In the Matter Of:
`
`Nuvasive, Inc. vs Alphatec Holdings, Inc., et al.
`
`JIM YOUSSEF, M.D.
`
`January 09, 2020
`
`Job Number: 596169
`
`Litigation Services | 800-330-1112
`www.litigationservices.com
`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 1 of 82
`
`
`
`Nuvasive, Inc. vs Alphatec Holdings, Inc., et al.
`
`JIM YOUSSEF, M.D.
`
`January 09, 2020
`
`Job Number: 596169
`
`Litigation Services | 800-330-1112
`www.litigationservices.com
`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 1 of 82
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`******
`
`ALPHATEC HOLDINGS, INC., and
`ALPHATEC SPINE, INC.,
`Petitioners,
`vs.
`NUVASIVE, INC.,
`Patent Owner.
`
`Case No. IPR2019-00362
`US Patent No. 8,361,156
`
`DEPOSITION OF
`JIM YOUSSEF, M.D.
`Durango, Colorado
`January 9, 2020
`11:59 a.m.
`
`Reported by: Heidi
`Nevada CCR No. 845
`JOB NO.
`
`K. Konsten, RPR, CCR
`- NCRA RPR No. 816435
`596169
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 2 of 82
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`
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 2
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`k k k k k k
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`ALPHATEC HOLDINGS, INC.
`ALPHATEC SPINE, INC.,
`Petitioners,
`vs .
`NUVASIVE, INC.,
`Patent Owner.
`
`and
`
`Case No. IPR2019-00361
`US Patent No. 8,187,334
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 3 of 82
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`
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`JIM YOUSSEF, M.D. - 01/09/2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 3
`
`k k k k k k
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`ALPHATEC HOLDINGS, INC.
`ALPHATEC SPINE, INC.,
`Petitioners,
`vs .
`NUVASIVE, INC.,
`Patent Owner.
`
`and
`
`Case No. IPR2019-00546
`US Patent No. 8,187,334
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 4 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Deposition of JIM YOUSSEF, M.D., Volume
`1, taken at 501 Camino del Rio, Durango, Colorado,
`on Thursday, January 9, 2020, at 11:59 a.m , before
`Heidi K. Konsten, Certified Court Reporter in and
`for the State of Nevada.
`
`Page 4
`
`APPEARANCES OF COUNSEL
`For the Petitioners:
`DAVID P. DALKE, ESQ.
`NIMALKA R. WICKRAMASEKERA, ESQ.
`WINSTON & STRAWN
`333 South Grand Avenue
`Los Angeles, California 90071
`(213) 598-9084
`(213) 565-1750
`For the Patent Owner:
`JAD M. MILLS, ESQ.
`SONJA R. GERRARD, ESQ.
`Wilson Sonsini Goodrich & Rosati
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, California 94105
`(415) 947-2027
`(415) 947-2000 Fax
`
`******
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 5 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`INDEX
`
`Page 5
`
`JIM A. YOUSSEF, M.D.
`Examination by Ms. Wickramasekera
`
`Page
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`6
`
`★ ★ ★ ★ ★
`
`EXHIBITS
`
`Description
`(None marked.)
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`Page
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`2 3
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`4
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`5g
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`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 6 of 82
`
`
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`DURANGO, COLORADO
`Thursday, January 9, 2020
`11:59 a.m.
`DEPOSITION OF JIM A. YOUSSEF, M.D.
`
`Page 6
`
`JIM A. YOUSSEF, M.D.,
`having been first duly sworn, was examined and
`testified as follows:
`
`EXAMINATION
`BY MS. WICKRAMASEKERA:
`Q
`All right. Dr. Youssef, I'm handing you
`Exhibit 2055 from IPR 2019-361, which appears to
`be your declaration for the '334 patents.
`A
`Thank you.
`Q
`I'm also handing you Exhibit 2055 from
`IPR 2019-362, which appears to be your declaration
`for the '156 patents. And, finally, I'm handing
`you Exhibit 2055 from proceeding IPR 2019-546,
`which appears to be your declaration regarding the
`'334 from that proceeding.
