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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 3:18-CV-347-CAB-MDD
`
`ORDER RE NUVASIVE’S MOTION
`FOR PARTIAL SUMMARY
`JUDGMENT
`
`[Doc. No. 250]
`
`Plaintiff,
`
`NUVASIVE, INC.,
`
`v.
`ALPHATEC HOLDINGS, INC. et al.,
`Defendants.
`
`
`
`
`
`This is a patent infringement case in which NuVasive, Inc. (“NuVasive”) asserts that
`Alphatec Holdings, Inc. (“Alphatec”) infringes seven of NuVasive’s United States
`patents.1 Discovery has concluded, and NuVasive now moves for summary adjudication
`of infringement of three of the asserted patents, U.S. Patent No. 8,439,832; U.S. Patent No.
`8,355,780; and U.S. Patent 8,753,270.2 Additionally, NuVasive moves for summary
`
`
`
`1 U.S. Patent No. 7,819,801; U.S. Patent No. 8,355,780; U.S. Patent No. 8,439,832; U.S. Patent No.
`9,833,227; U.S. Patent No. 8,753,270; U.S. Patent No. 9,924,859; and U.S. Patent No. 9,974,531.
`2 At Doc. Nos. 1-8; 1-6; and 1-12, respectively.
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`adjudication of the validity of all seven of the asserted patents. Finally, NuVasive moves
`for summary adjudication of Alphatec’s inequitable conduct affirmative defense. [Doc.
`No. 250.] Alphatec opposed. [Doc. No. 260.] NuVasive filed a reply. [Doc. No. 262.]
`The Court held oral argument on March 13, 2020. Having considered the submissions of
`the parties and the arguments of counsel, the motion is GRANTED IN PART and DENIED
`IN PART.
`The patents-at-issue generally claim a surgical access system including a tissue
`distraction assembly and a tissue retraction assembly, both of which may be equipped with
`one or more electrodes for use in detecting the existence of (and optimally the distance
`and/or direction to) neural structures before, during, and after the establishment of an
`operative corridor to a surgical target site.3 In particular, the systems are designed for use
`in creating an operative corridor in a lateral, trans-psoas path to the lumbar spine.
`NuVasive accuses Alphatec’s Battalion Lateral Lumbar Spacer System (“Battalion
`System”) of infringing various claims of the patents at issue and moves for summary
`judgment of infringement of claims 1, 3, 9 and 10 of the ‘832 patent, claims 21, 22, 24 and
`27 of the ‘780 patent, and claims 1, 2, 3, 6 and 12 of the ‘270 patent.
`Summary Judgment of Infringement
`I.
`Pursuant of Fed. R. Civ. P. 56(a), summary judgment is appropriate when “there is
`no genuine issue as to any material fact and the moving party is entitled to judgment as a
`matter of law.” To prove direct infringement a patentee must establish, by a preponderance
`of the evidence, that one or more claims of the patent read on the accused device literally
`or under the doctrine of equivalence. See Adv. Cardiovascular Sys., Inc., v. Scimed Life
`Sys., Inc. 261 F.3d 1329, 1336 (Fed Cir. 2001). Summary judgment for the plaintiff on the
`issue of infringement is proper when no reasonable jury could not find that every limitation
`recited in a properly construed claim is found in the accused device either literally or under
`
`
`
`3 See Abstract, ‘832 Patent; Abstract ‘780 Patent; Abstract ‘270 patent.
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`the doctrine of equivalents. See PC Connector Solutions LLC v. Smartdisk Corp., 406 F.3d
`1359, 1364 (Fed. Cir. 2005).
`Determining whether a claim has been infringed requires a two-step analysis. First
`the claim must be properly construed to determine its scope and meaning. Second, the
`claim as properly construed must be compared to the accused device. Id. at 1362.
`A. The ‘832 Patent
`The ‘832 patent is for a “Surgical Access System and Related Methods.” The system
`is designed to establish an operative corridor through or near any of a variety of tissues
`having neural structures which, if contacted or impinged, may result in neural impairment
`for the patient. [Doc. No. 1-8, at Col. 2:65- Col. 3:3.] A specific intended use of the system
`of the ‘832 patent, as set forth in claim 1, is to create an operative corridor in a lateral,
`trans-psoas path to the lumbar spine. NuVasive alleges Alphatec’s Battalion System
`literally infringes the following claims.
