KOOO\]O\Ul-I>UJI\JI—t
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Stephen C. Holmes (CA SBN 200727)
`Email: sholmes
`dl.com
`DEWEY & L_EB EUF LLP.
`1950 UnlverSIty Avenue Sulte 500
`East Palo Alto, CA 94363—2225
`Telephone: 650) 845-7000
`FaCSImlle:
`( 50) 845—7333
`
`DirkD. Thomas, Esq. (appearing pro hac vice)
`Ema11: dthomas
`dl.com
`Jeff E. Schwartz,
`s . (appearing pro hac vice)
`Ema11: Jschwartz@ .com
`Robert A. Auchter, Esq. (appearing pro hac vice)
`igngilerefilgfllIter
`dl.c(om
`.
`h
`_
`)
`re .
`ou,
`s . a
`earm r0 ac vzce
`abahou dewe lebgeufglgm gp
`DEWE & L BOEUF LLP
`1 101 New York Avenue, NW.
`Washington, DC. 20005-4213
`Telephone: $202) 346—8000
`Facs1m11e: ( 02) 346-8102
`
`Jonathan Hangartner, Esq. (CA SBN 196268)
`Ema11: JOH@X- atents.com
`5670 La JO a oulevard
`La Jolla, CA 92037
`Telephone: g858) 454—43 13
`Facs1m11e: ( 58) 454-4314
`
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`MEDTRONIC SOFAMOR DANEK
`USA, INC.; WARSAW
`ORTHOPEDIC, INC: MEDTRONIC
`PUERTO RICO OPERATIONS CO.;
`fiX§4E§Dg§8gé§gg§$¥gfibH
`
`Plaintiffs,
`
`V.
`
`N U VASIVE, INC.
`
`Defendant.
`
`Case No.: 3:08-cv—01512-LAB-AJB
`
`FIRST AMENDED COMPLAINT
`
`FOR PATENT INFRINGEMENT
`
`JURY TRIAL DEMANDED
`
`MSD 1010
`
`MSD 1010
`
`1
`
`

`

`Plaintiffs Medtronic Sofamor Danek USA, Inc. (“Medtronic USA”), Warsaw
`
`Orthopedic, Inc. (“Warsaw”), Medtronic Puerto Rico Operations Co. (“Medtronic
`
`Puerto Rico”), and Medtronic Sofamor Danek Deggendorf, GmbH (“Medtronic
`
`Deggendorf’) bring this First Amended Complaint against defendant NuVasive, Inc.
`
`(“NuVasive”), alleging as follows:
`
`PARTIES, JURISDICTION, AND VENUE
`
`1.
`
`Plaintiff Medtronic USA is a Tennessee corporation, with its principal
`
`place of business in Memphis, Tennessee. Medtronic USA is a leading distributor of
`
`medical devices and instruments for use in the spine, including spinal implants.
`
`2.
`
`Plaintiff Warsaw is an Indiana corporation, with its principal place of
`
`business in Winona Lake, Indiana.
`
`3.
`
`Plaintiff Medtronic Puerto Rico is a Cayman Islands corporation, with its
`
`principal place of business in Villalba, Puerto Rico.
`
`4.
`
`Plaintiff Medtronic Deggendorf is a German corporation, with its principal
`
`place of business in Deggendorf, Germany.
`
`5.
`
`Defendant NuVasive is a Delaware corporation, with its principal place of
`
`business in San Diego, California. NuVasive manufactures and markets various
`
`medical devices and instruments for use in the spine, including spinal implants.
`
`6.
`
`This action arises under the patent laws of the United States, Title 35 of
`
`the United States Code.
`
`7.
`
`This Court has subject matter jurisdiction over the action pursuant to 28
`
`U.S.C. §§ 1331 and 1338(a) in that this action arises under the Acts of Congress
`
`relating to patents.
`
`8.
`
`Upon information and belief, NuVasive transacts business in this judicial
`
`district by manufacturing, selling, or offering to sell products that infringe, by
`
`contributing to the infringement of the patents at issue in this action, or by conducting
`
`other business within this judicial district.
`
`\OOO\]O\Ul-I>UJ[\)r—a
`
`10
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`2
`
`

