Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 1 of 11 PageID #: 2108
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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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`Plaintiff,
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`
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`v.
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`LIFE SPINE, INC.,
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`
`Defendant.
`
`
`)
`
`)
`
`)
`
`)
`) C.A. No. 21-1445 (JPM)
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`)
`) REDACTED - PUBLIC VERSION
`)
`)
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`DEFENDANT LIFE SPINE, INC.’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Jennifer Ying (#5550)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`jying@morrisnichols.com
`
`Attorneys for Defendant
`
`
`
`
`
`
`OF COUNSEL:
`
`Brianne M. Straka
`Dave Nelson
`Rajat Khanna
`Jonathon Studer
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`191 North Wacker Drive, Suite 2700
`Chicago, IL 60606
`(312) 705-7400
`
`Isabel Peraza
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`1300 I Street NW
`Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`
`Jake Blecher
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`(212) 849-7000
`
`
`
`Original Filing Date: December 9, 2022
`Redacted Filing Date: December 16, 2022
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`

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`Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 2 of 11 PageID #: 2109
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...............................................................................................................1
`PROCEDURAL BACKGROUND ......................................................................................1
`THE PROPER CONSTRUCTION OF “ELONGATE FIN” ...............................................2
`A.
`The term “elongate fin” requires construction. ........................................................2
`B.
`The intrinsic evidence supports Life Spine’s construction, and Globus
`does not identify intrinsic evidence to support its overbroad reading. ....................3
`All the extrinsic evidence indicates that fins, and especially elongate fins,
`are generally flat. .....................................................................................................5
`CONCLUSION ....................................................................................................................6
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`C.
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`I.
`II.
`III.
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`IV.
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`i
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`Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 3 of 11 PageID #: 2110
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`TABLE OF AUTHORITIES
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`Cases
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`Page
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`Liebel-Flarsheim Co. v. Medrad, Inc.,
` 358 F.3d 898 (Fed. Cir. 2004).................................................................................................... 4
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`Myco Indus., Inc. v. BlephEx, LLC,
` 955 F.3d 1 (Fed. Cir. 2020)........................................................................................................ 1
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
` 521 F.3d 1351 (Fed. Cir. 2008).................................................................................................. 2
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`Ruckus Wireless, Inc. v. Innovative Wireless Solutions, LLC,
` 824 F.3d 999 (Fed. Cir. 2016)................................................................................................ 4, 5
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`ii
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`Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 4 of 11 PageID #: 2111
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`TABLE OF EXHIBITS1
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`No.
`1
`2
`3
`4
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`5
`6
`7
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`8
`9
`10
`11
`12
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`Description
`U.S. Patent No. 11,065,128 to Zappacosta et al.
`Certified Translation of Korean Patent No. 20-0290058 to Chung
`U.S. Patent No. 5,306,308 to Gross et al.
`Virk et al., “History of Spinal Fusion: Where We Came from and Where We Are
`Going,” (2020) HSS Journal, 16:137-142
`U.S. Publication No. 2011/0230971 to Donner et al.
`U.S. Publication No. 2013/0150968 to Dinville at al.
`U.S. Patent Application No. 15/962,174, November 30, 2020 Applicant
`Arguments Made in Amendment
`Excerpts from New Oxford Dictionary (3d ed. 2010)
`Excerpts from Cambridge Advanced Learner’s Dictionary (4th ed. 2013)
`Excerpts from Chambers Dictionary (12th ed. 2011)
`Plaintiff Globus Medical, Inc.’s Preliminary Claim Constructions (Sept. 2, 2022)
`Excerpt from Globus’s Initial Infringement Contentions for ’128 Patent
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`1 Exhibits 1-10 were submitted with Life Spine’s opening brief. (D.I. 80-1.)
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`iii
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`Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 5 of 11 PageID #: 2112
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`I.
