`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`NUVASIVE, INC.
`
`Petitioner
`
`V.
`
`WARSAW ORTHOPEDIC, INC.
`
`Patent Owner
`
`Case IPR2013-00206
`
`Patent No. 8,251,997
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`US. Patent and Trademark Office
`PO. Box 1450
`
`Alexandria, VA 22313-1450
`
`
`
`Pursuant to 37 C.F.R. § 90.2(a) and 35 U.S.C. §§ 141(0) and 142, Warsaw
`
`Orthopedic, Inc. (“Patent Owner”) respectfully gives Notice that it hereby appeals
`
`the Board’s July 10, 2014 Final Written Decision that claims 17—23 of the ’997
`
`patent are unpatentable to the United States Court of Appeals for the Federal
`
`Circuit, and from all other underlying orders, decisions, rulings, and opinions that
`
`are adverse to Patent Owner, including, without limitation, certain holdings in the
`
`Board’s September 23, 2013 Institution of Inter Partes Review (Paper 17).
`
`For the limited purpose of providing the Director with the information
`
`requested in 37 C.F.R. § 90.2(a)(3)(ii), issues on Patent Owner’s appeal may
`
`include the Board’s determination that claims 17—23 of the ’997 patent have been
`
`shown to be unpatentable under 35 U.S.C. § 103 in View of the grounds of
`
`unpatentability including US. Patent No. 4,545,374 to Jacobson
`
`(“Jacobson ’374”), US. Patent No. 5,192,327 to Brantigan (“Brantigan ’327”),
`
`challenges to any findings supporting that determination, the Board’s factual
`
`findings with respect to Jacobson ’374 and Brantigan ”327, the Board’s failure to
`
`collaterally estop Petitioner from re-litigating the disclosures of Brantigan ’327, the
`
`Board’s legal errors in undertaking the obviousness analysis, the Board’s findings
`
`that conflict with the evidence of record and are not supported by substantial
`
`evidence, and other issues decided adversely to Patent Owner.
`
`
`
`Simultaneous with this filing and in accordance with 37 C.F.R. § 90.2(a)(l),
`
`this Notice of Appeal is filed with the Director of the United States Patent and
`
`Trademark Office, filed with the Board, and served upon Petitioner in accordance
`
`with 37 C.F.R. § 42.6(e).
`
`In addition, three copies of this Notice of Appeal, along
`
`with the required fees, are being filed with the Clerk’s Office for the United States
`
`Court of Appeals for the Federal Circuit.
`
`Dated: September 9, 2014
`
`Respectfully Submitted,
`
`/a/ - homas H. Martin
`
`Registration No. 34,383
`
`Attorney for Patent Owner
`
`MARTIN & FERRARO, LLP
`
`1557 Lake O’Pines Street, NE
`
`Hartville, Ohio 44632
`
`Telephone: (330) 877-0700
`
`Facsimile: (330) 877-2030
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certifies that a copy
`
`of this NOTICE OF APPEAL was served in its entirety Via electronic mail to
`
`APSI@fr.com (referencing Attorney Docket No. 13958-01 121P2):
`
`Stephen R. Schaefer
`3200 RBC Plaza
`
`60 South Sixth Street
`
`Michael T. Hawkins
`3200 RBC Plaza
`
`60 South Sixth Street
`
`Minneapolis, MN 55402
`
`Minneapolis, MN 55402
`
`Additionally, pursuant to 37 CPR. § 90.2(a)(l), the undersigned hereby
`
`certifies that a copy of this NOTICE OF APPEAL was electronically filed with the
`
`Patent Trial and Appeal Board in accordance with 37 CPR. § 42.6(b) and the
`
`original of this NOTICE OF APPEAL filed by hand with the Director of the
`
`United States Patent and Trademark Office in accordance with 37 C.F.R. 104.2 at
`
`the following address:
`
`Director of the United States Patent and Trademark Office
`
`c/o Office of the General Counsel
`
`Madison Building East, 10B20
`600 Dulany Street
`Alexandria, VA 22314-5793
`
`Moreover, the undersigned hereby certifies that three true and correct copies
`
`of the foregoing NOTICE OF APPEAL and the prescribed fees were filed by hand
`
`on September 9, 2014 with the Clerk’s Office of the United States Court of
`
`Appeals for the Federal Circuit:
`
`
`
`Mr. Daniel E. O’Toole, Circuit Executive and Clerk of the Court
`United States Court of Appeals for the Federal Circuit
`717 Madison Place, N.W., Suite 401
`
`Washington, DC 20005
`
`Date of Service:
`
`//1,/ /
`
`I
`
`[2/
`
`Slgnature:W
`
`/
`
`Thomas H. Martin
`
`Registration No. 34,383
`
`Attorney for Patent Owner
`
`MARTIN & FERRARO, LLP
`
`1557 Lake O’Pines Street, NE
`
`Hartville, Ohio 44632
`
`Telephone: (330) 877-0700
`
`Facsimile: (330) 877-2030
`
`
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