LIFEPORT SCIENCES LLC v.
`ENDOLOGIX, INC
`
`Page 1
` 1 IN THE UNITED STATES DISTRICT COURT
` FOR DISTRICT OF DELAWARE
` 2
` C.A. NO. 12-1791 (GMS)
` 3
`
` 4 LIFEPORT SCIENCES LLC,
`
` 5
` Plaintiff,
` 6
` vs.
` 7
` ENDOLOGIX, INC,
` 8
`
` 9 Defendant.
` _________________________________________/
`10
`
`11
` Southeast Financial Center
`12 Suite 3900
` 200 South Biscayne Boulevard
`13 Miami, Florida 33131
` Wednesday, July 8, 2015
`14 8:54 a.m. - 2:54 p.m.
`
`15
` C O N F I D E N T I A L
`16
`
`17 VIDEOTAPED DEPOSITION OF GEORGE L. GOICOECHEA, M.D.
`
`18
`
`19
` Taken before Darline M. West,
`20
` Registered Professional Reporter, Notary Public
`21
` in and for the State of Florida At Large,
`22
` pursuant to Notice of Taking Deposition filed
`23
` by the Defendant in the above cause.
`24
`
`25 - - -
`
`GEORGE L. GOICOECHEA, M.D. - CONFIDENTIAL
`July 8, 2015
`Page 3
`
` 1 I N D E X
`
` 2 WITNESS: PAGE:
`
` 3 GEORGE L. GOICOECHEA, M.D.
`
` 4 DIRECT EXAMINATION 5
` BY MR. MURTHY:
` 5
` CERTIFICATE OF OATH 193
` 6
` REPORTER'S CERTIFICATE 194
` 7
`
` 8
` - - -
` 9
` E X H I B I T S
`10
` - - -
`11
`
`12 Description Page
`
`13 Goicoechea Deposition Brochure bearing 62
` Exhibit 1 Bates numbers LIFE
`14 0754146 through 75162
`
`15 Goicoechea Deposition Dr. Cragg's patent 79
` Exhibit 2
`16
` Goicoechea Deposition U.S. Patent 82
`17 Exhibit 3 No. 5,575,817 to
` Martin
`18
` Goicoechea Deposition Structures of 104
`19 Exhibit 4 inducers
`
`20 Goicoechea Deposition U.S. Patent 5,226,913 118
` Exhibit 5 to Pinchuk
`21
` Goicoechea Deposition U.S. Patent 171
`22 Exhibit 6 No. 6,117,167
`
`23 Goicoechea Deposition U.S. Patent 172
` Exhibit 7 No. 6,117,167
`24
` Goicoechea Deposition Letter 187
`25 Exhibit 8
`
`Page 2
`
`Page 4
`
` 1 APPEARANCES:
`
` 2 On behalf of the Plaintiff:
`
` 3 DECHERT LLP
` Cira Centre, 2929 Arch Street
` 4 Philadelphia, Pennsylvania 19104
` Phone: 215.994.4000
` 5 E-mail: kevin.flannery@dechert.com
` By: KEVIN M. FLANNERY, ESQ.
` 6
`
` 7 On behalf of the Defendant:
`
` 8 K&L GATES
` 70 West Madison Street, Suite 3100
` 9 Chicago, Illinois 60602
` Phone: 312.372.1121
`10 E-mail: sanjay.murthy@klgates.com
` katie.hoffee@klgates.com
`11 By: SANJAY K. MURTHY, ESQ.
` and KATHERINE HOFFEE, ESQ.
`12
`
`13
` ALSO PRESENT:
`14
` RICHARD HILLSTEAD, PH.D., FAHA - Technical
`15 expert on behalf of the Defendant.
`
`16
` - - -
`17
`
`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
`
` 1 P R O C E E D I N G S
` 2 - - -
` 3 VIDEO TECHNICIAN: We are now on the
` 4 video record. The time is 8:54 a.m. on
` 5 Wednesday, the 8th day of July, 2015. We
` 6 are here for the videotaped deposition of
` 7 Dr. George Goicoechea, taken at 200 South
` 8 Biscayne Boulevard, Suite 3900, Miami,
` 9 Florida, and it's taken in Case No. 12-1791,
`10 LifePort Sciences, LLC, versus Endologix,
`11 Inc.
`12 The court reporter is Darline West.
`13 The videographer is Sean Maguire, both of
`14 Barkley Court Reporters.
`15 Will counsel and all present please
`16 introduce yourselves. And the court
`17 reporter will swear the witness.
`18 MR. MURTHY: Sanjay Murthy of K&L Gates
`19 on behalf of Endologix, Inc., and with me is
`20 my colleague, Katherine Hoffee, and our
`21 technical expert, Richard Hillstead.
