UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
`______________________________
`Blue Belt Technologies, Inc.,
`Petitioner,
`
`v.
`All-of-Innovation GmbH,
`Patent Owner.
`______________________________
`
`Case IPR2015-00765
`Patent 7,346,417
`
`DEPOSITION of ROBERT D. HOWE, Ph.D.
`Cambridge, Massachusetts
`January 19, 2016
`
`Reported by:
`Dana Welch, CSR, RPR, CRR, CRC
`Job #101986
`
`Blue Belt Technologies, Inc.
`Exhibit 1013
`IPR2015-00765
`Blue Belt Technologies, Inc. v. All-of-
`Innovation GmbH.
`
`TSG Reporting - Worldwide 877-702-9580
`
`1
`2
`
`3 4 5
`
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
`______________________________
`Blue Belt Technologies, Inc.,
`Petitioner,
`
`v.
`All-of-Innovation GmbH,
`Patent Owner.
`______________________________
`
`Case IPR2015-00765
`Patent 7,346,417
`
`DEPOSITION of ROBERT D. HOWE, Ph.D.
`Cambridge, Massachusetts
`January 19, 2016
`
`Reported by:
`Dana Welch, CSR, RPR, CRR, CRC
`Job #101986
`
`Blue Belt Technologies, Inc.
`Exhibit 1013
`IPR2015-00765
`Blue Belt Technologies, Inc. v. All-of-
`Innovation GmbH.
`
`TSG Reporting - Worldwide 877-702-9580
`
`1
`2
`
`3 4 5
`
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Page 2
`
` January 19, 2016
` 8:58 a.m.
`
` Deposition of ROBERT D. HOWE, Ph.D., held
`at the offices of Regus, 125 Cambridge Park Drive,
`Suite 301, Cambridge, Massachusetts, before
`Dana Welch, Certified Shorthand Reporter,
`Registered Professional Reporter, Certified
`Realtime Reporter, and Notary Public of the
`Commonwealth of Massachusetts.
`
`TSG Reporting - Worldwide 877-702-9580
`
`1 2 3 4 5
`
`6
`
`7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Page 3
`
`APPEARANCES:
`For MAKO Surgical Corp.:
`MORRISON & FOERSTER
`BY: MATTHEW KREEGER, ESQ.
`425 Market Street
`San Francisco, CA 94105
`
`For Blue Belt Technologies, Inc.:
`GIBSON, DUNN & CRUTCHER
`BY: BRIAN BUROKER, ESQ.
`1050 Connecticut Avenue, N.W.
`Washington D.C. 20036
`
`TSG Reporting - Worldwide 877-702-9580
`
`1
`2
`3
`4
`5
`6
`
`7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Page 4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` P R O C E E D I N G S
` ROBERT D. HOWE, Ph.D., sworn
` EXAMINATION
`BY MR. BUROKER:
` Q. Good morning, Dr. Howe.
` Could you please state your full name for
` the record.
` A. Good morning.
` I'm Robert Donald Howe.
` Q. And you currently reside where?
` A. 57 Grozier Road, Cambridge, Massachusetts.
` Q. And you are currently a professor at
` Harvard University; is that correct?
` A. That's correct.
` Q. What's your business address at Harvard?
` A. It's 323 Pierce Hall, P-i-e-r-c-e, in the
` Harvard School of Engineering and Applied Sciences.
` Q. Now, you were deposed several months ago
` in connection with another IPR involving similar
` parties; is that correct?
` A. That's right.
` Q. And at that time you testified that your
` hourly rate for a deposition in support was $395
` per hour; is that still correct?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` A. That's right.
` Q. And in addition to the deposition several
` months ago, you had testified about several other
` depositions that you have given previous to that
` one. Have you had any depositions between the last
` time we met and today?
` A. No, I have not.
` Q. How many hours have you worked in
` connection with IPR 2015-765, which the subject of
` this proceeding?
` A. I don't know.
` Q. More than ten?
` A. Certainly more than ten.
` Q. Do you know if it was more than 50?
` A. I don't.
` Q. So somewhere between 10 and 50?
` A. I don't know.
` Q. Okay. And did you do anything to prepare
` to testify today?
` A. I did.
` Q. Did you meet with your counsel yesterday?
` A. I did.
` Q. For how long?
` A. It was five or six hours, I believe.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. And that meeting was with Mr. Kreeger; is
` that correct?
` A. That's correct.
` Q. Was anybody else present?
` A. No, they weren't.
` Q. Did you talk to anybody else on the
` telephone during that preparation session?
