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`EXHIBIT 19
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`TO THE DECLARATION OF BRIAN J.
`NISBET IN SUPPORT OF DEFENDANTS’
`OPPOSITION TO NUVASIVE’S MOTION
`FOR PARTIAL SUMMARY JUDGMENT
`AND MOTION TO EXCLUDE
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`NIMALKA R. WICKRAMASEKERA (SBN: 268518)
`nwickramasekera@winston.com
`DAVID P. DALKE (SBN: 218161)
`ddalke@winston.com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile:
`(213) 615-1750
`
`GEORGE C. LOMBARDI (Pro Hac Vice)
`glombardi@winston.com
`BRIAN J. NISBET (Pro Hac Vice)
`bnisbet@winston.com
`SARANYA RAGHAVAN (Pro Hac Vice)
`sraghavan@winston.com
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601-9703
`Telephone: (312) 558-5600
`Facsimile: (312) 558-5700
`
`CORINNE STONE HOCKMAN (Pro Hac Vice)
`chockman@winston.com
`WINSTON & STRAWN LLP
`1111 Louisiana Street, 25th Floor
`Houston, TX 77002-5242
`Telephone: (713) 651-2600
`Facsimile:
`(713) 651-2700
`
`Attorneys for Defendants
`ALPHATEC HOLDINGS, INC. and ALPHATEC SPINE, INC.
`
`
`
`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
`
`SAN DIEGO DIVISION
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`NUVASIVE, INC., a Delaware
`corporation,
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`Plaintiff,
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`v.
`
`
`ALPHATEC HOLDINGS, INC., a
`Delaware corporation and
`ALPHATEC SPINE, INC., a
`California corporation,
`
`
`Defendants.
`
`Case No. 3:18-CV-00347-CAB-MDD
`
`[Assigned to Courtroom 4C – Honorable
`Cathy Ann Bencivengo]
`
`[Magistrate: Hon. Mitchell D. Dembin]
`
`DEFENDANTS’ RESPONSE TO
`PLAINTIFF NUVASIVE, INC.’S FIFTH
`SET OF INTERROGATORIES (NO. 23)
`
`Complaint filed: February 13, 2018
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`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
`
`
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 338
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`

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`PROPOUNDING PARTY:
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`PLAINTIFF NUVASIVE, INC.
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`RESPONDING PARTY:
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`DEFENDANTS ALPHATEC HOLDINGS, INC.
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`AND ALPHATEC SPINE, INC.
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`SET NO.:
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`FIVE (NO. 23)
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`Defendants Alphatec Holdings, Inc., and Alphatec Spine, Inc. (collectively,
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`“Defendants” or “Alphatec”), hereby provide their response to Plaintiff NuVasive,
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`Inc.’s (“Plaintiff”) Fifth Set of Interrogatories (No. 23) under Rules 26 and 33 of the
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`Federal Rules of Civil Procedure and the applicable rules of this Court. Defendants
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`reserve the right to amend and/or supplement these responses as necessary.
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`GENERAL OBJECTIONS
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`The following general objections apply to each of Plaintiff’s Interrogatories and
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`are incorporated by reference into each response made herein as though fully set forth
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`in each and every following Interrogatory response. The assertion of the same, similar,
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`or additional objections or the provision of partial answers in the individual responses
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`to these Interrogatories does not waive any of Defendants’ General Objections as set
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`forth below.
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`1.
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`Defendants’ responses are made solely for the purpose of the above-
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`captioned litigation. Defendants expressly reserve the right to object to the admissibility
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`or otherwise seek exclusion of the information disclosed in its responses.
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`2.
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`Defendants have not completed their investigation, discovery, or analysis
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`of all the facts of this case and have not completed preparation for trial. Accordingly,
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`all of the following responses are provided without prejudice to Defendants’ right to
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`introduce at trial any evidence that is subsequently discovered relating to proof of
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`presently known facts and to produce and introduce all evidence, whenever discovered,
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`relating to the proof of subsequently discovered material facts. Moreover, facts,
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`documents, and things now known may be imperfectly understood; and, accordingly
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`such facts, documents, and things may not be included in the following responses.
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`Defendants reserve the right to reference, discover, or offer into evidence at the time of
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`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
`
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 339
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`

