Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 1 of 27 PageID #: 979
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`GLOBUS MEDICAL, INC.,
`
`
`Plaintiff,
`
`
`LIFE SPINE, INC.,
`
`
`v.
`
`Defendant.
`
`
`
`
`
`C.A. No. 21-1445 (JPM)
`
`JURY TRIAL DEMANDED
`
`SMITH, KATZENSTEIN & JENKINS LLP
`Neal C. Belgam (No. 2721)
`Eve H. Ormerod (No. 5369)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`eormerod@skjlaw.com
`
`Attorneys for Plaintiff Globus Medical, Inc.
`
`
`PLAINTIFF GLOBUS MEDICAL, INC.’S ANSWERING BRIEF IN OPPOSITION TO
`DEFENDANT LIFE SPINE, INC’S RENEWED MOTION TO DISMISS
`
`
`
`
`OF COUNSEL:
`
`Arun S. Subramanian
`Jacob Buchdahl
`Mark Hatch-Miller
`Geng Chen
`SUSMAN GODFREY L.L.P.
`1301 Avenue of the Americas, 32nd Fl.
`New York, NY 10019
`(212) 336-8330
`asubramanian@susmangodfrey.com
`jbuchdahl@susmangodfrey.com
`mhatch-miller@susmangodfrey.com
`gchen@susmangodfrey.com
`
`
`
`
`John P. Lahad
`SUSMAN GODFREY L.L.P.
`1000 Louisiana Street, Suite 5100
`Houston, TX 77002-5096
`(713) 653-7859
`jlahad@susmangodfrey.com
`
`
`
`
`Dated: March 2, 2022
`
`
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 2 of 27 PageID #: 980
`
`TABLE OF CONTENTS
`
`Page
`
`NATURE AND STAGE OF PROCEEDINGS ...............................................................................1
`
`SUMMARY OF ARGUMENT .......................................................................................................1
`
`STATEMENT OF FACTS ..............................................................................................................1
`
`ARGUMENT ...................................................................................................................................2
`
`I.
`
`II.
`
`III.
`
`IV.
`
`Legal Standard .........................................................................................................2
`
`Plaintiff Sufficiently Pleaded Life Spine’s Knowledge of the Asserted
`Patents ......................................................................................................................3
`
`Plaintiff Sufficiently Pleaded Knowledge and Specific Intent to Induce
`Infringement ...........................................................................................................14
`
`Plaintiff Sufficiently Pleaded that Life Spine Knew or Should Have
`Known that Its Conduct Infringed the Asserted Patents ........................................18
`
`V.
`
`Defendant’s Motion Fails as to Post-Suit Infringement ........................................19
`
`CONCLUSION ..............................................................................................................................20
`
`
`
`
`
`
`
`
`
`
`i
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`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 3 of 27 PageID #: 981
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`10x Genomics, Inc. v. Celsee, Inc.,
`2019 WL 5595666 (D. Del. Oct. 30, 2019), report and recommendation
`adopted, 2019 WL 6037558 (D. Del. Nov. 14, 2019) .....................................................4, 5, 14
`
`3D Sys., Inc. v. Formlabs, Inc.,
`2014 WL 1904365 (S.D.N.Y. May 12, 2014) .....................................................................7, 14
`
`Align Tech., Inc. v. 3Shape A/S,
`339 F. Supp. 3d 435 (D. Del. 2018) ...........................................................................5, 6, 16, 19
`
`Barrier1 Sys., Inc. v. RSA Protective Techs., LLC,
`2021 WL 4622545 (D. Del. Oct. 7, 2021) .................................................................................3
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .............................................................................................................3, 12
`
`Berall v. Pentax of Am., Inc.,
`2021 WL 3934200 (S.D.N.Y. Sept. 2, 2021) ...........................................................................17
`
`Bio-Rad Labs. Inc. v. Thermo Fisher Sci. Inc.,
`267 F. Supp. 3d 499 (D. Del. 2017) .........................................................................................18
`
`BlackBerry Ltd. v. Nokia Corp.,
`2018 WL 1401330 (D. Del. Mar. 20, 2018) ............................................................................20
