Plaintiff,
`
`
`LIFE SPINE, INC.,
`
`
`v.
`
`Defendant.
`
`
`
`
`
`
`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 1 of 27 PageID #: 1723
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`GLOBUS MEDICAL, INC.,
`
`
`C.A. No. 21-1445 (JPM)
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF GLOBUS MEDICAL, INC.’S ANSWERING BRIEF
`IN OPPOSITION TO DEFENDANT LIFE SPINE, INC’S
`RENEWED MOTION TO DISMISS THE SECOND AMENDED COMPLAINT
`
`
`
`WEIR GREENBLATT PIERCE LLP
`Jeffrey S. Cianciulli (No. 4369)
`824 Market Street Mall, Suite 800
`Wilmington, DE 19801
`(302) 652-8181
`jcianciulli@wgpllp.com
`
`Attorneys for Plaintiff Globus Medical, Inc.
`
`
`
`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: June 14, 2022
`
`
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 2 of 27 PageID #: 1724
`
`TABLE OF CONTENTS
`
`Page
`
`NATURE AND STAGE OF PROCEEDINGS ...............................................................................1
`
`SUMMARY OF ARGUMENT .......................................................................................................1
`
`STATEMENT OF FACTS ..............................................................................................................1
`
`ARGUMENT ...................................................................................................................................3
`
`I.
`
`II.
`
`III.
`
`Legal Standard .........................................................................................................3
`
`Life Spine’s Motion Should Be Denied as to the ’128 Patent .................................4
`
`Life Spine’s Motion Should Be Denied as to the Expandable Asserted
`Patents ......................................................................................................................4
`
`A.
`
`B.
`
`C.
`
`Plaintiff Sufficiently Pleaded Life Spine’s Knowledge ...............................5
`
`Plaintiff Sufficiently Pleaded Knowledge of and Specific Intent
`to Induce Infringement ...............................................................................16
`
`Plaintiff Sufficiently Pleaded that Life Spine Knew or Should
`Have Known that Its Conduct Infringed the Previously
`Asserted Patents .........................................................................................19
`
`CONCLUSION ..............................................................................................................................20
`
`
`
`
`
`
`
`
`
`
`i
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 3 of 27 PageID #: 1725
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`10x Genomics, Inc. v. Celsee, Inc.,
`2019 WL 5595666 (D. Del. Oct. 30, 2019) .........................................................................6, 15
`
`3D Sys., Inc. v. Formlabs, Inc.,
`2014 WL 1904365 (S.D.N.Y. May 12, 2014) .....................................................................8, 15
`
`Align Tech., Inc. v. 3Shape A/S,
`339 F. Supp. 3d 435 (D. Del. 2018) ...............................................................................7, 17, 20
`
`Barrier1 Sys., Inc. v. RSA Protective Techs., LLC,
`2021 WL 4622545 (D. Del. Oct. 7, 2021) .................................................................................3
`
`Berall v. Pentax of Am., Inc.,
`2021 WL 3934200 (S.D.N.Y. Sept. 2, 2021) ...........................................................................19
`
`In re Bill of Lading,
`681 F.3d 1323 (Fed. Cir. 2012)................................................................................................13
`
`Bio-Rad Labs. Inc. v. Thermo Fisher Sci. Inc.,
`267 F. Supp. 3d 499 (D. Del. 2017) .........................................................................................20
`
`BlackBerry Ltd. v. Nokia Corp.,
`2018 WL 1401330 (D. Del. Mar. 20, 2018) ..............................................................................5
`
`Bos. Sci. Corp. v. Nevro Corp.,
`415 F. Supp. 3d 482 (D. Del. 2019) .........................................................................................16
`
`Bot M8 LLC v. Sony Corp. of Am.,
`4 F.4th 1342 (Fed. Cir. 2021) ....................................................................................................3
`
`DermaFocus LLC v. Ulthera, Inc.,
`201 F. Supp. 3d 465 (D. Del. 2016) .........................................................................................19
`
`Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,
`2018 WL 6629709 (D. Del. Dec. 19, 2018) .............................................................................16
`
`Dynamic Data Techs., LLC v. Amlogic Holdings Ltd.,
`2020 WL 4365809 (D. Del. July 30, 2020) .............................................................................16
`
`Dynamic Data Techs., LLC v. Dell Inc.,
`2019 WL 10248834 (S.D.N.Y. Apr. 23, 2019)........................................................................20
`
`ii
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 4 of 27 PageID #: 1726
`
`Elm 3DS Innovations, LLC v. Samsung Elecs. Co.,
`2015 WL 5725768 (D. Del. Sept. 29, 2015) .................................................................... passim
`
`Enplas Display Device Corp. v. Seoul Semiconductor Co., Ltd.,
`909 F.3d 398 (Fed. Cir. 2018)..................................................................................................18
`
`EyesMatch Ltd. v. Facebook, Inc.,
