you stand
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`on that measures the forces at various sensors, and then
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`you look at the output of those sensors?
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`equine therapy that does therapeutic riding for people with
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`traumatic brain injury, and one of the students has
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`3 developed a horse simulator. People are afraid to get on
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`horses; and so she built a robotic horse, not quite like
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`you would find in a bar, like it’s going to buck you ofl;
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`but instead it’s going to be more of a getting people
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`7 comfortable. The riding of a horse simulates waiking; and
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`so if you can exercise those core muscles as you ride a
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`9 horse, it’s very calming and actually exercises the muscle
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`in a way that would help you recover your walking skills.
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`And so she has done a fantastic job in developing a horse
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`stimulation for the therapy that doesn’t scare people, and
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`A Generally, yes. It’s kind of like a t:ancy
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`bathroom scale. So a bathroom gives you a vertical
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`reaction force. It tells you what your weight is. But the
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`force plate -- this one is sensitive enough that it detects
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`your sway; so not just, you know-, front, back, left, right,
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`but it will tell you if there is an issue of forces. So if
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`you walk across it, it will tell you if there are any
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`forces in all three directions. So it’s just a t:ancy
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`bathroom scale, a lot more sensitive.
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`Q So you’re trying to look then at the
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`output of that scale to determine what the stability or
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`strength of the knee is or the knee joint?
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`people want to ride it. So that was her proj ect.
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`Q So that’s a therapy for people with
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`traumatic brain injury?
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`A Um-hum. Well, it couldbe formore than
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`17 people with traumatic brain injury, but that was the client
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`18 that she had in mind. There was a former Rose student who
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`suffered -- or who had an accident and has traumatic brain
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`injury, and that was the client she was really tailoring it
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`to, but it’s suitable for multiple people to use.
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`Q Okay. And how about the third grad
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`student?
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`A The third worked with a clinic in
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`A To see if there is anything you can
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`14 predict when a very -- not expensive diagnostics; so not
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`CT’s, not MRI’S, but if there is something that a
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`surgeon -- so a family practice doctor looks at a scan on
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`this -- "Yeah, I think this is a good reason to recommend
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`you to go to an orthopedic surgeon." It’s expensive to do
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`that; so trying to look at controlling healthcare costs.
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`Q All right. Apart from the three grad
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`students, do you do any independent research?
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`A I do research w-ith undergrads as well.
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`Q Okay. And what areas do those cover in
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`the last couple years?
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`Bonutti Research, Inc. - Exhibit 2003
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`A The nature of Rose-Hulman is if a student
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`is interested in it, we go for it. So I cover a wide
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`variety of biomechanics types of projects, anything from
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`orthopedic implants and designing equipment to apply loads
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`to evaluating what the mechanical response of a bone is to
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`apply loads, cadaveric work, composite tissue work. I’ve
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`had students design devices to test falls and braces for
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`impacts. So, thinking about if you’re rollerblading --
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`this was the scenario the student came up was you’re
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`rollerblading and throw your arm out; what good are those
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`liVde wrist protection thmgies? So they developed a
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`Renee D. Rogge, PlI)". The date on the front says March 16,
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`2015; and it’s paged at the bosom fiom 1 to 42. Do you
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`recognize Exlibit 52?
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`A Ido.
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`Q What is it?
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`A That is the Clam~ Construction Repol~ that
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`I developed for tlis case.
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`Q Ho~v many hours did you spend preparing
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`this repol~?
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`A Oh, gosh. Without looking specifically at
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`my notes, I would say ro.ghly 40 to 60.
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`device that would test that and evaluate that type of
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`Q Have you sent out a bill yet for this
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`response.
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`So, it could take us quite a while to go
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`through all of the different projects, but most of them are
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`m the biomechanics realm.
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`Q So it’s a mix of whatever the
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`undergraduate student wanted to chase at that time m terms
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`of their research interests?