`

`9.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b), 1391(c)
`
`and/or 1400(b).
`
`COUNT I
`
`10.
`
`Paragraphs 1—9 are incorporated into this count by reference.
`
`11. United States Patent No. 5,860,973 (the “’973 patent,” a copy of which is
`
`attached hereto as Exhibit A), entitled “Translateral Spinal Implant,” issued on January
`
`19, 1999. Plaintiff Warsaw is the owner of the ’973 patent by assignment, as recorded
`
`at the United States Patent and Trademark Office, Reel 018883, Frame 0400. Plaintiffs
`
`Medtronic USA, Medtronic Puerto Rico, and Medtronic Deggendorf are co-exclusive
`
`licensees of the ’973 patent from Plaintiff Warsaw and, together with Plaintiff Warsaw,
`
`share the exclusive right to bring suit for infringement of the patent.
`
`12. NuVasive is infringing and has infringed the ”973 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`CoRoent XL product, within the United States.
`
`13. NuVasive’s infringement of the ’973 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`COUNT II
`
`14.
`
`Paragraphs 1-9 are incorporated into this count by reference.
`
`15. United States Patent No. 5,772,661 (the “’661 patent,” a copy of which is
`
`attached hereto as Exhibit B), entitled “Methods and Instrumentation for the Surgical
`
`Correction of Human Thoracic and Lumbar Spinal Disease from the Antero-Lateral
`
`Aspect of the Spine,” issued on June 30, 1998. Plaintiff Warsaw is the owner of the
`
`’661 patent by assignment, as recorded at the United States Patent and Trademark
`
`Office, Reel 018323, Frame 0173. Plaintiffs Medtronic USA, Medtronic Puerto Rico,
`
`and Medtronic Deggendorf are co-exclusive licensees of the ’661 patent from Plaintiff
`
`\DOONQUIAUJNv—t
`
`NNNNNNNNNo—ir—Ai—au—tp—At—Av—tr—tr—lr—IOOQONMaBUJNF—‘OGOONQM-RWNt—‘O
`
`3
`
`

`

`Warsaw and, together with Plaintiff Warsaw, share the exclusive right to bring suit for
`
`infringement of the patent.
`
`16. On information and belief, NuVasive has contributed to acts of
`
`infringement of the ’661 patent, such acts having been committed in the United States.
`
`Such acts of infringement have been committed by at least Doctors Burak M. Ozgur,
`
`Henry E. Aryan, Luiz Pimenta, and William R. Taylor as evidenced by the technical
`
`report entitled “Extreme Lateral Interbody Fusion (XLIF): a novel surgical technique
`
`for anterior lumbar interbody fusion,” published in The Spine Joumal 6, in 2006, and
`
`attached as Exhibit C.
`
`17.
`
`By selling, offering to sell, and promoting and teaching the use of at least
`
`its CoRoent XL product, NuVasive has contributed to the infringement and continues
`
`to contribute to the infringement of the ’661 patent, under 35 U.S.C. § 271(c), by
`
`selling, offering to sell, and promoting and teaching components and/or materials that
`
`are especially made or especially adapted for use in direct infringement of at least one
`
`of the methods claimed in the ’661 patent, and are not a staple article suitable for
`
`substantial non-infringing use.
`
`18. NuVasive’s contributory infringement of the ’661 patent has caused and
`
`will continue to cause Plaintiffs substantial damages, and has caused and will continue
`
`to cause Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`w
`
`19.
`
`Paragraphs 1-9 are incorporated into this count by reference.
`
`20. United States Patent No. 6,936,051 B2 (the “’051 patent,” a copy of which
`
`is attached hereto as Exhibit D), entitled “Multilock Anterior Cervical Plating System,”
`
`issued on August 30, 2005. Plaintiff Warsaw is the exclusive licensee of the ’051
`
`patent. Plaintiffs Medtronic USA, Medtronic Puerto Rico, and Medtronic Deggendorf
`
`are co-exclusive sub-licensees of the ’051 patent from Plaintiff Warsaw and, together
`
`with Plaintiff Warsaw, share the right to bring suit for infringement of the patent.
`
`\OOO\]O\UI-I>UJN>—t
`NNNNNr—Ir—it—Ai—tr—Ir—Ir—Iv—At—‘r—lAWNF—‘OKOOOQO’NM-bUJNl—‘O
`
`25
`
`26
`
`27
`
`28
`
`4
`
`

`

`21. NuVasive is infringing and has infringed the ’051 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`Gradient product, within the United States.
`
`22. NuVasive’s infringement of the ’051 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`COUNT IV
`
`23.
`
`Paragraphs 1-9 are incorporated into this count by reference.
`
`24. United States Patent No. 6,936,050 B2 (the “’050 patent,” a copy of which
`
`is attached hereto as Exhibit E), entitled “Multilock Anterior Cervical Plating System,”
`
`issued on August 30, 2005. Plaintiff Warsaw is the exclusive licensee of the ’050
`
`patent. Plaintiffs Medtronic USA, Medtronic Puerto Rico, and Medtronic Deggendorf
`
`are co—exclusive sub—licensees of the ’050 patent from Plaintiff Warsaw and, together
`
`with Plaintiff Warsaw, share the right to bring suit for infringement of the patent.
`
`25. NuVasive is infringing and has infringed the ’050 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`Gradient product, within the United States.
`
`26. NuVasive’s infringement of the ’050 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`COUNT V
`
`27.
`
`Paragraphs 1—9 are incorporated into this count by reference.
`
`28. United States Patent No. 6,916,320 B2 (the “’320 patent,” a copy of which
`
`is attached hereto as Exhibit F), entitled “Anterior Cervical Plate System,” issued on
`
`July 12, 2005. Plaintiff Warsaw is the owner of the ’320 patent by assignment, as
`
`recorded at the United States Patent and Trademark Office, Reel 018207, Frame 0410.
`
`Plaintiffs Medtronic USA, Medtronic Puerto Rico, and Medtronic Deggendorf are co—
`
`COONONMLUJNr—t
`
`NNNNNNNNNv—II—ir—Ap—Ar—tv—dp—tt—An—tr—imflQm-bWNfloomflONm-hWNl—‘O
`
`5
`
`

