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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________________________________
`
`Page 1
`
`MEDTRONIC, INC., AND MEDTRONIC
`
`VASCULAR, INC.,
`
` Petitioners,
`
` Case IPR2020-00138
`
`vs. Patent RE 45,379
`
`TELEFLEX INNOVATIONS S.A.R.L.
`
` Patent Owner.
`
`___________________________________________________
`
` VIDEOTAPED DEPOSITION OF
`
` STEPHEN J.D. BRECKER, M.D.
`
`DATE: August 11, 2020
`
`TIME: 4:15 a.m. Central Time
`
` 11:15 a.m. Greenwich Mean Time
`
`PLACE: St. George's Hospital (* Witness Location *)
`
` Blackshaw Road, Tooting, London SW17
`
` 0QT, United Kingdom
`
`REPORTED BY: PAULA K. RICHTER, RMR, CRR, CRC
`
` (By videoconference)
`
`www.veritext.com
`
`Paradigm, A Veritext Company
`
`888-391-3376
`
`
`Page 1
`
`Teleflex Ex. 2116
`Medtronic v. Teleflex
`IPR2020-00135
`
`

`

`Page 2
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`Page 4
`
`1 INDEX
`
`2 3
`
`WITNESS: STEPHEN J.D. BRECKER, M.D. PAGE:
`4 EXAMINATION BY MR. VANDENBURGH............. 8
`
`5 6 7
`
`EXHIBITS MARKED: PAGE:
`8 EXHIBIT 2085 Figure 16D, Cross-Sectional
`9 View of Ressemann Device........ 204
`10 EXHIBIT 2086 Ressemann Figure 16D and
`11 Cross-Section A-A............... 204
`12
`13 (Original exhibits attached to original transcript;
`14 copies provided to counsel.)
`15
`16 EXHIBITS PREVIOUSLY MARKED AND REFERRED TO:
`17 EX. 1005 Declaration of Stephen Brecker,
`18 Patent No. 8,048,032........... 115
`19 EX. 1005-135 Declaration of Stephen Brecker,
`20 Patent No. RE45,776............ 70
`21 EX. 1007 U.S. Patent 7,736,355.......... 89
`22 EX. 1008 U.S. Patent 7,604,612.......... 124
`23 EX. 1010 Catheterization and
`24 Cardiovascular Interventions... 75
`25 (EXHIBITS continued on next page)
`
`1 APPEARANCES
`2 ON BEHALF OF THE PETITIONERS (By videoconference):
`
`3 4
`
` Mr. Cyrus A. Morton, Esq.
`5 Ms. Sharon Roberg-Perez, Esq.
`6 Mr. Christopher A. Pinahs, Esq.
`7 ROBINS KAPLAN, LLP
`8 800 LaSalle Avenue, Suite 2800
`9 Minneapolis, Minnesota 55401
`10 (612) 349-8500
`11 cmorton@robinskaplan.com
`12 sroberg-perez@robinskaplan.com
`13 cpinahs@robinskaplan.com
`14
`15 ON BEHALF OF THE PATENT OWNER (By videoconference):
`16
`17 Mr. J. Derek Vandenburgh, Esq.
`18 Mr. Joseph W. Winkels, Esq.
`19 CARLSON, CASPERS, VANDENBURGH & LINDQUIST
`20 225 South Sixth Street, Suite 4200
`21 Minneapolis, Minnesota 55402
`22 (612) 436-9600
`23 dvandenburgh@carlsoncaspers.com
`24 jwinkels@carlsoncaspers.com
`25 (APPEARANCES continued on next page)
`
`Page 3
`
`Page 5
`
`1 (EXHIBITS continued)
`2 EX. 1025 U.S. Patent Application
`3 2005/0015073 A1................ 218
`4 EX. 1050 U.S. Patent 5,980,486.......... 194
`
`56789
`
`10
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`13
`14
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`20
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`22
`23
`24
`25
`
`1 APPEARANCES (Continued)
`
`23
`
`ALSO PRESENT:
`4 Dave Young - Videographer
`5 Greg Smock
`6 Peter Keith
`7 Howard Cyr
`8 John Graham
`9 Peter Kohlhepp
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
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`www.veritext.com
`
`Paradigm, A Veritext Company
`
`2 (Pages 2 - 5)
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`Page 2
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`Teleflex Ex. 2116
`Medtronic v. Teleflex
`IPR2020-00135
`
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`Page 8
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`1 P R O C E E D I N G S
`2 THE VIDEOGRAPHER: Good morning. We
`3 are going on the record at 4:15 a.m. on August
`4 11th, 2020.
