Case 3:18-cv-00347-CAB-MDD Document 304-16 Filed 01/26/21 PageID.28770 Page 1 of 6
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT 6
`
`TO THE DECLARATION OF
`BRIAN J. NISBET IN SUPPORT OF
`DEFENDANTS’ MOTION FOR
`SUMMARY JUDGMENT
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 304-16 Filed 01/26/21 PageID.28771 Page 2 of 6
`
`HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA – SAN DIEGO DIVISION
`
`
`NUVASIVE, INC., a Delaware corporation,
`
` Plaintiff,
`
`v.
`
`
`ALPHATEC HOLDINGS, INC., a Delaware
`corporation, and ALPHATEC SPINE, INC., a
`California corporation,
`
` Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`CORRECTED OPENING EXPERT REPORT OF JIM YOUSSEF, MD REGARDING
`U.S. PATENT NOS. 8,361,156 (‘156 PATENT) AND 8,187,334 (‘334 PATENT)
`
`Case No. 18-cv-00347-MDD-CAB
`
`
`
`
`
`
`
`
`
`
` EXHIBIT 6 - PAGE 897
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 304-16 Filed 01/26/21 PageID.28772 Page 3 of 6
`
`HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY
`
`
`
`At the request of counsel for NuVasive, Inc. (“NuVasive”), I hereby provide the
`
`following opinions. I reserve the right to amend and/or supplement this expert report based on
`
`my continuing review of the currently available evidence and/or if I am provided with
`
`additional evidence of relevance to the opinions set forth herein.
`
`I.
`
`ASSERTED PATENTS AND CLAIMS
`
`1.
`
`I am informed by counsel for NuVasive that NuVasive alleges that Alphatec
`
`Holdings, Inc. and Alphatec Spine, Inc. (“Alphatec”) have infringed certain claims of the U.S.
`
`Patent Nos. 8,361,156 (“the ’156 patent”) and 8,187,334 (“the ’334 patent”) (collectively, “the
`
`Implant Patents”).
`
`2.
`
`I also am informed by counsel for NuVasive that NuVasive alleges that Alphatec
`
`has infringed the following claims of the Implant Patents (“Asserted Claims”):
`
`Patent
`
`’156 patent
`
`’334 patent
`
`Asserted Claims
`
`1, 5, 10, 18, and 24
`
`16 and 18
`
`
`EDUCATION AND EXPERIENCE
`
`II.
`
`3.
`
`I am an orthopaedic surgeon, board certified by the American Board of
`
`Orthopaedic Surgery, and fellowship trained in spine surgery.
`
`4.
`
`I received an undergraduate degree in Genetics from the University of California
`
`at Berkeley in 1986. I received my medical degree from the University of California, Irvine
`
`School of Medicine, in 1991.
`
`5.
`
`I completed an internship in general surgery at Oregon Health Sciences
`
`University in 1992. I performed my orthopaedic surgery residency at Dartmouth-Hitchcock
`
`Medical Center in Lebanon, New Hampshire from 1992-1996. I was chief resident of
`
`
`
`1
`
` EXHIBIT 6 - PAGE 898
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 304-16 Filed 01/26/21 PageID.28773 Page 4 of 6
`
`HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY
`
`
`
`D.
`
`Claim 18
`
`i.
`
`[18]—The spinal fusion implant of claim 1, wherein said maximum
`lateral width of said implant is approximately 18 mm.
`
`264.
`
`I am informed by counsel that the Court has not construed any other terms from
`
`this portion of the claim. Therefore, I have interpreted the claim language in accordance with its
`
`plain and ordinary meaning.
`
`a.
`
`Practice by the NuVasive Embodying Products
`
`265. As discussed above, the ’334 Embodying Implants meet every limitation of claim
`
`1 of the ’334 patent. In addition, NuVasive’s relevant surgical guides and/or other marketing,
`
`design, and education materials teach that the 18 mm wide versions of the ’334 Embodying
`
`Implants have maximum lateral width that is approximately 18 mm. See Appendix B, Element
`
`[18].
`
`266. Thus, the ’334 Embodying Implants practice this limitation of claim 18.
`
`b.