`2021 WL 4501858 (D. Del. Oct. 1, 2021) .................................................................................5
`
`Groove Digital, Inc. v. King.com, Ltd.,
`2018 WL 6168615 (D. Del. Nov. 26, 2018) ............................................................................18
`
`Helios Streaming, LLC v. Vudu, Inc.,
`2020 WL 2332045 (D. Del. May 11, 2020) .............................................................................13
`
`Investpic, LLC v. FactSet Research Sys., Inc.,
`2011 WL 4591078 (D. Del. Sept. 30, 2011) ............................................................................10
`
`IOENGINE, LLC v. PayPal Holdings, Inc.,
`2019 WL 330515 (D. Del. Jan. 25, 2019) ..................................................................................5
`
`JDS Techs., Inc. v. Avigilon USA Corp.,
`2015 WL 3603525 (E.D. Mich. June 5, 2015).........................................................................15
`
`Lytone Enter., Inc. v. Agrofresh Sols., Inc.,
`2021 WL 534868 (D. Del. Feb. 12, 2021) ...........................................................................5, 11
`
`Mallinckrodt Inc. v. E-Z-EM Inc.,
`671 F. Supp. 2d 563 (D. Del. 2009) .........................................................................................14
`
`Malvern Panalytical Ltd v. Ta Instruments-Waters LLC,
`2021 WL 3856145 (D. Del. Aug. 27, 2021) ............................................................................14
`
`MONEC Holding AG v. Motorola Mobility, Inc.,
`897 F. Supp. 2d 225 (D. Del. 2012) .........................................................................................10
`
`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) .............................................................................13
`
`Novozymes N. Am., Inc. v. Danisco US Inc.,
`2020 WL 12895027 (D. Del. Feb. 12, 2020) .......................................................................5, 11
`
`Pac. Biosciences of Cal., Inc. v. Oxford Nanopore Techs., Inc.,
`2020 WL 954938 (D. Del. Feb. 27, 2020) ...............................................................................12
`
`iii
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 5 of 27 PageID #: 1727
`
`Portus Singapore Pte Ltd. v. SimpliSafe, Inc.,
`2019 WL 6071180 (D. Del. Nov. 15, 2019) ............................................................................19
`
`Rehrig Pac. Co. v. Polymer Logistics (Israel), Ltd.,
`2019 WL 8161141 (C.D. Cal. Aug. 30, 2019) .......................................................................6, 9
`
`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) .....................................................................................13, 14
`
`Simplivity Corp. v. Springpath, Inc.,
`2016 WL 5388951 (D. Mass. July 15, 2016) ...........................................................................15
`
`Spherix Inc. v. Juniper Networks, Inc.,
`2015 WL 1517508 (D. Del. Mar. 31, 2015) ............................................................................12
`
`State Indus., Inc. v. A.O. Smith Corp.,
`751 F.2d 1226 (Fed. Cir. 1985)................................................................................................13
`
`Tonal Sys., Inc. v. ICON Health & Fitness, Inc.,
`2021 WL 1785072 (D. Del. May 5, 2021) .................................................................................3
`
`Trading Techs. Int’l, Inc. v. BCG Partners, Inc.,
`2011 WL 3946581 (N.D. Ill. Sept. 2, 2011) ......................................................................11, 16
`
`Warsaw Orthopedic, Inc. v. NuVasive, Inc.,
`824 F.3d 1344 (Fed. Cir. 2016)................................................................................................16
`
`WCM Indus., Inc. v. IPS Corp.,
`721 F. App’x 959 (Fed. Cir. 2018) ..........................................................................................14
`
`Zapfraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. 2021) ...........................................................................................4
`
`Statutes
`
`35 U.S.C. § 287(a) .......................................................................................................................2, 8
`
`Rules
`
`Rule 9 .............................................................................................................................................16
`
`Rule 12(b)(6) ................................................................................................................................1, 3
`
`iv
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 6 of 27 PageID #: 1728
`
`NATURE AND STAGE OF PROCEEDINGS
`
`On May 10, 2022, Plaintiff Globus Medical, Inc. (“Globus”) filed a Second Amended
`
`Complaint (“SAC”) alleging infringement of a patent pertaining to intervertebral spacers and
`
`vertebral anchors by Defendant Life Spine, Inc.’s (“Life Spine”) Dyna-Link Titanium product
`
`with barb fixation, D.I. 42, and reiterating allegations of infringement of seven patents pertaining
`
`to expandable spinal implants previously asserted in Globus’s original Complaint, D.I. 1, and
`
`Amended Complaint, D.I. 15, by Life Spine’s PROLIFT products.1 Life Spine previously filed a
`
`Rule 12(b)(6) motion to dismiss Globus’s claims for induced and willful infringement, D.I. 9,
`
`renewed that motion after the filing of the Amended Complaint, D.I. 19, and has now renewed its
`
`motion yet again with respect to the SAC, D.I. 45.