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`trial any and all facts, documents, and things notwithstanding the initial answers and
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`objections interposed herein. Defendants further reserve the right to reference,
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`discover, or offer into evidence at the time of trial any and all facts, documents, and
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`things that they do not presently recall but may recall at some time in the future.
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`3.
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`The Interrogatories may use isolated terms that have many possible
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`meanings. Defendants have attempted to respond to the best of their ability, but object
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`to this ambiguity. Similarly, many of the ambiguous terms are legal in nature so that,
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`in effect, they require Defendants to draw legal conclusions in responding. Defendants
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`reserve the right to supplement or revise these responses if the Interrogatories and/or
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`responses later are used in contexts that tend to give them a particular meaning.
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`4.
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`No incidental or implied admissions are intended in these responses. The
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`fact that Defendants have responded to these Interrogatories (i) should not be taken as
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`an admission that Defendants accept or admit the existence of any facts set forth or
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`assumed by the Interrogatories or that such response constitutes admissible evidence,
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`and (ii) is not intended to and shall not be construed to be a waiver by Defendants of all
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`or any part of any objection to the Interrogatories.
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`5.
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`Defendants object to each Interrogatory to the extent it seeks information,
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`documentation, or things protected by the attorney-client privilege, the work product
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`doctrine, or any other applicable privilege or immunity, including the common interest
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`doctrine. To the extent such information is inadvertently produced, Defendants have
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`not authorized such production, and no waiver of any privilege shall be inferred from
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`it.
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`6.
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`Defendants object to each Interrogatory to the extent it seeks information
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`that Defendants are not permitted to disclose pursuant to confidentiality agreements
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`with third parties, or obligations under court order.
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`7.
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`Defendants object to each Interrogatory to the extent it is directed at
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`private, confidential, trade secret, proprietary, financial, or commercially sensitive
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`information, the disclosure of which would result in substantial competitive injury to
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`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
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`
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 340
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`

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`Defendants, or a breach by Defendants of an obligation to a third party to maintain the
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`confidentiality of information. Defendants further object to each Interrogatory to the
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`extent it would seek disclosure of information where such information would violate
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`any constitutional, statutory, or common-law privacy right of any individual or entity.
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`Defendants will produce such information only after agreement by the parties to and
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`entry of a protective order governing the disclosure confidential information.
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`8.
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`Defendants object to each Interrogatory to the extent it seeks information:
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`(a) not relevant to the claims or defenses of this case and/or not proportional to the needs
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`of the case; (b) that is unreasonably cumulative or duplicative, or obtainable from some
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`other source that is more convenient, less burdensome, or less expensive; or (c) that
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`Plaintiff has had the opportunity to obtain from other sources.
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`9.
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`Defendants object to each Interrogatory to the extent it purports to impose
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`discovery obligations beyond those required under the Federal Rules of Civil Procedure,
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`the Local Rules for the Southern District of California, or any applicable rule or order
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`of this Court.
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`10. Defendants object to each Interrogatory to the extent it attempts to require
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`production of things not within Defendants’ possession, custody, or control.
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`11. Defendants object to each Interrogatory to the extent it seeks information
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`without a time limitation, and is therefore overly broad, unduly burdensome, not
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`relevant to the claims or defenses of the parties, beyond the scope of the pleadings, and
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`not relevant to the claims or defenses of this case and/or not proportional to the needs
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`of the case.
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`12. Defendants object to each Interrogatory to the extent it seeks premature
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`disclosure of information that is properly the subject of expert discovery.
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`13. Defendants object to each Interrogatory to the extent it implies an act, or
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`acts, of infringement by Defendants.
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`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
`
`
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 341
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`

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`14. Defendants’ responses are subject to all objections as to competence,
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`relevance, materiality, and admissibility. Defendants reserve the right to make all such
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`objections at trial.
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`OBJECTIONS TO PLAINTIFF’S DEFINITIONS AND INSTRUCTIONS
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`1.
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`Defendants incorporate by reference their objections to Plaintiff’s
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`definitions and instructions as contained in Defendants’ Responses to Plaintiff’s First
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`Set of Interrogatories (Nos. 1-10) and Defendants’ Responses to Plaintiff’s First Set of
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`Requests for Production (Nos. 1-41).
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`SPECIFIC OBJECTIONS AND RESPONSES
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`Subject to the General Objections, all of which are hereby incorporated by
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`reference as though set forth fully within each and every response to below, Defendants
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`respond specifically to Plaintiff’s Interrogatories as follows:
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`INTERROGATORY NO. 23:
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`If Alphatec contends it does not willfully infringe the ’334 and ’156 implant
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`patents, identify in detail all legal and factual bases for Alphatec’s contention that
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`Alphatec does not willfully infringe.
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`RESPONSE TO INTERROGATORY NO. 23:
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`In addition to the General Objections, Defendants object to this Interrogatory to
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`the extent it calls for a legal conclusion and attempts to shift the burden of proof of
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`willful infringement to Defendants. Defendants further object to this Interrogatory as
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`vague, ambiguous, overbroad, unduly burdensome, and as failing to describe the
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`requested information with reasonable particularity to the extent that it requires
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`Defendants to “identify in detail all legal and factual bases.” Defendants further object
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`to this Interrogatory to the extent it seeks information protected from discovery by the
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`attorney-client privilege, the work product doctrine, or any other privilege or immunity.
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`Defendants further object to this Interrogatory as seeking disclosure of private,
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`confidential, trade secret, proprietary, or commercially and competitively sensitive
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`information, the disclosure of which would result in substantial competitive injury to
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`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 342
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`