`22 MR. FLANNERY: Kevin Flannery of
`23 Dechert for Dr. Goicoechea as well as the
`24 plaintiff.
`25 THE COURT REPORTER: Doctor, would you
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`
`LIFEPORT SCIENCES LLC v.
`ENDOLOGIX, INC
`
`GEORGE L. GOICOECHEA, M.D. - CONFIDENTIAL
`July 8, 2015
`Page 139
`
`Page 137
`
` 1 A. Yes.
` 2 Q. Okay. Now, is one of the reasons why each
` 3 company had designed their own introducers for
` 4 deploying their products is because the products were
` 5 designed differently?
` 6 A. Yes. 'Cause that depends on the product,
` 7 the -- how the product is designed. Not all the
` 8 products are similar. And so you need different ways
` 9 to -- to adapt your product with -- the system to
`10 your product.
`11 Q. Now, at the time that you saw Dr. Cragg's
`12 original stent design, do you recall whether or not
`13 he was using a -- a helical designed stent? Do you
`14 know what --
`15 A. No.
`16 Q. Do you know what -- what I'm referring to
`17 when I say a helical stent?
`18 A. It goes like this, right?
`19 Q. Right.
`20 A. No, I don't -- I don't recall that.
`21 Q. Do you recall whether or not there were
`22 designs that existed that had -- that were nonhelical
`23 stents?
`24 A. No.
`25 Q. Did you have any involvement in the design
`
` 1 of those weird guys that -- you know, that combines
` 2 one thing with the other. But he did have a
` 3 tremendous amount of know-how in engineering now. He
` 4 might not be able to say I need to do this this way
` 5 or the other way. That was John. But he was very
` 6 good at judging exactly what it is that he wanted to
` 7 have in that device, you know.
` 8 Q. Do you know or can you identify any
` 9 advantages of using a design -- a stent design that
`10 is helical as opposed to one that's non-helical?
`11 A. No. This is a matter of -- of doing some
`12 testing and -- and all that. I -- I haven't done
`13 that or I haven't seen that.
`14 Q. Okay. Do you know if choosing a helical
`15 versus a nonhelical design is just a matter of design
`16 choice?
`17 MR. FLANNERY: Object to form.
`18 THE WITNESS: I believe so. I believe
`19 so, yes. You see some -- some of the
`20 manufacturers use a -- a -- not helical.
`21 They use one -- one by one by one and so on
`22 and so forth to prevent it from kinking, you
`23 know. So -- and that's -- that's a very
`24 well-established thing that everybody's
`25 using nowadays, you know.
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`Page 138
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`Page 140
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` 1 of the stent that's described in your '906 patent,
` 2 the actual stent cage itself?
` 3 A. No.
` 4 Q. Do you recall who was involved in the
` 5 design of that?
` 6 A. John Hudson.
` 7 Q. Was Dr. Cragg involved at all?
` 8 A. Not so much in the bifurcation. Because
` 9 Cragg was in Minneapolis, and, you know,
`10 communication was open. But we were going back and
`11 forth with Dr. Mialhe, who was actually giving us
`12 most of the feedback, what he interpreted to have --
`13 what he liked to have on that device, since he was
`14 going to be the first one to implant them anyway. So
`15 he was very active in development of the product, you
`16 know.
`17 Q. But did Dr. Mialhe actually have
`18 involvement in -- in designing the stent cage itself?
`19 A. Yes.
`20 Q. Okay. Was Dr. Mialhe -- did he have any
`21 sort of engineering background?
`22 A. Yes.
`23 Q. Do you recall what it was?
`24 A. I think he had an engineering degree as
`25 well as being a doctor. He's -- you know, he was one
`
` 1 BY MR. MURTHY:
` 2 Q. And there were certainly -- although maybe
` 3 not in a wide amount of devices available in the AAA
` 4 space, people had been designing stents for a long
` 5 time before MinTec was created in 1993; isn't that
` 6 true?
` 7 A. But not -- for that particular application,
` 8 I never seen -- I never seen anyone. I -- when I saw
` 9 Cragg at that meeting that he made a presentation on
`10 that, that's how I came aware of it, you know, then
`11 it -- the light came up and say, wow, this is the
`12 future.
`13 Q. I'm taking us away from the world of AAA,
`14 though, Dr. Goicoechea.
`15 People have been designing stents for the
`16 treatment of stenosis, as one example, for many
`17 years?
`18 A. Coronaries.
`19 Q. For many years before MinTec was created?