`Claim 1. A system for forming an operating corridor to a lumber spine,
`comprising:
`a distraction assembly to create a tissue distraction corridor in a lateral, trans-
`psoas path to a lumbar spine, wherein said distraction assembly includes an
`elongate inner element and a plurality of dilators, the plurality of dilators
`being configured to sequentially advance along the lateral, trans-psoas path to
`the lumbar spine, the elongate inner element being positionable in a lumen of
`an initial dilator of the plurality of dilators, wherein at least one instrument
`from the group consisting of said elongate inner element and said dilators
`includes a stimulation electrode that outputs electrical stimulation for nerve
`monitoring when the at least one instrument is positioned in the psoas muscle;
`a three-bladed retractor tool slidable over an exterior of an outermost
`sequential dilator of the dilator system toward the targeted spinal disc along
`the lateral, trans-psoas path, the three-bladed retractor assembly including:
` a blade-holder assembly, and
` a posterior-most retractor blade, a cephalad-most retractor blade, and a
`caudal-most retractor blade that extend from the blade-holder assembly,
`wherein the posterior-most, cephalad-most, and caudal-most retractor blades
`are slidably advanced over the exterior of the outermost sequential dilator
`while in a first position, wherein the blade-holder assembly is adjustable to
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`move the posterior-most, cephalad-most, and caudal-most retractor blades to
`a second position in which the cephalad-most and caudal-most retractor
`blades are spaced apart from the posterior-most retractor blade to define an
`operative corridor,
`wherein three-bladed retractor tool is configured to define the operative
`corridor along the lateral, trans-psoas path to the lumbar spine in which a
`space extending to the targeted spinal disc between the posterior-most,
`cephalad-most, and caudal-most refractor [sic] blades is dimensioned so as to
`pass an implant through the operative corridor along the lateral, trans-psoas
`path to the lumbar spine.
`Claim 3. The system of claim 1, wherein the elongate inner member is
`advanced along the lateral, trans-psoas path to the targeted spinal discs such
`that a distal tip portion of the elongate inner member penetrates into an
`annulus of the targeted spinal disc.
`Claim 9. The system of claim 1, further comprising a fourth retractor blade
`that couples with the blade-holder assembly only after the blade-holder
`assembly moves the posterior-most, cephalad-most and caudal-most retractor
`blades to the second position.
`Claim 10. The system of claim 1, further comprising a fixation element to
`releasably engage with one of said retractor blades so that at least a portion of
`the fixation element extends distally into the lumbar spine, wherein the
`fixation element is configured to releasably engage with the posterior-most
`retractor blade after the posterior-most retractor blade is advanced along the
`lateral, trans-psoas path to the lumbar spine.
`[Doc. No. 1-8 at Col. 14:31- Col.15:45.] NuVasive contends that all the elements of claims
`1, 3, 9 and 10 of the ‘832 patent are present in the Battalion System.
`Alphatec’s Surgical Technique Guide describes the Battalion System as including:
`(1) sequential dilators used to split and advance through the psoas muscle until flush to the
`disc space; (2) the dilators having neuromonitoring capability; (3) a K-wire (i.e., an
`elongate inner element) introduced through the dilators and inserted half-way into the
`target disc; and (4) a three-blade retractor system introduced over the second dilator flush
`with the disc space, the blades of which can be adjusted to define an operative corridor.
`[Doc. No. 250-42.] The Squadron Retractor, as described in the surgical guide, includes
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`an intradiscal shim (i.e., fixation element) to stabilize the retractor and an optional fourth
`blade.
`
`1. Distraction Assembly Limitation
`Alphatec contends that the Battalion System does not meet the limitations of claim
`1 because it teaches a lateral, trans-psoas approach in which the surgeon is instructed to
`first use blunt scissors and/or a finger to “dissect the subcutaneous tissue” to reach the
`“retroperitoneal space” and then use a finger as a guide to insert an initial dilator to the
`psoas muscle. [Doc. No. 250-42 at 5-7.] The initial dilator is then used to traverse the psoas
`muscle to a position flush with the disc space. Alphatec argues that the “distraction
`assembly” of the accused Battalion System therefore does not meet the distraction
`assembly claim limitation as the system employs the use of scissors and/or the surgeon’s
`finger to distract the tissues in the lateral path between the skin of the patient and the psoas
`muscle, not just the use of sequential dilators.
`To meet the limitations of claim 1, the distraction assembly must include sequential
`dilators, an elongate element, and the retractor in accordance with the claim limitations.
