MR. PAK: Great. Your Honor, Varian calls
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`Dr. Lynn Verhey to the stand.
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`JUDGE SHAW: Very good,
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`thank you.
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`Welcome to the stand, Doctor.
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`Whereupon,
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`LYNN J. VERHEY
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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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`MR. PAK: Your Honor, procedurally, Dr. Verhey
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`has submitted two witness statements. There is a short
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`statement on technology tutorial which he is presenting
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`currently now. There will be a later,
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`longer statement
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`during the rebuttal case to talk about the prior art and
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`the rebuttal opinions.
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`So the examination scope for today
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`will be limited to the first opening statement.
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`JUDGE SHAW: All right. Although it's not
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`actually tutorial, because you want me to consider it as
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`evidence; correct?
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`Ace-Federal Reporters,
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`Elekta Exhibit 1058
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`Elekta v. Varian Medical
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`IPR20l6—00844
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`MR. PAK: Yes, of course.
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`JUDGE SHAW: All right.
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`DIRECT EXAMINATION
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`BY MR. PAK:
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`Q
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`Dr. Verhey, can you please state your name for
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`Dr. Lynn J. Verhey.
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`Can you briefly summarize your background with
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`respect to radiation therapy?
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`Yes, certainly.
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`I had a —— I have a PhD in
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`then I went to Harvard and practiced particle therapy
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`physics for a while. And then I converted into medical
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`physics while I was there and worked on development of
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`proton beams for radiotherapy. Prior to coming to
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`radiation physics section of radiation oncology.
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`I worked on IMRT delivery,
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`specialty, developing ways of getting better dose
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`distributions and being able to deliver it more quickly
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`Q
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`Thank you, Dr. Verhey. Your Honor,
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`in the
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`witness statement, he does provide more extensive
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`discussion of his qualifications, but at this point,
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`Ace—Federa1 Reporters,
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`would like to tender Dr- Verhey as an expert in the field
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`of radiation therapy, radiation therapy planning,
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`optimization algorithms,
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`imaging and related computer
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`science technologies.
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`JUDGE SHAW: Any objection?
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`MR. RILEY:
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`No objection, your Honor.
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`MS. KATTAN: No objection, your Honor.
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`JUDGE SHAW:
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`very well.
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`The witness is so
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`received.
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`BY MR. PAK:
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`Q
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`Dr. verhey, if you could turn to the binder
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`that's in front of you. Have you prepared a witness
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`statement,
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`the first witness statement as part of the
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`opening case?
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`Yes.
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`Can you confirm that what you see in the binder
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`is your direct witness statement?
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`Yes, it is. And it has my signature at the ~-
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`on the last page.
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`MR. PAK: Your Honor, at this time I'd like to
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`move CX-0856, which is the direct witness statement of
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`Dr. Verhey,
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`into the record.
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`JUDGE SHAW: Any objection?
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`MR. RILEY:
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`No objection, your Honor.
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`MS. KATTAN:
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`No objection.
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`JUDGE SHAW: Very well.
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`It's received.
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`(Exhibit CX-U856 received.)
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`MR. PAK: Your Honor,
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`I pass the witness.
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`JUDGE SHAW:
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`Thank you.
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`CROSS-EXAMINATION
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`BY MR. RILEY:
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`Good afternoon, Dr. verhey.
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`Good afternoon, Mr. Riley.
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`You were qualified as an expert in, and I hope I
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`get this right, radiation therapy, radiation therapy
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`planning, optimization algorithms,
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`imaging and related
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`computer science; is that correct?
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`I think that is the way it's stated, yes.
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`Okay. And you*re currently a professor emeritus
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`in the image ~- in the department of radiation oncology at
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`UCSF.
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`Is that true?
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`That's right.
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`And you worked at UCSF in the department of
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`radiation oncology for 18 years.
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`Is that true?
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`Right,
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`from 1991 to through 2008, yes.
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`And during that time, you taught students about
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`therapeutic medical physics.
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`Is that true?
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`That's right.
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`And your research focused on radiation therapy.
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`Is that true?
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`Ace—Federal Reporters,
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`Inc.
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`202-347~37OO
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`That's right.
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`And in your practice, you've created treatment
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`plans for radiation therapy.
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`is that true?
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`I have, both before and after I came to UCSF.
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`And,
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`in fact. you first created a treatment plan
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`for radiation therapy in the early 1980s.
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`Is that true?
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`That's right.
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`Now, you were certified by the American Board of
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`Radiology in therapeutic radiological physics;
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`is that
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`That's right.
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`And you would agree with the American Board of
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`correct?
