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`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
`MEDTRONIC, INC., )
` ) Case IPR2014-00034
` Plaintiff, ) Case IPR2014-00073
` ) Case IPR2014-00074
` VS. ) Case IPR2014-00075
` ) Case IPR2014-00081
`NUVASIVE, INC., ) Case IPR2014-00087
` )
` Defendant. )
`_____________________________)
`
` DEPOSITION OF PATRICK S. MILES
` San Diego, California
` Thursday, September 4, 2014
`
`Job No: 83789
`Reported by: NIKKI ROY
` CSR No. 3052
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`MSD 1037
`Medtronic, Inc. v. NuVasive, Inc.
`IPR2014-00075
`
`A04186
`
`NUVASIVE - EXHIBIT 2054
`Alphatec Holdings Inc. et al. v. NuVasive, Inc.
`IPR2019-00362
`
`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
`MEDTRONIC, INC., )
` ) Case IPR2014-00034
` Plaintiff, ) Case IPR2014-00073
` ) Case IPR2014-00074
` VS. ) Case IPR2014-00075
` ) Case IPR2014-00081
`NUVASIVE, INC., ) Case IPR2014-00087
` )
` Defendant. )
`_____________________________)
`
` DEPOSITION OF PATRICK S. MILES
` San Diego, California
` Thursday, September 4, 2014
`
`Job No: 83789
`Reported by: NIKKI ROY
` CSR No. 3052
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`MSD 1037
`Medtronic, Inc. v. NuVasive, Inc.
`IPR2014-00075
`
`A04186
`
`NUVASIVE - EXHIBIT 2054
`Alphatec Holdings Inc. et al. v. NuVasive, Inc.
`IPR2019-00362
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`
`Page 2
` Deposition of PATRICK S. MILES, taken on behalf
`of the Plaintiff, at 3111 Camino Del Rio North,
`Suite 400, San Diego, California, on Thursday,
`September 4, 2014 at 9:12 a.m., before NIKKI
`ROY, CSR No. 3052.
`
`APPEARANCES OF COUNSEL:
`
`FOR THE PLAINTIFF:
` FITZPATRICK, CELLA, HARPER & SCINTO
` BY: JUSTIN OLIVER, Attorney at Law
` 975 F Street, N.W.
` Washington, D.C. 20004
`
` KIRKLAND & ELLIS
` BY: SHARRE LOTFOLLAHI, Attorney at Law
` 333 South Hope Street
` Los Angeles, California 90071
`
`FOR THE DEFENDANT:
` FISH & RICHARDSON
` BY: TODD MILLER, Attorney at Law
` 12390 El Camino Real
` San Diego, California 92130
`
`///
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`APPEARANCES OF COUNSEL (CONTINUED):
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` FISH & RICHARDSON
` BY: STEPHEN SCHAEFER, Attorney at Law
` 3200 RBC Plaza
` 60 South Sixth Street
` Minneapolis, Minnesota 55402
`
`ALSO PRESENT:
` TOM CAVANAUGH, Videographer
` JAMES GARRETT, NuVasive
` JONATHAN SPANGLER, NuVasive
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`Page 4
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` I N D E X
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`WITNESS EXAMINATION PAGE
`PATRICK S. MILES
` MR. OLIVER 7, 120, 214
` MR. MILLER 196
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` E X H I B I T S
`
`NUMBER DESCRIPTION PAGE
`Exhibit 1030 An Introduction to MAS TLIF, 194
` Maximum Access Surgery Trans
` Foraminal Lumbar Interbody
` Fusion
`
`Exhibit 1040 NuVasive Field Announcement 182
`
`Exhibit 1041 510-K Summary NuVasive 126
` Incorporated
`Exhibit 1043 NuVasive Fact Sheet, Extreme 181
` Lateral Interbody Fusion (XLIF)
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`Exhibit 1053 NuVasive Corporate Info 120
`
`Exhibit 1055 2014 Reimbursement Guide 124
` NuVasive
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` I N D E X (CONTINUED):
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`QUESTIONS INSTRUCTED NOT TO ANSWER
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` (None)
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` INFORMATION REQUESTED
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` (None)
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`A04190
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` SAN DIEGO, CALIFORNIA, THURSDAY, SEPTEMBER 4, 2014
` 9:12 A.M.