`“Includes” is the equivalent of “comprising” and is therefore not limiting. See Lucent
`Technologies, Inc. v. Gateway, Inc., 525 F.3d 1200, 1214 (Fed. Cir. 2008) (“including” and
`“comprising” have the same meaning namely, that the listed elements are essential but
`other elements may be added). The distraction assembly of claim 1 does not preclude the
`addition of a scissor or finger to assist in the creation of the distraction corridor, provided
`the distraction assembly also utilizes the elongate inner element and the plurality of
`dilators. It is undisputed that the Battalion System includes the essential elements. It is
`also undisputed that these elements of the accused system are capable of creating a
`distraction corridor in a lateral, trans-psoas path to the patient’s spinal target, with or
`without the addition of the scissors or a finger to dissect the subcutaneous tissue.
`Accordingly, the Court finds that the Battalion System meets the distraction assembly
`limitation.
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`2. Electrodes That Output Electrical Stimulation Limitation
`
`Alphatec also argues that the Battalion System does not meet the claim limitation of
`“electrodes that output electrical stimulation for nerve monitoring when [. . .] positioned in
`the psoas muscle.” [Doc. No. 1-8 at Col. 14:42-45.] Because the Battalion System does
`not include a source of electrical stimulation, Alphatec contends the electrodes on its
`dilators of the system do not “output electrical stimulation” as required by the claim.
`The question, however, is whether “all of the elements of the claim are present in
`the accused system.” Omega Patents, LLC v. CalAmp Corp., 920 F.3d 1337, 1345 (Fed.
`Cir. 2019). “To infringe a claim that recites capability and not actual operation, an accused
`device need only be capable of operating in the described mode.” Finjan Inc. v. Secure
`Computing Corp., 626 F.3d 1197, 1204 (Fed. Cir. 2010). Here, claim 1 requires only that
`the elongate inner element or at least one of the dilators have a stimulation electrode
`capable of outputting electrical stimulation for nerve monitoring when positioned in the
`psoas muscle. Claim 1 does not recite as an element a source for generating the electrical
`stimulation to the electrodes. There is no dispute that the electrodes on the dilators of the
`Battalion System are capable of outputting electrical stimulation when positioned in the
`psoas muscle if the electrodes are connected to the “appropriate neuromonitoring
`platform.” [Doc. No. 250-42 at 6.] Thus, the Batallion System’s lack of a neuromonitoring
`platform does not render it non-infringing because a source of electrical stimulation is not
`an element of Claim 1.
`In light of the foregoing, and because Alphatec did not raise any other disputed facts,
`NuVasive’s motion for summary judgment of infringement of ‘832 patent by the Battalion
`System is GRANTED.
`The ‘780 Patent
`B.
`The ‘780 patent is also for a “Surgical Access System and Related Methods.” The
`system is designed to establish an operative corridor through or near any of a variety of
`tissues having neural structures which, if contacted or impinged, may result in neural
`impairment for the patient. [Doc. No. 1-6, at Col. 2:65- Col. 3:4.] A specific intended use
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`of the system of the ‘780 patent, as set forth in claim 21, is to create an operative corridor
`in a lateral, trans-psoas path to the lumbar spine. NuVasive alleges Alphatec’s Battalion
`System literally infringes the following claims.
`Claim 21. A system for forming an operating corridor to a lumber spine,
`comprising:
`a dilator system to create a distraction corridor along a lateral, trans-psoas path
`to a lumbar spine, wherein said dilator system comprises at least two dilators
`of sequentially larger widths deliverable to a spinal disc along the lateral,
`trans-psoas path to the lumbar spine, a second dilator of said at least two
`dilators being slidably engageable with an exterior of the first of said at least
`two dilators, at least one of the first and second dilators including a stimulation
`electrode to deliver electrical stimulation for nerve monitoring when the
`stimulation electrode is positioned along the lateral, trans-psoas path to the
`lumbar spine;
`a three-bladed retractor assembly slidable over the dilator system toward the
`spinal disc along the lateral, trans-psoas path, the three-bladed retractor
`assembly including:
` a blade holder assembly and first, second and third retractor blades that
`extend generally perpendicularly relative to arm members of the blade holder
`assembly,
` wherein the three-bladed retractor assembly is adjustable from a first position
`in which the first, second and third retractor blades are adjacent to one another
`and slidable over the dilator system to a second position in which the second
`and third retractor blades are moved away from the first retractor blade to
`enlarge the distraction corridor and thereby form an operative corridor along
`the lateral, trans-psoas path to the lumbar spine,
` wherein the first retractor blade is linearly movable relative to the second
`and third retractor blades in response to rotation of a knob element on the
`blade holder assembly,
` wherein the second refractor [sic] blade is movable relative to the first blade
`in response to pivoting movement of the first pivotable arm member of said
`arm members which is coupled to the second retractor blade, and wherein the
`third retractor blade is movable relative to the first blade in response to
`pivoting movement of the second pivotable arm member of said arm members
`which is coupled to the third retractor blade; and
`wherein when the three-bladed retractor assembly is adjusted to the second
`position to form the operative corridor along the lateral, trans-psoas path to
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`the lumbar spine, the first retractor blade is a posterior-most retractor blade of
`the first, second, and third retractor blades and the operative corridor is
`dimensioned so as to pass an implant through the operative corridor and into
`the lumbar spine.
