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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
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`NUVASIVE, INC.
`Petitioner
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`v.
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`WARSAW ORTHOPEDIC, INC.
`Patent Owner
`
`_____________________________
`
`Case IPR2013-00208
`Patent No. 8,251,997
`_____________________________
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`
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`JOINT MOTION TO REPLACE EXHIBIT 2038
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`1
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`Warsaw Orthopedic, Inc. (“Patent Owner”) and NuVasive, Inc.
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`(“Petitioner”), by and through their respective counsel of record, hereby jointly
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`move to replace Warsaw’s originally-filed Exhibit 2038, the Declaration of Barton
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`L. Sachs, M.D., M.B.A., F.A.C.P.E., F.A.C.H.E. (the “Sachs Declaration”), with
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`replacement Exhibit 2038 (attached hereto as Attachment A). On January 31, 2014,
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`the Board held a conference call to address, inter alia, Petitioner’s motion for
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`additional discovery. See Paper 33. One subject of additional discovery sought by
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`Petitioner pertained to certain documents relating to statements made in paragraph
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`100 of the Sachs Declaration. Subsequent to the Board conference call, the Parties
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`conferred further regarding the discovery, and Patent Owner proposed to strike
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`paragraph 100 of the Sachs Declaration if Petitioner would agree to drop its
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`discovery request for the documents relating to statements made in paragraph 100
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`of the Sachs Declaration. Petitioner agreed to Patent Owner’s proposal. To that
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`end, the Parties have agreed that Patent Owner may file a replacement Exhibit
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`2038, as a substitute for the originally-filed Exhibit 2038. Petitioner further states
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`that in agreeing to Patent Owner’s proposal and submission of replacement Exhibit
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`2038, Petitioner is not waiving any of the objections that Petitioner has made with
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`respect to other aspects of Exhibit 2038, as set forth in Petitioner’s objections
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`timely served on December 30, 2013. Therefore, the parties seek leave of the
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`Board to replace Exhibit 2038 with a new Exhibit 2038.
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`
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`2
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`Respectfully Submitted,
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`
`
`Dated: April 18, 2014
`
`/Thomas H. Martin/
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`
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`
`
`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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`
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`
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`Dated: April 18, 2014
`
`/Stephen R. Schaefer, #37,927/
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`
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`Stephen R. Schaefer
`Registration No. 37,927
`Attorney for Petitioner
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Telephone: (612) 337-2508
`Facsimile: (202) 783-2331
`
`
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`3
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