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`Page 6
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` THE VIDEOGRAPHER: Good morning. This is
`the start of tape labeled number 1 of the videotaped
`deposition of Patrick S. Miles in the matter of
`Medtronic Incorporated versus NuVasive Incorporated
`held before the Trial and Appeal Board of the Patent
`and Trademark Office, case numbers IPR2014-00034,
`IPR2014-00073, IPR2014-00074, IPR2014-00075,
`IPR2014-00081 and case number IPR2014-00087.
` This deposition is being held at Regus, 3111
`Camino Del Rio North, Suite 400, San Diego,
`California, on September 4, 2014, at approximately
`9:12 a.m. My that name is Tom Cavanaugh from TSG
`Reporting Incorporated. I am the legal video
`specialist. The court reporter is Nikki Roy in
`association with TSG Reporting.
` Will counsel please introduce yourselves.
` MR. OLIVER: Justin Oliver, Fitzpatrick
`Celia for Medtronic.
` MR. MILLER: Todd Miller of Fish &
`Richardson on behalf of NuVasive, Inc. and Mr. Miles.
` With me today is Stephen Schaefer and Jim
`Garrett, James Garrett and Jonathan Spangler of
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`Page 7
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`NuVasive, Inc.
` My understanding also from counsel from
`Medtronic is that there is a live real note feed of
`this transcript to attorneys of the law firm of
`Kirkland & Ellis.
` THE VIDEOGRAPHER: Thank you.
` Will the court reporter please swear in the
`witness.
`
` PATRICK S. MILES
` called as a deponent and sworn in by
` the deposition officer, was examined
` and testified as follows:
`
` EXAMINATION
`BY MR. OLIVER:
` Q. Good morning, Mr. Miles. How are you?
` A. I'm well.
` Q. Just a few starting questions.
` Have you ever had your deposition taken
`before today?
` A. I have.
` Q. About how many times?
` A. About five.
` Q. Okay. I'm going to ask you questions, which
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`you'll answer under oath.
` Do you understand what it means to be under
`oath?
` A. I do.
` Q. Okay. And if at any time you don't
`understand one of my questions, please say so, and
`I'll make my best efforts to clarify the question.
` Is that acceptable?
` A. It is.
` Q. Okay. And understand that Mr. Miller may
`object to some of my questions, but absent an
`objection to privilege of which he instructs you not
`to answer, you will continue to answer the questions.
` Do you understand that?
` A. I understand.
` Q. Okay. Also, I'll suggest we take a break
`every once in a while just to give us a chance to
`refresh. If you need a break at any time, please let
`me know, unless it's not during a particular
`question.
` Is that all right?
` A. Yes.
` Q. Is there any reason you will not be able to
`give truthful and accurate testimony here today?
` A. No.
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` Q. Okay. And what did you do to prepare for
`this deposition?
` A. I reviewed documents.
` Q. Okay. And did you meet with anyone in
`reviewing these documents?
` A. Yes.
` Q. And were those attorneys?
` A. Yes.
` Q. And about how many times did you meet with
`them?
` A. Twice.
` Q. Okay. And outside your preparation sessions
`with the attorneys, did you review any documents on
`your own?
` A. Yes.
` Q. And what documents were those?
` MR. MILLER: I'll object. You can lay the
`foundation as to who identified the documents for
`Mr. Miles and whether those were documents provided
`by counsel. Otherwise, it's work product.
`BY MR. OLIVER:
` Q. Are there any public documents that you
`reviewed on your own?
` A. Any public documents?
` Q. Patents?
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` MR. MILLER: Other than documents provided
`to you by counsel.
` THE WITNESS: No.
`BY MR. OLIVER:
` Q. Okay. And who's your current employer?
` A. NuVasive, Inc.
` Q. Are you employed by anyone else?