`
`Bos. Sci. Corp. v. Nevro Corp.,
`415 F. Supp. 3d 482 (D. Del. 2019) .........................................................................................15
`
`Bot M8 LLC v. Sony Corp. of Am.,
`4 F.4th 1342 (Fed. Cir. 2021) ....................................................................................................2
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) ...................................................................................................................3
`
`DermaFocus LLC v. Ulthera, Inc.,
`201 F. Supp. 3d 465 (D. Del. 2016) .........................................................................................17
`
`Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,
`2018 WL 6629709 (D. Del. Dec. 19, 2018).............................................................................15
`
`DoDots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,
`2019 WL 3069773 (D. Del. July 12, 2019) .............................................................................20
`
`ii
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 4 of 27 PageID #: 982
`
`Dynamic Data Techs., LLC v. Amlogic Holdings Ltd.,
`2020 WL 4365809 (D. Del. July 30, 2020) .............................................................................14
`
`Dynamic Data Techs., LLC v. Dell Inc.,
`2019 WL 10248834 (S.D.N.Y. Apr. 23, 2019)........................................................................19
`
`Elm 3DS Innovations, LLC v. Samsung Elecs. Co.,
`2015 WL 5725768 (D. Del. Sept. 29, 2015), report and recommendation
`adopted, 2016 WL 1274812 (D. Del. Mar. 31, 2016) ...............................................8, 9, 10, 15
`
`Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd.,
`909 F.3d 398 (Fed. Cir. 2018)..................................................................................................17
`
`EyesMatch Ltd. v. Facebook, Inc.,
`2021 WL 4501858 (D. Del. Oct. 1, 2021), report and recommendation
`adopted, 2021 WL 5061730 (D. Del. Oct. 19, 2021) ..............................................................20
`
`Groove Digital, Inc. v. King.com, Ltd.,
`2018 WL 6168615 (D. Del. Nov. 26, 2018) ............................................................................17
`
`Helios Streaming, LLC v. Vudu, Inc.,
`2020 WL 2332045 (D. Del. May 11, 2020), report and recommendation
`adopted, 2020 WL 53167641 (D. Del. June 15, 2020) ......................................................11, 12
`
`In re Bill of Lading,
`681 F.3d 1323 (Fed. Cir. 2012)................................................................................................12
`
`Investpic, LLC v. FactSet Research Sys., Inc.,
`2011 WL 4591078 (D. Del. Sept. 30, 2011) ..............................................................................9
`
`IOENGINE, LLC v. PayPal Holdings, Inc.,
`2019 WL 330515 (D. Del. Jan. 25, 2019) ................................................................................20
`
`JDS Techs., Inc. v. Avigilon USA Corp.,
`2015 WL 3603525 (E.D. Mich. June 5, 2015).........................................................................14
`
`Lippert Components Mfg., Inc. v. MOR/ryde, Inc.,
`2018 WL 345767 (N.D. Ind. Jan. 10, 2018) ..........................................................................7, 8
`
`Lytone Enter., Inc. v. Agrofresh Sols., Inc.,
`2021 WL 534868 (D. Del. Feb. 12, 2021) .......................................................................4, 9, 18
`
`Mallinckrodt Inc. v. E-Z-EM Inc.,
`671 F. Supp. 2d 563 (D. Del. 2009) .........................................................................................13
`
`Malvern Panalytical Ltd v. Ta Instruments-Waters LLC,
`2021 WL 3856145 (D. Del. Aug. 27, 2021) ............................................................................12
`
`iii
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 5 of 27 PageID #: 983
`
`MONEC Holding AG v. Motorola Mobility, Inc.,
`897 F. Supp. 2d 225 (D. Del. 2012) .......................................................................................8, 9
`
`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018)..................................................................................................3
`
`NexStep, Inc. v. Comcast Cable Commc’ns, LLC,