`Let me know once you have those in front
`of you, and please confirm for me that those are
`the declarations that you submitted in these IPRs.
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 7 of 82
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`Page 7
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`MR. DALKE: I think those are the
`duplicates. There's one from each stack. I
`didn't do that very well.
`THE WITNESS: I believe these are the
`
`ones.
`BY MS. WICKRAMASEKERA:
`Okay.
`Q
`A
`Thank you.
`Are there any other declarations?
`Q
`A
`No.
`Okay. Now, you've provided an opinion
`Q
`on behalf of NuVasive in the IPRs that are at
`issue today; correct?
`A
`Correct.
`Okay. And you've been working with
`Q
`NuVasive since 2003; is that correct?
`A
`I would call it closer to 2005 or -- I
`can't recall exactly.
`Okay.
`Q
`A
`Somewhere in that time frame.
`Okay. And you've been working with
`Q
`NuVasive as a consultant since that time period;
`is that correct?
`A
`I would have to look at my consulting
`documents to recall the exact first date of my
`
`Litigation Services | 800-330-1112
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`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 8 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 8
`
`consulting agreement with them.
`Okay. What generally -- what have you
`Q
`been working with -- well, what generally did you
`start working with NuVasive on when you first
`began working?
`A
`Research.
`Okay. And that was around the 2003 to
`Q
`2005 time f rame?
`A
`Approximately, yes.
`Okay. And you've provided an opinion
`Q
`that includes -- that includes comments regarding
`XLIF. Do you recall that?
`A
`Specifically, I'm unclear. Can you
`repeat the question?
`Does your opinion regard XLIF?
`Q
`A
`My opinion in these IPRs?
`Uh-huh.
`Q
`A
`It -- actually it involves the
`procedure -- the patents related to '334 and '156
`and the claims that are cited within these IPRs.
`Okay. So it does not involve XLIF?
`Q
`A
`Well, I would say it involves the
`opinions that I provided for the claims that are
`in discussion in '334, '156, and the claims that
`are listed in my IPR.
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 9 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 9
`So would it be incorrect to say that any
`Q
`of the opinions that are in front of you as
`Exhibit 2055 in each of the proceedings has
`anything to do with XLIF?
`A
`I would say that my opinions in front of
`me in these IPRs are related to the claims in
`specific patents '334 and '156.
`Okay. Now, you reference XLIF in your
`Q
`opinions; correct?
`A
`I'm just going to look through this, if
`you don't mind.
`Sure. Go ahead. If you want me to
`Q
`provide you a reference, I can do that.
`Actually, did you prepare these
`declarations yourself?
`A
`I did them in collaboration with my
`attorneys •
`Okay. Did you have any input into what
`Q
`went into the declarations?
`A
`Absolutely.
`Okay.
`Q
`A
`So if you want to point me to that to
`save time , that would be fine.
`I can do that, but I -- just a quick
`Q
`question.
`
`Litigation Services | 800-330-1112
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`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 10 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 10
`mention
`
`You don't recall including any
`of XLIF in your IPR declarations?
`I need to review the -- the -- review
`A
`them, and I'll tell you.
`Well, sitting here today, do you believe
`Q
`that the '334 and the '156 patents have anything
`to do with XLIF?
`A
`I think they have to do with - - well, I
`guess, can you please define XLIF for me ?
`I don't think that I can. But I would
`Q
`like you to define XLIF for me.
`A
`Well, you asked the question, so that's
`why I'm asking.
`Okay. Well, how about if we - - sorry,
`Q
`Doctor, I don't mean --
`A
`Because XLIF is -- is an acronym; right?
`Yeah. No, I don't mean to be tricky.
`Q
`I'm just a little bit confused.
`A
`Okay.
`Because your declarations reference
`Q
`XLIF, SO I'm not sure why you're having trouble
`referencing this.
`A
`Can you point me to where you see the
`reference?
`Q
`
`Sure.
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 11 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 11
`
`Okay.
`A
`So let's see. I think one of the first
`Q
`places that I see XLIF mentioned is -- now, I am
`blanking, so give me a second.