` A. No.
` Q. And what's your title at NuVasive?
` A. President of Global Products and Services.
` Q. And what does that entail?
` MR. MILLER: Objection; form.
`BY MR. OLIVER:
` Q. I'll restate the question.
` What are your responsibilities in that role?
` MR. MILLER: Same objection.
` THE WITNESS: The areas of my responsibility
`are marketing, product development, surgeon
`education, research.
`BY MR. OLIVER:
` Q. Okay. And you submitted six declarations in
`six IPR proceedings; is that correct?
` A. Yes.
` Q. And just for convenience I'm going to give
`you a binder here that has Exhibits 2024 from each of
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`the six IPRs identified on the record already.
` Is it correct that those declarations are
`similar, except for the fact they were submitted in
`different IPRs?
` A. Are you speaking of these six?
` Q. Yes.
` A. Let me review the six.
` Q. Mr. Miles, rather than have you read all six
`declarations, do you recall preparing these
`declarations?
` A. Let me review the declarations, and I'll let
`you know if I remember.
` Q. Did you sign those declarations on the last
`page?
` A. I've got to review the declaration to
`determine if I -- if I signed them.
` Q. Okay. Can you turn to the last page --
` A. Yes.
` Q. -- of the first declaration, please?
` A. Yes.
` Q. Is that your signature?
` A. Yes, this is my signature on page -- would
`this be 29 or 31?
` Q. This is your declaration, so those are the
`page numbers provided by NuVasive. I mean, we can
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`use --
` A. I'm asking you as it relates to the page
`number that you'd like to refer to --
` Q. Why don't we refer to the bottom page
`number, the smaller one, throughout the deposition.
` A. That would -- that would be page 31.
` Q. Correct.
` MR. MILLER: Mr. Miles, I don't think
`there's a question pending at this point.
`BY MR. OLIVER:
` Q. Yes. Mr. Miles, let's talk about some --
`your declaration refers to "commercial offered XLIF
`procedure."
` Are you familiar with the XLIF procedure?
` A. I am.
` Q. And what does XLIF stand for?
` A. Extreme lateral interbody fusion.
` Q. And what did does "extreme lateral" mean?
` A. It means lateral to midline.
` Q. Okay. And the midline would be midline of
`the patient's back?
` A. Yes, depending upon the context of what
`we're discussing.
` Q. Okay. So how would you describe it relative
`to -- it's also referred to as 90 degrees; is that
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`correct?
` A. It has been described as 90 degrees.
` Q. Okay. And that would mean zero degree is --
`if the patient is laying on his or her belly, that
`would be zero degrees of the midline of the patient's
`back?
` MR. MILLER: Objection; form.
` THE WITNESS: If -- if the patient is laying
`on their belly, depending upon what the discussion is
`about, zero degrees is at the -- at the due -- due
`back or at the due front and 90 at the -- at the --
`at the side. Is that what you're asking?
`BY MR. OLIVER:
` Q. Yes.
` A. Sure.
` Q. Okay. And zero degree would be a posterior
`approach in that situation?
` MR. MILLER: Objection; form.
` THE WITNESS: You can consider zero at
`posterior or anterior.
`BY MR. OLIVER:
` Q. Okay. And then 90 degree would be the
`extreme lateral?
` MR. MILLER: Objection; form.
` THE WITNESS: As we describe XLIF --
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`BY MR. OLIVER:
` Q. Uh-huh.
` A. -- it is -- it is a directly lateral or
`90 degrees from midline.
` Q. Okay. And then there are also approaches in
`between the posterior and the lateral approach; is
`that correct?
` A. Yes.
` Q. And they are referred to as postero-lateral?
` MR. MILLER: Objection; form.
` THE WITNESS: Yes.
`BY MR. OLIVER:
` Q. Okay. And the term extreme lateral, has
`that also been referred to as direct lateral?
` A. It's been -- it's been referred to as -- as
`many things.
` Q. Is direct lateral one of those things?
` A. Yes.
` Q. Okay. What about true lateral?
