Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34109 Page 1 of 69
`
`WILSON SONSINI GOODRICH & ROSATI P.C.
`MORRIS FODEMAN (pro hac vice)
`mfodeman@wsgr.com
`WENDY L. DEVINE (SBN 246337)
`wdevine@wsgr.com
`NATALIE J. MORGAN (SBN 211143)
`nmorgan@wsgr.com
`12235 El Camino Real
`San Diego, CA 92130
`(858) 350-2300
`
`HILGERS GRABEN PLLC
`MICHAEL T. HILGERS (pro hac vice)
`mhilgers@hilgersgraben.com
`575 Fallbrook Blvd, Suite 202
`Lincoln, NE 68521
`(402) 218-2106
`
`Attorneys for Plaintiff NuVasive, Inc.
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`SAN DIEGO DIVISION
`NUVASIVE, INC., a Delaware
`CASE NO.: 18-cv-00347-CAB-MDD
`corporation,
`
`))))))))))))))
`
`Plaintiff,
`
`v.
`
`ALPHATEC HOLDINGS, INC., a
`Delaware corporation, and ALPHATEC
`SPINE, INC., a California corporation,
`Defendants.
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`Judge: Hon. Cathy Ann Bencivengo
`Courtroom: 15A
`Trial Date: January 10, 2022
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34110 Page 2 of 69
`
`PRELIMINARY JURY INSTRUCTIONS
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`1
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34111 Page 3 of 69
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 1
`
`[Intentionally skipped due to agreement of the parties]
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`2
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34112 Page 4 of 69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 2
`UNITED STATES PATENTS
`This case involves a dispute relating to a United States patent. Before
`summarizing the positions of the parties and the legal issues involved in the dispute,
`let me take a moment to explain what a patent is and how one is obtained.
`Patents are granted by the United States Patent and Trademark Office (sometimes
`called “the PTO”). A valid United States patent gives the patent holder the right to
`prevent others from making, using, offering to sell, or selling the patented invention
`within the United States, or from importing it into the United States, during the term
`of the patent without the patent holder’s permission. A violation of the patent
`holder’s rights is called infringement. The patent holder may try to enforce a patent
`against persons believed to be infringers by means of a lawsuit filed in federal court.
`To obtain a patent one must file an application with the PTO. The process of
`obtaining a patent is called patent prosecution. The PTO is an agency of the federal
`government and employs trained patent examiners who review applications for
`patents. The application includes what is called a “specification,” which must
`contain a written description of the claimed invention telling what the invention is,
`how it works, how to make it and how to use it so others skilled in the field will
`know how to make or use it. The specification concludes with one or more
`numbered sentences. These are the patent “claims.” When the patent is eventually
`granted by the PTO, the claims define the boundaries of its protection and give
`notice to the public of those boundaries.
`After the applicant files the application, a PTO patent examiner reviews the
`patent application to determine whether the claims are patentable and whether the
`specification adequately describes the invention claimed. In examining a patent
`application, the patent examiner reviews information about the state of the
`technology at the time the application was filed. As part of that effort, the patent
`examiner searches for and reviews information that is publicly available, submitted
`PROPOSED JURY INSTRUCTIONS
`3
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34113 Page 5 of 69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`by the applicant, or both. That information is called “prior art.” Prior art is defined
`by law, and I will give you at a later time specific instructions as to what
`constitutes prior art. However, in general, prior art includes things that existed
`before the claimed invention, that were publicly known, or used in a publicly
`accessible way in this country, or that were patented or described in a publication
`in any country. The patent examiner considers, among other things, whether each
`claim defines an invention that is new, useful, and not obvious in view of the prior
`art. A patent lists the prior art that the examiner considered; this list is called the
`“cited references.”
`After the prior art search and examination of the application, the patent
`examiner then informs the applicant in writing what the examiner has found and
`whether any claim is patentable, and thus will be “allowed.” This writing from the
`patent examiner is called an “office action.” If the examiner rejects the claims, the
`applicant has an opportunity to respond and sometimes changes the claims or
`submits new claims. This process, which takes place only between the examiner and
`the patent applicant, may go back and forth for some time until the examiner is
`satisfied that the application and claims meet the requirements for a patent.