` A. No, we did not.
` Q. Do you know Dr. Lüth, who is the inventor
` of the '417 patent?
` A. I believe we may have met, but I don't
` recall conversations with him.
` Q. Prior to your involvement in this case,
` did you have any business involvement with
` Dr. Lüth?
` A. No.
` Q. Did you have any business involvement with
` LB Medical GmbH?
` A. No.
` Q. And have you done any work or had any
` other business involvement with All-of-Innovation,
` which is the patent owner in this matter?
` A. No, I have not.
` Q. You've got your declaration from this
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` matter which is Exhibit 2023; is that correct?
` A. That's correct.
` Q. You also have a copy of the institution
` decision. Feel free to refer to that if you need
` to.
` A. Thank you.
` Q. Like to start out questioning about
` paragraph 23, which is on page 7.
` MR. KREEGER: Do you have a copy?
` Great, thank you.
` Is there a question pending?
` MR. BUROKER: He was reading the paragraph
` so I was waiting for him to finish.
` Q. So paragraph 23, the first sentence talks
` about the time of the priority of the '417 patent
` which is March 2001; is that correct?
` A. That's correct.
` Q. Okay. And it says, "the accepted way to
` get precise cutting in hard issues surgery was with
` mechanical support of various sorts."
` A. (Nodding head up and down.)
` Q. What do you mean by the accepted way?
` A. The most commonly used technique and the
` technique which one of ordinary skill in the art
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` would have viewed as to go-to method, the usual way
` that these things were done.
` Q. When you say the accepted way, is that
` from the perspective of surgeons practicing in the
` field or engineers designing tools for surgeons or
` both or neither?
` A. Both.
` Q. And what do you mean by hard tissues?
` A. Okay. So this makes the distinction
` between tissues which largely don't deform as
` forces are applied to them: So bones, teeth, that
` sort of thing, probably cartilage as well, although
` that can deform to some extent, but it generally
` retains its shape, for instance, as it's cut.
` And that's in contrast to soft tissue
` surgery, where tissues can deform a great deal. So
` this is the internal organs of the abdomen, the
` liver, the bowel, the stomach, muscles and so on.
` Q. You did not say that it was the only way
` in March of 2001; is that correct?
` A. That's correct.
` Q. Were you aware in March of 2001 of
` procedures that did not involve mechanical support
` for use in hard tissues surgery?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` A. Certainly, yes.
` Q. And what were those?
` A. Well, for instance, amputations, where
` you're simply removing a limb, the end of a limb,
` requires cutting through hard tissue, precision is
` not required, and so in that case, the use of
` mechanical jigs isn't necessarily needed.
` Q. So this sentence talks about the accepted
` way for precise cutting. Were you aware in March
` of 2001 of a way for precise cutting in hard
` tissues that did not involve mechanical support of
` various sorts?
` A. Let's see. So by mechanical support, let
` me just -- (perusing document).
` So the next paragraph for instance, just
` to be clear, I'm including surgical robots as a
` method of mechanical support, as well as in
` paragraph 25, the active constraint version of
` robotic devices. So those were included in this
` paragraph's description of mechanical support as
` well, just to be clear there.
` Beyond that, I'll have to give this a
` moment's thought. Other methods of precise
` cutting: I can't think of any sitting here now.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. So then the later sentences in paragraph
` 23, you give examples of what you meant by
` mechanical support like jigs or metal guides.
` A. That's right.
` Q. And then 24, paragraph 24, you're saying
` is that another type of mechanical support for use
` in hard tissues is surgical robotics?
` A. Yes, that's correct.
` Q. And then did you also mention paragraph
` 25?
` A. That's right.
` Q. And what about paragraph 25 is supportive
` of your view that mechanical support was used in
` hard tissues surgery?
` A. Well, in these systems, a relatively rigid
` mechanical system, in this case, the example that's
` shown in the Acrobot figure on page 11 above
` paragraph 27 shows a -- the Davies Acrobot system,
` which has a manual handpiece that the surgeon moves
` around, but which uses the rigidity and stiffness
` of the robot to ensure precise cuts.
` Q. How does the robot provide rigidity and
` stiffness?
` A. Okay. So --
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. You're talking about Acrobot, correct?
` A. That's correct, yeah.
` Q. Okay. So in the Acrobot system how did it
` provide rigidity and stiffness?
` A. So in this case the surgeon put their hand
` on the arm and moved it around. Then there were
` brakes or motors which prevented movement beyond a
` predefined cutting boundary, and it's the ability
` to apply forces to the surgeon's hand to prevent
` the motion which allow the precision to be
` obtained.