`5 Please note that the microphones are
`6 sensitive, may pick up whispering, private
`7 conversations, and cellular interference. Please
`8 turn off all cellphones and place them away from
`9 the microphones, as they can cause deposition
`10 interference. Audio and video recording will
`11 continue to take place unless all parties agree to
`12 go off the record.
`13 This is Media Unit 1 of the
`14 video-recorded deposition of Dr. Stephen Brecker,
`15 taken by counsel for the defendants, in the matter
`16 of Medtronic, Incorporated, et al., versus
`17 Teleflex Innovations, S.A.R.L., filed in the
`18 United States Patent and Trademark Office before
`19 the Patent Trial Appeal Board; case number
`20 IPR2020-00138.
`21 My name is Dave Young. I'm the
`22 videographer. Our court reporter is Paula
`23 Richter. We're both representing Veritext Legal
`24 Solutions.
`25 I'm not related to any -- I'm not
`
`1 STEPHEN J.D. BRECKER, M.D.,
`2 duly sworn, was examined and testified as follows:
`3 EXAMINATION
`4 BY MR. VANDENBURGH:
`5 Q. Good morning again, Dr. Brecker.
`6 A. Good morning.
`7 Q. I'll start with the usual question. Have you
`8 had your deposition taken before?
`9 A. I have had a deposition taken before.
`10 Q. Have you had your deposition taken in
`11 connection with -- with United States -- with a
`12 United States patent case?
`13 A. I have had a deposition taken before in a
`14 United States -- in a United States patent case.
`15 Q. Good. Okay. So I just -- I want to know
`16 that -- if you understand the basics of how this
`17 proceeding works, I'll avoid the -- the long
`18 introduction, but a couple of things that I will
`19 note is, we are on video today, which makes it a
`20 little bit different. It makes it, I think, all
`21 the more important that we try not to talk over
`22 each other, and it makes it all the more important
`23 that you give audible answers to the questions.
`24 Obviously, no -- no head nodding.
`25 So does that make sense?
`
`Page 7
`
`Page 9
`
`1 related to any party in this action, nor am I
`2 financially interested in the outcome.
`3 Counsel will now state their
`4 appearances and affiliations for the record. If
`5 there are any objections to this proceeding,
`6 please state them at the time of your appearance,
`7 beginning with the noticing attorney.
`8 MR. VANDENBURGH: This is Derek
`9 Vandenburgh, appearing -- of the Carlson Caspers
`10 firm, appearing today on behalf of Teleflex.
`11 MR. MORTON: This is Cyrus Morton
`12 from Robins Kaplan, appearing on behalf of
`13 Medtronic. With me also for the record is Sharon
`14 Roberg-Perez and Chris Pinahs, also of Robins
`15 Kaplan.
`16 MR. VANDENBURGH: I -- I don't -- I
`17 don't think it's a big deal, but I think when
`18 we've done a previous deposition, we basically
`19 said we would enter formal appearances only for
`20 the people on -- on video, but I do have some
`21 other lawyers from our firm and some other people
`22 in the -- on the video as well.
`23 THE VIDEOGRAPHER: All right. Will
`24 the court reporter please swear in the witness,
`25 and then we can proceed.
`
`1 A. Yes. I understand.
`2 Q. Good, good. And so, Dr. Brecker, who is your
`3 current employer?
`4 A. So my current employer is St. George's
`5 University Hospital's NHS Foundation Trust.
`6 Q. Okay. And is that different from
`7 St. George's, the -- the hospital there? Is that
`8 some subgroup within the -- the larger hospital
`9 group?
`10 A. The foundation trust runs several hospitals.
