UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TELADOC, INC.
`Petitioner,
`
`v.
`
`AMERICAN WELL CORPORATION
`Patent Owner.
`_____________
`
`Case IPR2015-00924
`Patent 7,590,550 B2
`_____________
`
`EXCERPTS FROM THE TRANSCRIPT OF THE DEPOSITION OF RONALD S.
`WEINSTEIN, M.D. TAKEN ON FEBRUARY 6, 2016
`(Pages 1-31; 50-54; 72-150; 160-167; 180-183; 198-229; 237-240; 250-253)
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`Teladoc, Exhibit 1013, Page 1 of 167
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`
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`TELADOC, INC.
`Petitioner,
`
`v.
`
`AMERICAN WELL CORPORATION
`Patent Owner.
`_____________
`
`Case IPR2015-00924
`Patent 7,590,550 B2
`_____________
`
`EXCERPTS FROM THE TRANSCRIPT OF THE DEPOSITION OF RONALD S.
`WEINSTEIN, M.D. TAKEN ON FEBRUARY 6, 2016
`(Pages 1-31; 50-54; 72-150; 160-167; 180-183; 198-229; 237-240; 250-253)
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`Teladoc, Exhibit 1013, Page 1 of 167
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`Contains Confidential Portions
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`Page 1
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` UNITED STATE PATENT AND TRADEMARK OFFICE
` ______________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________
`
`TELADOC, INC.
` Case IPR2015-00924
` Petitioner,
` Patent 7,590,550 B2
` v.
`
`AMERICAN WELL CORPORATION
`
` Patent Owner.
`___________________________/
`
` VIDEOTAPED DEPOSITION
` OF
` PETITIONER’S NOTICE OF CROSS-EXAMINATION
` RONALD S. WEINSTEIN, M.D.
` New York, New York
` Saturday, February 6, 2016
` CONTAINS CONFIDENTIAL PORTION
`
`Reported by:
`ANNETTE ARLEQUIN, CCR, RPR, CRR, CLR
`JOB NO. 103215
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` February 6, 2016
`
` 9:30 a.m.
`
` Videotaped deposition of RONALD S.
`WEINSTEIN, M.D., held at the offices of
`SHEPPARD MULLIN RICHTER & HAMPTON, LLP,
`30 Rockefeller Plaza, New York, New York,
`before Annette Arlequin, a Certified Court
`Reporter, a Registered Professional
`Reporter, a Certified LiveNote Reporter, a
`Certified Realtime Reporter, and a Notary
`Public of the State of New York.
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`A P P E A R A N C E S:
`
` FISH & RICHARDSON
` Attorneys for Petitioner
` One Marina Park Drive
` Boston, Massachusetts 02210
` BY: CHRISTOPHER DILLON, ESQ.
`
` SHEPPARD, MULLIN, RICHTER & HAMPTON
` Attorneys for Respondent
` 30 Rockefeller Plaza
` New York, New York 10112
` BY: MICHAEL SOLOMITA, ESQ.
` - and -
` 501 West Broadway
` San Diego, California 92101
` BY: JESSE SALEN, ESQ.
`
`ALSO PRESENT:
` SILVIO FACCHIN, Certified Legal Video Specialist
`
` - o0o -
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` R.S. Weinstein, M.D.
` THE VIDEOGRAPHER: This is media
` No. 1 of the videotaped deposition of
` Ronald Weinstein M.D. in the matter of
` Teladoc Inc. versus American Well
` Corporation.
` We are now going on the record. The
` time is 9:32 a.m.
` Counsel will state their appearances
` for the record.
` MR. SOLOMITA: This is Mike Solomita
` from Sheppard, Mullin, Richter & Hampton
` for the petitioner Teladoc. With me is
` Jesse Salen.
` MR. DILLON: Christopher Dillon of
` Fish & Richardson for American Well
` Corporation.
` THE WITNESS: Ronald S. Weinstein.
` THE VIDEOGRAPHER: Will the court
` reporter please swear in the witness.
` * * *
`R O N A L D S. W E I N S T E I N, M.D.,
` called as a witness, having been duly
` sworn by a Notary Public, was examined
` and testified as follows:
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` R.S. Weinstein, M.D.