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`INTRODUCTION
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`The parties’ only claim construction dispute is whether “elongate fin” means a generally
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`flat protrusion (as Life Spine proposes), or any protrusion extending from the elongate shank of a
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`vertebral anchor (as Globus proposes). The intrinsic and extrinsic evidence demonstrate that an
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`“elongate fin” is generally flat. The ’128 patent describes the “elongate fin” only as a generally
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`flat protrusion, much like the fin of a shark or airplane. Globus does not identify any part of the
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`patent that suggests otherwise. Likewise, contemporaneous dictionaries define “fins” as flat or
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`thin structures and indicate that “elongate” emphasizes the length of said fins relative to their
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`width (i.e., flatness). (D.I. 80 at 8-9.) As with the intrinsic evidence, Globus does not identify any
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`extrinsic evidence to support its position that all protrusions are “elongate fins.” Accordingly,
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`Life Spine’s proposed construction should be adopted.2
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`II.
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`PROCEDURAL BACKGROUND
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`Globus’s opening brief includes a section titled “Procedural Background” purporting to
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`describe the parties’ meet and confer process leading to claim construction briefing. Life Spine
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`respectfully submits that none of this procedural history is relevant to the claim construction
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`issue to be decided by the Court. Nevertheless, to the extent the Court finds such background
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`helpful in resolving the dispute, Life Spine provides the following response.
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`2 Life Spine emphatically denies the unsupported allegation that it sells “copycats of
`Globus’s patented products.” (D.I. 79 at 1.) Moreover, Globus’s assertion that Life Spine’s
`product resembled Globus’s product is irrelevant. The Federal Circuit has repeatedly held that it
`is improper to predicate infringement on a comparison of an accused product with a patentee’s
`commercial embodiment. E.g., Myco Indus., Inc. v. BlephEx, LLC, 955 F.3d 1, 15 (Fed. Cir.
`2020) (“The law is clear . . . that infringement is determined on the basis of the claims, not on the
`basis of a comparison with the patentee’s commercial embodiment of the claimed invention. . . .
`Similarly, claim construction . . . focuses on the recited limitations of the claims, not on the
`features of a commercial embodiment of the invention.”).
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`1
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`Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 6 of 11 PageID #: 2113
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`Globus’s recitation of the “Procedural Background” selectively omits facts related to the
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`parties’ meet and confer process. The parties were required to exchange preliminary claim
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`constructions on September 2, 2022 and final constructions on October 21, 2022. (D.I. 40.)
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`Globus did not identify its proposed construction of “elongate fin” (or any other term) by the
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`September 2 deadline, except to say “plain and ordinary meaning.” (Ex. 11.)
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`Globus first put its proposed constructions in writing on October 21, 2022. Despite
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`Globus’s earlier refusals to provide meaningful disclosures, Life Spine agreed—at Globus’s
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`request—to meet and confer after October 21 to attempt to narrow the disputes before this Court.
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`Through that cooperation, the parties were able to reach agreement on five terms. Life Spine also
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`broadened its proposed construction of “elongate fin” to move closer to Globus’s belated
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`proposed construction by deleting the following strikethrough text: “a generally flat protrusion
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`extending from the elongate shank at an approximately 90º angle.” However, the parties could
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`not reach agreement on that term. Globus requested an extension of the briefing schedule and
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`Life Spine agreed. Globus thanked Life Spine for working cooperatively.
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`III. THE PROPER CONSTRUCTION OF “ELONGATE FIN”
`A.
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`The term “elongate fin” requires construction.
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`Globus argues, in conclusory fashion, that “elongate fin” need not be construed because
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`“fin” is “a simple, common, widely understood word.” (D.I. 79 at 5.) But Federal Circuit
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`precedent is clear that “[w]hen the parties raise an actual dispute regarding the proper scope of
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`these claims, the court, not the jury, must resolve that dispute.” O2 Micro Int’l Ltd. v. Beyond
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`Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008).