`20 A. Yes. Palmaz started in the 1980s. You
`21 know, the first angioplasty catheter came out of
`22 Switzerland from Gruentzig. And then came out the --
`23 then came the invent of the -- of the stent for
`24 the -- except the nitinol stent. The self-expanding
`25 stent is not good for that application. Because you
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`
`LIFEPORT SCIENCES LLC v.
`ENDOLOGIX, INC
`
`GEORGE L. GOICOECHEA, M.D. - CONFIDENTIAL
`July 8, 2015
`Page 143
`
`Page 141
`
` 1 need something that as a radial force to keep it
` 2 open, you know, and strong, you know. So -- but the
` 3 usefulness of nitinol comes in the small calibers,
` 4 you know, the carotids, you know, down below the
` 5 knee, et cetera.
` 6 Q. And the below-the-knee application, that
` 7 was what Dr. Cragg was already working on before
` 8 MinTec was created, right?
` 9 A. The what?
`10 Q. The below-the-knee applications, that was
`11 what Dr. Cragg was previously doing before MinTec was
`12 created?
`13 A. Yes. That's what you can see by, you know,
`14 the data. And that's when I saw him making a
`15 presentation in Canary Islands, when I met him.
`16 Q. And sort of getting back to my original
`17 question.
`18 People had been designing stents for
`19 multiple, different applications for many years
`20 before MinTec was founded in 1993?
`21 A. I -- I guess so. Not all the stents are
`22 created equal. So, I mean, the word "stent" is one
`23 word. But there are many different kinds of stents,
`24 you know, esophageal, tracheal stents, biliary
`25 stents, you know, you name it. Each one of them has
`
` 1 BY MR. MURTHY:
` 2 Q. Well, I -- I think that a jury's going to
` 3 have to decide that question, Dr. Goicoechea.
` 4 A. You see what I mean?
` 5 Q. Yeah. No. I do see what you mean.
` 6 So, to that point, Dr. Goicoechea --
` 7 A. I think the patents apply to specific
` 8 things, I believe. Not to -- not to a general -- a
` 9 general subject, no? I don't know.
`10 Q. Well, Dr. Goicoechea, let me ask you a
`11 question. You understand that, having gone through
`12 the patenting process now multiple times, that
`13 sometimes the patent office doesn't have all of the
`14 relevant information at its disposal to evaluate a
`15 patent? Do you understand that?
`16 A. Yes, I do.
`17 Q. Okay. And you understand sometimes the
`18 examiner might not have the best prior art in front
`19 of him or her?
`20 A. Right. But today with computers and all of
`21 that, it should be a little easier than it used to be
`22 in the past, you know.
`23 Q. You would think. But you'd be surprised.
`24 A. You'd be surprised, no?
`25 Q. We talked about the -- the stent structure
`
`Page 142
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`Page 144
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` 1 a different configuration. Each one of them, I
` 2 guess, is protected by their own patents or whatever
` 3 it is, you know. I don't know, you know.
` 4 Q. Sure.
` 5 A. You know, I was not into this -- in that
` 6 market. So I was not knowledgeable.
` 7 Q. Sure. And to that point, not only had
` 8 people been designing a whole bunch of different
` 9 types of stents for many, many years prior to MinTec
`10 being founded, but people had been patenting stents
`11 for many, many years before MinTec was founded,
`12 correct?
`13 A. I guess so. I -- I...
`14 Q. And along with that process of patenting,
`15 people had come up with a whole bunch of different
`16 ways of constructing a stent; isn't that true?
`17 MR. FLANNERY: Object to the form.
`18 THE WITNESS: I imagine they did. The
`19 question is whether -- why do they have a
`20 patent if this thing is common knowledge?
`21 So if you -- if all the stents were common
`22 to the public beforehand, why would they
`23 issue all these patents? Somebody must have
`24 forgot to do proper research, no?
`25
`
` 1 itself. Now I have a more detailed question.
` 2 Stents sometimes have hoops in them? You
` 3 know what I'm talking about, the little hoops that
` 4 connect one segment to another?
` 5 A. Right. Right.
` 6 Q. Is the placement of the hoops a matter of
` 7 design choice?
` 8 MR. FLANNERY: Object to the form.
` 9 Also calls for a legal conclusion and expert
`10 testimony.
`11 THE WITNESS: It has to be. Because
`12 for the application you have to have, you
`13 know -- I guess when you're doing research,
`14 you do several options, you know, to see
`15 which is the one that makes the criteria at
`16 the end, you know.
`17 BY MR. MURTHY:
`18 Q. And that's routine engineering that's
`19 performed at any company, right?
`20 A. Yes.
`21 MR. FLANNERY: Same objections.
`22 BY MR. MURTHY:
`23 Q. Dr. Goicoechea, you mentioned before that
`24 you had been deposed and you understood that there
`25 was some dispute that had arisen.
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