`Thank you, Dave. Paragraph 83.
`MR. MILLS: Which --
`MS. WICKRAMASEKERA: On any of your
`declarations.
`THE WITNESS: Yes, I see that it says
`"XLIF is a minimally invasive surgical approach to
`spinal fusion surgery that accesses the disk space
`from the lateral aspect of the patient and
`transverses the psoas muscle."
`BY MS. WICKRAMASEKERA:
`Okay. And XLIF is a commercial product
`Q
`of NuVasive's?
`A
`XLIF is an acronym for a procedure of
`NuVasive
`Does it include products --
`Q
`A
`Yes .
`-- that are for sale?
`Q
`A
`I believe so, yes.
`Okay. And you collect royalties on
`Q
`certain components of XLIF; is that correct?
`A
`I receive royalties on two specific
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 12 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 12
`
`implants currently --
`Q
`Okay.
`A -- that are related to the XLIF
`procedure.
`Q
`Okay. And -- and you've received,
`according to the public data, as of December 2019,
`$3.5 million in payments from NuVasive; is that
`correct?
`
`MR. MILLS: Objection. Foundation.
`THE WITNESS: So what public data are
`you referring to?
`BY MS. WICKRAMASEKERA:
`Q Are you aware that payments to surgeons
`have to be publicly reported?
`A
`I am.
`Q
`You are?
`A
`Yes.
`Q
`Okay. On OpenPaymentsData.CMS.gov?
`A
`Yes.
`Q Okay. And are you aware of how much is
`being reported as you having received payments
`from NuVasive?
`A
`I'm aware that there is a reporting
`window every year on Open Payments that is --
`allows surgeons to dispute payments that are
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 13 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 13
`posted by
`different medical device companies. I'm
`aware that Open Payments includes all payments
`that come from medical device companies to
`surgeons or physicians in general.
`They include everything from research to
`meals to travel to reimbursement to royalties to
`consulting. So there's a big number that's
`included in all of that. My activity actually
`includes all of those things.
`Okay.
`Q
`A
`And also includes other companies that I
`work with , so ...
`Right.
`Q
`Are you saying that you don11 know
`what -- what amount is listed for NuVasive?
`A
`As of 2019, I don't believe it was
`published recently, that I know of. I haven't
`looked at it.
`Okay. Would it surprise you that it's
`Q
`being publicly reported, as of December 3rd, 2019,
`that you have received $3.5 million at least from
`NuVasive?
`
`MR. MILLS: Objection. Foundation.
`THE WITNESS: Can I see the report?
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 14 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 14
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`BY MS. WICKRAMASEKERA:
`No, I'm not going to -- I don't have a
`Q
`copy of it for you, but that's fine.
`I mean, if you don't know -- if you
`don't know what's being publicly reported, that's
`okay. I can ask you the questions and you can say
`you don' t know.
`A
`Yeah, that's fine.
`Okay. So you're not aware of having
`Q
`received $3.5 million in payments from NuVasive?
`A
`In 2019?
`No. As of 2019.
`Q
`A
`Starting when?
`As of December 2019.
`Q
`A
`Starting when?
`Whenever the public reporting started.
`Q
`A
`Well, I don't know that the -- do you
`have the date of the public reporting initiation?
`I don't on me.
`Q
`A
`Neither do I.
`Okay. So does it sound wrong that
`Q
`you've received $3.5 million of payments --
`A
`No.
`-- from NuVasive?
`Q
`A
`Doesn't sound wrong.
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 15
`
`Okay. And that -- that includes
`Q
`royalties and license fees?
`A
`They're included along with research and
`reimbursement for travel and hotels and those
`sorts of things and consulting.
`Q
`Now, the work that you're doing on
`litigations, is that included in this publicly
`reported data?
`MR. MILLS: Objection. Foundation.
`BY MS. WICKRAMASEKERA:
`Q
`If you know.
`A
`I don11 know.
`Q
`Okay. Who makes your payments for the
`work that you're doing in the litigation?
`A
`Wilson Sonsini.