`2019 WL 5626647 (D. Del. Oct. 31, 2019), report and recommendation
`adopted, 2019 WL 11663798 (D. Del. Nov. 15, 2019) ...........................................................12
`
`Novozymes N. Am., Inc. v. Danisco US Inc.,
`2020 WL 12895027 (D. Del. Feb. 12, 2020) .......................................................................4, 10
`
`Pac. Biosciences of Cal., Inc. v. Oxford Nanopore Techs., Inc.,
`2020 WL 954938 (D. Del. Feb. 27, 2020) ...............................................................................11
`
`Portus Singapore Pte Ltd. v. SimpliSafe, Inc.,
`2019 WL 6071180 (D. Del. Nov. 15, 2019) ............................................................................18
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.,
`843 F.3d 1315 (Fed. Cir. 2016)..............................................................................................4, 5
`
`Rehrig Pac. Co. v. Polymer Logistics (Israel), Ltd.,
`2019 WL 8161141 (C.D. Cal. Aug. 30, 2019) .......................................................................5, 7
`
`Rhodes Pharms. L.P. v. Indivior, Inc.,
`2018 WL 326405 (D. Del. Jan. 8, 2018) ....................................................................................3
`
`Robocast, Inc. v. Microsoft Corp.,
`21 F. Supp. 3d 320 (D. Del. 2014) .....................................................................................12, 13
`
`Simplivity Corp. v. Springpath, Inc.,
`2016 WL 5388951 (D. Mass. July 15, 2016) ...........................................................................13
`
`Softview LLC v. Apple Inc.,
`2012 WL 3061027 (D. Del. July 26, 2012), report and recommendation
`adopted, 2021 WL 1153002 (D. Del. Mar. 26, 2021) .........................................................4, 14
`
`Spherix Inc. v. Juniper Networks, Inc.,
`2015 WL 1517508 (D. Del. Mar. 31, 2015) ............................................................................11
`
`State Indus., Inc. v. A.O. Smith Corp.,
`751 F.2d 1226 (Fed. Cir. 1985)................................................................................................11
`
`Tonal Sys., Inc. v. ICON Health & Fitness, Inc.,
`2021 WL 1785072 (D. Del. May 5, 2021), report and recommendation
`adopted, 2021 WL 5860783 (D. Del. Aug. 12, 2021) ...............................................................3
`
`iv
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 6 of 27 PageID #: 984
`
`Trading Techs. Int’l, Inc. v. BCG Partners, Inc.,
`2011 WL 3946581 (N.D. Ill. Sept. 2, 2011) ........................................................................9, 15
`
`Walker Digital, LLC v. Facebook, Inc.,
`852 F. Supp. 2d 559 (D. Del. 2012) .........................................................................................20
`
`Warsaw Orthopedic, Inc. v. NuVasive, Inc.,
`824 F.3d 1344 (Fed. Cir. 2016)................................................................................................15
`
`WCM Indus., Inc. v. IPS Corp.,
`721 F. App’x 959 (Fed. Cir. 2018) ..........................................................................................13
`
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. 2021) .........................................................................................19
`
`Statutes
`
`35 U.S.C. § 287(a) ...................................................................................................................2, 3, 6
`
`Rules
`
`Fed. R. Civ. P. 9 .............................................................................................................................15
`
`Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 3
`
`
`
`v
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 7 of 27 PageID #: 985
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`NATURE AND STAGE OF PROCEEDINGS
`
`In this action for patent infringement, Plaintiff Globus Medical, Inc. (“Globus”) filed an
`
`Amended Complaint alleging infringement of seven patents pertaining to expandable spinal
`
`implants on January 10, 2022. D.I. 15.1 On February 9, 2022, Defendant Life Spine, Inc. (“Life
`
`Spine”) filed a Rule 12(b)(6) motion to dismiss Globus’s claims for induced and willful
`
`infringement. D.I. 19. Globus hereby opposes that motion.