`EXAMINATION BY
`MR. SOLOMITA:
` Q. Good morning, Dr. Weinstein.
` A. Good morning.
` Q. Thank you for being here on a
`Saturday with us. I appreciate it.
` A. A beautiful day.
` Q. Have you ever been deposed before,
`Dr. Weinstein?
` A. Yes.
` Q. We'll get to that in a minute.
` Before getting to your prior
`deposition experience, I just want to cover some
`of the ground rules for today's deposition.
` Is that okay with you?
` A. Yes.
` Q. Do you understand that the oath that
`you've just taken requires that you provide a
`complete and truthful answer to my questions?
` A. Yes.
` Q. And do you understand that there is a
`criminal penalty if you do not tell the truth?
` A. Yes.
` Q. You wouldn't take a position that you
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`believe was not true, correct?
` A. Correct.
` Q. And your counsel may object from time
`to time, but you understand that you have to
`answer my questions unless he tells you not to
`answer.
` Do you understand that?
` A. Yes.
` Q. And since the court reporter, she
`mentioned, is taking a verbatim transcript, can
`you please give as loud and audible responses as
`you can, please.
` A. Yes.
` Q. And if you could just please wait
`until I finish my questions before answering so
`we don't speak over each other and I'll try to
`do the same when you answer.
` A. Yes.
` Q. Do you understand, Dr. Weinstein,
`that the testimony you're providing today is
`part of an inter partes review proceeding
`pending before the Patent Trial and Appeal
`Board?
` A. Yes.
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` Q. Dr. Weinstein, let me hand you what
`we've marked as Petitioner's Exhibit 1010, one
`zero one zero, which is the Federal Register,
`Volume 77, No. 157 from the Department of
`Commerce. It is the Office Patent Trial and
`Practice Guide.
` (Petitioner's Exhibit 1010,
` Department of Commerce, Federal
` Register/Volume 77, No. 157, Office Patent
` Trial and Practice Guide, marked for
` identification, as of this date.)
`BY MR. SOLOMITA:
` Q. Have you seen this before,
`Dr. Weinstein?
` A. No.
` Q. Let me just direct you to Appendix D
`on page 48772. The number is on the upper left
`column.
` A. Appendix D?
` Q. Yes.
` Let me read with you or for you
`paragraph 6. It says, "Once the
`cross-examination of a witness has commenced,
`and until cross-examination of the witness has
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`concluded, counsel offering the witness on
`direct examination shall not: (a) Consult or
`confer with the witness regarding the substance
`of the witness' testimony already given, or
`anticipated to be given, except for the purpose
`of conferring on whether to assert a privilege
`against testifying or on how to comply with a
`Board order; or (b) suggest to the witness the
`manner in which any question should be
`answered."
` Do you see that paragraph?
` A. Yes.
` Q. Do you understand that you are not to
`confer with your counsel during the period in
`which I'm cross-examining you?
` A. Yes.
` Q. And that includes during the breaks.
` Do you understand that?
` A. Yes.
` Q. And a lunch break.
` A. Yes.
` Q. Dr. Weinstein, is there any reason
`why you cannot provide complete and truthful
`testimony today?
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` A. No.
` Q. Are there any medications that you're
`taking that would interfere with your ability to
`do so?
` A. No.
` Q. So let's now double back to your
`prior deposition experience.
` Can you please give me a summary of
`that experience?
` A. In the past 50 years, I recall doing
`it twice.
` Q. Can you provide the particulars of
`those two instances; in other words, what type
`of case, approximately when and so on?
` A. The first one was many decades ago
`and it involved an HR case at a university, the
`University of Wisconsin, and the testimony was,
`I can't remember where I gave it, whether it was
`in Chicago or in Madison. It's a long time ago.
` And the second one was over a decade
`ago and it was related to a malpractice case,
`and the testimony was given in Tucson.
` Q. What was the nature of your testimony
`in those two depositions?
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` A. In the first case my testimony
`related to the interpretation of a surgical
`pathology report. I am a pathologist.
` And the second case involved a
`request for expert opinion on a particular
`pathological lesion.
