Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 1 of 8 PageID #: 2096
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GLOBUS MEDICAL, INC.,
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`C.A. No. 21-1445 (JPM)
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`JURY TRIAL DEMANDED
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`PLAINTIFF GLOBUS MEDICAL, INC.’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`WEIR GREENBLATT PIERCE LLP
`Jeffrey S. Cianciulli (No. 4369)
`824 Market Street, Suite 800
`Wilmington, DE 19801
`(302) 652-8181
`jcianciulli@wgpllp.com
`
`Attorneys for Plaintiff Globus Medical, Inc.
`
`
`OF COUNSEL:
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`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: December 9, 2022
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`
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`Plaintiff,
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`LIFE SPINE, INC.,
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`v.
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`Defendant.
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`

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`Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 2 of 8 PageID #: 2097
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`TABLE OF CONTENTS
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`Page
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`PRELIMINARY STATEMENT .....................................................................................................1 
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`ARGUMENT ...................................................................................................................................1 
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`CONCLUSION ................................................................................................................................5 
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`ii
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`Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 3 of 8 PageID #: 2098
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Abbott Lab’ys v. Sandoz, Inc.,
`566 F.3d 1282 (Fed. Cir. 2009)..................................................................................................3
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`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)..........................................................................................1, 2, 5
`
`Laryngeal Mask Co. v. Ambu,
`618 F.3d 1367 (Fed. Cir. 2010)..............................................................................................2, 3
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`Teva Pharma USA v. Sandoz, Inc.,
`574 U.S. 318 (2015) ...................................................................................................................2
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`
`
`iii
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`

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`Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 4 of 8 PageID #: 2099
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`PRELIMINARY STATEMENT
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`Plaintiff Globus Medical, Inc. (“Globus”) submits this responsive claim construction brief
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`concerning the sole term in dispute between the parties, “elongate fin,” which Defendant Life
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`Spine Inc. (“Life Spine”) asks the Court to construe to mean “a generally flat protrusion extending
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`from the elongate shank.” Globus respectfully submits that this term needs no construction—the
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`words “elongate” (or “elongated”) and “fin” are incredibly easy-to-understand, non-technical
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`terms. The “general rule” at claim construction is that such terms are “given their plain and
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`ordinary meanings,” and Life Spine’s opening brief fails to establish either of the “only two
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`exceptions” to this rule: “1) when a patentee sets out a definition and acts as his own lexicographer,
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`or 2) when the patentee disavows the full scope of the claim term either in the specification or
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`during prosecution.” Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014)
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`(quoting Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)). In
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`particular, Life Spine cannot show clear intent by Globus to limit “elongate fin” to only a
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`“generally flat” protrusion. If the Court concludes a construction is required, the following
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`alternative is more consistent with the evidence: “a protrusion extending from the elongate shank.”
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`ARGUMENT
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`As an initial matter, much of Life Spine’s opening submission should be disregarded by
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`the Court. Its brief includes a lengthy “background” section purporting to describe the state of the
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`art at the time of the invention and cites various supporting exhibits. D.I. 80 at 1-3. Life Spine
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`failed to timely disclose these exhibits to Globus on the claim construction schedule set by the
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`Court. See D.I. 79 at 3-4 (describing Life Spine’s prior disclosures of intrinsic and extrinsic
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`evidence).1
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`1 Life Spine does not appear to rely at all on its disclosed claim construction expert, see generally
`D.I. 80, who, in any event, admitted that he based his opinions solely on the specification and
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`1
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`

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`Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 5 of 8 PageID #: 2100
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`Most of Life Spine’s arguments were already anticipated and rebutted in Globus’s opening
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`brief. Life Spine argues that an “elongate fin” must be “generally flat” because of (1) how elongate
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`fins are depicted in drawings of embodiments described in the specification; (2) an amendment
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`made by Globus during prosecution of the ’128 Patent related to the apex of the elongate shank;
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`and (3) three contradictory dictionary entries for the word “fin.” This hodgepodge of generally
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`inapposite “evidence” does not constitute a clear indication of lexicography or disclaimer, as
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`required to narrow the plain and ordinary meaning of a term. See Laryngeal Mask Co. v. Ambu,
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`618 F.3d 1367, 1372 (Fed. Cir. 2010) (noting that, “[t]o be his own lexicographer, a patentee must
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`use a ‘special definition of the term [that] is clearly stated in the patent specification or file history”
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`(alteration in original) (emphasis added) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
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`1576, 1580 (Fed. Cir. 1996))); Hill-Rom, 755 F.3d at 1372 (noting that the “exacting” standard for
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`finding lexicography or disclaimer means, with respect to disclaimer, that the patentee must
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`“make[] clear that the invention does not include a particular feature or is clearly limited to a
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`particular form of the invention” (alteration in original) (emphasis added)).