` Q. So if the surgeon tried to move the tool
` beyond a predetermined boundary, there would be
` some mechanical action that would prevent that
` movement?
` A. That's correct. Brakes, motors, that sort
` of thing.
` Q. It wasn't a power-based solution? In
` other words, they didn't cut power to the tool?
` A. My understanding is in the Acrobot -- Acro
` -- yeah, the Acrobot system -- I keep wanting to
` say acrobat.
` Q. I know.
` A. Acrobot system, it used these active
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` constraint mechanisms that didn't cut power to the
` tool bit.
` Q. Was there anything in the Acrobot system
` that prevented the surgeon from moving the tool in
` any of the six degrees, other than the constraints
` you mentioned?
` A. What I recall, and to give you a full and
` complete answer I'd need to review the papers, but
` what I recall at this point, it was this idea of
` boundaries that was the key operating advantage of
` this system.
` Q. And in your view, given a definition in
` your declaration, and if you need to refer it to,
` is what you've described in paragraph 25 a
` free-hand system?
` A. No, it's not.
` Q. Does it provide a manually guided system?
` A. Let's see, so I'm going to refer to the
` institution decision.
` Q. Okay.
` A. And in particular the claim construction,
` because this term manually guided or manually
` guiding is constructed to mean moved or moving by
` hand without robotic or kinematic support.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` The Acrobot system provides kinematic
` support and thus doesn't meet the limitation of
` manually guided or manually guiding.
` Q. And what form is the kinematic support
` that you're referring to?
` A. Okay. Let me refer in my report and refer
` you to the paragraph where I discuss kinematic
` support, okay? So it's paragraph 42. And let me
` just quote, "therefore, it's understood by one of
` skill in the art relevant to the '417 patent,
` kinematic support is a mechanical mechanism that
` constrains or facilitates the movement of a device
` to achieve a desired motion or position."
` So the Acrobot system certainly meets that
` definition because it's a mechanical mechanism, it
` constrains movement to achieve a desired motion or
` position when cutting bone.
` Q. Where did you get the definition of
` kinematic support that's provided in paragraph 42?
` Where did that come from?
` A. So kinematic support is not a widely used
` term in mechanical engineering or in surgical
` applications. So I go through in the succeeding
` paragraphs here in my report the basis for that
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` definition.
` Q. Which paragraphs are you referring to?
` A. Okay. So the definition is in 42, along
` with some illustration. And it's the paragraphs
` 43, 44, 45, 46, 47, 48, and I guess 49 all relate
` to this idea of kinematic support.
` Q. Well, the first sentence of 42 says,
` "therefore, as one of ordinary skill in the art" --
` MR. BUROKER: Strike that.
` Q. The first sentence of 42 says "Therefore,
` as understood by one of skill in the art relevant
` to the '417 patent," and then you provide the
` kinematic support definition.
` A. You're right.
` Q. That suggests that the definition is based
` on the previous paragraphs; is that correct?
` A. Your right. Sorry. All of this section,
` Section A, starting on page 17 with paragraph
` 39should have been cited. This entire section,
` basically, pages 17, 18, 19, 20, and 21 are all
` about kinematic support and all support the
` definition.
` Q. Okay.
` A. Sorry.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. That's fine.
` So the word kinematic support --
` MR. BUROKER: Strike that.
` Q. The phrase "kinematic support" is not
` defined expressly in the '471 patent; is that
` correct?
` A. Yes, I think that's correct.
` Q. So you resorted to what sources of
` information to help understand what that phrase
` means?
` A. So let's go through the report to call
` them out. First of all, there's a little
` discussion of this in the institution decision,
` which I cite in paragraph 39. Let's see. Then I
` cite several dictionaries at various places here
` regarding the definition of "support," in
` particular, as well as the definition of
` "kinematics."
` Q. And the definition of kinematics is cited
` in paragraph 40, I see that.
` A. Uh-huh.
` Q. That's Exhibit 2009.
` A. Uh-huh.
` Q. If you need to see that, let me know.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` That's where it came from?
` A. Specifically that term, yes, kinematics.
` Q. Came from a dictionary.
` A. Yeah. Well, and my own understanding. I
` mean, I teach kinematics at Harvard, so I'm quite
` familiar with the field.
` Q. Okay.
` A. Okay. Then continuing, let's see --
` Q. So just so it's clear, the question is
` what other evidence is there to support the
` interpretation of -- or the understanding of
` kinematic support that you gave in paragraph 42.