` Q. Putting aside the case that you're
`here for today, have you ever been involved,
`excuse me, in a patent case?
` A. I haven't been directly involved in a
`deposition for a patent case.
` Q. Have you been indirectly involved in
`a patent case?
` A. Well, I have patents. That wouldn't
`be a patent case.
` Q. Have you asserted those patents?
` A. I don't understand the question.
` Q. Have you sued anyone over your
`patents?
` A. No.
` Q. So can you explain for me your
`involvement in any patent cases involving your
`patents.
` A. For the one that we submitted in
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`1987, I wrote the patent and the attorney who
`was representing the company asked me some
`questions, technical questions regarding the
`patent --
` Q. Are you --
` A. -- application.
` Q. I'm sorry for speaking over you.
` Are you talking about the process
`during which you apply for a patent or trying to
`receive a patent, or are you talking about an
`actual litigation involving your patent?
` A. The patent was never litigated
`against.
` Q. So my question is, when you said that
`you made a submission, what did you mean by
`that?
` A. Well, I was the sole author of the
`patent.
` Q. Can you elaborate on what you mean by
`submission?
` A. The patent was submitted to the U.S.
`patent office.
` Q. Thank you.
` A. And the patent was granted.
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` Q. So is this the first instance in
`which you are offering an expert opinion in a
`patent litigation?
` A. Yes.
` Q. Dr. Weinstein, how did you prepare
`for today's deposition?
` A. I read the Schoenberg patent. I read
`the Haq patent. I reread my declaration and I
`read a document, I just don't remember the legal
`terms, prosecutory or something.
` Q. Prosecution history?
` A. Prosecution history I think is
`correct, yes. I obviously didn't go to law
`school.
` Q. Which is a smart move in my opinion.
` When you say you read --
` A. Is that comment part of the record?
` Q. It is.
` A. Thank you.
` Q. When you say you read a prosecution
`history, was that for the Schoenberg patent?
` A. Yes.
` Q. So I want to be clear on the record
`what we're referring to when we say the
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`Schoenberg patent.
` Is that the U.S. Patent 7,590,550
`issued to Dr. Schoenberg and the subject of this
`inter partes review?
` A. Yes.
` Q. And when you say the Haq patent, is
`that U.S. Patent 7,412,396?
` A. I'd have to see it. I didn't
`memorize the number.
` Q. We'll get to that in a moment.
` A. It's just easy to remember '550.
` Q. Yes.
` So we just covered what documents you
`reviewed in preparation for today's deposition.
` Did you meet with anyone in
`preparation for today's deposition?
` A. Yes.
` Q. Who did you meet with?
` A. I met with Chris Dillon.
` Q. Did you meet with anyone else?
` A. Yes. Jeff, I can't pronounce it
`because he needs a C in his name, Shneidman, by
`videoconferencing.
` Q. Does Jeff work with Mr. Dillon?
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` A. That is correct.
` MR. DILLON: Can I provide a spelling
` on that just so...
` MR. SOLOMITA: Of course.
` MR. DILLON: It's S-h-n-e-i-d-m-a-n.
` A. They lost the C. A German name or
`the Jewish name.
` And then there was a third person in
`the room whose -- I can't remember his first
`name, but his last name was Gay.
` MR. SOLOMITA: Chris, do you know who
` that person is?
` MR. DILLON: It's Brad Gay. He's the
` general counsel for American Well.
` MR. SOLOMITA: Thank you.
`BY MR. SOLOMITA:
` Q. Anyone else that you met with in
`preparation for today's deposition?
` A. No.
` Q. How long did that meeting last?
` A. It lasted between six and seven
`hours.
` Q. Did you say that meeting occurred
`yesterday?
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` A. Yesterday, yes.
` Q. Did you have any other meetings in
`preparation for today's deposition?
` A. We had a phone conversation in
`November I think.
` Q. Any other meetings?
` A. We may have touched on that topic
`at -- in a phone conversation or two in January.
`Brief conversations.
` Q. So we covered documents, we covered
`meetings you had in preparation for today's
`deposition.
` Anything else that you did to
`prepare?