`
`SUMMARY OF ARGUMENT
`
`The detailed factual allegations in the SAC are sufficient for Globus’s induced and
`
`willful infringement claims to proceed. Making all inferences in Globus’s favor, it is at least
`
`plausible from the totality of 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.
`
`42 ¶¶ 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.
`
`
`1 The seven previously 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”)
`(collectively, the “Expandable Asserted Patents” or “Expandable APs”). The additional Asserted
`Patent in the SAC is U.S. Patent No. 11,065,128 (the “’128 Patent”).
`
`1
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 7 of 27 PageID #: 1729
`
`Globus has also released two non-expandable intervertebral spacer systems with curved
`
`fasteners, an improvement upon the traditional method for fixing spacers with linear screws. Id.
`
`¶¶ 13-14. These innovative products were developed in-house by Globus. Id. ¶ 14.
`
`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. ¶ 19. Globus has
`
`consistently placed at or near the top of an annual ranking of “patent power” within this space.
`
`Id. ¶¶ 15-16. 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. ¶¶ 31-32. Each of
`
`the eight Asserted Patents is associated with one or more Globus products. Id. ¶ 31.
`
`Life Spine launched its first expandable implant, PROLIFT, in 2016—five years after
`
`Globus first entered this space. Id. ¶ 34. 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. ¶ 35. 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 products as “substantially equivalent predecessor devices.” Id. ¶ 53. 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. ¶¶ 57-64. Furthermore, approximately a week after Life Spine
`
`announced the completion of a Dyna-Link surgery using its new “barb” fasteners, Life Spine
`
`received actual notice of Globus’s allegations of infringement of the ’128 Patent by that product
`
`2
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 8 of 27 PageID #: 1730
`
`via drafts of the SAC and the claim chart attached thereto as Exhibit P. Id. ¶ 85. Finally, Life
`
`Spine engages in a large number and variety of promotional and instructional efforts to sell and
`
`encourage greater usage of its products. Id. ¶¶ 67-84.
`
`ARGUMENT
`
`I.
`
`Legal Standard
`
`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.”). A 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). 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).
`
`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).
`
`2 Life Spine does not seek dismissal of Globus’s claims for direct infringement.
`
`3
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 9 of 27 PageID #: 1731
`
`II.
`
`Life Spine’s Motion Should Be Denied as to the ’128 Patent
`
`As contemplated by the Court’s initial scheduling order, Globus filed the SAC to assert a
`
`new patent and accuse a new product. D.I. 27 at 2. Accordingly, the vast majority of the limited
`
`changes to the SAC from the Amended Complaint pertain to the newly asserted ’128 Patent and
`
`additional Dyna-Link Accused Product. E.g., D.I. 42 ¶¶ 13-14, 21, 30-31, 45, 85, 159-68. The
`
`SAC pleads that Life Spine had knowledge of the ’128 Patent and Globus’s specific allegations
`
`of infringement prior to Globus’s filing via drafts of the SAC and claim chart for the ’128 Patent,
`
`and that Life Spine continues to infringe despite such knowledge. Id. ¶¶ 85, 166. It pleads that
`
`Life Spine induced infringement by the “non-party partners and distributors of the Accused
`
`Products”—entities that Life Spine encourages to sell the Dyna-Link Accused Product and
`
`whom Life Spine’s own CEO described as “basically an instrument of the operating team” and
`
`“worth their weight in gold.” Id. ¶ 68. Life Spine’s motion ignores these facts, and even if Life
`
`Spine were correct that pre-suit knowledge may not be conferred by the filing of a complaint, see
`
`D.I. 46 at 7 (citing Zapfraud, Inc. v. Barracuda Networks, Inc., 528 F. Supp. 3d 247, 250 (D.
`
`Del. 2021)), Life Spine noticeably does not contend that the drafts it received prior to the filing
`
`of the SAC are similarly insufficient. Its motion must therefore be denied as to the ’128 Patent.