`Sometimes, patents are issued after appeals with the PTO or to a court. The papers
`generated during this time of communicating back and forth between the patent
`examiner and the applicant make up what is called the “prosecution history.” All of
`this material becomes available to the public no later than the date when the patent
`issues.
`The fact that the PTO grants a patent does not necessarily mean that any
`invention claimed in the patent, in fact, deserves the protection of a patent. For
`example, the PTO may not have had available to it all the information that will be
`presented to you. A person accused of infringement has the right to argue here in
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`4
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34114 Page 6 of 69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`federal court that a claimed invention in the patent is invalid because it does not
`meet the requirements for a patent.
`Authorities: N.D. Cal. Model Pat. Jury Inst. A.1.
`____Given
`____Modified
`____Denied
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`5
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34115 Page 7 of 69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 3
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`6
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34116 Page 8 of 69
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 4
`
`[Intentionally skipped due to agreement of the parties]
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`7
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34117 Page 9 of 69
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 5
`
`[Intentionally skipped due to agreement of the parties]
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`8
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34118 Page 10 of
`69
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 6
`
`[Intentionally skipped due to agreement of the parties]
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`9
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34119 Page 11 of
`69
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 7
`
`[Intentionally skipped due to agreement of the parties]
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`10
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34120 Page 12 of
`69
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 8
`
`[Intentionally skipped due to agreement of the parties]
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`11
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34121 Page 13 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 9
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`12
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34122 Page 14 of
`69
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 10
`
`[Intentionally skipped due to agreement of the parties]
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED JURY INSTRUCTIONS
`
`13
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34123 Page 15 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 11
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`14
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34124 Page 16 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 12
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`15
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34125 Page 17 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 13
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`16
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34126 Page 18 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 14
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`17
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34127 Page 19 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED PRELIMINARY INSTRUCTION NO. 15
`OUTLINE OF TRIAL
`The trial will now begin. First, each side may make an opening statement.
`An opening statement is not evidence. It is simply an opportunity for the lawyers
`to explain what they expect the evidence will show.
`There are two standards of proof that you will apply to the evidence,
`depending on the issue you are deciding. On some issues, you must decide
`whether certain facts have been proven by a preponderance of the evidence. A
`preponderance of the evidence means that the fact that is to be proven is more
`likely true than not, that is, that the evidence in favor of that fact being true is
`sufficient to tip the scale, even if slightly, in its favor. On other issues that I will
`identify for you, you must use a higher standard and decide whether the fact has
`been proven by clear and convincing evidence, that is, that you have been left with
`a clear conviction that the fact has been proven.
`These standards are different from what you may have heard about in
`criminal proceedings where a fact must be proven beyond a reasonable doubt. On
`a scale of these various standards of proof, as you move from preponderance of the
`evidence, where the proof need only be sufficient to tip the scale in favor of the
`party proving the fact, to beyond a reasonable doubt, where the fact must be
`proven to a very high degree of certainty, you may think of clear and convincing
`evidence as being between the two standards.
`After the opening statements, NuVasive will present its evidence in support
`of its contention that the asserted claims of the ’801 and ’531 Patents have been
`and continue to be infringed by Alphatec and that the infringement of both these
`patents, as well as the ’832 Patent (for which infringement has already been
`determined), has been and continues to be willful. To prove infringement of any
`claim, NuVasive must persuade you that it is more likely than not that Alphatec
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`18
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34128 Page 20 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`has infringed that claim. To persuade you that any infringement was willful,
`NuVasive must also prove that it is more likely than not that the infringement was
`willful. NuVasive will also present its evidence of the money damages it seeks to
`compensate it for Alphatec’s infringement. NuVasive must prove the amount of
`money damages that it more likely than not has suffered.