` A. Uh-huh. Let's see. So I cite Exhibit 210
` and -- or 2010 and 2011, discussing kinematic
` models and kinematic surgeries, non-robotic
` kinematic surgery systems.
` Let's see. Then in 44, we go into some
` references to the patent itself, the '417 patent
` itself, and again, these dictionary definitions of
` support.
` Okay. Then in the patent this idea of
` support is evidenced in the discussion of prior art
` where there's at paragraph 45 a list of some of the
` prior art discussion from the patent which
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 17
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` describes different kinds of support devices which
` are contrasted with the current invention here.
` Q. And you say in the very first sentence of
` paragraph 46 that "the freehand invention described
` in the '417 patent is contrasted with kinematically
` supported prior art devices." There's no citation,
` or maybe that's the part that follows.
` Where in the '417 patent is this
` contrasting between kinematically supported
` freehand invention?
` A. Okay. So we cite Figure 1, which is
` freehand, handpiece and effector. This is also in
` the next paragraph cite Figure 8. Same thing, it's
` a handpiece which does not use a mechanism.
` Q. Does the patent itself, the '417 patent
` itself, call Figure 1 a freehand tool?
` A. Could I review the patent, please?
` Q. Sure. Do you need one?
` A. I'm afraid so, yes.
` (Perusing document).
` Okay. I'm sorry, what was the question
` again?
` Q. Figure 1 actually --
` MR. BUROKER: Strike that.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. Whether the '417 patent actually describes
` Figure 1 as showing a freehand handpiece.
` A. Let's see, it does not use the word
` freehand, if that's your question.
` Q. So what from the '417 patent allows you to
` draw the conclusion that there's a contrast between
` what's in Figure 1 and a kinematically supported
` device?
` A. Okay. So Figure 1 does not include any
` mechanical mechanism in the handpiece. The
` handpiece can be moved freely without attachment to
` a mechanism.
` Q. That's your interpretation of Figure 1.
` A. No.
` Q. Is there anything in --
` A. There's no mechanism shown.
` Q. That's true.
` A. It's just not there.
` Q. But how do you get from that to saying
` that the patent contrasts that with kinematically
` supported devices?
` A. Okay. So in the -- there are a number of
` places. I cite some of them here. Let's go back
` and review those.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` So for instance we have in paragraph 44 a
` reference to column 12, lines 22 to 25. The
` effector can be, for example, a cutter, drill, or a
` laser, which is guided manually by a corresponding
` handpiece and then contrasted, says, quote, but can
` be also kinematically supported, braked, damped or
` driven, close quote.
` Q. All right. And the next sentence you say,
` "note here that the patent distinguishes between
` kinematically supported and braked, damped or
` driven."
` A. Uh-huh.
` Q. Why do you say that? It's just four
` things separated by a comma, so -- so?
` MR. BUROKER: Let me start over.
` Q. So you say there's a distinction between
` kinematically supported on the one hand versus
` braked, damped, or driven on the other, but they're
` all in one sentence separate by one comma.
` A. Sure. You can distinguish all four if you
` like.
` Q. So is braking a form of kinematic support?
` A. It can be.
` Q. Is damping a form of kinematic support?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` A. It can be part, yes.
` Q. And is driving or being driven a form of
` kinematic support?
` A. Okay. So I think the short answer is yes,
` but I want to refer to the institution decision
` claim construction and note that driven suggests
` motorization, which is -- can be or is part of a
` robotic system, and the claim construction
` distinguishes robotic and kinematic support.
` Q. Do those things -- are those clearly
` distinguishable things, robotic and kinematic
` support, in your view?
` A. There are certain examples. Hold on.
` So to answer that question I'm going to
` refer back to the definition of kinematic support.
` So from this definition, at least some robots would
` fit within that definition.
` Q. And you're looking at the paragraph 42
` definition that you provided?
` A. That's correct.
` Q. And paragraph 43 you give some examples of
` kinematic support.
` A. Uh-huh.
` Q. Is that right?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` A. That's right.
` Q. And you say that motion restrictions is
` one example -- well, it says "motion restrictions
` based upon certain cutting boundaries or access
` routes is an example," right?
` A. That's right.
` Q. And motion damping to reduce unintended
` movements is a form of kinematic support.
` A. Yes.
` Q. So going back to paragraph 44, what is the
` point of saying the patent distinguishes between
` kinematically supported versus damping if damping
` can be a form of kinematic support?