`
`SUMMARY OF ARGUMENT
`
`The factual allegations in the Amended Complaint are sufficient for Globus’s induced
`
`and willful infringement claims to proceed. Making all inferences in Globus’s favor, as the Court
`
`must do at this stage, it is at least plausible, from the facts alleged, that Life Spine had actual
`
`knowledge of the Asserted Patents, and that it not only knew its distributors and customers
`
`infringed, but also specifically induced that infringement.
`
`STATEMENT OF FACTS
`
`Globus is a leading manufacturer of spinal implants, including expandable implants. D.I.
`
`15 ¶¶ 7-8. Its first expandable intervertebral implant was launched in 2011; since then, it has
`
`continued to innovate in this space through its RISE and ELSA product families. Id. ¶¶ 10-12.
`
`The spinal implant industry is tight-knit and highly competitive, and its participants
`
`including Life Spine recognize that intellectual property is the “core” driver of success in this
`
`market and forms the “foundation” of a manufacturer’s business. Id. ¶ 17. Globus has
`
`consistently placed at or near the top of an annual ranking of “patent power” within this space.
`
`Id. ¶¶ 13-14. In 2018, Globus was the highest ranked among its peers for the “impact” of its
`
`1 The Asserted Patents are U.S. Patent No. 8,845,731 (the “’731 Patent”), U.S. Patent No.
`8,845,732 (the “’732 Patent”), U.S. Patent No. 9,402,739 (the “’739 Patent”), U.S. Patent No.
`9,956,087 (the “’087 Patent”), U.S. Patent No. 10,137,001 (the “’001 Patent”), U.S. Patent No.
`10,925,752 (the “’752 Patent”), and U.S. Patent No. 10,973,649 (the “’649 Patent”). The original
`complaint was filed on October 13, 2021. D.I. 1.
`
`1
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 8 of 27 PageID #: 986
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`patents, as measured in citations by its competitors, and the vast majority of those citations were
`
`specifically to Globus’s patents for expandable spinal implants. Id. ¶ 14. Furthermore, Globus
`
`marks its products in accordance with 35 U.S.C. § 287(a), using the word “patent” and providing
`
`a link to the publicly available Patents webpage on its website, which identifies applicable
`
`patents on a product-by-product basis. Id. ¶¶ 28-29. Each of the Asserted Patents is associated
`
`with one or more products in the RISE and ELSA families. Id. ¶ 28.
`
`Life Spine launched its first expandable implant, PROLIFT, in 2016—five years after
`
`Globus first entered this space. Id. ¶ 31. Life Spine has admitted that it not only studied
`
`competitor products in the market when initially designing PROLIFT, but it also specifically
`
`studied expandable implant patents and copied the “functions and features” found in existing
`
`products as disclosed in their corresponding patents. Id. ¶ 32. Life Spine has also studied
`
`competitors’ products and patents in connection with its 510(k) submissions to the FDA for
`
`premarket approval of its various PROLIFT products, and on numerous occasions, identified
`
`Globus’s RISE and ELSA products as “substantially equivalent predecessor devices.” Id. ¶ 49.
`
`Life Spine has also cited Globus’s patents, including one of the Asserted Patents, as prior art
`
`when prosecuting its own patents before the PTO. Id. ¶¶ 53-60. Finally, as described in detail in
`
`the Amended Complaint, Life Spine engages in a large number and variety of promotional and
`
`instructional efforts to sell and encourage greater usage of its PROLIFT products. Id. ¶¶ 63-79.
`
`I.
`
`Legal Standard
`
`ARGUMENT
`
`It is axiomatic that a patentee is not required to prove its case in its complaint. Bot M8
`
`LLC v. Sony Corp. of Am., 4 F.4th 1342, 1346 (Fed. Cir. 2021) (“Once more, we address the
`
`stringency of pleading requirements in cases alleging patent infringement. Once more, we
`
`explain that patentees need not prove their case at the pleading stage.”). At this early stage, a
`
`2
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 9 of 27 PageID #: 987
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`complaint need only “‘raise the reasonable expectation that discovery will reveal evidence’ to
`
`support the plaintiff’s allegations.” Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1350 (Fed.