`11 St. George's Hospital is the largest University
`12 Hospital in the group. There are a couple of
`13 other smaller hospitals, and it also runs some
`14 community services. But the employer is what we
`15 call an NHS, National Health Service Foundation
`16 Trust.
`17 Q. Okay. And you've been with some entity
`18 within St. George's since 1996; is that correct?
`19 A. That's correct, yes.
`20 Q. You've been retained in this case to serve as
`21 an expert witness by Medtronic; is that correct?
`22 A. Yes, that's correct.
`23 Q. Okay. What did you do to prepare for your
`24 deposition today?
`25 A. So just to go back to your previous question,
`
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`Medtronic v. Teleflex
`IPR2020-00135
`
`

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`Page 12
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`1 the -- the approach for my acting as an expert
`2 witness came from Robins Kaplan, not Medtronic.
`3 But I understand Medtronic are the party, but I
`4 haven't had any direct contact with Medtronic
`5 about this case.
`6 So to go to your next question, in
`7 terms of preparation, I'm sure many people on this
`8 video will -- will appreciate this is an extremely
`9 complicated case with a lot of material, a lot of
`10 patents and a number of declarations. So I was
`11 first instructed, obviously, over a year ago and
`12 worked in terms of writing the declarations,
`13 reviewing the patents, reviewing the prior art.
`14 With respect to this particular
`15 deposition -- was your question how did I prepare
`16 for today specifically or --
`17 Q. I was going to -- I'm going to go back to
`18 what you did to prepare earlier in the case, but I
`19 was focusing my -- my previous questions
`20 particularly on this deposition.
`21 A. Yes, understood. So I've had a number of
`22 discussions with the team at Robins Kaplan, going
`23 through the declarations and discussions through a
`24 Zoom conferencing facility. So we had discussions
`25 last week and -- just one day last week and then
`
`1 have the decisions from the patents board, the
`2 PTAB. I have some of those decisions. I've seen
`3 the declarations and deposition of Mr. Keith.
`4 I -- there may well be other documents.
`5 As I say, there -- there are so many
`6 I wouldn't want -- I would want to obviously just
`7 check what I have seen. But I have seen some
`8 documents that I haven't mentioned, but I -- I
`9 can't -- I can't give it to you just directly now.
`10 Q. Right, right. What -- what I'm -- what I'm
`11 really trying to get at is whether you have gotten
`12 familiarity with the -- the arguments and
`13 positions that Teleflex has taken in response
`14 to --
`15 A. Yes.
`16 Q. -- your declaration and -- and your opinions
`17 in this case. And so, for example, have you
`18 seen -- they're called patent owner preliminary
`19 responses that were filed by Teleflex. Have you
`20 seen any of those?
`21 A. I have seen some of those. I wouldn't want
`22 to say I've seen and studied all of them. I've
`23 studied some of them and parts of them, and I'm
`24 aware of the arguments that have been raised in
`25 response to some of the things that -- some of my
`
`Page 11
`
`Page 13
`
`1 an hour or two over the weekend, on Sunday
`2 afternoon, and then yesterday some further
`3 discussions.
`4 Q. And who -- who in particular were those
`5 discussions with?
`6 A. So with those who are on this video this
`7 morning. So Mr. Morton, Mr. Pinahs, and Sherry
`8 Roberg-Perez.
`9 Q. Okay. And what materials did you review
`10 specifically in connection with preparing for your
`11 deposition?
`12 A. So the materials have focused on my
`13 declarations and -- and the -- the family of
`14 patents and the -- the prior art, pretty much the
`15 documents that I discussed before we went on the
`16 record that have been printed out. So the six
`17 declarations that -- the itemized prior art and
`18 the -- the family of root patents.
`19 Q. Have you at all to date reviewed any of the
`20 materials that Teleflex submitted in response to
`21 these IPRs filed by Medtronic?
`22 A. So, obviously, there -- there are literally
`23 hundreds of documents in this, and I would have --
`24 you'd -- you'd have to take me to a particular
`25 document to ask if I've seen it. I mean, I do
`
`1 opinions. So I have -- I have seen those.