` A. Well, the driven case, for example, can be
` robotic.
` Q. Uh-huh.
` A. There can be kinematic supported systems
` that do not include these other aspects. So for
` instance, the Mushabac arm is kinematically
` supported, although in some embodiments it does not
` include brakes, dampers, or motors.
` Q. So in your reading of this sentence from
` the '417 patent that's quoted in paragraph 44
` that's from column 12, lines 22 to 25, that if
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` there is any kinematic support, braking, damping,
` or being driven, that the tool is not manually
` guided?
` A. Okay. So we're putting negatives in here,
` so I have to give this a moment's thought.
` Q. Sure.
` A. Could you repeat that, please.
` Q. Right.
` So is it your reading of this sentence
` from column 12, lines 22 to 25 of the '417 patent,
` that manually guided cannot involve any kinematic
` support, braking, damping, or being driven?
` A. No.
` Q. What's your reading of this sentence,
` then?
` A. It lists a number of features, aspects of
` systems, some of which overlap. So for instance,
` you could have a system that is all those four
` things: It's kinematically supported, it's braked,
` it's damped, and it's driven. But there are also
` examples where they are exclusive. So for
` instance, there are kinematically supported systems
` that the are not braked, damped, or driven. And so
` by including all of them in a disjunctive clause,
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` you cover all of those cases.
` Q. Okay. So I thought you were citing this
` sentence to suggest that manually guided does not
` involve any kinematic support; is that correct or
` not correct?
` A. Let's see. We know from the claim
` construction that manually guided does not include
` kinematic support.
` Q. That's not exactly what that says. It
` says that "manually guided" -- let me get the page
` -- eight, "is moving by hand without robotic or
` kinematic support," correct?
` A. Uh-huh.
` Q. Isn't it one possible reading of that
` interpretation on claim 8 of the institution
` decision that it's the movement action that can't
` be kinematically supported?
` A. Could you say more about that? I don't
` follow. I'm sorry.
` Q. Well, are you suggesting that any tool
` that has any kinematic support for any purpose
` cannot be manually guided?
` A. Any tool for any purpose can't be manually
` guided?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 24
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. Let me start over.
` Are you taking the position that if the
` effector has any kinematic support to it, that it
` is not manually guided?
` A. I'm sorry. I apologize. I'm having a
` hard time following this. Once again?
` Q. Well, the question is if you have an
` effector and it has kinematic support, can it be
` manually guided under the institution decision
` interpretation on page 8 -- page 9, sorry?
` A. If I have an effector and it's manually
` guided --
` Q. No. If your have an effector, and under
` your view it has kinematic support, then can it
` be -- can it ever qualify as being manually guided?
` A. Okay. I think I understand the question
` now. Sorry. Give me a moment to collect my
` thoughts, please.
` Okay. So as I understand the question, is
` it possible to have a system that's kinematically
` supported and not manually guided. Do I have that
` right?
` Q. As you understand it. Yes, that's the
` question.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` A. Okay. And I think the answer is no, that
` there are kinematically supported systems that are
` not manually guided. Or maybe yes, I'm agreeing
` with you. But the bottom line is there are
` kinematically supported systems that are not
` manually guided.
` Q. I guess the question is are there
` kinematically supported systems that are manually
` guided? It's the opposite.
` A. Okay. Another moment, I'm afraid.
` I think just by logic that the answer is
` no, because we are -- the claim is constructed so
` that manually guided means without kinematic
` support, and so those two concepts are distinct.
` Q. The interpretation, though, says moving by
` hand without robotic or -- it says moving/moved by
` hand, without robotic or kinematic support.
` Couldn't that negative limitation be describing
` movement as opposed to any other action relative to
` the tool?
` A. I see.
` So if we remove the "moved/moving"
` requirement, is it possible to be kinematically
` supported and manually guided, but not moving?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 26
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. No. My question is more is one way to
` read this interpretation that the only thing you
` need to determine is whether the movement by hand
` of the surgeon is robotically or kinematically
` supported as opposed to its tool in state without
` motion.
` MR. KREEGER: Objection, vague.
` Answer if you understand.
` THE WITNESS: I'm not sure I do
` understand.
` A. Okay. So now, we're focusing on the idea
` of a static instrument that does not move; is that
` correct?
` Q. Right. Well, no.
` Well, this is a claim limitation where
` you're trying to determine whether it's present in
` any of the prior art or accused device, correct?
` A. Okay.
` Q. Right? That's the way you understand
` patent claims to work?