`
`Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). If, when viewing all
`
`factual allegations “in the light most favorable to the non-moving party,” the Court finds that the
`
`allegations, if true, state a claim “that is plausible on its face,” the motion to dismiss under Rule
`
`12(b)(6) must be denied. Barrier1 Sys., Inc. v. RSA Protective Techs., LLC, 2021 WL 4622545,
`
`at *1 (D. Del. Oct. 7, 2021) (quoting Twombly, 550 U.S. at 555).
`
`Life Spine asks the Court to dismiss Globus’s claims for indirect induced infringement
`
`and willful infringement.2 A party induces infringement if it “knew of the patent and knew as
`
`well that ‘the induced acts constitute patent infringement.’” Rhodes Pharms. L.P. v. Indivior,
`
`Inc., 2018 WL 326405, at *6 (D. Del. Jan. 8, 2018) (quoting Commil USA, LLC v. Cisco Sys.,
`
`Inc., 575 U.S. 632, 640 (2015)). Pleading willful infringement requires allegations showing that
`
`Life Spine knew of the Asserted Patents and continued to infringe even though “it knew, or
`
`should have known, that its conduct amounted to infringement.” Tonal Sys., Inc. v. ICON Health
`
`& Fitness, Inc., 2021 WL 1785072, at *6 (D. Del. May 5, 2021), report and recommendation
`
`adopted, 2021 WL 5860783 (D. Del. Aug. 12, 2021).
`
`II.
`
`Plaintiff Sufficiently Pleaded Life Spine’s Knowledge of the Asserted Patents
`
`Taken as a whole, the facts alleged in the Amended Complaint, when considered in the
`
`light most favorable to Globus, set forth at least a plausible basis for inferring Life Spine’s
`
`knowledge of the Asserted Patents. Life Spine’s motion focuses largely on pre-suit knowledge of
`
`the Asserted Patents, but its analysis of the factual allegations in the Amended Complaint
`
`improperly addresses each of the allegations in isolation. See D.I. 19 at 6-13 (dividing Globus’s
`
`factual allegations into four categories: “Notice Under 35 U.S.C. § 287(a),” “Citation to Related
`
`2 Life Spine does not seek dismissal of Globus’s claims for direct infringement.
`
`3
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 10 of 27 PageID #: 988
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`Patent Applications,” “510(k) Submissions to the FDA,” and “Patents in the Spinal Fusion
`
`Space”). It is well established that factual allegations supporting an inference of knowledge must
`
`be considered in their totality. See, e.g., Novozymes N. Am., Inc. v. Danisco US Inc., 2020 WL
`
`12895027, at *2 (D. Del. Feb. 12, 2020) (“[T]he Court need not evaluate whether each
`
`allegation, standing alone, gives rise to a reasonable inference that Danisco had pre-suit
`
`knowledge of the patent. Instead, the Court may consider the allegations as a whole.”); see also
`
`Lytone Enter., Inc. v. Agrofresh Sols., Inc., 2021 WL 534868, at *4 (D. Del. Feb. 12, 2021)
`
`(plaintiff’s allegations “[i]n combination . . . give rise to a reasonable inference that [defendant]
`
`had pre-suit knowledge”); id. (plaintiff in Softview LLC v. Apple Inc., 2012 WL 3061027, at *5-6
`
`(D. Del. July 26, 2012), “alleged a plausible basis to infer pre-suit knowledge of the patent when
`
`three individually insufficient bases of knowledge were viewed in combination”), report and
`
`recommendation adopted, 2021 WL 1153002 (D. Del. Mar. 26, 2021).