`2 Q. And -- and you mentioned declarations by
`3 Mr. Keith. So you've also seen specifically at
`4 least some of them that -- that were submitted
`5 in -- in this matter and in response to the
`6 declaration that you've seen?
`7 A. Yes. Again, I -- I wouldn't want to try to
`8 remember the number or exactly -- you know, I -- I
`9 know that there were two that I've seen recently,
`10 that I've -- I've reviewed, but over the course of
`11 this case, I -- I would -- I -- I would have the
`12 declarations, or some of them. But I -- I don't
`13 think I've seen -- I have not seen multiple --
`14 many declarations. I know that I've seen at least
`15 two from Mr. Keith.
`16 Q. Okay. And just to confirm, I think you
`17 mentioned you've seen at least some of the
`18 institution decisions issued by the U.S. Patent
`19 Office?
`20 A. I have seen some of those, yes.
`21 Q. Okay. Roughly how much time have you spent
`22 on this case in the last two months?
`23 A. Oh, crumbs. It's -- I mean, it's a number of
`24 hours -- it's a lot of hours. I -- I couldn't
`25 give you the number just sitting here now. I
`
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`
`Paradigm, A Veritext Company
`
`4 (Pages 10 - 13)
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`Page 4
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`Medtronic v. Teleflex
`IPR2020-00135
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`Page 16
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`1 hadn't prepared that number, but it's -- I mean,
`2 as of today, from going back over the past two
`3 months, I mean, it's at least 30 hours. It must
`4 be. It may be even more. I -- maybe 40 hours.
`5 It's -- it's a few tens of hours.
`6 Q. Okay. It's -- it's not 400 hours. "A lot"
`7 is a different to different people. It's --
`8 it's --
`9 A. Oh, no.
`10 Q. Is it 40 or 400?
`11 A. No, it's not 400 hours. And, you know, I'm
`12 in full-time clinical practice at the moment, and
`13 I'm sure you can appreciate has its own demands
`14 right now.
`15 Q. Yeah. Right. So then let's go back and go
`16 back to when you were initially retained for this
`17 action.
`18 First of all, when did -- when did
`19 that occur?
`20 A. That would have been in 2019, probably in the
`21 first half of 2019, towards the summer. I -- I
`22 haven't got -- I -- I could find the exact date,
`23 but I haven't got it on -- in my brain right
`24 sitting here, but I could -- I could get it quite
`25 quickly if it's required.
`
`Page 15
`1 Q. You know, I -- I might be interested in that
`2 date, so perhaps at our -- at our first break, if
`3 you have that handy, that would be great.
`4 A. Can I make -- can I make a note of that? Is
`5 that permitted?
`6 Q. Oh, please do. Please do.
`7 A. Just -- and then I will -- I will look up
`8 when I first -- I mean, I'm guessing at some point
`9 in the second quarter of 2019, so like between
`10 March and June 2019. But I -- maybe June 2019.
`11 But I'll check.
`12 Q. Okay.
`13 A. There's quite a bit of background noise just
`14 there. I don't know if --
`15 Q. Yeah, it's not -- I don't think it's my end.
`16 Everybody looks muted except the four of us.
`17 Let's keep charging ahead.
`18 A. Okay.
`19 Q. Who was -- who reached out to you initially
`20 for this case?
`21 A. It would have been the team from Robins
`22 Kaplan. It could have been Ms. Roberg --
`23 Ms. Roberg-Perez, but I -- I couldn't say with a
`24 hundred percent certainty. I -- I think the
`25 initial approach was via an e-mail, and I -- I
`
`1 can't recall. I -- I think it was -- I -- I do
`2 think it was direct from Robins Kaplan. I'm
`3 pretty sure about that.
`4 Q. And -- and what were you hired by them to do?
`5 A. So I -- I was asked to give advice on the
`6 series of patents to do with extension catheters,
`7 and I was asked what my clinical practice was,
`8 particularly in the early to mid 2000s. I was a
`9 coronary interventionist at that time, doing very
`10 high-volume procedures in a university teaching
`11 hospital setting, and so they asked me to review a
`12 number of patents and consider acting as an expert
`13 witness to give -- to give advice and -- and --
`14 and appear in this action.