`
`III. Life Spine’s Motion Should Be Denied as to the Expandable Asserted Patents
`
`With respect to the Expandable Asserted Patents, Life Spine’s latest attempt to dismiss
`
`Globus’s claims of induced and willful infringement is almost identical to its prior motion.
`
`Compare D.I. 46, with D.I. 19.3 The instant motion therefore suffers from the same critical
`
`
`3 The primary substantive difference is Life Spine’s new footnote regarding the allegedly
`“overwhelming authority in this District” on whether the complaint can be used support
`allegations of post-suit knowledge. D.I. 46 at 7 n.2. This assertion is belied by Life Spine’s lead
`case on this topic—see ZapFraud, 528 F. Supp. at 250-51 (noting that it did not dismiss post-suit
`claims “without doubts” as “[c]urrent and recent judges of this District have also taken different
`views on the issue”)—and the numerous cases to disagree with that position. See, e.g.,
`
`4
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 10 of 27 PageID #: 1732
`
`deficiency: Life Spine argues that the SAC does not conclusively or directly establish knowledge
`
`or specific intent, but pleadings are sufficient to withstand a motion to dismiss if they permit the
`
`Court to reasonably infer the ultimate fact—even if circumstantially and if the opposing
`
`inference could have been made. As Globus explained previously, see D.I. 22, and below, it is at
`
`least plausible from the pleadings that Life Spine had the requisite knowledge and intent required
`
`for induced and willful infringement.
`
`A.
`
`Plaintiff Sufficiently Pleaded Life Spine’s Knowledge
`
`Taken as a whole, the facts alleged in the SAC, when considered in the light most
`
`favorable to Globus, set forth at least a plausible basis for inferring Life Spine’s pre-suit
`
`knowledge of the Expandable APs. 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) (allegations “[i]n combination . . . give rise to a reasonable inference that
`
`[defendant] had pre-suit knowledge”). Life Spine’s analysis of the factual allegations in the SAC,
`
`
`IOENGINE, LLC v. PayPal Holdings, Inc., 2019 WL 330515, at *4 (D. Del. Jan. 25, 2019)
`(Bryson, J.) (denying motion to dismiss post-suit induced and willful infringement claims as
`“knowledge of the patents was clearly conveyed . . . by the service of the complaint,” and “there
`is no requirement that the plaintiff plead additional facts, beyond knowledge of the patent or
`patents, in order for a claim of willful infringement to survive”); EyesMatch Ltd. v. Facebook,
`Inc., 2021 WL 4501858, at *3 (D. Del. Oct. 1, 2021) (“I am persuaded by the reasoning of Judge
`Bryson, sitting by designation in this district in IOENGINE,” who “concluded that there is no
`requirement that a plaintiff plead pre-suit knowledge for claims of post-suit indirect infringement
`to survive a motion to dismiss”); BlackBerry Ltd. v. Nokia Corp., 2018 WL 1401330, at *3 (D.
`Del. Mar. 20, 2018) (denying motion to dismiss post-suit claim of willful infringement). In any
`event, the Court need not address the dispute, as the SAC more than sufficiently pleads pre-suit
`knowledge and intent.
`
`5
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 11 of 27 PageID #: 1733
`
`however, improperly addresses each of the relevant allegations in isolation. See D.I. 46 at 6-13
`
`(dividing Globus’s factual allegations into four separate and individual categories).
`
`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. 42 ¶ 35 (quoting
`
`testimony of Life Spine’s former Engineering Manager, who was responsible for designing
`
`PROLIFT, and admitted 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)); see also id. (finding these allegations “also lend factual
`
`support to [plaintiff’s] cause of action for willful infringement”).4 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.
`
`42 ¶ 35. 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. ¶ 66. These allegations, combined with others establishing Globus’s position as
`
`
`4 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. 46 at 12. 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.
`
`6
`
`

`

`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 12 of 27 PageID #: 1734
`
`a leading innovator in spinal implants, see id. ¶¶ 7, 12-16, 22, 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. ¶ 53; 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 SAC 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 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
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`Globus’s patents for expandable implants to this day, as the only predicate submitted by Life
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`Spine for the recently approved PROLIFT Micro “that was not a prior version of PROLIFT” was
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`the “Globus Rise Spacer System.” Id. ¶ 54. Life Spine’s assertion that “plaintiff does not even
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`attempt to explain how knowledge of Globus’s products [as demonstrated in Life Spine’s 510(k)
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`submissions] allegedly resulted in Life Spine’s knowledge of the Asserted Patents,” D.I. 46 at
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`11, flies in the face of the SAC as well as Globus’s prior briefing, see D.I. 22 at 5-6.
