Case 3:18-cv-00347-CAB-MDD Document 390-3 Filed 03/04/22 PageID.34749 Page 1 of 5
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`EXHIBIT B TO DECLARATION OF
`WENDY L. DEVINE IN SUPPORT OF BENCH BRIEF
`RE NEXUS AND XLIF
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`EXHIBIT B TO DECLARATION OF
`WENDY L. DEVINE IN SUPPORT OF BENCH BRIEF
`RE NEXUS AND XLIF
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`Case 3:18-cv-00347-CAB-MDD Document 390-3 Filed 03/04/22 PageID.34750 Page 2 of 5
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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`BEFORE HONORABLE CATHY ANN BENCIVENGO, JUDGE PRESIDING
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`NUVASIVE, INC., a Delaware )
`Corporation, )
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` Plaintiff, ) CASE NO. 18CV0347-CAB-MDD
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` vs. ) SAN DIEGO, CALIFORNIA
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`ALPHATEC HOLDINGS, INC., a ) WEDNESDAY MARCH 2, 2022
`Delaware Corporation, and )
`ALPHATEC SPINE, INC., a )
`California corporation, )
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` Defendants. )
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`STENOGRAPHIC COURT REPORTER'S TRANSCRIPT OF PROCEEDINGS
`JURY TRIAL DAY 2, VOLUME 2
`PAGES 1-223
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`P r o c e e d i n g s r e p o r t e d b y s t e n o g r a p h y , t r a n s c r i p t p r o d u c e d b y C A T
`s o f t w a r e
`____________________________________________________________
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`M a u r a l e e R a m i r e z , R P R , C S R N o . 1 1 6 7 4
` F e d e r a l O f f i c i a l S t e n o g r a p h i c C o u r t R e p o r t e r
`o r d e r t r a n s c r i p t @ g m a i l . c o m
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`Exhibit B, Page 9 of 12
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`Case 3:18-cv-00347-CAB-MDD Document 390-3 Filed 03/04/22 PageID.34751 Page 3 of 5
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`success that aren't attributable directly to the instruments at
`issue in the case. I understand it's a system, but you can't
`use the whole system and praise for the whole system to defeat
`an argument that the various components that are at issue here
`are -- weren't obvious in the industry. They still have to
`prove all that. But that's my concern, and I'm not necessarily
`expecting an answer from counsel today. I'm just kind of
`putting it out there as a concern that I have.
`ATTORNEY DEVINE: So, Your Honor, the claims do cover
`neuromonitoring and able dilators. The neuromonitoring
`itself -- and there's been a lot said about this, so I'll give
`you my perspective on it and what I think we're going to hear
`from Dr. Youssef. The neuromonitoring itself is not the
`entirety of the invention. The retractor itself is designed to
`move in a very specific way. It's very specific for the psoas
`muscle to minimize retraction time and minimize the amount of
`retraction which is integral to avoiding damage to the nerves
`even from pressure. So the retractor itself is innovative. I
`know counsel will disagree with me. My perspective is they
`have not identified that unique nature of that retractor in the
`prior art. That was the invention and the invention of putting
`that together with dilators that can neuromonitor is the
`inventive system.
`Now as far as nexus and secondary considerations, we
`can brief this. This has not come up previously in the case,
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`Exhibit B, Page 10 of 12
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`so we would have briefed it on a motion. But the law states
`that there's a presumption if the embodiment reads on the
`claims. However, even if you can't meet that presumption, you
`can still show that the elements of the claims are leading to
`the secondary considerations. It doesn't have to be every
`single thing that is leading to the secondary considerations is
`in the claim. In fact, the Federal Circuit said if that was
`the standard, that would be near impossible because there's
`always something, right? Even your refrigerator, you have to
`plug it into the wall. It's not going to cool anything off
`without electricity. And this is sort of, although on a very
`high level, analogous to that, right? We have a dilator that a
`neuromonitor can work integrally with a retractor that is
`specially designed and functions in a very particular way that
`is claimed. All these limitations are claimed. And that
`dilator, yes, has to be plugged into a system that is going to
`allow that electrode to sense the nerves, but that doesn't mean
`that the system itself is not what is the subject of the
`praise.
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`THE COURT: Go ahead.
`ATTORNEY WICKRAMASEKERA: Your Honor, that's not --
`first off, that's not a correct statement of the law. The law
`is not that there's not a nexus just because the claims cover
`the product. They have to be coextensive, and according to the
`Federal Circuit that means the claim is the product.
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`Exhibit B, Page 11 of 12
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`If Your Honor would like a bench brief on this issue,
`we're happy to provide one, but the Federal Circuit itself has
`stated that XLIF requires NeuroVision. That's in a Federal
`Circuit opinion. We would be happy to provide that.
`THE COURT: Again, I don't want to hold us up today on
`this. I would like something in writing with some case
`support. I do think that there is an issue here that because
`of the problem that there's been testimony to the problem with
`the side entry, this lateral entry system of doing it. One of
`the big hurdles that had to be overcome was all of the nerves
`in this muscle. And just because you have a dilator that's got
`little neuromonitors on it, if it's not plugged into something,
`who cares? It's not going to detect anything. So the
`monitoring part, which is fully in your specification as part
`of this patent which all these claims flow from, I don't think
`you get to distinguish out that aspect of it in terms of the
`acceptance historically of the system that the system was more
`than just the tools, but rather also involved the tools plugged
`in. And that's not one of the claims here.
`So, again, there may be other claims in this patent,
`where that's not a problem but for these for secondary
`considerations of non-obviousness for these claims, there may
`be not be enough there. I'm not ruling, just saying so. And I
`don't want to hear more argument on it today. I would like you
`to brief it. And if I can have those briefs for Friday, I can
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`Exhibit B, Page 12 of 12
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