`15 Q. Were you hired to be an advocate for
`16 Medtronic's position in this case?
`17 A. Not at all. I was hired to give advice
`18 regarding the state of the art at the time, the
`19 state of clinical practice of interventional
`20 cardiology during the relevant time periods and to
`21 discuss the issues that arose from both the
`22 patents and the prior art that I -- I would have
`23 been aware of at the time as a clinical
`24 interventional cardiologist.
`25 The issue of being -- being
`
`Page 17
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`1 Medtronic is -- it was never really -- never
`2 really mentioned, not -- not -- I mean, I was
`3 aware that Medtronic obviously were the -- the end
`4 client in -- in this and they were a producer of
`5 medical devices. I'm obviously very well aware of
`6 Medtronic, and I've had my own invention that
`7 Medtronic have acquired from the hospital that I
`8 work for. So I'm -- I'm very -- and I use
`9 Medtronic equipment, amongst many other companies.
`10 So, you know, we work with medical device
`11 companies.
`12 So the answer to your question about
`13 acting as an advocate, not at all. That's not the
`14 role -- that's not the role of how an expert
`15 witness works. I've -- I've grown up in the UK
`16 system, where it's drilled into you that the
`17 expert witness is independent of the party who
`18 instructs them and that their responsibility lies
`19 with the court or the -- in this case the patent
`20 board, to advise them, and not with the party that
`21 instructs you. I understand the system is -- has
`22 different nuances in the U.S. But absolutely not.
`23 The issue that this was Medtronic is not relevant
`24 to me.
`25 Q. Okay. I -- I -- I appreciate that. And
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`IPR2020-00135
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`Page 18
`1 we -- we have limited time today. I -- this comes
`2 up sometimes in depositions. I -- I certainly
`3 want you to give a complete answer, but I -- I
`4 also would appreciate it if you'd listen to my
`5 question, and you -- you can just answer my
`6 question. You don't need to -- to provide quite
`7 so much surrounding detail.
`8 So -- but to go back then to my
`9 question, you -- you view your role here as -- as
`10 a neutral expert.
`11 A. Well, I personally see myself as a neutral --
`12 a neutral expert advising one party. But if you
`13 say "neutral" -- I mean, I have opinions in this
`14 case, and those opinions may lie predominantly on
`15 one side of an argument. But my -- my position is
`16 as an interventional cardiologist. That's how I
`17 see myself.
`18 Q. So -- so if --
`19 A. Not as an -- not as an -- not as an advocate.
`20 Q. So -- so as I ask you questions today, you
`21 won't hesitate to kind of directly answer my
`22 questions even if you think that the answer to
`23 that question might actually be harmful to
`24 Medtronic's position?
`25 A. I will answer the questions as honestly as I
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`Page 20
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`1 we've already talked about.
`2 Q. And -- and just because I -- I want the
`3 record to be clear, so you were provided, early on
`4 in the process by the Robins Kaplan firm, at least
`5 the -- the six root patents that you referred to
`6 earlier; is that correct?
`7 A. Yeah. I -- yes. I can't recall the order
`8 that I got documents, when I got them. They may
`9 have sent one patent for me to review and then
`10 another. They may have sent me one piece of prior
`11 art to read and discuss prior to reading a certain
`12 root patent.
`13 So at the moment I don't have a
`14 timeline or -- or date of when I received a
`15 particular document, but from the beginning, I was
`16 aware that this was to do with extension
`17 catheters.
`18 Q. In addition to the root patents, you
`19 mentioned earlier a list of prior art, and I'm
`20 going to -- I'm going to list them all off. But
`21 my question is: Were all of these references
`22 provided to you by the Robins firm? So
`23 specifically the Takahashi reference, the Kataishi
`24 reference, Enger, Berg, Kontos, Itou, and
`25 Ressemann. All of those were provided to you by
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`Page 19
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`Page 21
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`1 am able, and -- and I will answer them as an
`2 interventional cardiologist. I understand that
`3 it's not my responsibility to harm one side or the
`4 other. My -- my responsibility is to -- to -- to
`5 give honest answers, to give opinions as a
`6 clinical interventional cardiologist.