`Claim 22. The system of claim 21, wherein when the three-bladed retractor
`assembly is adjusted to the second position to form the operative corridor, the
`first retractor blade is the posterior-most retractor blade, the second blade is a
`cephalad-most retractor blade, and the third blade is a caudal-most retractor
`blade.
`Claim 24. The system of claim 21, wherein said arm members of the blade
`holder assembly further comprise a translating arm member coupled to the
`first retractor blade, wherein the rotation of the knob element of the blade
`holder assembly causes the translating arm member to linearly adjust a
`position of the first retractor blade relative to the second and third retractor
`blades.
`Claim 27. The system of claim 21, further comprising an elongate member
`deliverable to a spinal disc along a lateral, trans-psoas path to the lumbar spine
`such that a distal tip region of the elongate member is configured to penetrate
`into an annulus of the spinal disc, said first dilator being configured to slidably
`engage an exterior of the elongate member.
`[Doc. No. 1-6, at Col. 15:3- Col.16:36.]
`As discussed supra, the Battalion System includes: (1) sequential dilators used to
`split and advance through the psoas muscle until flush to the disc space; (2) the dilators
`having neuromonitoring capability; (3) a K-wire introduced through the dilators and
`inserted half-way into the target disc; and (4) a three-blade retractor system introduced over
`the second dilator flush with the disc space, the blades of which can be adjusted to define
`an operative corridor. NuVasive contends that all the elements of claims 21, 22, 24 and 27
`are present in the Battalion System.
`1. Distraction Assembly and Electrode Stimulation Limitations
`In its opposition Alphatec raises the some of the same arguments for non-
`infringement of this patent that it made with respect to the ‘832 patent: (1) the Battalion
`System does not create a distraction corridor with only the use of dilators and therefore
`does not meet the claim’s dilator system limitation; and (2) it does not include a source of
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`electrical stimulation so it does not “deliver electrical stimulation for nerve monitoring
`when the stimulation electrode is positioned along the lateral, trans-psoas path to the
`lumbar spine.” For the reasons discussed supra regarding the ‘832 patent, these arguments
`do not preclude a finding of infringement of the ‘780 patent.
`2. Slidably Engageable Limitation
`Alphatec additionally contends that NuVasive has not demonstrated that the
`Battalion System meets the ‘780 patent’s claim limitation of “a second dilator of said at
`least two dilators being slidably engageable with an exterior of the first of said at least two
`dilators.” The Court previously construed “slideably engageable” as “slides to contact.”
`[Doc. No. 167.] In the Battalion System a secondary dilator is advanced over an initial
`dilator’s exterior in a clockwise, counter-clockwise motion. [Doc No. 250-42 at 9.]
` Although Alphatec does not dispute that the secondary dilator of the Alphatec
`system is advanced by sliding it over the initial dilator, Alphatec contends that the dilators
`do not contact one another. Alphatec asserts that the dilators are designed to have a gap or
`clearance such that they are easily slideable and that NuVasive has not demonstrated that
`the secondary dilator sufficiently contacts the exterior of the initial dilator to meet the claim
`limitation. Although the Court finds Alphatec’s argument weak, it is for a jury to resolve
`the factual dispute as to whether the circumferential differences between the sequential
`dilators of the Battalion System result in contact between the interior of the secondary
`dilator and the exterior of the initial dilator as the secondary dilator is slidably advanced
`over the initial dilator.
`3. Pivoting Movement Limitation
`Alphatec also challenges NuVasive’s assertion that the Squadron Retractor of the
`Battalion System meets the claim limitation requiring that the arm members of the retractor
`assembly move in a pivoting manner – the retractor blade “is movable… in response to
`pivoting movement of the… pivotable arm member.” [Doc. No. 1-6 at Col. 15:37-39.]