` A. Yes.
` Q. And far lateral?
` A. Oftentimes, far lateral is not a connotation
`for direct lateral.
` Q. And what would far lateral be?
` A. Postero-lateral normally.
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` Q. Far lateral would mean postero-lateral?
` A. In the context of surgery, yes.
` Q. At what angle would that be if we talked
`about the zero degree and 90 degree?
` MR. MILLER: Objection; form.
` THE WITNESS: Between 45 and 65 degrees.
`BY MR. OLIVER:
` Q. Okay. Are you familiar with Dr. Obenchain?
` MR. MILLER: Objection; form.
` THE WITNESS: Yes.
`BY MR. OLIVER:
` Q. Okay. And do you know that Dr. Obenchain
`has referred to the direct lateral as a 9:00 o'clock
`approach. Have you heard that used before?
` A. I don't.
` Q. You don't know. Okay.
` A. I've never heard it called a 9:00 o'clock
`approach.
` Q. Okay. So you've stated that XLIF stands for
`"extreme lateral interbody fusion."
` What is meant by "interbody fusion"?
` A. Bone growth from end plate to end plate.
` Q. And are implants used to achieve fusion?
` MR. MILLER: Objection; form.
` THE WITNESS: At times.
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`BY MR. OLIVER:
` Q. Okay. Does NuVasive sell an intervertebral
`implant for its XLIF procedure?
` A. Yes.
` Q. And is that referred to as the CoRoent?
` A. Please restate the question.
` Q. Does NuVasive sell an implant -- an
`intervertebral implant called the CoRoent?
` A. Yes.
` Q. Okay. And that is inserted during an XLIF
`procedure?
` A. It's inserted via multiple procedures.
` Q. XLIF being one of them?
` A. Yes.
` Q. Okay. If you could turn to paragraph 16 of
`your declaration on page 12, the second bullet point
`refers to a large load-bearing interbody
`construction; is that correct?
` A. The second bullet point. There's one bullet
`point on the page. Are we talking about the big
`number or the small number?
` Q. The small number. We're going to refer
`to --
` A. Here's the small number at the bottom of the
`page, and there's one bullet point.
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` Q. Page 12?
` A. Page 16.
` Q. Paragraph 16, page 12.
` A. My paragraphs aren't numbered.
` Q. You didn't number the paragraphs in this
`declaration?
` A. I'm looking at the page number.
` Q. Okay.
` A. So what's your question?
` Q. The second bullet point, it says "The large
`load bearing interbody construction."
` Do you see that, the second bullet point?
` A. I do.
` Q. Is that referring to an implant?
` A. In the context that's being described, it's
`referring in context to the procedure.
` Q. Does the procedure have a large load-bearing
`interbody construction?
` A. No.
` Q. Does an implant have a large load-bearing
`interbody construction?
` A. If you're asking me if it has an implant, it
`has an implant.
` Q. I'm asking what you meant by "large
`load-bearing interbody construction." Are you
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`referring to an implant there?
` A. Yes.
` Q. Okay. Were you involved in the design of
`the CoRoent XL implant?
` MR. MILLER: Objection; form.
` THE WITNESS: What do you mean involved?
`BY MR. OLIVER:
` Q. Did you help design the implant?
` MR. MILLER: Same objection.
` THE WITNESS: If you could be more
`descriptive with regard to what "design" means.
`BY MR. OLIVER:
` Q. Come up with features. Did you help
`determine what features the implant would have?
` A. I would -- I would characterize my input as
`requirements writing.
` Q. And what requirements would those be?
` MR. MILLER: Objection; form.
` Sorry. Go ahead.
` THE WITNESS: At 10 years, it would be tough
`for me to specify the exact requirements.
`BY MR. OLIVER:
` Q. The exact requirements for what, for what
`the implant would have structurally?
` MR. MILLER: Objection; form.
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` THE WITNESS: You asked specifically what
`requirements, and I said I'd have a tough time
`remembering. So what's your next question.
`BY MR. OLIVER:
` Q. What features of the implant did you help
`design? Do you know?