`Q
`Okay. Do you have a separate agreement
`regarding your compensation for the work that
`you're doing in this case and any other cases for
`NuVasive that are related to litigation or the
`patent office?
`MR. MILLS: Objection. Form.
`THE WITNESS: The -- so if you --if I
`heard your question correctly, you're asking does
`NuVasive have a contract with me on the litigation
`work? Or if you could repeat the question.
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 16 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 16
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`BY MS. WICKRAMASEKERA:
`No. I asked if you have a separate
`Q
`agreement regarding --
`A
`With -- with whom?
`With anyone regarding compensation for
`Q
`the work that you're doing on this case and other
`litigations.
`A
`What other litigations?
`The district court litigation.
`Q
`A
`Okay. Related to this case?
`This case and the district court
`Q
`litigation.
`A
`Okay.
`MR. MILLS: Objection. Form.
`THE WITNESS: Yeah, I think I'm happy to
`discuss everything about the IPR today, and we can
`talk about the district court tomorrow.
`BY MS. WICKRAMASEKERA:
`Dr. Youssef, hold on. Hold on. So
`Q
`first off , I think that if you're going to try and
`cabin the questions the way you want to, we're
`going to -- this is going to take a long time.
`Okay?
`
`So I'm entitled to ask you the
`questions , and if you don't want to answer because
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 17 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 17
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`you don't know, then you can say you don't know.
`But you are not entitled to just stop answering
`the questions.
`You get it?
`MR. MILLS: So objection. So, first, my
`objection is that the witness had not completed
`his answer and that counsel interrupted him.
`MS. WICKRAMASEKERA: Okay. You know
`what, Jad, let me -- let's take a minute here. If
`Dr. Youssef is going to continue this, we're going
`to call the Board.
`Do you want to take a minute?
`MR. MILLS: Counsel, if you would like
`to call the Board, you're welcome to call the
`Board. I don't think there's any reason to call
`the Board.
`
`MS. WICKRAMASEKERA: Okay.
`MR. MILLS: But I do want to point out
`that the witness had not completed his answer and
`that he was interrupted.
`MS. WICKRAMASEKERA: Okay. He's not
`answering the question that I'm asking him.
`BY MS. WICKRAMASEKERA:
`Q I'm going to ask you questions, and then
`you can answer them. Okay?
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 18 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 18
`Yeah, and I apologize. I'm just trying
`A
`to get some clarification, because your question
`isn't clear to me. And so when I'm asking for
`clarification, I'm trying to understand it. So
`I'11 ask the clarification if you would like
`again.
`If you don't understand my question, you
`Q
`should definitely tell me that.
`A
`Okay.
`Okay? And I will -- I will help
`Q
`rephrase the question so you can see if you can
`get it.
`Thank you.
`A
`All right. You entered into a new
`Q
`agreement with NuVasive in October of 2017;
`correct?
`A
`A new agreement? What kind of
`agreement ? Can you clarify specifically?
`A global consulting agreement.
`Q
`A
`Correct.
`Okay. And pursuant to that agreement,
`Q
`you are to be provided cash compensation in the
`amount of $1,250,000 paid quarterly over the
`course of five years; is that correct?
`A
`Related to -- so the answer is yes, but
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 19 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 19
`it's related to specific activities that have to
`do with single physician surgery and development
`of products and procedures related to single
`physician surgery.
`Okay.
`Q
`A
`The -- the agreement does not talk about
`any other activity, including legal activity.
`Is this -- does this agreement --
`Q
`A
`I wasn't finished with my answer.
`Okay. Go ahead.
`Q
`A
`And, therefore, it doesn't include any
`other activity outside the scope of the agreement.
`Right. Okay. So that --
`Q
`A
`If you show me the agreement, I would be
`happy to read it out loud for the record.
`Okay. Honestly, Dr. Youssef, I have no
`Q
`idea why you can't just answer my question.
`MR. MILLS: Objection. Argumentative.
`BY MS. WICKRAMASEKERA:
`Okay. Let's try this again. All right?
`Q
`So I'm going to ask you questions, and if you
`can't answer them, just let me know.
`A
`Okay.
