OPEN SESSION CONTINUED
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`MR. PAK: Your Honor, we can start on the public
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`record with Dr. Karl Otto, who is the next witness. Varian
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`calls Dr. Karl Otto to the stand.
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`JUDGE SHAW: Good afternoon, Dr. Otto.
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`Whereupon,
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`KARL OTTO
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`was called as a witness and, having first been duly sworn,
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`was examined and testified as follows:
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`DIRECT EXAMINATION
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`BY MR. PAK:
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`Good afternoon, Dr. Karl Otto.
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`I think you've been handed a binder.
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`If you
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`could take a look at that binder-
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`Dr. Otto, were you asked to prepare a witness
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`statement for this investigation?
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`Yes,
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`I was.
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`And I think you have a binder in front of you
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`Q
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`that contains a copy of a document Bates labeled —- or
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`exhibit labeled CX-0852C.
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`Do you see that?
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`Yes,
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`I do.
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`Is that your witness statement?
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`Yes, it is.
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`If you could turn to the last page,
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`is that your
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 1 of 19
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`Elekta Exhibit 1057
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`Elekta V. Varian Medical
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`IPR2016-00844
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`Page 1 of 19
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`Elekta Exhibit 1057
`Elekta v. Varian Medical
`IPR2016-00844
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`signature?
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`A
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`Yes, it is.
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`MR. PAK: Your Honor, at this time I'd like to
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`admit cx—352c into the record.
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`JUDGE SHAW: Any objection?
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`MR. RILEY: No, your Honor.
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`MS. KATTAN:
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`No objection.
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`JUDGE SHAW: Very well.
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`The statement is
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`received.
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`{Exhibit CX—852C received.)
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`MR. PAK:
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`Pass the witness, your Honor.
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`JUDGE SHAW:
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`Thank you.
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`And we're continuing on the public record at
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`least for now.
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`MR. RILEY: Good afternoon, your Honor.
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`CROSS-EXAMINATION
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`BY MR. RILEY:
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`Good afternoon, Dr. Otto.
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`You developed your ideas fior the Otto patents
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`when you lived in the Vancouver, Canada, area.
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`Is that
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`true?
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`Yes.
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`And after you reached a license agreement with
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`Q
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`varian for the Otto patents, you worked with Varian
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`employees in Helsinki to create a commercial product for
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 2 of 19
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`Page 2 of 19
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`Varian.
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`Is that true?
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`Yes, it is.
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`And after you developed the ideas described in
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`the Otto patents, you continued to develop other ideas.
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`Is
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`that true?
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`Q
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`therapy?
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`Q
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`Yes.
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`And those ideas were related to radiation
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`That’s correct.
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`And you started a new company called HyperDrive
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`to work on those new ideas after the Otto patents.
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`Is that
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`true?
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`Yes, it is.
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`Now, you showed those new ideas that you
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`developed at HyperDrive to Varian in July or August of
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`2015; is that correct?
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`A
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`I did.
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`MR. PAR: Your Honor, goes beyond the scope of
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`the witness statement.
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`JUDGE SHAW: Mr. Riley?
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`MR. RILEY: Your Honor,
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`they have ~- part of the
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`witness statement discusses the sale of the Otto patents to
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`Varian, which also included the sale of technology at
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`HyperDrive. And that's where my questions are directed
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`towards.
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`Ace—Federa1 Reporters,
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`Inc.
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`202-347-3700
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`Page 3 of 19
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`Page 3 of 19
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`MR. PAK: Your Honor,
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`I believe those were
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`separate transactions, and so I'm not sure what ~~ the
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`bearing of Hypernrive sale to the particular Otto patents
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`at issue.
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`MR. RILEY: Your Honor,
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`let me ask the witness
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`that question, clarify that issue.
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`JUDGE SHAW: That's fine.
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`BY MR. RILEY:
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`Q
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`Your sale of the Otto patents to Varian, did it
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`also include the sale of Hypernrive technology?
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`A
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`We had an agreement, and it included both the
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`Otto patents in this case, as well as the Hypernrive
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`assets.
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`JUDGE SHAW: That's fine.
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`BY MR. RILEY:
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`Q
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`SO Dr. Otto, you testified that you showed the
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`technology you developed at Hypernrive in July or August to
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`Varian -- July or August of last year to Varian.