` A. I don't recall.
` Q. Okay. What was the purpose of NuVasive
`introducing the CoRoent XL implant?
` MR. MILLER: Objection; form, scope.
` THE WITNESS: Inter -- to create an
`environment for interbody fusion.
`BY MR. OLIVER:
` Q. And what was needed to provide interbody
`fusion?
` MR. MILLER: Objection; form, scope.
` THE WITNESS: There's a multitude of
`variables that are required for interbody fusion.
` Are you -- are you specifically looking for
`one thing?
`BY MR. OLIVER:
` Q. No. Which -- would it include disk height,
`restoring disk height?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: I would suggest that -- you
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`know, I'm not an expert on the biology of fusion and
`don't -- I can't completely characterize if disk
`height restoration creates fusion.
`BY MR. OLIVER:
` Q. What was the purpose of the implant
`regardless of fusion? What's the -- what's trying to
`be achieved by insertion of the implant other than
`fusion?
` MR. MILLER: Objection; form and scope.
` (Whereupon at 9:27 a.m. Sharre
` Lotfollahi entered the deposition
` proceedings.)
` THE WITNESS: The intended utility of the
`implant was stability.
`BY MR. OLIVER:
` Q. Stability. Okay. Was the CoRoent XL
`specifically designed for the XLIF procedure?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: It was specifically designed
`for -- the CoRoent XL was specifically designed for
`the XLIF procedure.
`BY MR. OLIVER:
` Q. Okay. What was the first length the CoRoent
`XL came in or lengths rather?
` MR. MILLER: Objection; scope.
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` THE WITNESS: To the best of my
`recollection, 40 and 45.
`BY MR. OLIVER:
` Q. Okay. And why did the CoRoent XL come in
`40- and 45-millimeter length?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: To create stability.
`BY MR. OLIVER:
` Q. And how did the length create stability?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: They were intended to sit on
`the ring apotheosis.
` THE DEPOSITION OFFICER: I'm sorry. They
`were intended to?
` THE WITNESS: To sit on the ring apotheosis.
`BY MR. OLIVER:
` Q. Does that refer to the cortical rim of the
`vertebral bone?
` MR. MILLER: Objection; form, expert and
`scope.
` THE WITNESS: There is a cortical rim within
`the vertebral body, yes.
`BY MR. OLIVER:
` Q. Okay. And when you said it was -- the
`length was intended to sit on the cortical
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`apotheosis, what did you mean by that?
` MR. MILLER: Objection; mischaracterizes,
`form and scope.
` THE WITNESS: Please repeat the question.
`BY MR. OLIVER:
` Q. Can you -- you state the implants were
`intended to sit on the ring apotheosis; is that
`correct?
` A. If that's what I stated, that's correct.
` Q. And what did you mean by that?
` A. I mean that the implant was to create
`stability, and it creates stability sitting on the
`ring apotheosis.
` Q. And how does the length correspond to it
`sitting on that rim?
` MR. MILLER: Objection; scope, expert.
` THE WITNESS: It depends upon how it's
`placed.
`BY MR. OLIVER:
` Q. And how is it placed? How is the XLIF
`placed or -- excuse me -- the CoRoent placed?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: As I said, there's multiple
`CoRoent implants, and so it depends upon what CoRoent
`implant you're talking about.
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`BY MR. OLIVER:
` Q. How about the XL?
` A. The XL?
` MR. MILLER: Can we have a single question?
`BY MR. OLIVER:
` Q. So for the XL implants --
` A. Uh-huh.
` Q. -- you say it was -- how -- it was intended
`to sit in a certain way. How was it intended to sit?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: On the ring apotheosis.
`BY MR. OLIVER:
` Q. Okay. And is -- why the -- what's the
`length of the XL implant?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: I stated 40 to 45 were the
`first CoRoent implants.
`BY MR. OLIVER:
` Q. Okay.
` A. XL implant.
` Q. And those were intended to sit on that ring?
` A. They were -- they were intended to provide
`stability.