`Because you're -- you're testing my
`Q
`patience a little bit. This was not meant to be
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 20 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 20
`
`that hard. Okay? So I'm --
`MR. MILLS: Go ahead and finish.
`MS. WICKRAMASEKERA: Yeah, let's stop.
`All right. So here -- no, no, let's stop.
`MR. MILLS: I need to register my
`objection. My objection is argumentative.
`BY MS. WICKRAMASEKERA:
`Q Okay. So, Dr. Youssef, I believe you
`testified -- you confirmed that you do have a
`consulting agreement with NuVasive that you
`entered into in October of 2017.
`Now, pursuant to that agreement, for
`various work that you are going to do for NuVasive
`on product development, you're going to be paid
`1.25 million over the course of five years. Am I
`correct?
`Correct.
`A
`Okay. This agreement does not cover the
`Q
`work that you were doing on the litigation or on
`the P Tec proceedings; correct?
`A
`Correct.
`Q
`You are being compensated an additional
`amount, separate and apart from your consulting
`agreement, for the work that you're doing on the
`cases. Am I correct?
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 21 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`A
`
`And that's in each of these reports,
`
`Page 21
`
`yes .
`
`Yes. Okay.
`Q
`I disclosed it in my reports.
`A
`Okay. And how much -- to date, do you
`Q
`know how much you have incurred in fees in -- in
`consulting fees for your work on this case?
`A
`I would have to guess. I don't have the
`exact number in front of me.
`Do you know approximately how much
`Q
`you've worked on the case?
`A
`Yes .
`Okay. How much is that?
`Q
`A
`Upwards of 40 to 50 hours, north of
`
`that.
`
`Okay. All right. Let's go to your
`Q
`declaration, and I'm going to ask you a few
`questions about sections in there.
`A
`Which one?
`Either one. They're all the same.
`Q
`A
`No, they're not.
`They're not?
`Q
`A
`Which patent do you want to talk about?
`Let's talk about '334 first.
`Q
`A
`Okay.
`
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`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 22 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 22
`
`So why don't we start with the 361
`Q
`proceeding.
`A
`Okay.
`All right. Dr. Youssef -- gosh, let me
`Q
`ask you some general background questions first.
`When did you first -- when did you
`perform your first spinal fusion surgery?
`A
`As a resident or as a --
`At any time.
`Q
`A
`Probably as a resident, sometime around
`
`1992 .
`
`Okay. And what -- what procedure did
`Q
`you do for that surgery?
`A
`I can't recall.
`Okay. All right. Why don't you turn to
`Q
`paragraph 32 in your declaration. In the middle
`of the paragraph, you have a sentence that starts
`"The claim uses additional language."
`Do you see that?
`A
`I do.
`Okay. In that sentence -- and I'll read
`Q
`the full sentence for the record -- you state "The
`claim uses additional language to specify that the
`longitudinal (longest) length of the implant must
`extend between the distal and proximal ends, that
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 23 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 23
`to
`
`the longitudinal (longest) aperture length has
`be generally parallel to the longitudinal
`(longest) length of the implant, and that the
`lateral widths of each of the implants and the
`aperture must extend beyond the sidewalls of the
`implant."
`
`Do you see that?
`I do.
`A
`When the claim language that you
`Q
`reference here says "distal end," what does that
`mean? Distal to what?
`A
`I think distal to the direction in which
`the implant is being placed.
`Okay. And when the claim language uses
`Q
`"proximal end," what does that mean? Proximal to
`what?
`
`Proximal to the path of insertion.
`A
`Okay. Can you list for me, Dr. Youssef,
`Q
`all of the nonbone spinal fusion implants that you
`were aware of before 2003?
`A
`Nonbone fusion?
`Yes.
`Q
`A
`There are not very many.
`Can you list any of them for me?
`Q
`A
`You know, in 2003, the commercial
`
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`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 24 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`availability of nonbone fusion implants were
`limited. I think there's one that I reference or
`I've reviewed as part of my citation here called
`Telamon.
