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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` * * *
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` * * *
`
` NEW WORLD MEDICAL, INC.,
`
` Petitioner,
`
` v.
`
` MICROSURGICAL TECHNOLOGY, INC.,
`
` Patent Owner.
`
` * * *
`
` IPS2020-01573, IPR2020-01711, IPR2021-00017,
`
` IPR2021-00065, IPR2021-00066
`
` * * *
`
` Telephonic Hearing Held Friday, August 13, 2021,
`
` before the Honorable:
`
`RYAN H. FLAX, ROBERT A. POLLACK, JAMES A. TARTAL,
`
` JAMES A. WORTH, and DEVON ZASTROW NEWMAN,
`
` Administrative Patent Judges.
`
` * * *
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`www.veritext.com
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`888-391-3376
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`Veritext Legal Solutions
`
`Petitioner - New World Medical
`Ex. 1027, p. 1 of 9
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
`
`

`

`1 APPEARANCES:
`2 Todd R. Tucker, Esq.
` Calfee, Halter & Griswold, LLP
`3 The Calfee Building
` 1405 East 6th Street
`4 Cleveland, Ohio 44114
` 216.622.8231
`5 ttucker@calfee.com,
`6 On behalf of the Petitioner;
`7 Lawrence M. Sung, Ph.D., Esq.
` Teresa M. Summers, Esq.
`8 Wiley Rein, LLP
` 1776 K Street, NW
`9 Washington, D.C. 200006
` 202.719.4181
`10 lsung@wileyrein.com
` tsummers@wileyrein.com,
`
` On behalf of the Patent Owner.
`
`11
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`Page 2
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`Page 4
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`1 correct?
`2 THE NOTARY: Yes, it is.
`3 MR. TUCKER: This is Mr. Tucker,
`4 and that is correct.
`5 JUDGE FLAX: Okay. Well, when
`6 we're all finished, if you would please
`7 submit the transcript of this call, we
`8 would appreciate that.
`9 One housekeeping note, I note --
`10 and I could be wrong about this, but I
`11 believe that Miss Summers was admitted
`12 pro hac vice, but the mandatory notices for
`13 Patent Owner have not been updated to
`14 identify her as active counsel.
`15 If that's correct, if you would
`16 please update the mandatory notices.
`17 MR. SUNG: Yes, Your Honor.
`18 JUDGE FLAX: Okay, getting to the
`19 matter at hand, so it is our understanding
`20 that we are here to discuss efforts to
`21 secure the deposition of Dr. Quintana,
`22 who's a fact witness in this case. Is that
`23 correct?
`24 MR. TUCKER: This is Mr. Tucker,
`25 that is correct, Your Honor.
`
`Page 3
`1 JUDGE FLAX: Good morning, this is
`2 Judge Flax. I am joined today by Judges
`3 Pollack, Tartal, Worth and Zastrow Newman.
`4 And, we are here to discuss --
`5 one, two, three, four -- five IPRs,
`6 numbered IPR2020-01573, IPR2020-01711,
`7 IPR2020 -- I'm sorry -- 2021-00017,
`8 IPR2021-00065, and IPR2021-00066.
`9 I understand we have counsel for
`10 the parties on the call.
`11 Could you please identify
`12 yourselves?
`13 MR. TUCKER: Good morning,
`14 Your Honor, this is Todd Tucker for
`15 Petitioner, New World Medical.
`16 MR. SUNG: And good morning,
`17 Your Honor, this is Lawrence Sung of
`18 Wiley Rein on behalf of Patent Owner's
`19 Microsurgical Technology and the Regents of
`20 the University of California.
`21 And along with me today we have
`22 Teresa Summers.
`23 JUDGE FLAX: Thank you.
`24 I understand we also have a
`25 court reporter on the line; is that
`
`Page 5
`1 JUDGE FLAX: Okay. And, as of our
`2 last conference call, which was held
`3 July 15, when we left that, the parties had
`4 agreed to work together to try to secure
`5 Dr. Quintana's deposition.
`6 And, the parties have reported to
`7 the Panels on essentially a weekly basis to
`8 update us on what was happening, and have
`9 reported that they have been unable to
`10 secure Dr. Quintana's deposition. Is that
`11 also accurate?
`12 MR. SUNG: That is accurate,
`13 Your Honor.
`14 JUDGE FLAX: Okay. So, why don't
`15 you tell us what the current status is and
`16 what you are looking for today.
`17 MR. TUCKER: Your Honor, this is
`18 Mr. Tucker, for Petitioner with New
`19 Medical, thank you.
`20 The Board's characterization of
`21 the efforts are correct. There's been a
`22 couple reach outs to Dr. Quintana via
`23 email, as well as a letter. There's been
`24 no response.
`25 So, you know, cross-examination of
`
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`
`Veritext Legal Solutions
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`2 (Pages 2 - 5)
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`888-391-3376
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`Petitioner - New World Medical
`Ex. 1027, p. 2 of 9
`
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
`
`