` A. I did some research.
` Q. What kind of research?
` A. To refresh or to learn, educate
`myself on the meaning of some terms.
` Q. What terms?
` A. Rules.
` Q. What do you mean by rules?
` A. A rule, don't go in the men's room.
`A rule, go in the men's room. A regulation.
` Q. Can you be more specific on what
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`regulation you're referring to?
` A. No, the word "regulation."
` Q. Oh, the term "regulation" is what you
`researched?
` A. Yeah. I wanted to write -- I wanted
`to find out if there's always a law behind a
`regulation.
` Q. And what did you conclude?
` A. There is.
` Q. What type of law?
` A. It could be federal law, it could be
`a state law.
` Q. Why did you need to do that in
`preparation for today's deposition?
` A. Because it's in my declaration. I
`would have done that when I wrote the
`declaration, so I was refreshing myself with
`what I would have known at the time.
` Q. Did you write your own declaration?
` A. Yes, I did.
` Q. What else did you do in preparation
`for today's deposition?
` A. Well, I reviewed the Schoenberg
`patent on several different occasions.
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` Q. Anything else you recall in
`preparation for today?
` A. I reviewed the Haq patent several
`times as well.
` Q. Anything else?
` A. I reviewed, I reviewed some parts of
`my own patents.
` Q. Why did you do that?
` A. Curiosity and also it's good for my
`ego. I'm actually quite exceptional.
` And I also reviewed some of the
`papers that I published in the past.
` Q. Anything else in preparation for
`today?
` A. Not that I recall.
` Q. So let's go back now to the meeting
`you had yesterday with Mr. Dillon and others.
` What was discussed during that
`meeting?
` MR. DILLON: Can we go off the
` record?
` THE VIDEOGRAPHER: We're going off
` the record --
` MR. SOLOMITA: Wait, wait. Hold on.
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` There's a question pending.
` Are you instructing him not to
`answer?
` MR. DILLON: Until we've had a chance
`to talk off the record.
` MR. SOLOMITA: Okay. Let's just put
`that on the record.
` You're instructing the witness not to
`answer the pending question.
` MR. DILLON: Yes, I'm instructing,
`until we've had a chance to resolve a
`question with respect to privilege, I'm
`instructing the witness not to answer. He
`may be able to answer after we've had a
`conversation.
` MR. SOLOMITA: That's fine. Let's go
`off the record.
` THE VIDEOGRAPHER: We're going off
`the record. The time is 9:50 a.m.
` (Discussion off the record.)
` THE VIDEOGRAPHER: We're back on the
`record. The time is 9:51 a.m.
` MR. DILLON: And just for the record,
`we have had a conversation off the record
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`and counsel has agreed that conversations
`between counsel and experts will be subject
`to full disclosure in proceedings going
`forward between American Well and Teladoc.
` MR. SOLOMITA: With the caveat of not
`disclosing privileged information.
` MR. DILLON: With that caveat.
` And so, Dr. Weinstein, I would urge
`you that to the extent any conversations
`involved people from American Well, of
`which Mr. Gay is clearly one of those, you
`would not be allowed to disclose that
`information.
` But to the extent you had
`conversations that did not involve Mr. Gay,
`then Mr. Solomita's position is that he may
`ask you questions about those.
` Is that clear?
` THE WITNESS: Okay.
` MR. SOLOMITA: I object to that line
`of instruction because if there's a
`conversation between Mr. Gay and
`Dr. Weinstein relating to the opinions that
`he's publicly set forth, those
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` R.S. Weinstein, M.D.
` conversations should be discoverable.
` MR. DILLON: If they are the basis of
` something that he's relying on, I would
` agree with that.
` MR. SOLOMITA: Correct. So a blanket
` prohibition on discussion of anything he
` had with Mr. Gay is not --
` MR. DILLON: Again, maybe it's
` because also a party to those conversations
` I know that did not occur, so that was
` informing my instruction to the witness.
` But, Dr. Weinstein, just so that
` we're clear, to the extent Mr. Gay or any
` employee from American Well provided you
` information upon which you're relying on
` for your opinions, you may testify about
` that.