`Alphatec will then present its evidence that the asserted claims of the ’832,
`’801, and ’531 Patents are invalid. To overcome the presumption of validity and
`prove invalidity of any claim, Alphatec must persuade you by clear and convincing
`evidence that the claim is invalid. In addition to presenting its evidence of
`invalidity, Alphatec will put on evidence responding to NuVasive’s evidence of
`infringement, willfulness, and damages.
`NuVasive may then put on additional evidence responding to Alphatec’s
`evidence that the asserted claims of the ’832, ’801, and ’531 Patents are invalid,
`and to offer any additional evidence of infringement and willfulness. This is
`referred to as “rebuttal” evidence. NuVasive’s “rebuttal” evidence may respond to
`any evidence offered by Alphatec.
`Finally, Alphatec may have the option to put on its “rebuttal” evidence to
`support its contentions as to the validity of the asserted claims of the Asserted
`Patents by responding to any evidence offered by NuVasive on that issue.
`After the evidence has been presented, the attorneys will make closing
`arguments and I will give you final instructions on the law that applies to the case.
`These closing arguments by the attorneys are not evidence. After the closing
`arguments and instructions, you will then decide the case.
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`19
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34129 Page 21 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Authorities: Federal Circuit Bar Association Model Patent Jury Instructions (May
`2020) at A.5; AIPLA’s Model Patent Jury Instructions (2019) at 2.
`____Given
`____Modified
`____Denied
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`20
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34130 Page 22 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PREDELIBERATION INSTRUCTIONS
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`21
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34131 Page 23 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 1
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`22
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34132 Page 24 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 2
`SUMMARY OF CONTENTIONS
`As I did at the start of the case, I will first give you a summary of each side’s
`contentions in this case. I will then provide you with detailed instructions on what
`each side must prove to win on each of its contentions.
`As I previously told you, NuVasive seeks money damages from Alphatec for
`allegedly infringing the ’832 patent, ’801 patent, and the ’531 patent by making,
`importing, using, selling, or offering for sale products that NuVasive argues are
`covered by certain claims contained in these patents. Collectively, the patents will
`be referred to as the “Asserted Patents” and the claims at issue will be referred to as
`the “Asserted Claims.”
`The products that NuVasive alleges to infringe the ’832 patent are: Alphatec’s
`K-wire, Initial Dilator, Secondary Dilator, Squadron Lateral Retractor Body,
`Squadron Lateral Retractor Right Blade, Squadron Lateral Retractor Left Blade,
`Squadron Lateral Retractor Posterior Blade, and the 4th Blade. The products that
`NuVasive alleges to infringe the ’801 patent are: Alphatec’s Initial Dilator,
`Secondary Dilator, Squadron Lateral Retractor Body, Squadron Lateral Retractor
`Right Blade, Squadron Lateral Retractor Left Blade, Squadron Lateral Retractor
`Posterior Blade, Squadron Lateral Retractor Right Handle Arm, Squadron Lateral
`Left Handle Arm, Intradiscal Shim, Shim Inserter, and K-Wire. The products that
`NuVasive alleges infringe the ’531 patent are: Alphatec’s Squadron Lateral
`Retractor Body, the Squadron Lateral Retractor Right Blade, the Squadron Lateral
`Retractor Left Blade, the Squadron Lateral Retractor Posterior Blade, the Squadron
`Lateral Retractor Right Arm Extender, the Squadron Lateral Retractor Left Arm
`Extender, the Initial Dilator, the Secondary Dilator, the k-wire, the Intradiscal Shim,
`the Universal Clip, and the accused products additionally include “lateral implants
`(including Alphatec Battalion Lateral Spacer, Transcend LIF PEEK Spacer, Titec-
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`23
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34133 Page 25 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Coated LLIF implants, and IdentiTi implants). Collectively, these are the
`“Accused Products.”
`Alphatec denies that it has infringed the asserted claims of the ’801 patent,
`and the ’531 patent and argues that, in addition, the claims of the ’832 patent, ’801
`patent, and ’531 patent are invalid.