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`Radiology that medical physics includes some
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`subspecialties, one of which is therapeutic medical
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`physics.
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`Is that true?
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`Yes.
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`And therapeutic medical physics involves or
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`facilitates the appropriate use of X-rays, gamma rays,
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`electrons and other charged particle beams in the treatment
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`Is that true?
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`I think that's a reasonable characterization.
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`Probably could be broader, but yes.
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`And it also involves monitoring the performance
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`of the equipment associated with therapeutic procedures for
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`radiation therapy.
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`Is that true?
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`Ace-Federal Reporters,
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`202-347-3700
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`That's correct.
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`And therapeutic medical physics, people who work
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`in that field also apply standards for the safe use of
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`radiation therapy.
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`Is that true?
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`They do.
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`And you've done all of those things.
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`Is that
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`I have.
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`Now, Dr. Verhey,
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`in your testimony in your
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`direct witness statement, you've analyzed the Otto patents
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`and you've provided a background on the state of radiation
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`therapy technology as it existed prior to and at the time
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`of the Otto patents.
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`Is that true?
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`Yes,
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`I did.
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`And you testified that this background of the
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`technology is important because the Otto patents relate to
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`a very specific part of radiotherapy.
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`Is that true?
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`It's because it -— you have to understand the
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`exact status of the field at the time that the patents were
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`Well, let's explore that a little bit more,
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`then. You agree that the Otto patents were not the first
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`Is that true?
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`Of course not.
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`And you agree that the Otto patents were not the
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`Ace—Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 6 of 131
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`first to disclose hardware for the delivery of radiation?
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`Of course not.
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`And you agree, Dr. Verhey,
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`that the Otto patents
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`were not the first to disclose the use of a linear
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`accelerator.
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`Is that true?
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`That's true.
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`And you agree that gantries as part of a linear
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`accelerator were known prior to the Otto patents.
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`Is that
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`Yes.
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`And you would agree that gantries that could
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`true?
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`vary the speed at which they rotated around the patient
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`were known in the art before the Otto patents?
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`They were known. not universally available.
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`They were known.
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`And it was known in the art prior to the Otto
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`patents to have a movable couch for supporting the patient
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`during radiation therapy.
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`Is that true?
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`Yes.
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`And it was known in the art prior to the Otto
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`patents that radiation therapy could be delivered in
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`different planes by moving the couch.
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`Is that correct?
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`That's correct, yes.
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`And you agree that a treatment planner would
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`have taken into account the speed of the gantry rotation
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`Ace-Federal Reporters,
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`Inc.
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`202-347~37D0
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`when developing a treatment plan prior to the Otto patents.
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`Is that true?
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`A
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`In most situations,
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`the speed of the gantry is
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`actually not an issue, because as I say, most of our work
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`there at UCSF was intensely modulated radiotherapy, and the
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`speed of the gentry was only determining how long it takes
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`to get to one beam angle to the next beam angle. And
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`that's not really very important.
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`Q
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`But it was a factor that was taken into account
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`by a treatment planner prior to the Otto patents.
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`Is that
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`No, not
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`in our department.
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`What about in other departments?
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`true?
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`It's possible that another department would be
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`using that, but it would not —- it would only be because of
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`dynamic delivery, and we didn‘t do dynamic delivery.
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`Q
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`Well, Dr. Verhey, have you ever answered that
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`question where —- saying that a treatment planner would
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`have taken the speed of the gantry speed into account?
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`I don't recall.
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`Okay. You were deposed in this case;
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`is that
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`By you, yes.
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`Okay. And you were under oath at that
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`correct?
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`A
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`deposition?
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 8 of 131
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`Yes,
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`I was.
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`' And a court reporter took down accurately what
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`you said in your deposition?
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`I believe so.
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`And you had an opportunity to review, revise and
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`then sign your deposition transcript;
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`is that correct?
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`Yes,
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`I did.
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`All right.
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`I'd like you to turn in Your
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`transcript, you should have the deposition in front of you
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`in your binder,
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`to page 31 starting around line 19.
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`Is this what you provided?
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`the black binder
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`Q
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`And I asked you the following question.
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`"But my
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`question was whether or not one of skill in the art would
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`have had to take into account the speed of the particular
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`linear accelerator they were creating a treatment plan for
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`prior to the Otto patents." And your answer was, "yeah.
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`Yes,
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`the speed of the gantry rotation would have been
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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 131
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`It should be in your -— yes,
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`that says “E1ekta‘s direct cross~examination of
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`Dr. Verhey."
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`Yes.
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`I'm sorry --
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`Page 31.