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`A That’s right. It’s my task to fred out
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`what I need to help guide them on their journey to be the
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`best engineers they can be.
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`Q All right. Other than the research you do
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`repol~?
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`A I have not I got mto the academic
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`pursuit and kind of forgot the billing part. I won’t
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`forget that for long, by the way.
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`Q Did you prepare the first draft of this
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`Exlfibit 52?
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`A Idid.
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`Q If we could tun~ to page 1 ; and not the
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`Romm% but the --
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`A Correct
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`(Pause)
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`Q The tlm-d numbered paragraph there, it
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`with your grad students and undergrad students, do you do
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`any research on your own for your own personal pursuits?
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`A No. 7hat keeps me plenty busy.
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`Q So the topics you’ve just addressed are
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`the ones that are sort of the last year or two m review at
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`high level?
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`A 7hat’s i[" you don’t consider the design
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`proj ects that I also mentor. I work with our senior design
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`teams, who -- every year we have l 0 or 13 different
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`projects spanning biomedical engineering, and that’s again
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`where I find myself in a situation where I learn the thugs
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`the students need to be guided. So loosely, yes, but I
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`says, "The materials listed m Appendix A were considered
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`in the formulations of the opinions presented in this
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`work." Do you see that?
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`A Ido.
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`Q Is there anything that you considered
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`that’s not listed m AppendLx A, or is AppendLx A fairly
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`complete?
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`A Letme confirm that.
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`Q I think it starts at page 29.
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`A Correct.
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`(Pause)
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`would say there’s many more proj ects m the world of
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`biomedical engineering that I research and help the
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`14 students become productive.
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`Q And a senior design project is the senior
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`A I believe that’s complete.
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`Q You said in the third sentence, "My formal
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`education in biomedical engineering, as well as any
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`15 acquired knowledge/experience gamed through teaching
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`develops over the course of their senior year and it
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`courses and conducting research in the field of biomedical
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`culminates in some kind of a device or --
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`A Yes, a device and a presentation, and m
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`many cases delivery of a functional prototype to a client.
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`(Exhibit No. 52 marked.)
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`Q Dr. Rogge, I’m placing m front of you a
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`document marked Exhibit 52.
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`(Pause)
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`Q It’s titled "Claim Construction Report of
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`17 engineering, provided a foundation for the material
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`18 presented m this report." Do you see that?
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`A Ido.
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`Q You don’t make any reference there to
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`doing any study of patent law. I guess my question is
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`prior to this engagem ent, had you done any work with
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`patents before?
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`A In the senior design sequence we introduce
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`(Pages 13 to 16)
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`Bonutti Research, Inc. - Exhibit 2003
`Lantz Medical Inc. v. Bonutti Research Inc. - IPR2015-00993
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`the concepts, the very basics, to our students so they
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`understand some about intellectual property. So I had -- I
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`knew what a patent was, and I knew the basic layout of what
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`a patent is, because I teach that to the students; but as
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`far as having detailed knowledge of patent law, no; just
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`enough to introduce our students to the concepts.
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`Q And when you teach the students the
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`concepts, how many different lectures does that cover?
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`A It varies by year, depending on the
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`interest of the students, believe it or not. Some of them
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`really get into it and start asking a lot of questions, and
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`A Ido.
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`Q Have you done any work in the area of any
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`types of splints, braces, things that are applied outside
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`of the body instead of being implanted into some portion of
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`the body?
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`A I’m trying to think through each of the
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`design proj ects; so give me a second to see what I would
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`8 call "expertise" there.
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`A No, not explicitly. There’s not -- not
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`i i talking about bracing or splinting, besides the proj ect
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`then we have to go to the USPTO web site and kind of dive
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`in a little more. I’d say on average, probably two or
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`14 three lectures. We have them dissect a patent. We call it
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`15 patent dissection day where they have to talk about claims
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`and specifications and what it means; and we do the
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`17 Uncmstablespatent. It’skindofafunone. Sowewalk
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`18 them through one, but it typically takes two or three
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`19 lectures to do that.