`
`Page 24
`
`As a spine surgeon, you work with
`companies, and you get exposed to the products of
`the companies that are offered by that specific
`company. At the time in 2003, I was mostly
`working with Synthes at the time. And so they had
`mostly allograft as their offering for interbody
`fusion.
`
`They were -- I was involved in an IDE
`study where we looked at titanium implants and was
`called the SynCage. But I don't have a
`recollection -- these names are so many throughout
`the -- the history of spine surgery that they're
`all marketing names typically, and so I don't
`memorize them. I mean, every week there's a new
`name coming out, a new implant.
`Q
`Okay. I noticed that your answer said
`"commercially available implants were limited,"
`and that's not what I was asking about.
`So let me ask you --
`Sure. I'm sorry.
`Let me clarify that. Okay?
`
`A
`Q
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 25 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 25
`
`And -- and maybe I should be a little
`bit broader, because you're providing an opinion
`as a person ordinary skill in the art.
`So can you give me a list of all of the
`nonbone spinal fusion implants, whether
`commercially available or not, that a POSA --
`which I 'm going to use to mean person of ordinary
`skill in the art -- would have been aware of
`before 2003?
`MR. MILLS: Objection to form.
`THE WITNESS: Yeah, I can't give you a
`
`list.
`BY MS. WICKRAMASEKERA:
`Are you aware of any -- were POSAs aware
`Q
`of any nonbone spinal fusion implants, whether
`commercially available or not, before 2003?
`A
`Sure.
`Okay. Which ones come to mind?
`Q
`A
`I think the Brantigan cage comes to
`I think the Telamon implants come to mind.
`mind.
`I think the SynCage comes to mind.
`I think we didn't get the spelling of
`Q
`that last cage.
`A
`SynCage, I think it's -- you know, like
`I said, their marketing names are -- I think it's
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 26 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 26
`
`S-Y-N-C -A-G-E, I believe.
`And who -- who manufactured that
`Q
`A
`I think it was Synthes at the time.
`And who --
`Q
`I need
`A
`There was BAK cages, I believe.
`to just wrack my brain a little bit, since it' s
`been 17 years, and the number of implants that
`have crossed my brain since then is a lot.
`That's
`all I can remember right now.
`Okay. And in your -- in your previous
`Q
`answer, you were referring to cages that were
`actually manufactured; correct?
`A
`I believe so. I mean, I'm going on
`recollection here, and I'm not an implant -- I
`don't work -- I'm a surgeon. So speaking as a
`person of ordinary skill in the art, I'm giving
`you my best recollection in 2003.
`You were about to say something, "I'm
`Q
`not an implant" -- what did you mean to say?
`A
`Strike that.
`Okay. And the Brantigan cage that
`Q
`people of ordinary skill in the art would have
`been aware of before 2003, can you tell me
`anything more about that cage?
`A
`What would you like to know
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 27 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 27
`
`specifically?
`Q
`Well, actually, I would like to know --
`well, was there more than one Brantigan cage known
`to people of ordinary skill in the art before 2003
`that was actually manufactured?
`A
`No. I -- I would -- not that I know of.
`Q
`Okay. You weren't aware of any
`publications dated before 2003 that describe any
`actual embodiment of a Brantigan cage?
`MR. MILLS: Objection. Form.
`THE WITNESS: When you say
`"publications," are you talking about
`peer-reviewed publications?
`BY MS. WICKRAMASEKERA:
`Q
`Yeah, sure.
`A
`Okay.
`So I think there's probably --
`you know, we could look at PubMed, but I'm sure
`there's plenty of papers on implants specific to
`just interbody implants. But I'm not sure that
`there are publications on Brantigan cages that I
`can cite at this moment.
`Q
`Okay.
`I don't think I understood your
`answer there, so let me just ask you about -- you
`just testified that if -- you're sure that there
`were papers on implants specific to --
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 28 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 28
`
`Well, your --
`A
`Specific to what?
`Q
`Your question was, you weren't aware of
`A
`any embodiments -- publications that describe the
`embodiments, right?
`Yeah. Actually, yes. I would like to
`Q
`confirm whether you were aware of any publications
`describing embodiments of Brantigan cages.