`
`Globus alleges that Life Spine designed its PROLIFT expandable implant by studying
`
`similar products already in the market and the patents disclosing those existing products’
`
`“functions and features”; during the time Life Spine was developing the original PROLIFT, these
`
`similar products would have included at least Globus’s RISE implant. D.I. 15 ¶ 32 (quoting
`
`testimony of Life Spine’s former Engineering Manager, who was responsible for designing
`
`PROLIFT, and who admitted that Life Spine went “online to look at what other cages existed”
`
`and also “look[ed] at patents for expandable cages”). “[E]vidence of an accused infringer’s
`
`‘reverse engineering and copying’ of a patentee’s products” supports “the knowledge
`
`requirement of a claim for induced infringement.” 10x Genomics, Inc. v. Celsee, Inc., 2019 WL
`
`5595666, at *4 (D. Del. Oct. 30, 2019) (quoting Power Integrations, Inc. v. Fairchild
`
`Semiconductor Int’l, Inc., 843 F.3d 1315, 1333 (Fed. Cir. 2016)), report and recommendation
`
`4
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 11 of 27 PageID #: 989
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`adopted, 2019 WL 6037558 (D. Del. Nov. 14, 2019); see also id. (finding these allegations to
`
`“also lend factual support to [plaintiff’s] cause of action for willful infringement”).3 What’s
`
`more, Life Spine’s design process for PROLIFT specifically involved studying patents that
`
`“‘show[ed] devices that feature an upper endplate, lower endplate, base ramp, nose ramp, and a
`
`screw that is used to expand’ the implant,” and then “includ[ing] these same features in its design
`
`of the ProLift.” D.I. 15 ¶ 32. Moreover, an expert hired by Life Spine, when asked to compare
`
`PROLIFT with other expandable implants, confirmed that Globus’s RISE device has these same
`
`five primary components. Id. ¶ 62. These allegations, combined with others establishing
`
`Globus’s position as a leading innovator in spinal implants, see id. ¶¶ 7, 12-14, 20, give rise to a
`
`plausible inference that Life Spine studied Globus’s products and patents.
`
`This inference derives significant additional support from Life Spine’s citation of
`
`Globus’s RISE and ELSA products in its 510(k) submissions to the FDA seeking approval to
`
`market various PROLIFT devices. Id. ¶ 49; see Align Tech., Inc. v. 3Shape A/S, 339 F. Supp. 3d
`
`435, 448 (D. Del. 2018) (including defendant’s “U.S. Food and Drug Section 510(k) premarket
`
`notification of intent to market the accused products” as relevant consideration in assessing
`
`allegations of pre-suit knowledge). Life Spine’s reliance on Globus’s approved implants as
`
`“substantially equivalent predecessor devices,” id., strongly suggests that Globus’s products
`
`were among those studied when designing PROLIFT. Furthermore, the Amended Complaint
`
`plausibly alleges a direct connection between knowledge of an existing product and knowledge
`
`of the patents that pertain to it—namely, that the Life Spine employee responsible for the
`
`
`3 Life Spine relies heavily on Rehrig Pac. Co. v. Polymer Logistics (Israel), Ltd., 2019 WL
`8161141, at *4 (C.D. Cal. Aug. 30, 2019), but that out-of-Circuit case did not hold, as Life Spine
`asserts, that “allegations that defendant copied plaintiff’s product did not establish knowledge of
`the asserted patents,” D.I. 19 at 10-11. Rather, the Rehrig court faulted the plaintiff for “not
`cit[ing] to any case law supporting its argument” concerning copying, 2019 WL 8161141, at *4;
`that deficiency is not present here.
`
`5
`
`

`

`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 12 of 27 PageID #: 990
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`company’s 510(k) submissions admitted to reviewing patents for other companies’ devices to
`
`determine “potential predicates” for the FDA. Id. In fact, it is reasonable to infer that Life Spine
`
`continues to study Globus’s patents for expandable implants to this day, as the only predicate
`
`submitted by Life Spine for the recently approved PROLIFT Micro “that was not a prior version
`
`of PROLIFT” was the “Globus Rise Spacer System.” Id. ¶ 50. Life Spine’s assertion that
`
`“Plaintiff fails to explain how knowledge of Globus’s products allegedly resulted in Life Spine’s
`
`knowledge of the Asserted Patents,” D.I. 19 at 10, overlooks these detailed allegations.