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`Okay. This is in the first section. Yes.
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`Starting on line 19.
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`Okay.
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`Page 9 of 131
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`something that the treatment planner had to take into
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`account, yeah."
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`Did I read that correctly?
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`I'm sorry,
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`I don't see that on what I call page
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`31 of the original.
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`Is it the page 31 as originally
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`numbered?
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`Yes,
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`I apologize. You have a Min—U—Script
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`in
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`your binder there.
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`Yes.
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`So if you turn to page 9 of the Min-U-Script,
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`you will see that there are four small pages.
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`That's where I am, yes.
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`So page 31 is on the bottom left-hand corner.
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`Yes.
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`Starting at line 19.
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`Okay.
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`And my question to you was.
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`“my question was
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`whether or not one of skill in the art would have had to
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`take into account the speed of the particular linear
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`accelerator they were creating a treatment plan for prior
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`to the Otto patents.“ And your answer was,
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`"yeah. Yes.
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`the speed of the gantry rotation would have been something
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`that the treatment planner had to take into account, yeah."
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`Did I read that correctly?
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`You did.
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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 131
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`Page 10 of 131
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`Okay.
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`What I can say is that prior to what you just
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`read on the page, you had asked me about
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`the change of
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`speed of the linear accelerator. As I pointed out, for
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`most linear accelerators at that point,
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`the option to
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`change the speed of the gantry was not available to the
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`user.
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`We,
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`in fact, didn't have any plans that were
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`produced in our department that used that. Had there been
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`an option to change the speed of the gantry and had there
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`been a dynamic delivery that could use that,
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`then of course
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`the answer would be yes. My answer would be correct.
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`Q
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`So you agree the treatment planners would have
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`taken into account
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`the speed of the gantry of the
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`particular linear accelerator they were using when they
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`were creating a treatment plan prior to the Otto patents?
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`Again,
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`limited it only to the case where there
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`are dynamic treatments being delivered and —— planned and
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`delivered.
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`Q
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`Dr. Verhey, it's a yes~or-no answer.
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`Do you
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`agree that a treatment planner would have taken into
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`account the speed of the gantry when they were creating a
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`treatment plan for radiation therapy prior to the Otto
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`patents?
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`MR. PAK: Objection; vague and ambiguous.
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`Ace—Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 11 of 131
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`Page 11 of 131
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`THE WITNESS:
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`The answer is no,
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`in the
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`department of UC San Francisco where I was working.
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`the
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`answer is probably yes if someone were doing very dynamic
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`treatments that required it.
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`BY MR. RILEY:
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`Q
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`Dr. verhey, you agree prior to the Otto patents
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`some clinics had linear accelerators from more than one
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`manufacturer.
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`Is that true?
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`Yes.
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`And you agree that prior to the Otto patents, a
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`treatment planner would have known how to create a
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`treatment plan for use with linear accelerators from
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`different manufacturers.
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`Is that true?
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`A
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`It's true. We had more than one brand in our
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`department, and it was frequently necessary to plan for
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`more than one linear accelerator type.
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`In the Case one of
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`them would break down, yeah. Or if one did break down,
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`they would have to change it.
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`Q
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`Dr. Verhey, you will agree that multileaf
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`collimators were known in the art prior to the Otto
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`patents.
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`Is that true?
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`Q
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`Yes.
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`And you agree that portal imaging was known in
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`the art before the Otto patents.
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`Is that true?
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`A
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`Yes, it was known.
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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 131
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`Page 12 of 131
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`Q
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`And you agree that MV imaging with radiation
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`therapy was known prior to the Otto patents.
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`Is that true?
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`A
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`Yes.
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`In fact, we did a lot of research in that
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`area in our department.
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`Q
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`And you agree that prior to the Otto patents, it
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`was known in the art to use 2D imaging for treatment
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`verification prior to the Otto patents.
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`Is that true?
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`A
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`Yes. Again,
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`I would limit that statement to
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`what was typically done was take two or three or five
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`portal images rather than a whole set of them. But yes,
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`they were used to verify the position of the patient.
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`Q
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`So those 2D images were taken at more than one
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`angular position around the patient?
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`Q
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`Right. At least two.
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`Dr. Verhey, gating was known in the art prior to
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`the Otto patents; is that correct?
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`Gating was known, yes.
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`And Dr. verhey, you agree that —- I'm sorry.
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`Dr. Verhey, you were familiar with varian's
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`real-time positioning management system?
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`A
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`Yes, we -- I had not used it myself, but I've
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`seen others use it, and I know what -- I know the basics.