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`First, Life Spine argues that the Court must construe “elongate fin” to mean a “generally
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`flat” protrusion because “all of the patent’s references to ‘elongate fin’ point to either item 310 of
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`the anchor depicted in Figures 29-36 or the ‘elongate fin’ of the anchor depicted in Figures 37-
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`40,” which show what Life Spine asserts to be a fin that is “generally flat or flattened.” D.I. 80 at
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`5, 6. Yet the word “flat” does not appear anywhere in the ’128 Patent, and elongate fins are never
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`described as “generally flat” or any variation thereof. In fact, the patent expressly states that
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`confirmed that “elongate fin” is not an established term of art. D.I. 79-2 (McDonnell Tr. at 43-44);
`see Teva Pharma USA v. Sandoz, Inc., 574 U.S. 318, 332 (2015) (explaining that experts may
`“explain terms of art, and the state of the art, but they cannot be used to prove the proper or legal
`construction of any instrument of writing”).
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`2
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`Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 6 of 8 PageID #: 2101
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`“various modifications and variations can be made in the disclosed systems and processes without
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`departing from the scope of the disclosure.” D.I. 80-1, Ex. 1 at 16:5-7. More importantly, Life
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`Spine’s reliance on the examples of elongate fins depicted in the specification is contrary to a
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`fundamental rule of claim construction: “When consulting the specification to clarify the meaning
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`of claim terms, courts must take care not to import limitations into the claims from the
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`specification.” Abbott Lab’ys v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009). Thus, even
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`when a specification is “replete with discussion” of a particular feature, asserts that the preferred
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`embodiment has that feature, and does not disclose an alternative embodiment without that feature,
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`courts nonetheless refuse to import the feature into the claims. See, e.g., Laryngeal Mask, 618 F.3d
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`at 1371-72 (vacating summary judgment based on improper construction of the term “backplate”
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`to include a “tube joint,” even though “every figure, every embodiment, and every description of
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`the backplate” in the specification included a “tube joint”). The Court should accordingly reject
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`Life Spine’s argument as inconsistent with a foundational principle of claim construction.
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`Second, Life Spine appears to make a disclaimer argument based on an amendment made
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`by Globus during prosecution of the ’128 Patent. But that amendment concerned the meaning of
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`“apex” as it pertained to the elongate shank, D.I. 80 at 3-4, 7-8; D.I. 80-1, Ex. 7 at 2, 7, and had
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`nothing to do with whether the elongate fin is “generally flat.” Life Spine fails to explain how this
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`particular piece of prosecution history teaches anything about the scope of the term “elongate fin.”
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`The cited evidence, which was not disclosed to Globus in accordance with the Court’s claim
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`construction schedule and was raised for the first time in Life Spine’s opening brief, has no
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`relevance to the issue in dispute and should be disregarded entirely.