` Q. And you said that was achieved by sitting on
`the ring?
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` A. Sitting on a portion of the ring.
` Q. Okay. And the ring, is that on the outer
`portion of the vertebrae?
` MR. MILLER: Objection; expert, scope.
` THE WITNESS: Is the ring on the outer
`portion of the vertebra? Typically, yes?
`BY MR. OLIVER:
` Q. Yes.
` A. Typically, yes.
` Q. And what's the width of the CoRoent XL
`implant?
` MR. MILLER: Objection; form and scope.
`Actually, withdrawn. Objection; scope.
` THE WITNESS: In what time period are you
`talking about?
`BY MR. OLIVER:
` Q. The last three years.
` A. 30, 26, 22, 18, 16.
` Q. Okay. Can the CoRoent XL be inserted
`interiorly?
` A. Yes.
` MR. MILLER: Objection.
` THE WITNESS: Sorry.
` MR. MILLER: Objection; scope, and
`objection; expert.
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`BY MR. OLIVER:
` Q. Can the CoRoent XL be inserted posteriorly?
` MR. MILLER: Objection' expert. Objection;
`scope.
` THE WITNESS: Yes.
`BY MR. OLIVER:
` Q. Can a CoRoent XL be inserted in a TLIF
`procedure?
` MR. MILLER: Objection; expert and scope.
` Yeah, it is. Go ahead and answer.
` THE WITNESS: It's -- it's nonsensical.
`The -- can it be placed posterior? Yes. Can it be
`placed via TLIF approach? Yes. You know, safely,
`no.
`BY MR. OLIVER:
` Q. Okay. Can the CoRoent XL be inserted
`obliquely?
` MR. MILLER: I'm sorry. Can I have the
`question back?
`BY MR. OLIVER:
` Q. Can the CoRoent XL be inserted obliquely?
` MR. MILLER: Objection; expert and scope and
`form.
` THE WITNESS: You could put it in virtually
`any direction you want to. It's not going to be safe
`
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`and so --
`BY MR. OLIVER:
` Q. In front of you, you have a binder that has
`many of the exhibits relied on in your declaration.
`One of those exhibits is Exhibit 2038, this binder
`here. These are all the exhibits.
` Can you turn to Exhibit 2038. Do you
`recognize that document?
` A. It looks like it's a NuVasive 10-K.
` Q. Okay. And it's a NuVasive 10-K from 2013;
`is that correct?
` A. It appears as such.
` Q. And since you cite to in your declaration,
`is it fair to understand that you are generally aware
`of what a NuVasive 10-K is?
` A. Yes, generally.
` Q. And what is it?
` A. It's a SEC document.
` Q. Filed by publicly traded corporations?
` A. Yes.
` Q. Okay. And NuVasive files one every year as
`a publicly traded corporation?
` A. Yes.
` Q. Okay. Are you aware that there are certain
`legal penalties for lying in an SEC filing?
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` MR. MILLER: Objection; scope, form.
` THE WITNESS: Please restate the question.
`BY MR. OLIVER:
` Q. Is it your understanding that NuVasive is
`truthful in its filings with the SEC?
` A. Yes.
` Q. Okay. If you could turn to page 4 of that
`document, there's a section entitled "Overview."
` Do you see that?
` A. I do.
` Q. And if you go down eight lines, there's a
`line that begins -- begins "IRM support."
` Do you see that line? Excuse me. Yes,
`that's the line.
` A. I do.
` Q. In that line, it refers to "specialized
`implants." Do you see that?
` A. I do.
` Q. Can you tell me what's specialized about
`NuVasive implants?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: I'd like to read it just so I
`understand the context of the discussion here or the
`question.
` Can you repeat the question, please?
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`BY MR. OLIVER:
` Q. What makes NuVasive's implants specialized?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: I would say predominantly the
`intent of defining what the -- what the utility is
`and -- and creating features that are reflective of
`what the surgical requirements are.
`BY MR. OLIVER:
` Q. What about the CoRoent implant, what makes
`that different than other implants that were
`available before it?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: You're asking about specific
`implants or --
`BY MR. OLIVER:
` Q. The CoRoent implant, the CoRoent XL.