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`MR. PAK: Your Honor,
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`I think now we're starting
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`to go beyond the scope of his opening witness statement.
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`There's no discussion of real—time imaging or any of those
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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 131
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`Page 13 of 131
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`aspects.
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`To the extent these are questions better reserved
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`for the prior art side of the case, we ask counsel to
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`reserve these questions for the rebuttal case.
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`JUDGE SHAW: Well, Mr. Riley, offhand I don't
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`remember his testimony regarding specific Varian realstime
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`position management system, but perhaps my recollection is
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`faulty. Was that discussed in his direct witness
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`MR. RILEY:
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`I don't recall, your Honor. But
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`what I would say is he's offered a witness statement that
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`the background of the art prior to and at
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`time of the Otto patents, and this particular system was
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`part of that background.
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`JUDGE SHAW: Well, maybe it‘s just,
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`to my mind
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`anyway,
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`that's fine, going into the art.
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`It seemed to me
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`maybe you were zeroing in on a specific system that might
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`issue here and that might come up in the witness's
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`testimony. Maybe we should start off with that, maybe
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`something more general. Maybe he won't
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`lead us there at
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`all,
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`I don't know.
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`BY MR. RILEY:
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`Q
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`Dr. Verhey, it was known in the art prior to the
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`Otto patents how to deliver radiation therapy in different
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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 14 of 131
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`Page 14 of 131
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`Q
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`And you agree that Dr. Otto did not contribute
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`any new hardware to the art of radiation therapy in the
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`Otto patents.
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`Is that true?
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`A
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`That's not exactly true.
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`In reality,
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`the Otto
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`patents cannot be performed without some modifications to
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`the hardware. And that was done by Varian on their product
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`Rapidarc, and I believe it's been done also in terms of the
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`new linear accelerator from Elekta.
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`Q
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`Dr. Verhey, at your deposition, I'd like to
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`point you in your transcript there in front of you to page
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`50. That's going to be on page 14 of the document itself
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`and deposition transcript page 50 is in the upper left-hand
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`Yes,
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`I have that.
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`Q
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`At line 10 I asked you,
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`"But is it fair to say
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`that Dr. Otto did not contribute any new hardware to the
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`art of radiation therapy in the Otto patents?" And then
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`your answer was,
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`“To my knowledge,
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`that's correct."
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`Did I read that correctly, Dr. Verhey?
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`You did.
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`And you would agree that one of skill in the art
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`prior to the Otto patents would have been familiar with
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`IMRT.
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`Is that true?
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`Yes.
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`And you agree that one of skill in the art prior
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`Ace-Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 15 of 131
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`Page 15 of 131
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`to the Otto patents would have been familiar with IMAT.
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`Is
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`dmttmm?
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`Q
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`I think that's true, yes.
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`And in both IMRT and IMAT,
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`the IM stands for
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`intensity modulated.
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`Is that true?
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`A
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`It does, but they're extremely different
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`techniques-
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`So I don't want
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`to casually say they belong in
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`the same bucket just because they have the same first two
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`words.
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`Q
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`But they both -- when someone delivered a static
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`field IMRT plan prior to the Otto patents,
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`the plan would
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`have had a control point for each static field.
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`Is that
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`true?
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`Actually,
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`the way that we did it was step and
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`shoot, as was described earlier. And we wouldn't use the
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`word "control point" to describe what is done.
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`If you were doing dynamic multileaf delivery of
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`IMRT, which was done at many Varian sites,
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`for example,
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`then I
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`think you would use the word "control point" for
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`those.
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`Q
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`And in that circumstance,
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`those control points
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`would have included a specific multileaf collimator shape.
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`Is that true?
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`Q
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`In that case,
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`they would have, yes.
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`And it would also have included a Specific
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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 131
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`Page 16 of 131
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`gantry angle.
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`Is that true?
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`A
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`They all would have the same gantry angle as you
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`were talking -- originally described them as looking at one
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`gantry position.
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`Q
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`And those particular control points would have a
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`particular collimator angle.
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`Is that true?
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`Q
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`It's true. Although we seldom changed it. Yes.
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`And prior to the Otto patents, it was known that
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`you could change the shape of the multileaf collimator to
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`vary the intensity of the dose received in the patient.
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`Isn't that true?
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`As long as you say dose received,
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`I agree.
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`In fact, one of skill in the art would need to
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`Q
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`know how much of the treatment beam was blocked by the
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`multileaf collimator in order to know how much radiation
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`was delivered.
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`Isn't that true?