`7 There are certain areas that I have
`8 not considered that I'm aware have come up in some
`9 of the arguments, and -- and my position will be
`10 that I haven't considered those areas if they come
`11 up. But apart from that, I'm happy to answer any
`12 questions.
`13 Q. All right. Let's go back to your initial
`14 retention in this case. It sounds like early in
`15 the process, you were given some materials to
`16 review; is that correct?
`17 A. Yes, that would be correct.
`18 Q. What materials were you given to review?
`19 A. So I cannot -- I can't recall the order in
`20 which I received materials, but I would have
`21 received the materials that I've -- that I've
`22 talked about, and -- and that's the -- the root
`23 patents. I would have received some prior art
`24 documents to review, some of which I was aware of
`25 in any event. And those are -- those are the ones
`
`1 the Robins firm?
`2 A. Yes. And I -- I -- but as I say, I would
`3 have been aware of at least a couple of them, I
`4 mean, if not more. But I -- I don't recall
`5 whether they were sent as a bunch or individually
`6 or -- I don't think they were sent as a job lot.
`7 Q. Did you identify any prior art prior to it
`8 being either identified or provided to you by the
`9 Robins firm?
`10 A. I probably did because of the discussions
`11 that we were having, but I can't -- I can't recall
`12 now what I --
`13 Q. And so -- so you don't recall specifically,
`14 with any of the -- the seven references I just
`15 mentioned, that you were the one to actually
`16 suggest that they might have some relevance to
`17 this case rather than the -- the Robins firm?
`18 A. I can't -- I -- honestly, I can't remember.
`19 I mean, as an interventional cardiologist, I was
`20 intimately aware -- I was very well aware of the
`21 mother-and-child catheter setup described in
`22 Takahashi. Whether I provided that or whether it
`23 was provided, I don't recall.
`24 Q. Did -- did you do any of your sort of own
`25 research in -- to identify prior art in connection
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`1 with your work in this case?
`2 A. I will have done -- I mean, I will have
`3 looked. I wouldn't have done formal patent
`4 searches, but I certainly would have looked at the
`5 contemporary book -- textbooks and looked at the
`6 references in -- in the patents that we've
`7 discussed and things like that.
`8 Q. Okay. And -- and just to be clear, you used
`9 that phrase "would have looked." I'm asking what
`10 you actually, what -- not what you might have
`11 done.
`12 A. Yeah.
`13 Q. You -- you actually did review --
`14 A. Oh, yes.
`15 Q. -- materials that were identified in the
`16 patents that you were given; is that correct?
`17 A. I -- well, when I say I would have done, I
`18 can recall doing it, but I can't give you the
`19 exact chapter, verse and document. That's --
`20 that's what I would have done.
`21 Q. Okay.
`22 A. I would have read around it myself. But I
`23 can't -- I can't say to you, I found this specific
`24 document on this date and I -- I provided that to
`25 Robins Kaplan. I can't give that level of detail.
`
`Page 23
`1 Q. I guess what I'm -- let me ask this question.
`2 As you sit here today, can you recall giving any
`3 documents to the Robins Kaplan firm?
`4 A. Sorry. There's a loud noise there again.
`5 You know, sitting here right now,
`6 I -- I cannot recall if it is something that I
`7 would -- that I -- I -- normally that I do. I
`8 can't recall. Sitting here now, I cannot recall
`9 supplying a specific document to Robins Kaplan.
`10 Q. Did you speak with anybody else in connection
`11 with preparing your reports in this case, other
`12 than people at the Robins -- Robins Kaplan?
`13 A. I did not.
`14 Q. Okay. In particular, we've also received
`15 declarations from Mr. Hillstead. Do you know that
`16 name?
`17 A. I do.
`18 Q. Have you spoken with Mr. Hillstead?
`19 A. I have not had a direct -- at least I cannot
`20 recall having a direct discussion with him about
`21 this case. I've read his reports and I've read
`22 his opinions. I don't recall. That's not to say
`23 it couldn't have happened, but I don't recall
`24 having a conference or telephone conversation with
`25 him.