`
`Infringement by the Accused Alphatec Products
`
`267. As discussed above, Alphatec’s Accused Implants meet every limitation of claim
`
`1 of the ’334 patent. In addition, as promoted and described in Alphatec’s surgical guides and/or
`
`other marketing, design, and education materials, and as further confirmed by the testimony of
`
`Alphatec’s witnesses, at least the 18 mm wide versions of the Battalion™ Lateral Spacer and the
`
`Transcend™ LIF PEEK further have a maximum lateral width of approximately 18 mm. See
`
`Exhibits D and E, Element [18]; see also Section XI, infra.
`
`268.
`
` In addition, Alphatec has made the Titec Coated LLIF Implants which, as shown
`
`in Alphatec’s development materials and as further confirmed by the testimony of Alphatec’s
`
`witnesses, are essentially identical in relevant part to the Battalion™ Lateral Spacer and the
`
`Transcend™ LIF PEEK Spacer (further including an additional titanium coating on the surface
`
`
`
`88
`
` EXHIBIT 6 - PAGE 899
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 304-16 Filed 01/26/21 PageID.28774 Page 5 of 6
`
`HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY
`
`
`of the PEEK implant). See Section XI, infra. Thus, for the same reasons as at least the 18 mm
`
`wide versions of the Battalion™ Lateral Spacer and the Transcend™ LIF PEEK Spacer, the
`
`corresponding versions of the Titec Coated LLIF implants have a maximum lateral width of
`
`approximately 18 mm. See Exhibit F, Element [18]; see also Section XI, infra.
`
`269. Thus, Alphatec’s Accused Implants meet this limitation of claim 18.
`
`XIV. THERE ARE NO ACCEPTABLE NON-INFRINGING ALTERNATIVES
`
`270. As detailed in my analysis below, there are no acceptable non-infringing
`
`alternatives to NuVasive’s MAS Platform/XLIF Procedure using the CoRoent XL line of
`
`implants as of the time of Alphatec’s infringement because no other non-infringing surgical
`
`platform offers the key benefits and advantages of the patented surgical platform.
`
`271.
`
`In particular, in my experience, surgeons specifically choose to utilize XLIF (and
`
`relatedly Alphatec’s Accused Products) because, as described in paragraphs 87-104 of my
`
`Opening Report, paragraphs 1–2, 16–30 of my November 8, 2019 Damages Report, and
`
`paragraphs 432–446 below, the patented features present within these products collectively
`
`function in such a way that allows surgeons to achieve a safe and reproducible, minimally
`
`invasive, and clinically successful interbody fusion.
`
`272.
`
`I addressed ALIF, PLIF, and TLIF fusion surgeries in paragraphs 65–70; 1278 of
`
`my Opening Report. Furthermore, I explained how XLIF solved the problems associated with
`
`these types of surgeries in paragraphs 87–102 of my Opening Report. As set forth in 1278 of my
`
`opening report, ALIF, PLIF, and TLIF fusion surgeries would not be acceptable non-infringing
`
`alternatives because they are inferior to the patented products in key respects. For similar
`
`reasons, implants designed for such procedures would not be acceptable non-infringing
`
`alternatives to NuVasive’s XLIF Procedure/MAS platform using CoRoent XL implants.
`
`
`
`89
`
` EXHIBIT 6 - PAGE 900
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 304-16 Filed 01/26/21 PageID.28775 Page 6 of 6
`
`HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY
`
`
`also has lateral implants also made of non-PEEK substrates that will be available for surgeons to
`
`use in a lateral, trans-psoas surgery.
`
`471. Finally, based on my own personal inspection of Alphatec’s Accused Products, in
`
`conjunction with my review of photographs and videos from NuVasive’s counsel’s inspection of
`
`Alphatec’s Accused Products, as well as Alphatec’s surgical and implant guides for the Accused
`
`Products, I have identified no additional unique features or benefits of Alphatec’s Accused
`
`Products that are not similarly present in the CoRoent® XL implant or any other lateral spinal
`
`fusion surgery product available on the market.
`
`
`
`
`
`
`
`Date: November 20, 2020
`
`
`
`
`
`
`
`
`
`
`
`JimSt;:::
`
`
`
`180
`
` EXHIBIT 6 - PAGE 901
`
`