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`Defendants.
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`Subject to and without waiving the foregoing General and Specific Objections,
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`Defendants respond:
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`Alphatec denies that it willfully infringes the ’334 and ’156 patents because it
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`does not infringe the ’334 and ’156 patents. For at least the reasons discussed in
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`response to Interrogatory No. 1, there can be no infringement of the ’334 and ’156
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`patents. Even to the extent Alphatec is found to infringe the ’334 and ’156 patents,
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`there is no evidence that such infringement was willful, wanton, malicious, bad-faith,
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`deliberate, consciously wrongful, flagrant, or characteristic of a pirate. See Halo Elecs.,
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`Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932 (2016). Indeed, Alphatec’s product
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`development team was under direct guidance not to copy a competitor’s intellectual
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`property, largely as a result of the lawsuit between Medtronic and NuVasive. Costabile
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`Dep. Tr. 67:24–68:21.
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`Alphatec began research and development of the accused implants in 2014,
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`conducted the first validation lab of the accused implants in March 2015, and continued
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`finalizing design and development until it held a full validation lab with production-
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`equivalent versions of the accused implants in December 2015. See Responses to
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`Interrogatory Nos. 2, 13. From the time production-equivalent versions of the accused
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`implants were validated (December 2015) through the first sale and limited market
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`release of said products (Q1 2017), no material changes were made to the accused
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`implants. See Response to Interrogatory No. 13.
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`Alphatec had sound reason to believe the ’334 and ’156 patents were invalid and
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`had a reasonable belief that the patents would likely be invalidated before developing
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`the accused implants. For example, before and during the development of the accused
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`products, Medtronic presented a strong challenge to the validity of the ’334 and ’156
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`patents in Warsaw Orthopedic, Inc. v. NuVasive Inc., No. 3:12-cv-02738. NuVasive
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`asserted that Medtronic infringed the ’334 and ’156 patents. In response, Medtronic
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`filed IPRs for the ’334 and ’156 patents, both of which the PTAB instituted. In February
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`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
`
`
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`CASE NO. 3:18-CV-00347-CAB-MDD
`
`EXHIBIT 19 - PAGE 343
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`

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`2015, the PTAB issued Final Written Decisions, invalidating claims 1–5, 10, 11, 14–
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`17, and 19–28 of the ’334 patent and claims 1–14, 19–20, and 23–27 of the ’156 patent.
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`NuVasive appealed and in late 2016, the Federal Circuit vacated and remanded the
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`PTAB’s decision relating to claims 16 and 17 of the ’334 patent and vacated the PTAB’s
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`decision relating to the ’156 patent for additional narrow findings regarding the
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`motivation to combine prior art references. The IPRs were subsequently terminated in
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`2017 pursuant to the parties settling the litigation. Alphatec had knowledge of the
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`Warsaw Orthopedic, Inc. v. NuVasive Inc. litigation and IPR history, and believed the
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`’334 and ’156 patents were invalid or likely to be invalidated.
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`Additionally, after the commencement of the instant suit, Alphatec presented a
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`strong invalidity case for the ’334 and ’156 patents. For example, in the Order Denying
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`Motion for Preliminary Injunction, the Court noted that Alphatec raised a substantial
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`question as to the validity of claim 1 of the ’156 patent. Doc. No. 94 at 10. Alphatec
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`also filed petitions for IPRs challenging all asserted claims of the ’334 and ’156 patents
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`in December 2018 and January 2019. The Court stayed litigation of the ’334 and ’156
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`patents as a result of Alphatec’s IPRs. In July 2019, the PTAB instituted Alphatec’s
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`IPRs for all asserted claims of the ’334 and ’156 patents.
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`Although Alphatec is estopped from asserting certain prior art arguments for
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`those claims, Alphatec maintains that the asserted claims of the ’334 and ’156 patents
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`are invalid under at least 35 U.S.C. § 112, ¶ 2 and 35 U.S.C. § 102(b).
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`Further, since learning of the ’334 and ’156 patents, Alphatec has introduced a
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`suitable, non-infringing alternative to the Accused Products. Specifically, Alphatec
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`commercially launched its IdentiTi line of implants in 2019. The IdentiTi Interbody
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`Implant System allows Alphatec to address the broader market of surgeons who prefer
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`titanium over PEEK. Alphatec began alpha evaluations of the various IdentiTi implants
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`in August 2018.
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`Alphatec notes that NuVasive bears the burden to show that willful infringement
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`applies. Defendants reserve the right to supplement this response in response to any
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`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
`
`
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 344
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`proffered evidence or further contentions from NuVasive.
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`Dated: September 18, 2020
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`WINSTON & STRAWN LLP
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`By: /s/ Nimalka R. Wickramasekera
`Nimalka R. Wickramasekera
`George C. Lombardi
`Brian J. Nisbet
`David P. Dalke
`Saranya Raghavan
`Corinne Stone Hockman
`Attorneys for Defendants
`ALPHATEC HOLDINGS, INC. AND
`ALPHATEC SPINE, INC.
`
`7
`DEFENDANTS’ RESPONSES TO PLAINTIFF NUVASIVE, INC.’S
`FIFTH SET OF INTERROGATORIES (NO. 23)
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`EXHIBIT 19 - PAGE 345
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`