`Your job is to decide whether Alphatec has infringed the asserted claims of
`the ’801 patent and ’531 patent, and whether any of the asserted claims of the ’801
`patent, ’531 patent, and ’832 patent are invalid. If you decide that any claim of the
`Asserted Patents has been infringed and is not invalid, you will then need to decide
`any money damages to be awarded to NuVasive to compensate it for the
`infringement. You will also need to make a finding as to whether the infringement
`was willful. If you decide that any infringement was willful, that decision should not
`affect any damages award you make. I will take willfulness into account later.
`
`Authorities: Federal Circuit Bar Association Model Patent Jury Instructions (May
`2020) at B.1.
`___ Given
`___ Modified
`___ Denied
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`24
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34134 Page 26 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 3
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`25
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34135 Page 27 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 4
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`26
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34136 Page 28 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED INSTRUCTION NO. 5
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`27
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34137 Page 29 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 6
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`28
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34138 Page 30 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 7
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`29
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34139 Page 31 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 8
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`30
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34140 Page 32 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 9
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`31
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34141 Page 33 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 10
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`32
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34142 Page 34 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 11
`PATENT CLAIMS
`To decide the issues in this case, you need to understand the role of patent
`“claims.” The patent claims are the numbered sentences at the end of each patent.
`The claims are important because it is the words of the claims that define what a
`patent covers. The figures and text in the rest of the patent provide a description
`and/or examples of the invention and provide a context for the claims, but it is the
`claims that define the breadth of the patent’s coverage.
`A claim sets forth, in words, a set of requirements. Each claim sets forth its
`requirements in a single sentence. If a product satisfies each of these requirements,
`then it is covered by the claim.
`There can be several claims in a patent. Each claim may be narrower or
`broader than another claim by setting forth more or fewer requirements. The
`coverage of a patent is assessed claim-by-claim. The requirements of a claim are
`often referred to as “claim elements” or “claim limitations.” When a thing (a
`product) meets all of the requirements of a claim, the claim is said to “cover” that
`thing, and that thing is said to “fall” within the scope of that claim. In other words,
`a claim covers a product where each of the claim elements or limitations is present
`in that product.
`It is my role to provide definitions for terms of the claims if needed. I have
`determined the meaning of certain claim terms of the claims and [I will provide] to
`you my definitions to you. You must accept my definitions of these words in the
`claims as being correct. It is your job to take these definitions and apply them to the
`issues that you are deciding infringement and validity.
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`33
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34143 Page 35 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Authorities: Federal Circuit Bar Association Model Patent Jury Instructions (May
`2020) at B.2., 2.1; Rembrandt Diagnostics, LP v. Alere, Inc., Case No. 16-CV-698-
`CAB-NLS (S.D. Cal. Nov. 30, 2018), Doc. No. 340 at 12-13 (Jury Instruction Nos.
`11& 12).
`___ Given
`___ Modified
`___ Denied
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`34
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34144 Page 36 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 12
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`35
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34145 Page 37 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ALPHATEC’S PROPOSED INSTRUCTION NO. 13
`
`[Intentionally skipped due to agreement of the parties]
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`36
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34146 Page 38 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED INSTRUCTION NO. 14
`INFRINGEMENT
`I will now instruct you how to decide whether or not NuVasive has proven
`that Alphatec has infringed the Asserted Claims of two patents — the ’801 Patent
`and the ’531 Patent. Infringement is assessed on a claim-by-claim basis. Therefore,
`there may be infringement as to one claim but no infringement as to another.
`NuVasive has alleged that the accused Alphatec devices infringe the
`following Asserted Claims of the Asserted Patents: Claims 1, 2, 15, 16, and 26 of
`the ’801 Patent and Claims 1 and 39 of the ’531 Patent.
`In order to prove infringement of the Asserted Claims of the ’801 Patent or
`the ’531 Patent, NuVasive must prove by a preponderance of the evidence, i.e., that
`it is more likely than not, that Alphatec made, used, sold, or offered for sale within,
`the United States a product that meets all of the requirements of an Asserted Claim
`and did so without the permission of NuVasive during the time the ’801 patent and
`the ’531 patent were in force. You must compare the Accused Products with each
`and every one of the requirements of a claim to determine whether all of the
`requirements of that claim are met.