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`Q And so your resource for you personally in
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`learning patent law to teach it to the students is the
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`USPTO.gov web site?
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`A Yes.
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`where the students were looking at distal radius fractures
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`and the impact of falls, the wrist guard type of proj ect.
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`Q Okay. So you did one senior project
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`15 studying wrist guards and how they would help you or not
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`help you in the context of a fall?
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`A True, but my thesis work in distal radius
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`fractures, I reviewed an awful lot of literature on what
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`causes distal radius fractures, and so that was integral --
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`with the forearm. That was integral with my understanding
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`of my thesis work at the time. So I certainly reviewed
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`much of the literature at that time on the effects of
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`bracing and splinting on distal radius fractures, because
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`it’s a treatment technique. So, while I haven’t done
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`Q Have you ever spoke with anybody in the
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`patent field to get their perspective on patent law or
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`patent issues?
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`A I have attended the occasional lecture at
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`Rose where we’ll have someone come or -- and the person I
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`co-teach design with, his brother is a patent attorney; so
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`he has come in -- he came in the first couple years and
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`gave a lecture that we kind of base a lot of what we do off
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`o£ But no, just the web site.
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`Q Okay. WNat is that patent attorney’s
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`name?
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`A O1% gosh, I can’t remember his name. I
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`anything in the -- it’s an area that I’m familiar with the
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`literature on.
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`Q That work was done in what year, 2000?
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`A Right; that’s when I graduated.
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`Q Since then it’s all been implants?
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`A Mostly. I’d be doing a disservice to my
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`students, though, if I didn’t say that part of my job is
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`8 learning about different aspects of biomedical engineering,
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`which includes bracing and splinting. So I will give a
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`shout-out to my students there.
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`Q The -- Paragraph 9 of your report, on page
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`can’t remember. He’s the brother of Glen Livesay.
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`Q Glen who?
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`A GlenLivesay, L-i-v-e-s-a-y. He’s my
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`co-instructor for design.
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`Q Would you turn tu page 3 of your report,
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`Exhibit 52?
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`(Pause)
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`Q Do you see Paragraph 6?
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`A Yes.
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`Q The first sentence there, "My educational
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`background is in biomedical engineering with expertise in
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`the design and analysis of orthopaedic implants." Do you
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`see that?
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`3--
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`A Yes.
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`Q
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`-- you make a reference there to
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`"means-plus-function" limitations. Do you see that?
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`A Ido.
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`Q W%at is your understanding as you sit here
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`18 today as to ~vhat a means-plus- function limitation is?
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`A That’s a great question. That’s one of
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`the things I did go to the USPTO web site to study and try
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`to learn what that was. It was something that was new to
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`me.
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`So my understanding of it is when you have a
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`claim that says -- for example, in the patents we’ll talk
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`(Pages 17 to 20)
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`Bonutti Research, Inc. - Exhibit 2003
`Lantz Medical Inc. v. Bonutti Research Inc. - IPR2015-00993
`Page 5
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`about "drive means", that they don’t have to cite the
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`specific structure in that claim, if they have this
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`"means-plus-function" assumption, that they can say what
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`it’s supposed to do without explicitly describing the
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`structure of that in the claim, and then they can rely on
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`the information in the patent to provide the structure for
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`how that’s going to happen, is my -- but I do not claim to
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`be a patent expert either.
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`Q In the course of your work trying to
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`understand the "means-plus-function" limitation concept
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`better, I take it you went to the USPTO.gov web site?
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`A Ido.
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`Q In the first claim there, Section 3.1.1,
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`3 this was a claim term, "base"; do you see that?
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`A Ido.
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`Q And that’s in the context of ’979 Patent?
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`A Yes.
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`Q And as I understand it, you’re saying that
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`"base" should mean a unique, discreet member from which
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`9 other parts attach or extend. Do you see that?