` But to the extent you were involved
` in conversations with Mr. Gay as general
` counsel for American Well and those are
` privileged communications, you are not to
` reveal the content of those discussions.
` THE WITNESS: Okay.
`BY MR. SOLOMITA:
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` R.S. Weinstein, M.D.
` Q. So, Dr. Weinstein, subject to those
`instructions, what did you discuss yesterday
`during your meeting?
` A. They were general, very general
`discussions of what happens during a deposition.
` Q. Did you discuss the opinions that you
`had set forth in your declaration submitted in
`this proceeding?
` A. Could you define discuss?
` Q. Did you reference the declaration you
`submitted and then have a discussion with the
`members present during the meeting yesterday
`regarding that declaration?
` A. Generally I wasn't in a discussing
`mode, I was in a teaching mode.
` Q. What do you mean by that?
` A. I was telling them what things meant.
` Q. When you say things and what things
`meant, what are you referring to?
` A. The term "presently available."
` Q. And what were you telling the members
`of that meeting about presently available?
` A. How the term is used in the medical
`world.
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` R.S. Weinstein, M.D.
` Q. And how is that?
` A. Presently available means immediately
`available and paying attention to, generally
`paying attention to a patient immediately upon
`receiving a request or a signal for services.
` Q. What's the basis for that position?
` A. Many years of experience.
` Q. When you say "generally paying
`attention," what do you mean by that?
` A. Not being distracted by other
`activities.
` Q. So why were you discussing the term
`"presently available"?
` A. Because it occurs many times in the
`Schoenberg patent.
` Q. So your basis for the understanding
`of the term "presently available" is your
`experience in the medical field; is that right?
` A. That's correct.
` Q. As a medical doctor?
` A. As a medical doctor, yes.
` Q. What else do you recall discussing
`during yesterday's meeting?
` A. We discussed on call.
`
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` Q. What did you discuss about the term
`"on call"?
` A. We discussed how we use the term in
`our practice.
` Q. When you say "our practice," what are
`you referring to?
` A. I'm an employee of, I'm an employee
`of Banner - University Medical Center. I'm
`employed at the University of Arizona, but my
`medical activities are within Banner -
`University Medical Center. They recently
`acquired our hospitals.
` Q. So when you say many years of
`experience, does that relate to the telemedicine
`field?
` A. That would be an element.
` Q. Can you explain your experience
`generally speaking in the telemedicine field?
` A. Yes. I participated in the first
`case, cases at the Massachusetts General
`Hospital in 1968. That's when I started, so
`it's a 47-year experience.
` Q. When you say "first case," what do
`you mean?
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` R.S. Weinstein, M.D.
` A. Multispecialty telemedicine was
`originated and was done initially at the
`Massachusetts General Hospital in a project
`between the MGH and Logan International Airport,
`Gate 23, and I had a chance, an opportunity to
`see several of the first cases.
` Q. What kind of system was used at the
`Massachusetts General Hospital in the project
`you just described?
` A. Almost just like today's systems.
` Q. Can you explain that, please?
` A. Yes. It was a system that included
`bidirectional videoconferencing mediated by a
`microwave linkage between the Massachusetts
`General Hospital and the Logan Airport.
` It included what was at that time
`called television microscopy. I introduced the
`word "telepathology" into the world's -- in the
`English language 18 years later, but at the time
`it was called microscopy, television microscopy.
` It included the use of electronic
`stethoscopes for listening to heart sounds and
`breath sounds and bowel sounds.
` It included what became
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` R.S. Weinstein, M.D.
`teleradiology.
` It included -- I'm not sure exactly
`when the first case was done, but it included
`telepsychiatry, but it was in a short period of
`time.
` So it basically resembled or it
`basically was foundational for the creation of
`the field, and Dr. Kenneth Berg was the director
`of that service and that got cloned around the
`world.
` Q. So that system that you just
`described was in 1967?
` A. 1968.
` Q. 1968.
` Was there an ability to connect a
`patient and a physician in that system?
` A. Yes.
` Q. How did that work?
` A. The patient was in front of the video
`camera and there was a microphone, and the
`physician at the other end could see and talk to
`the patient and hear the patient plus all the
`other modalities of examining patients, such as
`use of electronic stethoscope. It was just the
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` R.S. Weinstein, M.D.