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`Is that
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`true?
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`A
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`Q
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`Yes.
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`And just one month later,
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`in September, varian
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`purchased the Hypernrive assets as well as the Otto
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`patents; isn't that true?
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`Yes, it is.
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`If you could turn to RX-146 in the binder in
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`A
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`Q
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`Ace-Federal Reporters,
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`Inc.
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`2D2~347—370O
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`Page 4 of 19
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`Page 4 of 19
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`front of you.
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`A
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`Could I make a clarification regarding your last
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`question?
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`Q
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`You'll have an opportunity when counsel comes
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`Q
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`All right.
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`Dr. Otto,
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`this document marked as RX-145,
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`this
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`is your earlier patent application that we referred to as
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`the Otto 530 application;
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`is that true?
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`Yes, it is-
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`And you discussed this patent application,
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`marked as RX-146. during your direct testimony.
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`Isn't that
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`true?
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`A
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`Q
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`A
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`Q
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`During the deposition?
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`During the witness statement that you ~-
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`Oh, yes.
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`The ideas you expressed in this patent
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`application were for use with IMRT treatment plans.
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`Is
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`dmttnm?
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`Q
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`Yes, that's true.
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`And you agree that the IM in the acronym IMRT
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`stands for intensity modulated; correct?
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`Q
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`Yes.
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`So the Otto 530 patent application addresses the
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`delivery of intensity modulated radiotherapy.
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`Is that
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 5 of 19
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`Page 5 of 19
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`Yea.
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`This same application, RX-146, addresses varying
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`Q
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`the shape of the treatment beam with a multileaf
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`collimator; correct?
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`That's correct.
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`And you agree that varying the shape of the
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`radiation beam with a multileaf collimator can indirectly
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`change the intensity of the beam; correct?
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`That's correct.
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`Now. you did not invent linear accelerator.
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`Is
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`Q
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`that true?
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`A
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`That is true.
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`A
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`And you did not invent the rotating gantry?
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`That‘s true.
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`You did not invent variable speed gantries?
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`That's true.
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`Q
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`Now, you did not invent a linear accelerator
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`that could vary the dose rate?
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`That's true.
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`And you did not
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`invent the multileaf collimator.
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`Is that true?
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`That's true.
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`Now,
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`in your direct testimony, you discussed
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`intensity modulated arc therapy;
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`is that correct?
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`Ace-Federal Reporters,
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`Inc-
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`202-347~37UO
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`Page 6 of 19
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`Page 6 of 19
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`That‘s correct.
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`You agree that intensity modulated arc therapy,
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`A
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`Q
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`IMAT, was known in the art before the filed the application
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`that led to the Otto patents.
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`Is that true?
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`That's true.
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`In your direct testimony, you describe IMAT as
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`delivering intensity modulated radiation therapy using
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`multiple arcs around the patient.
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`Is that true?
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`That's true.
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`And in your direct testimony, you discussed some
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`A
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`of the aims of your research that led to the Otto patents.
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`one of those were to develop single arc radiotherapy
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`technology.
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`Is that true?
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`A
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`That's true.
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`Q
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`And you believe single arc radiotherapy is what
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`is claimed in the Otto patents.
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`Is that true?
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`A
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`That's an embodiment that's included in the Otto
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`patents, yes.
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`Q
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`Would you agree that any system that requires
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`multiple arcs to deliver intensity modulated radiation
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`therapy would not practice the Otto patents,
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`that would be
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`IMAT?
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`MR. PAK: Objection; calls for expert
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`testimony.
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`THE WITNESS: No.
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`BY MR. RILEY:
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`Ace—Federa1 Reporters,
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`Inc.
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`202-347-3700
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`Page 7 of 19
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`Page 7 of 19
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`Q
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`And you agree any system that requires
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`overlapping arcs to deliver intensity modulated
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`radiotherapy would not practice the Otto patents?
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`MR. PAK:
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`Same objection.
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`JUDGE SHAW: Let's get to the bottom of why
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`we're asking this. There could be a very good reason.
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`Mr. Pak is right,
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`in essence this is an expert or legal
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`question. There could be reasons for asking it. Clarify
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`for me, Mr. Riley.
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`MR. RILEY:
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`Sure, your Honor.
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`He has discussed
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`that his invention relates to a single arc technology, and
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`he also discussed the prior art as involving multiple arcs.