` A. I do.
` Q. So the manually guided and manually
` guiding phrases from the two independent claims in
` the '417 patent, the board has given a preliminary
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 27
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` interpretation, correct?
` A. That's right.
` Q. And they can change this at the final
` decision, you understand that?
` A. So I have been told.
` Q. But this preliminary interpretation, the
` express language suggests that it relates to the
` motion by hand that has to be without robotic or
` kinematic support; is that correct?
` A. Yes.
` Q. So to evaluate whether that's true, you
` need to determine whether when the surgeon or user
` is moving the tool there is kinematic support.
` A. Okay. I'm with you.
` Q. Is that correct?
` A. That sounds very clear, yes.
` Q. Or robotic support, either one.
` A. Yes.
` Q. Okay. So is that the interpretation you
` applied when reviewing Mushabac?
` A. Yes, certainly, yes.
` Q. So did you consider page 15 of the
` institution decision?
` A. Okay.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 28
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` Q. The first full paragraph, did you consider
` this paragraph in your analysis?
` A. I did.
` Q. And you recognize that in this paragraph
` the PTAB judges who wrote this initial decision
` suggested that Mushabac does not meet the -- or
` does meet the manually guided system limitation,
` right?
` A. Yes.
` Q. And do you agree with that?
` A. I've done my best to apply the claim
` construction as provided earlier in the institution
` decision, and I don't see that it's consistent with
` this, so I don't agree with the conclusion here,
` that Mushabac is manually guided without robotic or
` kinematic assistance.
` Q. The fourth sentence, it starts, "as
` discussed above," and you can read the whole thing.
` So that sentence says, "as discussed above, the
` term manually guiding precludes the use of
` kinematic assistance or robots, but does not
` preclude all complex or expensive mechanical
` assemblies."
` Do you see that?
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 29
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` A. I do.
` Q. So again, there they're talking about
` kinematic assistance. Do you see that?
` A. Yes.
` Q. So does that suggest that the kinematic
` support language that was in page 9 is talking
` about assistance of the surgeon to move the device
` by hand?
` MR. KREEGER: Object to form, go ahead.
` A. I didn't quite get the question there.
` Q. So here the PTAB in its analysis of hush
` Beck says kinematic assistance.
` A. Uh-huh.
` Q. And it doesn't use kinematic support,
` correct?
` A. That's right.
` Q. And it says in the next sentence, "the
` drill in Mushabac is manually guided, without
` robotics or kinematic assistance."
` Do you see that?
` A. I do.
` Q. And you don't agree with that, right?
` A. I should be clear that I'm assuming that
` the assistance here is the same as support, that
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 30
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` is, they've simply substituted another word since
` they appear to be quoting the claim construction
` earlier.
` But no, I don't agree. My opinion is that
` Mushabac is -- provides kinematic support in the
` embodiments presented in the patent.
` Q. In Figure 14 of Mushabac, and I see you
` don't have a copy, so I'll give it to you in just
` one second.
` A. Sure.
` Q. So once the surgeon has chosen to move the
` tool in a certain direction, there's no motor that
` pushes the tool along in that same direction,
` right?
` A. In Figure 14, no. I agree.
` Q. In Figure 15, there is.
` A. Correct.
` Q. So if kinematic support required some
` motorization or support to move the tool in the
` same direction chosen by the surgeon, if that were
` required, you agree Mushabac doesn't provide that
` teaching in Figure 14?
` A. So this is a hypothetical question?
` Q. Right. Well, it's based on -- right.
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page 31
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` HOWE
` So if the PTAB determines that what it
` meant by kinematic support was kinematic assistance
` in the direction of motion, do you agree that
` Figure 14 in Mushabac does not show that?
` MR. KREEGER: Objection, form.
` A. I'd like to look at Mushabac.
` Q. Yeah, let me get that for you.
` Column 16, lines 58 to 63.
` A. Excellent. Thank you.
` Q. Where -- oh, that's where it's discussing
` that --
` A. Figure 15.
` Q. Yeah, that's discussing that Figure 15
` uses motors.
` A. Uh-huh.
` So to get back to your question, let me be
` clear, first, that I concur with the construction
` we're provided with here, that kinematic support
` includes the provision of -- well, as I defined it
` in paragraph 42 of my report, that it includes a
` mechanism that constrains or facilitates the
` movement of a device to a desired motion or
` position. And your point about static positioning
` does not seem appropriate, in particular because
`
`TSG Reporting - Worldwide 877-702-9580
`
`
`
`Page
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