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`A Yes, I do.
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`Q W%at do you mean by "a unique, discreet
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`A Yes.
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`Q Did you read any cases from any courts?
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`A I don’t know that it was acase. WhenI
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`would search for a "means-plus-function" and then just read
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`kind of the summary, the kind of general explanation for
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`what it was, and I think there was a Power Point that
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`popped up that kind of walked through some of the
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`terminology, what I felt like was for the lay person to get
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`an understanding for what it was.
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`But in the end, I didn’t -- I looked at it --
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`okay, "means-plus-function", and then I also evaluated
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`this -- okay, let’s say that that’s not true, let’s say I
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`member"?
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`A Could I get the device, the ’979 Patent to
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`look at? Because I feel like that would help me to explain
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`where I came up with that definition.
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`Q The ’979?
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`A Yes.
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`Q So here’s a copy of the ’979 Patent,
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`19 Exhibit 47 marked in an earlier deposition.
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`A Thank you.
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`(Pause)
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`MR. HIKE: Is it all right? You don’t mind me
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`giving it to her, right?
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`MR. EVANS: No.
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`misunderstood what "means-plus-function" is, does that
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`change my opinion? So I tried to approach it -- if I don’t
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`understand it, let me look at it in this other way as well.
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`Q And my point is, inthe context of trying
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`to understand the concept better, did you -- I know you
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`went to the USPT©.gov web site, apparently a Power Point
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`presentation popped up at some point, you read that.
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`A Right.
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`Q It sounds like you didn’t read any case
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`law where the judges who make the decisions discussed the
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`i0 context of the case.
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`A No, I didn’t.
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`MR. HIKE: She asked for it.
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`A So when I thought about the term "base", I
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`wanted to make sure that I understood how it functioned.
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`So I took a functional approach to this.
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`And when I say "unique, discreet member", what
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`stands out to me about this product is the fact that there
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`7 is this base from which other things extend. So it’s a
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`8 unique structural component performs the function of having
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`9 these other components that are attached to it. And so
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`that’s where I came up with the -- where I support the idea
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`that this is a unique, discreet member that other things
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`are attached to.
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`Q Did you read any treatises or blogs that
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`13 discussed what "means-plus-function" is?
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`A I tried to stick to the PT© -- USPT© web
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`site, just because I felt like that was the best source for
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`information. So not that I recall. I certainly -- I
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`Googled it, but most of the information I took to heart was
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`18 what was on the USPTO web site. I felt like that was a
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`19 valuable reference, and when consulting where should I go
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`for information, that was where I was advised to go as
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`well.
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`Q Would you turn to page 5 of your report.
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`(Pause)
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`Q Do you have that in front of you?
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`Q Can I see that one second?
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`A Sure.
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`(Pause)
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`A It’s also in the patent. It’s just easier
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`to point to that than to point to paper.
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`Q So in the -- I’ll hand this back to you.
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`(Pause)
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`Q So in the context of the device you’re
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`holding, you would characterize the base as being the bar
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`that’s running across the bottom?
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`A Yes, for the device that I’m holding,
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`yes -- that I was holding.
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`6
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`(Pages 21 to 24)
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`Bonutti Research, Inc. - Exhibit 2003
`Lantz Medical Inc. v. Bonutti Research Inc. - IPR2015-00993
`Page 6
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`Q By "unique and discreet", I’m trying to
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`understand; do you mean that there has to be a separate
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`part that can be detached from everything else and stand as
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`a stand-alone base or -- I’m trying to understand better
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`what you mean by "unique and discreet".
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`A Just that it’s the part where other things
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`are attached. So when I look at this, I can easily
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`identify what a base is. So, in the context of the patent,
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`"base" becomes -- is referred to, and so I wanted to
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`sure, given that scenario. I’d have to look at it and then
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`make a decision.
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`Q I guess what I’m trying to figure out,
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`does "unique and discreet" mean you can