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`JUDGE SHAW:
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`In his witness statement.
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`MR. RILEY:
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`In his witness statement, your
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`JUDGE SHAW:
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`Then I think we can allow this, but
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`I understand, Mr. Pak, obviously this isn't the end—a11
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`when it comes to interpreting the claims.
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`MR. PAK: Understood, your Honor.
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`BY MR. RILEY:
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`Q
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`Another aim of your research was to develop
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`single are that would -~ sorry, strike that.
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`Another aim of your research was to develop a
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`single are that would not require stopping radiation during
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`gantry rotation between fixed gantry positions.
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`Is that
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`Aoe—Federa1 Reporters,
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`II1C .
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`202-347-3700
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`Page 8 of 19
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`Page 8 of 19
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`Yes.
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`Would you agree that any system that does stop
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`the gantry during rotation of delivery of intensity
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`modulated radiation therapy would not meet
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`the Otto claims?
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`MR. PAK:
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`Same objection, your Honor. Calls for
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`expert testimony.
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`JUDGE SHAW: Yeah,
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`I mean,
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`I feel the same way.
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`Mr. Riley, but I —- you can ask these questions, but I'm
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`not sure the value of them to me. You can get the same
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`information without asking for a legal conclusion, maybe.
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`For example, at one point you were talking about
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`whether the claims cover. another part you were taking
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`So you do mean claims
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`about the aims of his research.
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`cover at this point; correct?
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`MR. RILEY:
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`I am asking that, your Honor, yes.
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`JUDGE SHAW: You can ask that.
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`THE WITNESS:
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`I'm a bit confused by your
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`question because you were talking about
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`the Otto patents
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`and then talking about
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`IMRT in your question.
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`BY MR. RILEY:
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`Q
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`Let me clarify. One of the aims of your
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`research was that you wanted to invent a single are that
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`would not stop during rotation of the gantry;
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`is that true?
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`A
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`YES .
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 9 of 19
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`Page 9 of 19
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`Q
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`And so any system that did require stopping the
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`gantry during the delivery of intensity modulated radiation
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`therapy would not be within the scope of the claims of your
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`No.
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`MR. PAK:
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`Same objection, your Honor.
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`JUDGE SHAW:
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`I will sustain that.
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`In my own
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`invention?
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`A
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`mind, what the aim of his research was and what he ended up
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`with might be two different things.
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`So the aim of his
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`research may have been to do something, but then you said
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`and therefore wouldn't be within the scope of your claims.
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`That's assuming he ended up with what he wanted.
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`I don't
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`know that. Maybe the witness feels his claims reflected
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`I‘m not with
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`the aims of his research, but that's a leap,
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`you there yet.
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`So you might want to ask it another way for
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`me, so that I understand exactly what it is you want me to
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`MR. RILEY:
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`I think I've asked the question and
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`got the answer I wanted, your Honor.
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`Thank you.
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`Thank
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`you.
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`I'll pass the witness.
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`JUDGE SHAW: Well, now at this point, what order
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`should we go in? Because I think yo
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`MR. PAK:
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`I think we should have Ms. Kattan
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`asking questions and then I can do follow-up.
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`CROSS—EXAMINATION
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 10 of 19
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`Page 10 of 19
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`BY MS. KATTAN:
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`Good afternoon, Dr. Otto.
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`If you look in your witness binder, after your
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`direct witness statement, you'll see a tab labeled
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`CX-1628C.
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`Q
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`Do you see that?
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`Yes,
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`I do.
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`Actually, if we could go back and look at your
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`direct witness statement, which is CX-852C.
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`If you go to
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`question and answer 19 and 20.
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`MS. KATTAN: would it be possible to get that up
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`on the screen? Oh, yes.
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`And I think I need to go on the confidential
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`JUDGE SHAW: All right. We'll do that.
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`(Confidential session follows.)
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`Aoe—Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 11 of 19
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`Page 11 of 19
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`OPEN SESSION CONTINUED
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`BY MR. PAK:
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`Dr. Otto,
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`there was discussion by Elekta's
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`counsel of IMRT,
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`intensity modulation.
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`Do you recall that
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`questioning?
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`Yes.
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`when intensity is used as part of IMRT, what
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`type of intensity is that referring to?