`way it is today.
` Q. Just the way it is today?
` A. In large measure. It was born whole.
` Q. So there was a live or real-time
`communication between the patient and the
`physician?
` A. Um-hmm.
` Q. I'm sorry. Can you give a --
` A. Yes, sir, that's correct.
` Q. And a physician was immediately
`available for that consultation; is that right?
` A. No, not necessarily correct. The
`physician had to go to the room where the video
`was.
` Q. At the time that the physician was
`consulting with the patient, was he immediately
`available for that consultation?
` A. He was in that consultation.
` Q. Was he immediately available?
` A. I don't understand the question.
` Q. It's a term you used before.
` A. He was immediately available in the
`same sense that you're immediately available
`right now.
`
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` R.S. Weinstein, M.D.
` Q. I see.
` A. And I'm immediately available. I'm
`not doing something else.
` Q. So in your opinion, the term
`"immediately available," it means that you're
`not doing something else, right?
` MR. DILLON: Objection. Outside the
` scope of the direct examination.
` Can you show us where this relates
` back to --
` MR. SOLOMITA: That's a speaking
` objection, Chris.
` MR. DILLON: No, it's not. It's --
` MR. SOLOMITA: Do you want me to go
` through the Federal Register?
` MR. DILLON: I'm happy if you would
` like to go through the register, you are
` required to keep your examination and
` cross-examination to the direct.
` My objection is to the scope. You
` can show us how this ties back to the scope
` of his examination and then we can proceed,
` but if it doesn't, then you're not entitled
` to inquire about it.
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` MR. SOLOMITA: He's just explaining
`that his opinions are based upon his many
`years of experience and I asked him about
`that, and he said there's a telemedicine
`platform which is the basis of his opinion
`and his experience.
` MR. DILLON: No. It's a basis of his
`experience, not his opinions and he's
`provided you an overview of that, but are
`we going to go through his 47-year history
`in each of the systems?
` MR. SOLOMITA: If you look through
`the transcript, he said the term "presently
`available" which is used in the Schoenberg
`patent, his understanding is that it means
`immediately available.
` And I asked him what's that based on;
`many years of experience.
` And I asked him what was that
`experience and he said this 1967 platform.
` So I think it's completely relevant
`what that term "presently available" means
`in the context of this platform.
` MR. DILLON: I think you're
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` R.S. Weinstein, M.D.
`mischaracterizing his testimony, but fine,
`I'll let you ask a few more questions along
`this line, but I think he's got a very
`short declaration and the scope of the
`cross-examination needs to be limited to
`that direct examination.
` MR. SOLOMITA: Right and he's got an
`opinion on what presently available means
`and that's what I'm asking him about.
` MR. DILLON: But he didn't say his
`opinion based on presently available is
`based on this system.
` You asked him what his experience is
`and he said he's been working in this field
`for 47 years doing a lot of things.
` MR. SOLOMITA: I asked him what his
`understanding of the term "presently
`available" based on and he said many years
`of experience, and I asked him what
`experience and he's now telling me about
`that experience.
` MR. DILLON: I think --
` MR. SOLOMITA: You can note your
`objection. I think he needs to answer the
`
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` R.S. Weinstein, M.D.
` question.
` MR. DILLON: Can we have the question
` read back, please?
` (Question was read back as follows:
` "QUESTION: So in your opinion, the
` term 'immediately available,' it means that
` you're not doing something else, right?")
` A. Right, but I didn't say immediately
`available related to the beginning of my
`experience.
` Q. So what does the term "presently
`available" mean to you?
` A. It means that you're available to
`begin an activity. It's not the activity. It's
`right before the activity.
` Q. Can you elaborate on that, please?
` A. Yes. It means that the service
`provider is in an environment and a mind site
`[sic] ready to initiate, ready to initiate an
`intervention with a patient.
` But the instant, but the instant that
`the intervention actually begins, then the term
`is an actionable item has taken place and so the
`presently available, you know, he's already
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`Teladoc, Exhibit 1013, Pa
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