`

`Page 6
`1 a witness who appears in an affidavit, it's
`2 routine discovery. And I think that's
`3 whether or not it's -- you know, the claims
`4 of a third-party independent witness, I
`5 don't think that's a red herring here.
`6 It's just that this was an affidavit and
`7 there's direct testimony, and so cross is
`8 part of the routine discovery.
`9 Given that Dr. Quintana's being --
`10 has been unresponsive, we can assume we're
`11 not going to get that cross-examination
`12 testimony.
`13 Petitioner's looking for guidance
`14 of what we would do next.
`15 Do we request -- you know, one
`16 thought that we had is to request
`17 authorization to file a motion to strike or
`18 otherwise remove the affidavit from the
`19 record.
`20 I went through the Trial Practice
`21 Guide, and I found Page, I believe 80, 81,
`22 a motion to strike is perhaps more
`23 appropriate where it's a procedural issue,
`24 such as this, where they can pull and stop
`25 making themselves available, as to opposed
`
`Page 8
`1 the opportunity to compel him, otherwise,
`2 to be available.
`3 We have, as the Board had
`4 mentioned, tried to work with Pat --
`5 Petitioner to request that the witness be
`6 available. And, again, we have not --
`7 neither party has heard back from him about
`8 that.
`9 We don't have an objection to
`10 Petitioner pursuing a motion to strike, and
`11 we would agree that this would allow the
`12 parties to fully brief the issue.
`13 JUDGE FLAX: Okay. Just one
`14 moment.
`15 So, I appreciate what you've had
`16 to say, Mr. Sung.
`17 One question for you, Mr. Sung,
`18 how did you procure Dr. Quintana's
`19 affidavit in the first place?
`20 MR. SUNG: We had reached out to
`21 some contacts in Dr. Quintana's former
`22 employ, I believe he's employed with the
`23 University of Barcelona, I apologize if I
`24 don't have the exact accurate name of the
`25 institution.
`
`Page 7
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`Page 9
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`1 to waiting till later where it would be
`2 something more of an evidentiary objection.
`3 But, you know, seeking permission to file
`4 that motion to strike.
`5 And also, if the Board believes
`6 it's not appropriate for a motion to
`7 strike, what would be the vehicle that the
`8 Board would like Petitioner to proceed to
`9 get this issue properly before the Board
`10 and give each side a chance to brief it?
`11 So, that's -- that's the crux that
`12 I think the Petitioner is looking for here,
`13 Your Honors, is that guidance.
`14 JUDGE FLAX: Okay. Mr. Sung,
`15 what's your position?
`16 MR. SUNG: I think that we've, on
`17 our last call, addressed the Patent Owner's
`18 concern that at this point in time, while
`19 we don't dispute that it would be an
`20 opportunity for cross-examination to, you
`21 know, help with this process, that we do
`22 not control this particular witness, and
`23 have no other relationship with the
`24 witness. And as an independent fact
`25 witness, for that purpose, we don't have
`
`1 Again, Dr. Quintana has long
`2 retired, but there were individuals at that
`3 particular location that were familiar with
`4 Dr. Quintana. And through that mechanism
`5 we were able to reach out to him.
`6 JUDGE FLAX: When you say you
`7 reached out to him, what does that mean
`8 precisely?
`9 MR. SUNG: There was an email
`10 address that was provided to us, that we
`11 believe it was Dr. Quintana's personal
`12 email, and that was, again, the email
`13 address we used to reach out with the
`14 parties' joint request for his
`15 availability.
`16 And through that email mechanism,
`17 we set up a time for a telephone
`18 conference. And he had, you know, spoken
`19 with us on that telephone conference.
`20 JUDGE FLAX: And have you used
`21 these resources to try to get in touch with
`22 Dr. Quintana, his email address, his
`23 associates in Spain, and his telephone
`24 number that you seem to have?
`25 MR. SUNG: To correct, Your Honor,
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`Veritext Legal Solutions
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`3 (Pages 6 - 9)
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`888-391-3376
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`Petitioner - New World Medical
`Ex. 1027, p. 3 of 9
`
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
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`Page 10
`1 on that point, we don't have Dr. Quintana's
`2 telephone number. He was asked to dial in
`3 to a bridge line that we provided for him.
`4 We did contact him through the
`5 email address that we had available to us.
`6 And, in addition, we sent a letter to what
`7 we understood to be his home address.
`8 JUDGE FLAX: Did he respond to the
`9 emails?
`10 MR. SUNG: He has not.
`11 JUDGE FLAX: So the only direct
`12 contact you've had is a letter sent to what
`13 you understand to be his home, and some
`14 sort of a conference call line, where you
`15 spoke with him, and everyone dialed in; is
`16 that accurate?