`
`1 But in the past, prior to this --
`2 prior to 2019, I have met him, and I know -- I
`3 know of him, and we've -- we know each other. But
`4 I don't -- I have not had a direct one-to-one or
`5 even supervised discussion as far as I'm aware
`6 sitting here.
`7 Q. And -- and who is Mr. Hillstead?
`8 A. He's an engineer. He's a biomedical
`9 engineer.
`10 Q. Where is he from?
`11 A. I don't -- I mean, somewhere in the U.S. I
`12 don't know his exact address. I don't recall his
`13 exact address.
`14 Q. Okay. Who -- who does he work for?
`15 A. I think he has his own -- he's like a --
`16 somewhat of an entrepreneur and has his own
`17 company.
`18 Q. And how do you know him? You mentioned that
`19 you knew him prior to this matter. In what
`20 context do you know him?
`21 A. So he -- he was an expert witness in a case
`22 that I was involved in, but I would have to -- I'd
`23 have to -- I think it was in one of the valve
`24 cases that I had been involved in.
`25 Q. Okay. And I've seen --
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`1 A. And I would have had --
`2 Q. Which company -- what would -- which company
`3 were you working on behalf of in those valve
`4 cases?
`5 A. So I was instructed on behalf of Boston
`6 Scientific in that case.
`7 Q. And was Mr. Hillstead also retained on behalf
`8 of Boston Scientific?
`9 A. I -- I -- I don't want to get this wrong
`10 because obviously there's -- there's multiple --
`11 but I think so. Again, I didn't review exactly
`12 his -- which cases he's been involved in, but I
`13 think it probably could well have been the Boston
`14 Scientific case a couple of years ago.
`15 Q. Go back to something --
`16 A. But I -- I --
`17 Q. Yeah, go ahead.
`18 A. Sorry. I -- I -- I haven't -- I mean, you'd
`19 asked me what I'd prepared for today. I haven't
`20 prepared all of that knowledge at my fingertips.
`21 So, again, it's something I could look up if
`22 you -- if you wanted to know definitely.
`23 Q. I think -- I think that one is -- is okay for
`24 now.
`25 I wanted to go back. You mentioned
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`1 an invention that you were involved in developing
`2 that was ultimately sold to Medtronic. So let me
`3 ask about that a little bit.
`4 First -- first of all, what was the
`5 product?
`6 A. It was the guidewire.
`7 Q. Okay. Were you the sole developer of that
`8 product or did you do it in conjunction with --
`9 with other people?
`10 I may be having connection problems
`11 here.
`12 A. So I was the -- no, I'm -- I got a very loud
`13 noise then, so I don't know what that was.
`14 So I was the -- I was the inventor,
`15 and I met with engineers to design the wire. It's
`16 a guidewire that is specifically for a
`17 transcatheter aortic valve implantation.
`18 Q. Is that noise, Dr. Brecker, or is that
`19 somewhere --
`20 A. It's not -- well, I'm -- I'm hearing it.
`21 Q. Okay.
`22 A. And I -- I hate to say it, but I wonder if
`23 Mr. Morton tries -- I -- it may be -- it -- it --
`24 it's a little bit similar to a noise I had on a
`25 Zoom call a couple of days ago. I hate to say it,
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`Page 28
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`1 implantation first started, one of the problems
`2 that developed quite quickly was ventricular
`3 perforation. So guidewires that existed at that
`4 time for delivering items into the circulation
`5 were -- were pretty much designed for the core
`6 that terminated before the tip, and then from the
`7 end of the core until the end of the wire was just
`8 a coil. And the guidewire could kink at that
`9 point and would act as a spear. And if there were
`10 significant forces placed on that guidewire, that
`11 spear point would go through the ventricle.
`12 And that happened to us. It
`13 happened to everyone on their learning curve. And
`14 it -- I know you said to me before, just give
`15 short answers, but you've asked me about a
`16 passion, so here goes.