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`Third, Life Spine asserts that three “[c]ontemporaneous dictionaries confirm that the term
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`‘elongate fin’ means a generally flat protrusion” and submits three ordinary dictionary entries for
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`3
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`

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`Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 7 of 8 PageID #: 2102
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`the word “fin.” D.I. 80 at 8. Globus already discussed the three dictionaries at length in its opening
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`brief. The word “flat” does not appear in two of the three dictionary entries cited by Life Spine. In
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`the one entry that does use the word “flattened,” that aspect only appears in three out of the four
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`definitions provided, rather than in all four of them. See D.I. 80-1, Ex. 8 (“flattened” does not
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`appear in one of four definitions of “fin”); id., Ex. 9 (“flat” or “flattened” does not appear in
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`definition of “fin”); id., Ex. 10 (“flat” or “flattened” does not appear in any of the six definitions
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`of “fin”). If anything, Life Spine’s extrinsic evidence demonstrates that flatness is not an intrinsic
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`feature of a fin, as several definitions of “fin” do not describe “generally flat” protrusions. See id.,
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`Ex. 10 (defining fin to mean, inter alia, “a portion of a mechanism like a fish’s fin in shape or
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`purpose” as well as “a hand or arm” (emphasis added)). Moreover, while Life Spine appears to
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`equate “flat” with “thin,” see, e.g., D.I. 80 at 8 (asserting that “fin . . . connotes a generally flat,
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`flattened, or thin protrusion” (emphasis added)), those words are not synonyms, and Life Spine
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`cannot elide the difference between them to bolster its dictionary-based argument.
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`Separate and apart from Life Spine’s failure to show that either lexicography or disclaimer
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`apply to limit the meaning of the term “elongate fin,” the construction proposed by Life Spine will
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`also confuse the issues rather than clarify them. For one, “generally flat” introduces an ambiguity,
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`as it is not clear when something that is not completely flat would qualify as “generally flat.”
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`Moreover, Life Spine appears to suggest that a “generally flat” elongate fin must have two straight,
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`parallel vertical sides, as illustrated in Life Spine’s annotated version of Figure 38 from the ’128
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`Patent. See D.I. 80 at 7 (two red arrows pointing to the two straight, parallel vertical sides of the
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`example elongate fin depicted in the figure). In this depiction, the elongate fin extends vertically
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`from the elongate shank such that the cross-section of this arrangement resembles an upside-down
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`“T.” But this specific configuration is precisely what is claimed by dependent claim 2 of the ’128
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`4
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`Case 1:21-cv-01445-JPM Document 85 Filed 12/09/22 Page 8 of 8 PageID #: 2103
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`Patent. See D.I. 80-1, Ex. 1 at cl. 2 (“The intervertebral spacer system of claim 1, wherein the
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`elongate shank and the elongate fin form a t-shaped cross-section.”). The presence of claim 2 in
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`the ’128 Patent, therefore, demonstrates that the elongate shank and elongate fin can be arranged
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`to not form a “t-shaped cross-section”—another indication that the elongate fin is not limited to a
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`protrusion that is “generally flat” from top to bottom but could include various other shapes. See,
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`e.g., Hill-Rom, 755 F.3d at 1374 (“[T]he presence of a dependent claim that adds a particular
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`limitation raises a presumption that the limitation in question is not found in the independent claim.
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`This presumption is especially strong where the limitation in dispute is the only meaningful
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`difference between an independent and dependent claim.” (citation and quotation marks omitted)).
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`CONCLUSION
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`For the foregoing reasons, the Court should reject Life Spine’s proposed construction for
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`“elongate fin” and construe the term to have its plain and ordinary meaning. Alternatively, the
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`Court should construe “elongate fin” to refer to “a protrusion extending from the elongate shank.”
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`Dated: December 9, 2022
`
`
`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
`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
`jlahad@susmangodfrey.com
`
`
`
`
`
`WEIR GREENBLATT PIERCE LLP
`
`
`/s/ Jeffrey S. Cianciulli
`Jeffrey S. Cianciulli (No. 4369)
`824 Market Street, Suite 800
`Wilmington, DE 19801
`(302) 652-8181
`jcianciulli@wgpllp.com
`
`Attorneys for Plaintiff Globus Medical, Inc.
`
`
`5
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`