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`A
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`My understanding is that's the intensity that is
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`impinging on the patient.
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`so on the actual patient's
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`anatomy, near the tumor.
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`MR. PAK: And if I could have the '154 patent on
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`the screen, please. And if we go to figure 3.
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`Your Honor, may I approach with the laser
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`pointer?
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`JUDGE SHAW: Yes.
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`MR. RILEY: Your Honor, we object. This patent
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`was not directly discussed, and this is expert testimony at
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`this point, your Honor.
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`JUDGE SHAW: Well,
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`the one ~~ tell me about the
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`'154 patent, Mr. Pak.
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`MR. PAK: Your Honor,
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`this is one of the VMAT
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`patents that are being asserted in this case. We're going
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`to use this figure as an illustration of what he meant by
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`intensity in the last answer. We're not going to go into
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`Ace~Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 12 of 19
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`Page 12 of 19
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`the claims or any specification descriptions.
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`JUDGE SHAW: well, but am I going to see this
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`later, as Mr. Riley supposes, as expert testimony as to how
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`I should construe and read these on the accused devices?
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`MR. PAK: Your Honor,
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`I'm happy to do it without
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`the figure, that's fine.
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`So I can take that down, if that
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`would be your preference.
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`JUDGE SHAW:
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`I mean,
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`I don't have any problem
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`with the question.
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`It's just what might lie down the road
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`if we use a patent
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`in suit.
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`MR. RILEY: Your Honor, "intensity" is a term in
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`the claims that are at issue.
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`JUDGE SHAW: Well —- and I don't mind having in
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`term, everyone has been using the term.
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`So let's clarify
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`what he means.
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`I just think it is understood that this is just
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`for demonstrative purpose, you're using this ~- did you say
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`figure —— which figure?
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`MR. PAK: Your Honor, I'm going to be using
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`figure 3A.
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`JUDGE SHAW:
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`3A. We could bring in a dummy to
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`MR. PAK:
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`I could lie down there, but
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`-—
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`(Laughter.)
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 13 of 19
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`Page 13 of 19
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`JUDGE SHAW: This is fine, but we're not going
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`to see this later for,
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`like,
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`I should find infringement
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`because he used a laser pointer on the picture of the
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`dummy.
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`MR. PAK: No, no.
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`JUDGE SHAW:
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`Sounds good to me.
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`MR. PAK:
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`Thank you, your Honor.
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`BY MR. PAK:
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`Q
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`Dr. Otto, going back to your testimony about
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`"intensity" being impinged on the patient when that term
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`"intensity" is used in IMRT. with the laser pointer, would
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`you mind circling the point at which the radiation would be
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`impinging on a patient, as that term is used.
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`Right here,
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`this location here.
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`Now, you‘ve also talked about dose rate in your
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`Do you recall that?
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`Yes.
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`What is dose rate,
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`in your mind?
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`Dose rate is the radiation -- the rate of
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`radiation output from the radiation source.
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`I can show you
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`where that would be on the diagram.
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`Q
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`Yes, if you could, please.
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`So here we have the radiation source, and the
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`dose rate then will be the rate of output of the radiation
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`source right here.
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`Ace-Federal Reporters,
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`202-347-3700
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`Page 14 of 19
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`Page 14 of 19
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`Q
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`As far as your invention is concerned,
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`is
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`varying the intensity that's received at the target the
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`same as varying the dose rate at the source? Are they the
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`same Concept?
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`Is variable dose rate the same as variable
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`intensity at the target?
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`A
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`No.
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`IMRT ~— the question, you know, relates to
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`the question I had about
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`IMRT.
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`Intensity modulated
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`radiation therapy is referring to modulation of the
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`intensity in this region here that impinges on the patient.
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`Q
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`A
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`How does dose rate compare to that?
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`Dose rate is changing the intensity of the
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`source itself right here.
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`JUDGE SHAW:
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`Just to put
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`in words,
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`I'm going
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`backwards, and I'm sorry I'm disrupting your flow a bit.
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`But when you say “impinging on the patient," you stop the
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`laser at the exterior of —— the skin of the patient, not
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`the tumor located somewhere inside?
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`THE WITNESS: Right.
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`JUDGE SHAW: And I see your illustration
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`that that is what you meant
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`to convey?
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`THE WITNESS: That's right.
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`JUDGE SHAW: Okay.