`
`The Amended Complaint also contains facts that plausibly allege a direct connection
`
`between the Globus products studied by Life Spine and the specific Asserted Patents. The quoted
`
`testimony from current and former Life Spine employees establishes that Life Spine searched the
`
`Internet for its competitors’ patents, D.I. 15 ¶ 32 (stating that the PROLIFT team would “go
`
`online” to look for other products and their patents), and specifically, that Life Spine searched a
`
`“device name” on the Internet to “find out information about patents” that apply to it, id. ¶ 49. As
`
`of the Amended Complaint, the first result for “Globus RISE patent” or “Globus ELSA patent”
`
`on Google was the Patents page on Globus’s website, id. ¶ 51, which pursuant to 35 U.S.C.
`
`§ 287(a) “provides a table of Globus products and the patents that protect them” and lists the
`
`Asserted Patents next to products in the RISE and ELSA families, id. ¶ 28 (mapping each
`
`Asserted Patent to one or more Globus products). It is reasonable to infer that Life Spine’s past
`
`searches would have yielded similar results, and in light of the fact that over a hundred
`
`pageviews of the Globus Patents page originated from the village of Huntley, Illinois, where Life
`
`Spine is headquartered, id. ¶ 29, it is at least plausible that Life Spine learned of the Asserted
`
`Patents from Globus’s website while it was copying or claiming Globus’s products as predicates.
`
`In its motion, Life Spine argues that Globus’s allegations concerning marking at most
`
`6
`
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`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 13 of 27 PageID #: 991
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`establish constructive “notice” but not actual knowledge of the Asserted Patents for purposes of
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`induced and willful infringement. D.I. 19 at 7 (citing Lippert Components Mfg., Inc. v.
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`MOR/ryde, Inc., 2018 WL 345767, at *2 n.2 (N.D. Ind. Jan. 10, 2018)). However, courts have
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`found marking relevant for establishing knowledge, particularly in combination with other
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`supporting allegations. See, e.g., 3D Sys., Inc. v. Formlabs, Inc., 2014 WL 1904365, at *3
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`(S.D.N.Y. May 12, 2014) (“Marking of a product has been found in courts outside of this District
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`to support an inference that a defendant had knowledge of a patent.” (citations omitted)). As
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`discussed above, the marking allegations in the Amended Complaint fit within a larger narrative
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`of events and actions that combine to support an inference of pre-suit knowledge.
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`Life Spine also argues that Globus’s marking allegations do not show knowledge because
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`Globus “does not allege when Life Spine’s access to” Globus’s products began. D.I. 19 at 7-8.
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`But the Patents page on Globus’s website is publicly available and is the top result when
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`searching for Globus products and their corresponding patents online, see id. ¶¶ 29, 51, thus
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`distinguishing this case from Rehrig, where marking alone was insufficient to plead knowledge
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`because the patent number was located on the patented product itself, see 2019 WL 8161141, at
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`*3; see also D.I. 19 at 7-8 (relying on Rehrig to discount the weight of factual allegations
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`concerning marking). In any event, the Amended Complaint alleges that by 2016, Life Spine and
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`Globus had begun attending the same spine industry conferences, including NASS, that Globus
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`“regularly includes its expandable implant products” such as RISE and ELSA in its product
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`displays, and that the companies’ booths have been located side-by-side at these events. D.I. 15 ¶
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`52; see also id. at ¶ 61 (quoting testimony from Life Spine’s COO that he saw and might have
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`physically handled a non-Globus competitor’s implant at NASS). Even if these allegations do not
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`prove Life Spine had physical access to RISE or ELSA, they make that inference more plausible.
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`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 14 of 27 PageID #: 992
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`If this weren’t enough, the Amended Complaint also alleges that Life Spine, like other
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`spinal implant manufacturers in this “tight-knit industry,” recognizes that the “[t]he core of the
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`spine market place is intellectual property,” and accordingly “monitor[s] competitors’ patent
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`portfolios.” D.I. 15 ¶ 17. Combined with the factual allegations concerning the prominence of
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`Globus’s patent portfolio within the industry, see id. ¶¶ 13-16 (describing Globus’s ranking as a
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`top innovator in the spine industry), and its expandable implant patents in particular, see id. ¶ 14
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`(noting that “[m]ore than 90% of Globus’s citations [from competitors] were for patents relating
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`to expandable interbody”), it is at least plausible that Life Spine knew about Globus’s patents.