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`Here, the parties dispute the scope of “elongate fin.” In the context of the ’128 patent, the
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`elongate fin is described and depicted as a generally flat protrusion like the fin of a shark or
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`airplane. (D.I. 80 at 5-8). But Globus asks the Court to construe “elongate fin” such that it would
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`2
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`Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 7 of 11 PageID #: 2114
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`cover any protrusion whatsoever. Indeed, Globus’s infringement contentions (excerpt reproduced
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`below) interpret “elongate fin” so broadly as to cover the surface of a shank having cutouts.
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`Ex. 12 (excerpt of Globus’s infringement contentions) (black-arrow annotation by Globus).
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`B.
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`The intrinsic evidence supports Life Spine’s construction, and Globus does
`not identify intrinsic evidence to support its overbroad reading.
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`As explained in Life Spine’s opening brief, the ’128 patent depicts an “elongate fin” only
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`as a generally flat protrusion, consistent with the ordinary meaning of “fin” and “elongate.” (D.I.
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`80 at 5-8.) Globus does not identify a single passage or figure from the ’128 patent to support
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`that a person of ordinary skill in the art would understand “elongate fin” to be broader, let alone
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`broad enough to cover any and all protrusions. (D.I. 79 at 5-6.) Globus instead argues Life Spine
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`improperly reads limitations from preferred embodiments into the claims. Id. at 6. That is
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`incorrect. Life Spine assigns “elongate fin” its ordinary meaning; it is Globus that presses a
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`special (broadened) definition. Indeed, Life Spine is not limiting “elongate fin” to a particular
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`embodiment from the specification. Rather, Life Spine observes that all embodiments of
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`“elongate fins” in the patent specification and prosecution history are generally flat protrusions.
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`Globus’s brief repeats the frequently-cited axiom that “it is improper to read a limitation
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`from the specification into the claims” without further analysis. (D.I. 79 at 6.) But Life Spine
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`does not ask the Court to limit “elongate fin” to a subset of fins. Rather, it contends that
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`ordinarily fins are generally flat protrusions and the ’128 patent uses the term consistent with its
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`common meaning. Indeed, the very case Globus relies on explained that this axiom alone seldom
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`provides the answer. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004).
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`In Liebel, the court considered the construction of “opening” in the phrase “syringe receiving
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`opening.” Id. at 903. Noting that, in common usage, “opening” means “aperture,” the court
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`declined to interpret “opening” such that it needed to be located in a particular location. Id. at
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`905. Thus, the Liebel court’s analysis actually supports Life Spine’s proposed construction of
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`“elongate fin” because Life Spine proposes that “elongate fin” be construed consistent with the
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`common usage of “fin” and “elongate,” which is consistent with every embodiment disclosed in
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`the specification. It is Globus that presses a special definition inconsistent with common usage.
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`In Ruckus, the Federal Circuit rejected a similar argument by the patentee. Ruckus
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`Wireless, Inc. v. Innovative Wireless Solutions, LLC, 824 F.3d 999 (Fed. Cir. 2016). There, the
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`Federal Circuit affirmed the district court’s construction of “communications path” as limited to
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`wired communications. The patentee argued that the district court erred by reading a limitation
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`into the claims on the basis that every disclosed embodiment included that limitation. Id. at 1003.
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`The Federal Circuit disagreed, noting that patentee’s argument relied on the implicit assumption
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`that “communications path” had an ordinary meaning that encompassed both wired and wireless
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`communications. Id. Because no intrinsic or extrinsic evidence supported that assumption, the
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`Federal Circuit refused to adopt that assumption. Id. The Federal Circuit explained that the lack
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`of disclosure regarding wireless embodiments also meant that construing the claims broadly to a
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`class of embodiments not described in the specification “would likely render the claims invalid
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`for lack of written description.” Id. at 1004. Therefore, “[t]he canon favoring constructions that
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`preserve claim validity therefore counsels against construing ‘communications path’ to include
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`wireless communications.” Id.