`17 MR. SUNG: Yes. And we have not
`18 spoken with Dr. Quintana since the signing
`19 of his affidavit.
`20 JUDGE FLAX: And how do you know
`21 that you're dealing with the actual
`22 Dr. Quintana at all?
`23 MR. SUNG: Well, I think the
`24 easiest way to address that is through our
`25 conversation during the telephone
`
`Page 12
`1 JUDGE FLAX: Well, I've looked at
`2 the exhibit that is the affidavit, and I
`3 agree with you, that there's a portion of
`4 the exhibit that appears to be notarized.
`5 But, in the sense it's -- that
`6 notarization is just about as good as
`7 anything else in the exhibit.
`8 So, if you would hold on the line
`9 for a moment, the Panels will confer.
`10 - - - -
`11 (Thereupon, a discussion was had off the
`12 record.)
`13 - - - -
`14 JUDGE FLAX: Okay. Hello,
`15 everybody, this is Judge Flax.
`16 So, based on what we've heard, the
`17 Panels in all of these cases are
`18 authorizing filing of a motion to strike by
`19 Petitioner.
`20 Mr. Tucker, what exactly do you
`21 need in terms of pages and when can you
`22 file it?
`23 MR. TUCKER: Yes. So, I'm getting
`24 our schedule up here. Would five to ten
`25 pages, I'm leaning more towards about ten,
`
`Page 11
`1 conference in terms of confirming, you
`2 know, his understanding of the article
`3 that, you know, he is the author of.
`4 JUDGE FLAX: So, am I
`5 understanding you correctly in saying that
`6 you believe you're dealing with the actual
`7 Dr. Quintana because of the person's
`8 knowledge of the article that was submitted
`9 as Exhibit 1004; is that right?
`10 MR. SUNG: I think that's part of
`11 it, Your Honor. And I think the other
`12 component was, again, having initiated the
`13 contact through the university, we had no
`14 reason to, you know, disbelieve that this
`15 individual we were speaking with was not,
`16 in fact, the author of the article.
`17 MS. SUMMERS: Your Honor, this
`18 is --
`19 Judge Flax: Okay.
`20 MS. SUMMERS: This is Teresa
`21 Summers, if I may make a point.
`22 I would love to confirm this, but
`23 my understanding is also that the affidavit
`24 was notarized. But, allow me to confirm
`25 that.
`
`Page 13
`1 because I think there's some preferential
`2 case law that we're going to want to
`3 explain, so maybe ten pages.
`4 And, we have expert depositions
`5 next week, with our first reply due
`6 August 31.
`7 I'm thinking maybe shoot to get --
`8 I could get the motion filed by the 17th or
`9 18th, we'll work over the weekend to move
`10 this along, Your Honor.
`11 Maybe the 18th might be best.
`12 JUDGE FLAX: We're talking about
`13 this month; is that correct?
`14 MR. TUCKER: Yeah, that's what I
`15 was thinking.
`16 JUDGE FLAX: Of August?
`17 MR. TUCKER: Yes, sir.
`18 JUDGE FLAX: Okay. All right.
`19 So, in view of that, what we'll do
`20 is we'll authorize seven pages, and we'll
`21 say by the 18th. I mean, I don't know that
`22 this is necessarily urgent so, you know, if
`23 you want more time than the 18th, that
`24 would probably be okay.
`25 But, if you could file it by the
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`Veritext Legal Solutions
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`888-391-3376
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`Petitioner - New World Medical
`Ex. 1027, p. 4 of 9
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`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
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`Page 14
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`Page 16
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`1 18th, that's fine.
`2 So, perhaps what we'll do is say
`3 the due date will be the 20th.
`4 MR. TUCKER: Okay.
`5 JUDGE FLAX: Be the end of that
`6 week.
`7 Of course, an opposition is
`8 authorized. And we'll say we'll make that
`9 due by the 3rd. Same page limit.
`10 Now, although we're authorizing
`11 this motion and will consider it, we would
`12 suggest that everyone continue to make some
`13 efforts to procure this deposition, as it
`14 seems like the information would be useful,
`15 or whatever information you might get from
`16 the deposition might be useful.
`17 And it sounds like you have an
`18 email address where you might be able to
`19 further try to contact Dr. Quintana. We
`20 suggest using that.
`21 Of course, it's your prerogative
`22 to do it however you want.
`23 But, it seems like if you have
`24 more avenues than just sending a joint
`25 letter, you might want to explore those
`
`1 Patent Owner, Your Honor.
`2 JUDGE FLAX: Let me make sure that
`3 none of the other Judges on the Panel have
`4 anything to say.
`5 I think they might not.
`6 Okay. Then we'll call this
`7 conference call finished, we'll go off the
`8 record, and you-all have a nice weekend.
`9 MR. TUCKER: Thank you. You as
`10 well, Your Honor.
`11 MR. SUNG: Thank you, Your Honor.
`12 - - - -
`13 (Proceedings concluded at 10:20 a.m.)
`14 - - - -
`15
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`18
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`Page 15