` A. The CoRoent XL implant, what makes it --
`what makes it --
` Q. Specialized. What makes it different than
`implants that came before it?
` MR. MILLER: Objection; form and scope.
` THE WITNESS: What makes it specialized, I
`would say is its attempt at fulfilling the
`requirements of surgery.
`///
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`BY MR. OLIVER:
` Q. That's a specialized feature of the implant
`itself?
` A. Yes.
` Q. What features of the -- what features of the
`design of the implant achieve that?
` MR. MILLER: Objection; form and scope.
` And just pause after the question so I can
`interpose my objections.
` THE WITNESS: It-- it becomes a difficult
`question to answer based upon the number of -- of
`implants and what the specific utility is, I guess.
`I'm trying to help you get to an answer, but the
`question is vague and broad.
`BY MR. OLIVER:
` Q. Let me provide you with another document.
`We can talk about that in the same context.
` There are some documents here that have been
`marked. If you could turn in that new binder to
`Exhibit 1025.
` MR. SCHAEFER: I think we're way out of
`scope here. This is Steve Schaefer on the record.
` MR. OLIVER: If you're going to object to
`scope, you can say "objection as to scope."
` MR. MILLER: We're going to call the board
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`if --
` MR. SCHAEFER: Yes.
` MR. MILLER: So I'll take it, Steve. So I
`have given you a lot of leeway here hoping you were
`just laying a foundation and were going to connect
`the dots with what we're here for, which is
`Mr. Miles's declaration in the instant actions.
` You are now putting in front of Mr. Miles a
`declaration in a different action, which relates to
`implants, which has been your questions for the last
`40 minutes.
` MR. OLIVER: To the extent that his
`statements in other proceedings are inconsistent with
`his statements in this proceeding, it's relevant.
` MR. MILLER: His statements in other
`proceedings that have nothing to do with this
`proceeding are not relevant.
` MR. OLIVER: They are relevant. It goes to
`secondary considerations.
` MR. SCHAEFER: Let me -- let me just make
`clear, is it your intent to obtain testimony for
`these implant IPR proceedings?
` MR. OLIVER: My intent is to show
`discrepancies for purposes of this proceeding between
`what he said in other proceedings and what he's
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`saying in this proceeding.
` MR. SCHAEFER: Okay. The reason I ask is --
`and you may not know because you're not counsel of
`record in those other proceedings -- but Medtronic
`made the decision not to depose Mr. Miles in those
`other proceedings, and it has a response to and if
`the purpose of this is --
` MR. OLIVER: If you want to go off the
`record and call the board, we'll call the board;
`otherwise, you're taking up time for this deposition.
` MR. SCHAEFER: The point is -- and I'll make
`it on the record to make it clear -- this -- the
`purpose of this deposition is not for these other IPR
`matters. That's not what it was noticed for.
` MR. MILLER: If your intention is to use
`this declaration to show a contradiction with
`Mr. Miles's declaration in this proceeding, we'll
`allow that.
` If your purpose is to simply elicit
`testimony about the subject matter of this other
`unrelated declaration, we will call the board.
` MR. OLIVER: That's fine.
` Can we go back to the questions?
` Q. All right. So you have Exhibit 1025?
` A. Could we take a brief break?
`
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` MR. OLIVER: Sure.
` MR. MILLER: Sure. Is there a question
`pending?
` THE VIDEOGRAPHER: All agreed to go off the
`record, we're off the record at 9:43 a.m.
` (Recess held 9:43 a.m. to 9:51 a.m.)
` THE VIDEOGRAPHER: We are -- we're back on
`the record at 9:51 a.m.
`BY MR. OLIVER:
` Q. So we're looking at Exhibit 1025, which is a
`declaration you filed in a separate IPR,
`IPR2013-00506.
` Can you look at paragraph 7 of that
`declaration, page 4? Do you see the first paragraph
`of -- excuse me -- the first sentence of paragr
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