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`The SAC also contains facts that plausibly allege a direct connection between the Globus
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`products studied by Life Spine and the specific Expandable APs. The quoted testimony from
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`current and former Life Spine employees establishes that Life Spine searched the Internet for its
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`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 13 of 27 PageID #: 1735
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`competitors’ patents, D.I. 42 ¶ 35 (stating that the PROLIFT team would “go online” to look for
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`other products and their patents), and specifically, that Life Spine searched a “device name” on
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`the Internet to “find out information about patents” that apply to it, id. ¶ 53. As of the SAC, the
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`first result for “Globus RISE patent” or “Globus ELSA patent” on Google was the Patents page
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`on Globus’s website, id. ¶ 55, which pursuant to 35 U.S.C. § 287(a) “provides a table of Globus
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`products and the patents that protect them” and lists the Expandable APs next to products in the
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`RISE and ELSA families, id. ¶ 31 (mapping each patent to one or more Globus products). It is
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`reasonable to infer that Life Spine’s past searches would have yielded similar results, and in light
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`of the fact that over a hundred pageviews of the Globus Patents page originated from the village
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`of Huntley, Illinois, where Life Spine is headquartered, id. ¶ 32, it is at least plausible that Life
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`Spine learned of the Expandable APs from Globus’s website while it was copying or claiming
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`Globus’s products as 510(k) predicates.
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`In its motion, Life Spine argues that Globus’s allegations concerning marking at most
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`establish constructive “notice” but not actual knowledge of the Expandable APs for purposes of
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`induced and willful infringement. D.I. 46 at 8 (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 SAC fit within a larger narrative of events and
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`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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`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 14 of 27 PageID #: 1736
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`Globus “does not allege when Life Spine’s access to” Globus’s products began. D.I. 46 at 8-9.
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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. ¶¶ 32, 55, 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. In any event, the SAC alleges that by 2016, Life Spine and Globus had begun attending the
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`same spine industry conferences, including NASS, that Globus “regularly includes its
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`expandable implant products” such as RISE and ELSA in its product displays, and that the
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`companies’ booths have been located side-by-side at these events. D.I. 42 ¶ 56; see also id. ¶ 65
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`(quoting testimony from Life Spine’s COO that he saw and might have physically handled a
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`non-Globus competitor’s implant at NASS). Even if these allegations do not prove Life Spine
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`had physical access to RISE or ELSA, they make that inference more plausible.
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`If this weren’t enough, the SAC also alleges that Life Spine, like other spinal implant
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`manufacturers in this “tight-knit industry,” recognizes that the “[t]he core of the spine market
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`place is intellectual property,” and accordingly “monitor[s] competitors’ patent portfolios.” D.I.
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`42 ¶ 19. Combined with the factual allegations concerning the prominence of Globus’s patent
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`portfolio within the industry, see id. ¶¶ 15-18 (describing Globus’s ranking as a top innovator in
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`the spine industry), and its expandable implant patents in particular, see id. ¶ 16 (noting that
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`“[m]ore than 90% of Globus’s citations [from competitors] were for patents relating to
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`expandable interbody”), it is at least plausible that Life Spine knew about Globus’s patents. See,
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`e.g., Elm 3DS Innovations, LLC v. Samsung Elecs. Co., 2015 WL 5725768, at *3 (D. Del. Sept.
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`29, 2015) (pleading patent was well known in “tight-knit” industry and frequently referenced by
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`participants in that industry help “render it at least plausible that Defendants were aware” of it).
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`Case 1:21-cv-01445-JPM Document 51 Filed 06/14/22 Page 15 of 27 PageID #: 1737
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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. 46 at 12-13
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`(citing Lippert, 2018 WL 345767, at *2, and MONEC Holding AG v. Motorola Mobility, Inc.,
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`897 F. Supp. 2d 225, 232 (D. Del. 2012)), the SAC makes specific allegations concerning the
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`prominence of each Asserted Patent or its family, see D.I. 42 ¶¶ 21-30. At least one court has
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`considered specific allegations such as these to support an inference of knowledge. Compare,
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`e.g., Elm, 2015 WL 5725768, at *3 (recounting allegations that a patent “has been cited by at
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`least 40 issued U.S. patents since 2008, including by a number of other companies in the . . .
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`industry”), with, e.g., D.I. 42 ¶ 23 (alleging that the ’731 Patent or its family “has been cited over
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`1