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`See, e.g., Elm 3DS Innovations, LLC v. Samsung Elecs. Co., 2015 WL 5725768, at *3 (D. Del.
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`Sept. 29, 2015) (pleading that patent was well known in the “tight-knit” industry and frequently
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`referenced by participants in that industry help “render it at least plausible that Defendants were
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`aware” of it), report and recommendation adopted, 2016 WL 1274812 (D. Del. Mar. 31, 2016).
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`Life Spine contends that “vague allegations of competitive intelligence cannot support an
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`inference of knowledge of the Asserted Patents,” but unlike the cases it cites, D.I. 19 at 11 (citing
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`Lippert, 2018 WL 345767, at *2, and MONEC Holding AG v. Motorola Mobility, Inc., 897 F.
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`Supp. 2d 225, 232 (D. Del. 2012)), the Amended Complaint makes specific allegations
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`concerning the prominence of each Asserted Patent, see D.I. 15 ¶¶ 21-27 (describing citations of
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`each of the Asserted Patents). At least one court has considered specific allegations such as these
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`to support an inference of knowledge. Compare, e.g., Elm, 2015 WL 5725768, at *3 (recounting
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`allegations that a patent “has been cited by at least 40 issued U.S. patents since 2008, including
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`by a number of other companies in the . . . industry”), with, e.g., D.I. 15 ¶ 21 (alleging that the
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`’731 Patent “has been cited over 100 times by other patents and/or patent applications,”
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`including those from “other major spine industry participants”), and, e.g., id. ¶ 27 (noting that
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`Case 1:21-cv-01445-JPM Document 22 Filed 03/02/22 Page 15 of 27 PageID #: 993
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`the ’649 Patent, which “was issued less than a year ago, . . . has already been cited over three
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`dozen times by other patents and/or patent applications”).4 In fact, in one of the cases relied on
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`by Life Spine, plaintiff’s “contention that knowledge of the patent should be readily apparent
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`from public disclosure” was rejected precisely because there were no specific allegations that the
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`patent was “widely known and frequently referenced in the industry.” MONEC, 897 F. Supp. 2d
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`at 233 (distinguishing Investpic, LLC v. FactSet Research Sys., Inc., 2011 WL 4591078, *1-2 (D.
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`Del. Sept. 30, 2011), where “the court found that public disclosure supported an inference of an
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`individual defendant’s knowledge because the patent-in-suit had been cited by at least seventy-
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`nine issued patents in the past ten years”). Here, Globus’s allegations as to the prominence in the
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`industry of its patent portfolio in general, and the Asserted Patents in particular, see D.I. 15 ¶¶
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`13-16, 19-27, “render it more likely that [Life Spine] . . . may have been similarly aware of the
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`[Asserted Patents’] existence and contents.” Elm, 2015 WL 5725768, at *3; cf. Trading Techs.
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`Int’l, Inc. v. BCG Partners, Inc., 2011 WL 3946581, at *4 (N.D. Ill. Sept. 2, 2011) (“Each
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`defendant is in the business of providing electronic trading software, and [plaintiff] alleges that it
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`marked its product with the patent number. It is not a stretch to infer that the defendants are
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`competitors with [plaintiff] and would be keeping an eye on patents issued to [plaintiff] . . . .”).
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`Finally, Life Spine argues that its citations to Globus’s patents when prosecuting its own
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`patents before the PTO fail to demonstrate knowledge, see D.I. 19 at 8-10, even though Life
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`Spine’s assessment of Globus’s patents as relevant prior art would have necessarily required Life
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`Spine to read and understand their content, see Lytone, 2021 WL 534868, at *3 (“It is well-
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`established that an IDS discloses information ‘known to [the applicant] to be material to