Simon v. Adzilla, Inc [New Media] et al

Filing 268

Simon v. Adzilla, Inc [New Media] et al

Doc. 268

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[List of Counsel Appears on Last Page]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California corporation, Case No: C 03 05669 JW Plaintiff, v. MICRO THERAPEUTICS, INC., a Delaware corporation, and DENDRON GmbH, a German corporation, Defendants and Third Party Plaintiffs, v. BOSTON SCIENTIFIC CORPORATION, a Delaware corporation, and TARGET THERAPEUTICS, INC., a Delaware corporation, Third Party Defendants. DECLARATION OF DR. KATHRYN D. MAROCCHINO

DECLARATION OF DR. KATHRYN D. MAROCCHINO Case No.: C 03-05669 JW

Dockets.Justia.com

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I, Dr. Kathryn D. Marocchino, hereby declare: 1. I make this declaration in support of Micro Therapeutics, Inc.'s and Dendron

GmbH's (collectively "MTI") Opposition to Plaintiff's Motion for Summary Judgment of No Inequitable Conduct. 2. I hold a doctorate in Modern Foreign Languages and Literature from the

Faculty of Letters of the University of Turin, Italy and trained in biological sciences for two years at the same institution. I also graduated from the Istituto Tecnico per Periti Aziendali e Corrispondenti in Lingue Estere "Santorrre di Santarosa," where I majored in languages and business. I spent most of my life in Europe, arriving permanently in the United States at the end of 1982. 3. I am currently a full professor in the Department of General Studies at

California State University Maritime, and I also direct the Community Service Learning Center there, which I established in 2000. I previously held appointments as a lecturer at UC Davis, Stanford University and the University of Turin, Italy, as well as in various Italian technical institutes. Overall, my academic career spans over thirty years. 4. I am perfectly bilingual in both Italian and English and have published

extensively in both languages, including numerous books, articles, anthologies and conference papers. I have also taught translation theory and methodology at the Istituto IPSEIT in Turin, Italy--a professional school for translators and interpreters--and have worked as a professional translator, interpreter and linguistic consultant for thirty-five years. 5. Although my research interests include literary translations (I am currently

translating Lorenzo Stecchetti's Postuma into English and have completed an Italian translation of a children's book, The Night Wears a Velvet Glove, as well as a photography book, Cuore di Tonno, that is to be published shortly), I have dealt extensively with scientific and technical texts throughout my entire translating career, concentrating on technological, legal, pharmaceutical, and medical translations for the past seventeen years. A partial list of my publications, which I have either authored or translated, can be found in my curriculum vitae, which is attached hereto as Exhibit A. Within the same document is
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an exhaustive listing of agencies, firms or institutions for whom I have done translation work as well as details on my academic service, awards and honors I have received, my educational background, my teaching career, and my grants. 6. 7. I have been retained as a translation expert in this case by MTI. I have reviewed the following in forming the opinions expressed herein: a. The Italian language article by Guerrisi, et al., III Congresso Nazionale Di Neuroradiologia 09/29/1983 - 09/30/1983 Bari Atti Del Congresso; L'Elettrotrombosi Intravasale Nelle Malformazioni Vascolari Sperimentalmente Provocate ("1983 Congresso Nazionale Paper"), attached hereto as Exhibit B. b. A translation of the 1983 Congresso Nazionale Paper by Franco Cossu, dated May 27, 1995 (the "Cossu translation"), attached hereto as Exhibit C. c. The Declaration of Jeffrey Schnapp, Ph.D., signed January 22, 2005 (the "Schnapp Declaration"), and the exhibits attached thereto. 8. The most obvious, plain and literal translation of the phrase "con rottura della

punta dell'elettrodo nel fondo dell'aneurisma" is "with the tip of the electrode breaking inside the lower portion of one aneurysm," as in the certified translation of the 1983 Congresso Nazionale Paper that I prepared, which is attached hereto as Exhibit D. 9. I prepared my certified translation (Exhibit D) of the 1983 Congresso

Nazionale Paper after a request by Michelle Umberger in late June 2004. Prior to my translation, Ms. Umberger spoke to me by telephone about my availability to translate the 1983 Congresso Nazionale Paper from Italian to English. Ms. Umberger told me that the translation was in connection with a lawsuit between MTI, which her firm represented, and the University of California and Boston Scientific Corporation. She did not tell me anything further about the dispute. She then sent me a copy of the article for which she requested a translation, the 1983 Congresso Nazionale Paper. 10. On June 29, 2004, I e-mailed my translation of the 1983 Congresso Nazionale

Paper to Ms. Umberger. I subsequently sent her the certified translation that is attached hereto as Exhibit D by Federal Express. At no time prior to my preparation of Exhibit D
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did Ms. Umberger discuss the contents of the 1983 paper, nor did she indicate or suggest in any way how I should translate the 1983 paper, or any word or portion thereof, nor did she tell me what the article discussed. Exhibit D is what I consider an accurate translation, without information beyond that disclosed in the 1983 Congresso Nazionale Paper, and without any input, information or suggestion from any other person. 11. As to the Cossu translation and the Schnapp Declaration, while it is possible

for "rottura" to mean "breakdown" in some contexts, the primary meaning of "rottura" is to "rupture" or to "break." This is aptly shown in the Italian-English dictionaries that I routinely use, which are attached hereto as Exhibit E and include several technical dictionaries, all of which give "break," "breaking" or "rupture" as the first English translation for "rottura." I do not believe that any competent translator would likely choose "breakdown" or "decomposition" as the English translation of this phrase unless the translator was influenced to select such a translation by communication with another person or by reason of information that is not contained in the 1983 Congresso Nazionale Paper itself. 12. Furthermore, I strongly feel that if a native Italian speaker intended or wished

to convey a "breakdown" or "decomposition," that person would not have used the word "rottura;" rather, he would have used another Italian word that would much more precisely convey this meaning. For example, if the authors had intended to convey "decomposition," they would have used the word "decomposizione," which would be much more commonly understood as such and would more precisely convey "decomposition," or if the authors had intended to convey "dissolution," they would have used the word "dissoluzione" [as used in Guglielmi's 1988 Italian patent application (Exhibit F hereto) at page 7, where it is obvious that "rottura" is distinct from dissolution ­ "rottura" is used to indicate breaking of the wire, and "dissoluzione" is used to indicate dissolution of a part of the wire to achieve breaking]. 13. I also prepared a certified translation of an Italian Patent Application

48707A88, 1224838 by Guglielmi, Dieci and Dominici for an Endovascular Device to

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[Listing of Counsel] MICHAEL K. PLIMACK (CSB No. 133869) HELLER EHRMAN WHITE & MCAULIFFE LLP 333 Bush Street San Francisco, CA 94104-2878 Telephone: [phone] Facsimile: [phone] JOHN S. SKILTON (pro hac vice) DAVID J. HARTH (pro hac vice) CHARLES G. CURTIS, JR. (pro hac vice) MICHELLE M. UMBERGER (pro hac vice) GABRIELLE E. BINA (pro hac vice) SARAH C. WALKENHORST (pro hac vice) HELLER EHRMAN WHITE & MCAULIFFE LLP One East Main Street, Suite 201 Madison, WI 53703 Telephone: [phone] Facsimile: [phone] COLIN G. SANDERCOCK (pro hac vice) MARVIN A. MOTSENBOCKER (pro hac vice) HELLER EHRMAN WHITE & MCAULIFFE LLP 1666 K Street N.W., Suite 300 Washington, DC 20006 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants/Counterclaim and Third Party Plaintiffs Micro Therapeutics, Inc. and Dendron GmbH

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