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`A
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`No, no. Because the radiation beam intensity,
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`what comes through the multileaf collimator,
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`is independent
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`of how much of it you blocked.
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`So it's very easy to know
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`and calculate how much dose is delivered from that field
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`without having calculated specifically how much is blocked.
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`Q
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`Dr. Verhey, I'd like to have you turn to page 16
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`in your deposition transcript,
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`the actual page, and then it
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`will be page 58 of the depo.
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`I*d like to point you to line
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`17 on page 58 of the transcript.
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`Ace—Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 17 of 131
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`Page 17 of 131
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`A
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`Yes,
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`I see that.‘ What -- you asked me to
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`explain that,
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`I presume.
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`Q
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`I have the wrong cite, give me a second. Sorry,
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`Dr. Verhey.
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`Pardon the interruption, your Honor.
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`I'll
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`come back to that in a second.
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`If we could look at page 57, which is one page
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`back in your hinder there, Dr. Verhey. Starting at line
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`the question reads, "in order for one of skill in the
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`art prior to the Otto patents to have determined how much
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`radiation was delivered to the patient, would they also
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`need to know how much of the radiation was blocked by the
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`MLC," the multileaf collimator," and your answer was "Yes."
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`Did I read that correctly?
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`My answer was yes. And once again in my mind,
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`can get confused sometimes about which intensity we are
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`talking about,
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`the beam intensity within the patient is -~
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`is modified by the multileaf collimator, that's correct.
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`And it's modified by a wedge that would be the beam. But
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`the beam intensity modulation from the machine, of course,
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`is not modified by any of that.
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`Q
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`But you agree that the amount of radiation
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`received in the patient would be modified by the multileaf
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`collimator; isn't that true?
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`I do, as long as you say it that way. Yes,
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`I
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`Ace—Federal Reporters,
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`Inc.
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`202-347-3700
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`Page 18 of 131
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`Page 18 of 131
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`Q
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`And you agree prior to the Otto patents that
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`intensity modulated arc therapy,
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`IMAT, would involve the
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`relative movement of the radiation source with respect to
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`the patient along a trajectory-
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`Isn't that true?
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`It does start out that way, yes.
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`And you agree that prior to the Otto patents,
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`A
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`Q
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`linear accelerators could use a multileaf collimator to
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`vary the shape of the treatment beam during an arc
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`treatment.
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`Isn't that true?
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`Q
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`Yes.
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`And you agree that one of skill in the art
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`before the Otto patents used the multileaf collimator to
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`create a particular shape for the treatment beam and that
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`shape would necessarily relate to the intensity of the
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`radiation that is delivered to the patient.
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`Isn1t that
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`true?
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`A
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`It would -- it would affect the radiation
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`delivered to the patient, correct.
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`Q
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`You also agree that a person of ordinary skill
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`in the art prior to the Otto patents would use a multileaf
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`collimator to shape the treatment beam that is being
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`delivered to the patient when delivering intensity
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`modulated arc therapy.
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`Is that true?
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`A
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`Yes, that's exactly true.
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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 131
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`Page 19 of 131
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`Q
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`Okay. But you would agree,
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`then. during IMAT,
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`the multileaf collimator also blocks portions of the
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`treatment beam being delivered to the patient.
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`Is that
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`Yes.
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`Now,
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`in order for someone to deliver radiation
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`true?
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`dose to a target area within a subject prior to the Otto
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`patents,
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`they would need to first create a treatment plan.
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`Isn't that true?
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`Yes.
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`And you agree that a clinic would not deliver
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`A
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`Q
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`treatment radiation to a subject before someone at the
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`clinic prepares that treatment plan; correct?
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`I hope that's correct.
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`That would be true prior to the Otto patents.
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`A
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`Isn't that true?
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`Oh, yes.
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`If I could ask you to turn in your binder to
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`Okay.
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`This is the '154 patent that you have analyzed;
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`Yes.
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`And if I could ask you to turn to claim 19.
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`MR. PAK: Objection, your Honor.
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`Now we're
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`correct?
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`A
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`Q
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`Aoe—Federal Reporters,
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`Inc.
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`202~347—37OO
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`Page 20 of 131
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`Page 20 of 131
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`starting to get into claim language that is not the subject
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`of the opening witness statement. We have plenty of time
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`to deal with this in the rebuttal case, your Honor.
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`JUDGE SHAW:
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`I mean,
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`that's true, claim language
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`was not
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`in the witness statement. But I don't know where
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`Mr. Riley is going.
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`Probably nowhere good but I'm not
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`sure.
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`(Laughter.}
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`MR. RILEY: Your Honor,
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`in response to question
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`3
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