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`THE WITNESS: Maybe I can just clarify a little
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`JUDGE SHAW: That's fine.
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`It's just that you
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`Aoe—Federa1 Reporters,
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`Inc.
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`202-347-3700
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`Page 15 of 19
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`Page 15 of 19
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`were using a green light that isn‘t in the record. That's
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`what
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`I
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`took from it. You‘re not talking about intensity’at
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`the Site of the tumor. You're talking about
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`the exterior
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`of the patient.
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`THE WITNESS: That's right. Maybe -— can I
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`clarify?
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`JUDGE SHAW: Yeah.
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`I'm using the wrong words
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`I'm sure, because I don‘t even have skill in the art, but
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`just looking at the green picture -- green light.
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`THE WITNESS:
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`so it is the radiation impinging
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`on the patient. And there is normally nothing that changes
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`the radiation intensity between here and the patient so it
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`is actually the intensity within this whole region, as --
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`just before it enters the patient.
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`JUDGE SHAW: All right.
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`Thank you.
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`BY MR. PAK:
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`Q
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`Now, you have also been asked questions about
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`things you did not
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`invent.
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`For example. you testified you
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`didn't invent the linac,
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`the multileaf collimator and so
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`forth.
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`Just to clarify, what is it that you invented
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`when it came to VMAT technology?
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`A
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`Invented a system for planning and delivering
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`radiation therapy using motion of the radiation source with
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`respect to the patient.
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 16 of 19
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`Page 16 of 19
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`Q
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`with respect to the optimization aspects of the
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`algorithm, can you explain to his Honor what is it you
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`invented with respect to the optimization?
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`A
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`The optimization aspects, so the goal in
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`radiation therapy is to provide a high dose to a tumor or
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`target and then limit the radiation as much as possible to
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`the surrounding tissue.
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`So what we're looking to do is optimize the
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`quality of that dose distribution, and the optimization
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`parameters,
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`the variables, are the components of the
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`radiation device like the multileaf collimator and the dose
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`rate.
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`Q
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`Dr. Otto,
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`to your knowledge, are you aware of
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`any system before your work in which these components of a
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`linac were being controlled in a way that optimized the
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`dose rate variation along a continual radiation trajectory
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`to deliver a single are treatment?
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`Q
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`No,
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`I don't.
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`There were also some questions at the end about
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`the motion of the system. Are you aware of a concept
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`called beam gating?
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`Yes,
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`I am.
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`What is that concept, sir?
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`Beam gating is used for patients where they may
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`Q
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`have motion.
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`For example. when we treat patients and the
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`Ace—Federal Reporters,
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`Inc.
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`202-347~37U0
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`Page 17 of 19
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`Page 17 of 19
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`tumor is in the lung region,
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`they will need to breathe, so
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`there will be motion of the lungs and the tumor and other
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`organs in that area.
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`so what we can do is turn off the radiation beam
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`when the tumor gets out of position and then turn it back
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`on again when the tumor is back in position so you can have
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`a gate where you allow radiation to go through and then a
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`gating time when you don't allow radiation to go through.
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`Q
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`And in your Otto patents, do you discuss the
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`concept of beam gating in the context of VMAT delivery?
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`A
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`Yes,
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`I do.
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`MR. PAK:
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`Thank you, your Honor.
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`I pass the
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`witness.
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`JUDGE SHAW: All right. Recross?
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`RECROSS-EXAMINATION
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`BY MR. RILEY:
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`Q
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`Dr. Otto, you did not invent beam gating.
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`Is
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`That's true.
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`And you would agree that IMAT,
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`intensity
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`that true?
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`A
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`Q
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`modulated arc therapy,
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`involved the planning and delivery
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`of radiation therapy using motion.
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`Is that true?
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`A
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`Yes.
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`JUDGE SHAW: Very good.
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`So by my calculation,
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`we have reached the end of the examination. Very good.
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`Ace-Federal Reporters,
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`Inc.
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`202—347*37OO
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`Page 18 of 19
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`Page 18 of 19
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`We can go ahead and excuse the witness. We'll
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`talk about evidentiary matters.
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`Thank you very much, Dr. Otto,
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`for your
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`testimony.
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`U1
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`O\
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`THE WITNESS:
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`Thank you.
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`(Witness excused.)
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 19 of 19