`A
`Yeah, I -- not that I'm aware of.
`Were you aware of publications
`Q
`describing embodiments of BAK cages before 2003?
`A
`Yeah, I guess I'm hung up on the word
`"embodiments" that you're describing, because I --
`That's fine. Let me -- let me use a
`Q
`different word then.
`A
`Okay.
`By "embodiments," I actually just meant
`Q
`to say an actually manufactured cage, like a
`three-dimensional real thing that existed, not
`a -- not just a, you know, patent or anything like
`that.
`
`A
`Right. So that's where I was -- I was
`confused, because I would assume that embodiment
`meant --
`Q
`
`Something related to patent?
`
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 29 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 29
`
`Right. And I would also say that a
`A
`peer-reviewed publication -- because I sit on a
`lot of editorial boards for, you know,
`publications in our field.
`Right. Right.
`Q
`A
`-- would be really research-driven and
`not really described -- those typically don't get
`published in our journals. In other words --
`Research-driven?
`Q
`A
`So, in other words, publications that
`come into the journals --
`Right.
`Q
`A
`-- which is --
`Can you give me an example of what
`Q
`journal you're talking about?
`A
`Journal of Spinal Disorders or Clinical
`Orthopedics or Journal of Bone & Joint Surgery.
`Okay. Are you on --
`Q
`A
`They're all listed in my CV.
`Are you on the board of Spine?
`Q
`A
`No.
`Okay. Have you ever been?
`Q
`A
`Yes. I was a clinical reviewer of Spine
`shortly after I left residency at Dartmouth.
`James Weinstein was the editor.
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`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 30 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
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`Page 30
`Okay. So go on. You were explaining --
`Q
`A
`So my point is that those articles are
`usually submitted as part of a research effort or
`a clinical observation. They're really not, "Hey,
`look at my new implant."
`So they're not published? Those
`Q
`research articles are not published?
`A
`No, the research articles are published.
`But your question was, are you familiar with any
`published articles on the embodiments -- that
`describe the embodiments of implants.
`Okay. No, that's -- that's fair. And I
`Q
`think we already clarified that.
`A
`Yeah.
`Let me rephrase the question.
`Q
`A
`Okay.
`And that's fair.
`Q
`Are you aware of publications in
`peer-reviewed journals regarding any actual
`manufactured Brantigan cages before 2003?
`A
`I can't cite them specifically, no.
`Are you otherwise generally aware of
`Q
`
`them?
`
`I would say that my memory is -- would
`A
`probably agree that there's something on Brantigan
`
`Litigation Services | 800-330-1112
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`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 31 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 31
`
`the literature.
`cages in
`Okay.
`Q
`A
`The date I couldn't give you today.
`Okay. And let's just break down
`Q
`quickly, when you refer to Brantigan cages, can
`you tell me, do you recall what types of Brantigan
`cages?
`I don't recall specifically. I think
`A
`there were some on corpectomy.
`Okay.
`Q
`A
`Yeah, I can't recall the other ones.
`Okay. Do you recall any on -- Brantigan
`Q
`cages that are used in PLIF procedures before
`2003?
`
`I don't know that -- the date I'm
`A
`getting hung up on as well, because publications
`hit the journal a couple of years after maybe
`they're actually submitted or a year, depending on
`how popular that journal is at the time. They may
`go through multiple iterations through a
`peer-review process.
`But at the end of the day, I think
`there's perhaps some publications on PLIF cages
`that are related to Brantigans.
`Okay. Are you aware of any
`Q
`
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`
`ALPHATEC HOLDINGS, INC., ALPHATEC SPINE INC. v. NUVASIVE INC.
`IPR2019-00362, Ex. 1050, p. 32 of 82
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`JIM YOUSSEF, M.D. - 01/09/2020
`
`Page 32
`presentations done before 2003 regarding Brantigan
`anterior cages?
`MR. MILLS: Objection to form.
`THE WITNESS: Presentations where I
`actually heard them?
`BY MS. WICKRAMASEKERA:
`Q
`Well, you're providing testimony as a
`person of ordinary skill in the art; rig
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