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`CERTIFICATE OF SERVICE
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`United States District Court for the Southern District of California
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`Case No. 3:18-CV-00347-CAB-MDD
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`I am a resident of the State of Illinois, over the age of eighteen years, and not a
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`party to the within action. My business address is Winston & Strawn LLP, 35 W.
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`Wacker Drive Chicago, IL 60601-9703. On September 18, 2020, I served the following
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`document:
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`DEFENDANTS’ RESPONSE TO PLAINTIFF NUVASIVE, INC.’S FIFTH SET
`OF INTERROGATORIES (NO. 23)
`
`
`
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`by electronically transmitting copy(ies) of the document(s) listed above via
`email to the addressees as set forth below, in accordance with the parties’
`agreement to be served electronically pursuant to Fed. R. Civ. P. 5, or
`Local Rule of Court, or court order. No error messages were received after
`said transmission.
`
`
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`SEE ATTACHED SERVICE LIST
`
`
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`I declare under penalty of perjury under the laws of the United States of America
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`that the above is true and correct.
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`Signed: /s/ Saranya Raghavan
`Saranya Raghavan
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`Dated: September 18, 2020
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`CERTIFICATE OF SERVICE
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 346
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`Case 3:18-cv-00347-CAB-MDD Document 307-20 Filed 02/16/21 PageID.30012 Page 11 of
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`SERVICE LIST
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`Paul D. Tripodi II, Esq.
`Erik Carlson
`Wilson Sonsini Goodrich & Rosati P.C.
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Telephone: (323) 210-2900
`Facsimile: (866) 974-7329
`Email: ptripodi@wsgr.com
`Email: ecarlson@wsgr.com
`Email: nuva/atec@wsgr.com
`Email: NUVA_ATEC-IP@list.wsgr.com
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`Wendy L. Devine, Esq.
`Wilson Sonsini Goodrich & Rosati P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Telephone: (415) 947-2000
`Facsimile: (415) 947-2099
`Email: wdevine@wsgr.com
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`Natalie J. Morgan, Esq.
`Christina Elizabeth Dashe, Esq.
`Wilson Sonsini Goodrich & Rosati P.C.
`12235 El Camino Real, Suite 200
`San Diego, CA 92130
`Telephone: (858) 350-2363
`Facsimile: (858) 350-2399
`Email: nmorgan@wsgr.com
`Email: cdashe@wsgr.com
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`Sara L. Tolbert, Esq.
`Wilson Sonsini Goodrich & Rosati P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 493-9300
`Facsimile: (650) 565-5100
`Email: stolbert@wsgr.com
`
`Hilgers Graben PLLC
`Michael T. Hilgers (Pro Hac Vice)
`mhilgers@hilgersgraben.com
`J. Bub Windle (Pro Hac Vice)
`bwindle@hilgersgraben.com
`Trenton T. Tanner (Pro Hac Vice)
`ttanner@hilgersgraben.com
`575 Fallbrook Blvd, Suite 202
`Lincoln, NE 68521
`Telephone: 402-260-2106
`Fax: 402-413-1880
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`CERTIFICATE OF SERVICE
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 347
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`Case 3:18-cv-00347-CAB-MDD Document 307-20 Filed 02/16/21 PageID.30013 Page 12 of
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`Andrew R. Graben (Pro Hac Vice)
`agraben@hilgersgraben.com
`10000 N. Central Expy, Suite 400
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`Dallas, TX 75231
`Telephone: 214-842-6828
`Fax: 402-413-1880
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`Attorneys for Plaintiff NuVasive, Inc.
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`CERTIFICATE OF SERVICE
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`EXHIBIT 19 - PAGE 348
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