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`The rationale of Ruckus applies here. Globus’s argument that Life Spine imports a
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`limitation from the specification rests on the incorrect assumption that “elongate fin” has an
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`ordinary meaning that includes protrusions that are not generally flat. There is no evidence,
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`intrinsic or extrinsic, to support this assumption. All the intrinsic and extrinsic evidence indicates
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`that “elongate fins” are generally flat protrusions. Likewise, the fact that the ’128 patent does not
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`describe or depict any “elongate fins” that are not generally flat would likely render the claims
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`invalid for lack of written description under Globus’s proposed construction. Thus, the canon
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`favoring constructions that preserve claim validity counsels against Globus’s construction.
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`C.
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`All the extrinsic evidence indicates that fins, and especially elongate fins, are
`generally flat.
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`As explained in Life Spine’s opening brief, contemporaneous dictionaries indicate that
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`“fins” are flat or thin projections and “elongate” emphasizes the fin’s length relative to its width
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`(or thickness). (D.I. 80 at 8-9.)3 Globus presents no contradictory extrinsic evidence, and offers
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`only quibbles with Life Spine’s evidence.
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`First, Globus complains that the submitted definitions come from ordinary dictionaries
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`rather than technical dictionaries. (D.I. 79 at 7.) That criticism is unfounded. Globus contends
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`3 Globus’s criticism of the declaration of Chris McDonnell (D.I. 79 at 6-7) is irrelevant
`because Life Spine does not rely on his opinion in its Opening Brief.
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`that “fin” is a “simple, common, widely understood word.” Id. at 5. The ordinary dictionaries
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`submitted by Life Spine properly inform how the term “fin” is commonly understood and help
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`resolve the parties’ dispute as to the scope of “elongate fin.”
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`Second, Globus argues that the submitted definitions define “fin” differently and do not
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`refer to “general flatness.” (D.I. 79 at 7.) But, as Globus concedes, the differences amongst the
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`definitions are “slight[].” Id. And while the definitions may not use the phrase “general flatness,”
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`they all convey the idea that a fin is a flat or thin projection. (D.I. 80 at 8.) Globus asserts that
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`“only one of Life Spine’s three dictionaries, the New Oxford Dictionary . . ., refers to ‘flatness.”
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`(D.I. 79 at 7.) But that is incorrect; all three do. The Cambridge Advanced Learner’s Dictionary
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`(Fourth Edition) states that a “fin” is “a thin vertical part sticking out of the body of especially a
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`fish or aircraft which helps balance and movement.” (D.I. 80-1 at 175.) Likewise, the Chambers
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`Dictionary (12th Edition) points the reader to either a fish’s fin or “a thin projecting edge or
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`plate.” (D.I. 80-1 at 180.) Both indicate that the fin must be flat (or, in other words, have a thin
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`width). Meanwhile, Globus’s extremely broad construction is at odds with the ordinary usage of
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`“fin” and not supported by any intrinsic or extrinsic evidence.
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`IV. CONCLUSION
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`For the foregoing reasons, Life Spine’s proposed construction should be adopted.
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`Case 1:21-cv-01445-JPM Document 87 Filed 12/16/22 Page 11 of 11 PageID #: 2118
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jennifer Ying
`
`
`
`
`Jack B. Blumenfeld (#1014)
`Jennifer Ying (#5550)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`jying@morrisnichols.com
`
`Attorneys for Defendant
`
`
`
`
`
`
`OF COUNSEL:
`
`Brianne M. Straka
`Dave Nelson
`Rajat Khanna
`Jonathon Studer
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`191 North Wacker Drive, Suite 2700
`Chicago, IL 60606
`(312) 705-7400
`
`Isabel Peraza
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`1300 I Street NW
`Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`
`Jake Blecher
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`(212) 849-7000
`
`December 9, 2022
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`7
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