`The Squadron Retractor has three arm members to which the retractor blades are attached.
`The retractor blades are positioned to slide over the dilator and then the arm members are
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`adjusted to move two of the blades away from the third to form the operative corridor.
`[Doc. No. 250-42 at 16.] Alphatec contends that although the arm members of the
`Squadron Retractor move away from each other, the movement is not a “pivoting
`movement.”
` The Court was not asked to construe “pivoting movement” at the claim construction
`hearing. “Pivoting movement,” although used in claim 21, does not appear in the body of
`the specification of the ‘780 patent. NuVasive contends it has a plain and ordinary meaning
`and requires no further explanation. Alphatec references PCT application WO
`2006/042241, related to the ‘780 patent, which describes in the summary of the invention
`that the cephalad-most and/or caudal-most blade may pivot or “rotate outward from a
`central axis of insertion” such that the operative corridor may be further expanded. [Doc.
`No. 260-11 at 9.] This definition of “pivoting movement”—to rotate outward or turn away
`from a central axis of insertion—is adopted by the Court.
`The evidence presented, including a demonstration at the oral argument of the
`operation of the Squadron Retractor, establishes that the retractor arms to which the blades
`are affixed, once the blades are inserted into the distraction corridor, are operable to move
`outward from that insertion point to expand the distraction corridor into an operative
`corridor. The parties dispute whether the movement of the retractor arms of the accused
`device meets the pivot limitation, i.e., whether they a rotate or turn away from the central
`axis of insertion. This material factual dispute must be resolved by a jury.
`In light of the foregoing, NuVasive’s motion for summary adjudication of
`infringement of claim 21 is DENIED. Because claims 22, 24 and 27 depend from claim
`21, summary adjudication of infringement of those claims is also DENIED.
`C. The ‘270 Patent
`The ‘270 patent is also for a “Surgical Access System and Related Methods.” The
`system is designed to establish an operative corridor through or near any of a variety of
`tissues having neural structures which, if contacted or impinged, may result in neural
`impairment for the patient. [Doc. No. 1-12 at Col. 3:1-6.] The claims of the ‘270 patent
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`are specifically directed at a shim device designed to augment the structural stability of the
`retractor blades. [Id. at Col. 4:56-62.] NuVasive alleges the Battalion System’s intradiscal
`shim literally infringes the following claims.
`Claim 1. A spinal shim device configured to releasably attach to spinal access
`retractor blade and to penetrate into a spinal disc space for anchoring the
`spinal access retractor blade to the disc space, the shim device comprising:
` a proximal portion configured to releasably attach to a spinal access
`refractor [sic] blade, a distal extension configured to extend distally of the
`spinal access retractor blade and penetrate into a disc space between two
`adjacent vertebrae, and a maximum longitudinal length extending from a
`proximal-most end of the proximal portion to a distal-most end of the distal
`extension and extending parallel to a longitudinal axis of the shim device,
`wherein the maximum longitudinal length of shim device is less than a
`maximum longitudinal length of the spinal access retractor blade to which the
`proximal portion is configured to releasably attach;
` the distal extension including: a tapered tip region, and a maximum lateral
`width of the distal extension located proximally away from the distal-most
`end;
` the proximal portion having a proximal lateral width that is greater than the
`maximum lateral width of the distal extension, the proximal portion defining
`a forward surface portion, and the proximal portion including a rearwardly
`extending ridge structure to releasably engage with a corresponding groove
`along an interior face of the spinal access refractor [sic] blade when the
`proximal portion releasably attaches to the spinal access retractor blade, the
`ridge structure having a length extending parallel to the longitudinal axis of
`the shim device and being bisected by a longitudinal plane passing through
`the longitudinal axis of the shim device.
`Claim 2. The spinal shim device of claim 1, wherein the proximal lateral width
`of the proximal portion is defined between opposing lateral sides of the
`proximal portion, the rearwardly extending ridge structure being centered
`between the opposing lateral sides of the proximal portion.
`Claim 3. The spinal shim device of claim 2, wherein the length of the
`rearwardly extending ridge structure is greater than a lateral width of the ridge
`structure and greater than a rearwardly extending thickness of the ridge
`structure.
`Claim 6. The spinal shim device of claim 1, wherein the distal extension
`includes a distal lateral width that is generally consistent along a portion of
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`the distal extension that is adjacent to the tapered tip region, the distal lateral
`width being the maximum lateral width of the distal extension.