`You must determine, separately for each Asserted Claim of the ’801 Patent
`and the ’531 Patent, whether or not there is infringement. For dependent claims, if
`you find that a claim to which a dependent claim refers is not infringed, there cannot
`be infringement of that dependent claim. On the other hand, if you find that an
`independent claim has been infringed, you must still decide, separately, whether the
`Accused Product meets the additional requirement(s) of any claims that depend
`from the independent claim to determine whether those dependent claims have also
`been infringed. A dependent claim includes all the requirements of any of the
`claims to which it refers plus additional requirements of its own.
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`37
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34147 Page 39 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Authorities: Federal Circuit Bar Association Model Patent Jury Instructions (May
`2020) at B.3.1a.
`___ Given
`___ Modified
`___ Denied
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`38
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34148 Page 40 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED INSTRUCTION NO. 15
`WILLFUL INFRINGEMENT
`In this case, NuVasive argues that Alphatec willfully infringed each of
`NuVasive’s Asserted Patents. Regarding the ’832 Patent, it has already been
`determined that Alphatec infringes the Patent, but there has been no determination
`that any infringement was willful, and so you must decide whether that infringement
`was willful. Regarding the ’801 Patent and the ’531 Patent, if you have decided that
`Alphatec has infringed, you must go on and address the additional issue of whether
`or not this infringement was willful.
`Willfulness requires you to determine whether NuVasive proved that it is
`more likely than not that Alphatec knew of NuVasive’s patents and that the
`infringement by Alphatec was intentional. You may not determine that the
`infringement was willful just because Alphatec was aware of the patent and
`infringed it. Instead, you must also find that Alphatec deliberately infringed the
`patents.
`To determine whether Alphatec acted willfully, consider all facts and assess
`Alphatec’s knowledge at the time of the challenged conduct. Facts that may be
`considered include, but are not limited, to:
`(1) Whether or not Alphatec acted consistently with the standards of behavior
`for its industry;
`(2) Whether or not Alphatec intentionally copied a product of NuVasive’s that
`is covered by the Asserted Claims;
`(3) Whether or not Alphatec reasonably believed it did not infringe or that the
`patent was invalid;
`(4) Whether or not Alphatec made a good-faith effort to avoid infringing the
`Asserted Claims, for example, whether Alphatec attempted to design around the
`Asserted Claims; and
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`39
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34149 Page 41 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`(5) Whether or not Alphatec tried to cover up its infringement.
`Authorities: Federal Circuit Bar Association Model Patent Jury Instructions (May
`2020) at B.3.10; SRI Int'l, Inc. v. Cisco Sys., Inc., 14 F.4th 1323, 1330 (Fed. Cir.
`2021) (clarifying that willfulness “requires a jury to find no more than deliberate or
`intentional infringement” (quoting Eko Brands, LLC v. Adrian Rivera Maynez
`Enters., Inc., 946 F.3d 1367, 1378 (Fed. Cir. 2020)).
`___ Given
`___ Modified
`___ Denied
`
`ALPHATEC’S PROPOSED JURY
`INSTRUCTIONS
`
`40
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 362-2 Filed 12/20/21 PageID.34150 Page 42 of
`69
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`PROPOSED INSTRUCTION NO. 16
`INVALIDITY—BURDEN OF PROOF
`Alphatec contends that each claim of each Asserted Patent is invalid.
`Specifically, Alphatec claims that the following claims are invalid:
` Claims 1, 2, 15, 16, and 26 of the ’801 patent;
` Claims 1, 3, 9, and 10 of the ’832 patent;
` Claims 1 and 39 of the ’531 patent;
`I will now instruct you on the rules you must follow in deciding whether or
`not Alphatec has proven that one or more of these claims is invalid. To prove that
`any claim of a patent is invalid, Alphatec must persuade you by clear and
`convincing evidence, that is, you must be left with a clear conviction that the claim
`is invalid.
`
`Authorities: Federal Circuit Bar Association Model Patent Jury Instructio