`17 So it struck me that this was a
`18 plane crash. This was a systems failure of a
`19 piece of medical equipment. And patient safety is
`20 always the first thing that certainly I have put
`21 at front and center of everything I've done since
`22 day one. And so it struck me that using a
`23 guidewire off the shelf that wasn't designed for
`24 the requirements that were needed was very
`25 important. So I felt that if you took the taper
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`Page 29
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`1 but --
`2 MR. VANDENBURGH: Cy, I take it it's
`3 not noise at your office.
`4 MR. MORTON: I don't hear anything.
`5 It's totally quiet. I mean, I could try muting to
`6 see if it's my computer, but I can't stay on mute
`7 the whole deposition.
`8 THE WITNESS: No, no, no, no. Is
`9 anyone -- is anyone else hearing it?
`10 MR. VANDENBURGH: I am.
`11 THE VIDEOGRAPHER: I'm hearing it.
`12 MR. VANDENBURGH: Paula, are you
`13 hearing it? Yeah.
`14 THE COURT REPORTER: Yes.
`15 MR. VANDENBURGH: All right.
`16 Thanks, Cy. Let's -- let's try and mute. And
`17 obviously -- I was told this, in case you don't
`18 know it, if you -- if you want to come off of mute
`19 very quickly, just press your space bar, and it
`20 will temporarily unmute you.
`21 BY MR. VANDENBURGH:
`22 Q. All right. Where were we? So this -- this
`23 guidewire you developed, how is it different than
`24 other guidewires that you were aware of?
`25 A. Well, when transcatheter aortic valve
`
`1 all the way to the very end of the guidewire, it
`2 wouldn't have that transition point where it would
`3 kink.
`4 I'm -- I'm sure we'll talk about
`5 later on today that things can kink at points of
`6 weakness or where -- where properties change,
`7 particularly when they're in the circulation and
`8 in an artery. And that's very much what happened
`9 with guide -- this guidewire.
`10 So we did a tapered core all the way
`11 to the distal tip, and we put on -- onto it a
`12 resilient pre-shaped curve. Typically, whenever
`13 you shape a guidewire yourself, the moment you put
`14 it into a catheter, it will straighten out and
`15 lose that pre-shape curve.
`16 So we manufactured a pre-shape curve
`17 onto the wire, and that meant that it would sit
`18 very nicely in the ventricle. The curve wouldn't
`19 unravel; it wouldn't produce a spear, and patients
`20 would be safer. That's it. That was how it
`21 differed.
`22 And the U.S. patent and the European
`23 patent were granted. And there were other --
`24 Boston Scientific actually came up with their own
`25 wire. They also had tried -- they -- they -- at
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`1 the time that we were trying to get someone to be
`2 interested in our wire, they were interested, but
`3 Medtronic just happened to be the first to take
`4 it.
`5 Q. Okay. I've got to, I think, what were going
`6 to be my next several questions. One is that you
`7 did apply for a patent on this guidewire; is that
`8 correct?
`9 A. Yes.
`10 Q. And you obtained patents in at least the
`11 United States and in Europe; is that correct?
`12 A. That's correct.
`13 Q. Who were the -- who was the owner of those
`14 patents?
`15 A. So now Medtronic.
`16 Q. How about at -- at the -- at the time they
`17 were applied for, were they still owned by you
`18 personally?
`19 A. No. So the way it works in the UK is, as a
`20 doctor or indeed anyone in healthcare working for
`21 the National Health Service, any intellectual
`22 property that is developed within the hospital you
`23 work in is owned by the hospital. And the -- the
`24 development was taken forward by a National Health
`25 Service technology transfer. I guess they were a
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`1 Hospital?
`2 A. So I can't remember the exact percentages.
`3 It could have been 60/40. It could have been
`4 70/30. I don't -- I don't remember.
`5 It -- it -- I suspect it wasn't
`6 50/50. I suspect it was weighted towards the
`7 hospital, but I -- I can't give you the exact
`8 figures.
`9 Q. How much did Medtronic pay for the
`10 technology?
`11 A. So I think that's not -- it -- it's not -- it
`12 wasn't -- this is a wire. It's not a valve or
`13 a -- it -- it's not like massive. But I don