`Claim 12. The spinal shim device of claim 1, wherein a maximum lateral
`width of the proximal portion extends in a lateral plane that extends
`perpendicularly to the longitudinal axis and passes through the ridge structure.
`[Doc. No. 1-12, at Col. 14:30 – Col. 16:21.]
`The intradiscal shim of the Battalion System has a rearward extending structure that
`releasably engages with a corresponding groove on the interior face of a retractor blade.
`[Doc. No. 250-42 at 20; Doc. No. 253-7 at 2.] The parties dispute whether that structure
`meets the claim limitation of a rearwardly extending ridge structure having “a length
`extending parallel to the longitudinal axis of the shim device.” [Doc. No. 1-12 at 14:57-
`58.]
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`NuVasive contends that claim 1 does not require the rearward extending ridge
`structure to have a specific length of parallel extension along the longitudinal axis, and that
`therefore the structure identified by Alphatec meets the limitation. Moreover, NuVasive
`contends that the rearward extending structure of the Alphatec shim is not limited, as
`Alphatec asserts, to the portion that engages into the retractor blade groove. As highlighted
`in yellow below, NuVasive contends that the rearward extending ridge structure of the
`Alphatec shim includes the entire portion of the shim that extends rearward from the
`surface portion, thereby having a length extending parallel to the longitudinal axis of the
`shim device. [Doc. No. 253-7 at 2, highlighting added.]
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`Alphatec contends that the structure of its shim that engages with a corresponding
`groove in the retractor is not a parallel extension from the shim device. The releasable
`structure of the shim is only that portion that extends perpendicularly from the surface
`portion as highlighted in yellow below. [Id., highlighting added.]
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`Therefore, according to Alphatec, the intradiscal shim of the Battalion System does not
`meet the claim limitation.
`The Court finds a material factual dispute at to whether the accused device meets all
`the limitations of claim 1. NuVasive’s motion for summary adjudication of infringement
`of claim 1 and its dependent claims 2, 3, 6 and 12 is DENIED.
`Summary Adjudication of Invalidity Defenses
`II.
`Each claim of a patent is presumed valid. 35 U.S.C. § 282. The party challenging
`the validity of a patent claim must prove invalidity by clear and convincing evidence.
`Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 108-09 (2011). A patent claim is invalid
`as obvious if the differences between the claimed invention and the prior art are such that
`the claimed invention as a whole would have been obvious before the effective filing date
`of the claimed invention to a person having ordinary skill in the art to which the claimed
`invention pertains. 35 U.S.C. § 103.
`NuVasive moves for summary adjudication that Alphatec’s invalidity challenges
`against all seven patents at issue fail as a matter of law to establish invalidity based on
`obviousness by clear and convincing evidence. To prevail on its motion, NuVasive must
`establish that Alphatec, “who bears the burden of proof at trial, failed to produce clear and
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`convincing evidence on an essential element of a defense upon which a reasonable jury
`could invalidate the patent.” Eli Lilly & Co. v. Barr Labs, Inc., 251 F.3d 955, 962-63 (Fed.
`Cir 2001).
`As to each asserted patent, NuVasive contends that Alphatec’s evidence of
`obviousness, provided by Dr. Charles Branch, is insufficient and relies only upon his
`conclusory and unsupported opinions that a person of skill in the art would be motivated
`to combine the various prior art references he puts forth. Alphatec’s opposition however
`is persuasive that its evidence challenging the validity of the patent claims at issue is
`sufficient for a reasonable jury to conclude the patents are obvious. NuVasive has not
`demonstrated that Alphatec’s invalidity defenses fail as a matter of law. The motion for
`summary adjudication of the validity of the patents at issue, or more accurately an
`adjudication dismissing Alphatec’s affirmative defenses of invalidity as to each patent, is
`DENIED.
`III. Summary Adjudication of the Inequitable Conduct Defense
`NuVasive moves for summary adjudication of Alphatec’s affirmative defense of
`inequitable conduct during the prosecution of the ‘227, ‘531, ‘832 and ’859 patents. The
`Court finds many material facts in dispute regarding this defense. Further, because it is an
`equitable defense for the Court’s determination, it will be bifurcated from the jury trial and
`heard separately as a bench trial at the conclusion of the jury case. The motion is therefore
`DENIED.
`IV. Conclusion
` For the reasons stated above and on the record at the hearing on this motion,
`NuVasive’s motion for summ