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`Page 17
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` C E R T I F I C A T E
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`1 2 3
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`4 5
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` I, Elizabeth A. Merritt, a Notary Public
`6 within and for the State of Ohio, do hereby
`7 certify that I attended the foregoing proceedings
`8 in its entirety, that I wrote the same in
`9 stenotypy, and that this is a true and correct
`10 transcript of my stenotype notes.
`11 IN WITNESS WHEREOF, I have hereunto set my
`12 hand and seal of office, at Cleveland, Ohio, this
`13 18th day of August, 2021.
`14
`15
`16
`17
`18
`19
`20 <%26149,Signature%>
`Elizabeth A. Merritt
`21 Notary Public, State of Ohio
`My commission expires September 9, 2024
`
`22
`23
`24
`25
`
`1 avenues.
`2 So, that being said, Mr. Tucker,
`3 are those guidelines satisfactory to you?
`4 MR. TUCKER: Those are perfect,
`5 Your Honor.
`6 JUDGE FLAX: Mr. Sung, do you
`7 understand those?
`8 MR. SUNG: We do, Your Honor,
`9 thank you.
`10 JUDGE FLAX: Okay. So what we'll
`11 do is we'll follow up with an order further
`12 commemorating what we've discussed.
`13 And we understand that you-all
`14 will file a transcript of this conference
`15 call as soon as you can. Is that correct?
`16 MR. TUCKER: Yes, that is correct.
`17 Petitioner will attend to that, Your Honor.
`18 JUDGE FLAX: Okay. As well as the
`19 updated mandatory notices from Patent
`20 Owner, that we discussed.
`21 So, is there anything else you-all
`22 would like to discuss at this time?
`23 MR. TUCKER: Not from Petitioner,
`24 Your Honor.
`25 MR. SUNG: Nothing more from
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`5 (Pages 14 - 17)
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`888-391-3376
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`Petitioner - New World Medical
`Ex. 1027, p. 5 of 9
`
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
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`[& - depositions]
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`1004 11:9
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`17th 13:8
`18th 13:9,11,21,23
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`200006 2:9
`202.719.4181 2:9
`2021 1:14 17:13
`2021-00017 3:7
`2024 17:21
`20th 14:3
`216.622.8231 2:4
`26149 17:20
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`31 13:6
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`44114 2:4
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`8:15
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`14:10
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`8:6 10:5
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`15:1
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`b
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`8:3
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`c
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`c 17:3,3
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`5:20
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`15:12
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`Page 1
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`10:25
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`4:23,25 5:21 9:25
`13:13 15:15,16
`17:9
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`7:20
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`d
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`d.c. 2:9
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`deposition 4:21
`5:5,10 14:13,16
`depositions 13:4
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`Petitioner - New World Medical
`Ex. 1027, p. 6 of 9
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
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`[devon - leaning]
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`6:9 8:18,21 9:1,4
`9:11,22 10:1,18,22
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`12:7
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`4:17,25 5:13,17
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`13:10 15:5,8,17,24
`16:1,10,11
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`leaning 12:25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`Petitioner - New World Medical
`Ex. 1027, p. 7 of 9
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
`
`

`

`[left - robert]
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`Page 3
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`left 5:3
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`robert 1:16
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`Petitioner - New World Medical
`Ex. 1027, p. 8 of 9
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
`
`

`

`Page 4
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`we've 7:16 12:16
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`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`Petitioner - New World Medical
`Ex. 1027, p. 9 of 9
`New World Medical, Inc. v. MicroSurgical Tech., Inc., IPR2020-01573
`
`