`

`exclusive licensees of the ’320 patent from Plaintiff Warsaw and, together with
`
`Plaintiff Warsaw, share the exclusive right to bring suit for infringement of the patent.
`
`29. NuVasive is infringing and has infringed the ’320 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`Gradient product, within the United States.
`
`30. NuVasive’s infringement of the ’320 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`w
`
`31.
`
`Paragraphs 1-9 are incorporated into this count by reference.
`
`32. United States Patent No. 6,945,933 B2 (the “’933 patent,” a copy of which
`
`is attached hereto as Exhibit G), entitled “Instruments and Methods for Minimally
`
`Invasive Tissue Retraction and Surgery,” issued on September 20, 2005. Plaintiff
`
`Warsaw is the owner of the ’933 patent by assignment, as recorded at the United States
`
`Patent and Trademark Office, Reel 018573, Frame 0086. Plaintiffs Medtronic USA,
`
`Medtronic Puerto Rico, and Medtronic Deggendorf are co—exclusive licensees of the
`
`’933 patent from Plaintiff Warsaw and, together with Plaintiff Warsaw, share the
`
`exclusive right to bring suit for infringement of the patent.
`
`33. NuVasive is infringing and has infringed the ’933 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`MaXcess product, within the United States.
`
`34. NuVasive’s infringement of the ’933 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`35.
`
`Paragraphs 1-9 are incorporated into this count by reference.
`
`cm
`
`OOOQONM-hwwi—i
`
`NNNNNNNNND—‘D—‘l—dl—iv—Ir—lr—‘l—lb—lr—dOONQMAWNF—‘OKDOOVONM-bWNF—‘O
`
`6
`
`

`

`36. United States Patent No. 6,969,390 B2 (the “’390 patent,” a copy of which
`
`is attached hereto as Exhibit H), entitled “Anterior Cervical Plating System and Bone
`
`Screw” issued on November 29, 2005. Plaintiff Warsaw is the owner of the ’390 patent
`
`by assignment, as recorded at the United States Patent and Trademark Office, Reel
`
`018720, Frame 0323. Plaintiffs Medtronic USA, Medtronic Puerto Rico, and
`
`Medtronic Deggendorf are co-exclusive licensees of the ’390 patent and, together with
`
`Plaintiff Warsaw, share the exclusive right to bring suit for infringement of the patent.
`
`37. NuVasive is infringing and has infringed the ’390 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`Helix product, within the United States.
`
`38. NuVasive’s infringement of the ’390 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`w
`
`39.
`
`Paragraphs 1-9 are incorporated into this count by reference.
`
`40. United States Patent No. 6,428,542 B1 (the “’542 patent,” a copy of which
`
`is attached hereto as Exhibit 1), entitled “Single-Lock Anterior Cervical Plate,” issued
`
`on August 6, 2002. Plaintiff Warsaw is the owner of the ’542 patent by assignment, as
`
`recorded at the United States Patent and Trademark Office, Reel 018720, Frame 03 23.
`
`Plaintiffs Medtronic USA, Medtronic Puerto Rico, and Medtronic Deggendorf are co-
`
`exclusive licensees of the ’542 patent and, together with Plaintiff Warsaw, share the
`
`exclusive right to bring suit for infringement of the patent.
`
`41. NuVasive is infringing and has infringed the ’542 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`Helix product, within the United States.
`
`KOOONONUIAUJNv—A
`
`NNNNNNNNNr—ar—tp—tr—At—Ai—tr—At—Ar—ar—d
`
`mflom-kWNHOKOOOflQk/‘IAWNHO
`
`7
`
`

`

`42. NuVasive’s infringement of the ’542 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`COUNT IX
`
`43.
`
`Paragraphs 1-9 are incorporated into this count by reference.
`
`44. United States Patent No. 6,592,586 B1 (the “’586 patent,” a copy of which
`
`is attached hereto as Exhibit J), entitled “Single-Lock Anterior Cervical Plating
`
`System,” issued on July 15, 2003. Plaintiff Warsaw is the owner of the ’586 patent by
`
`assignment, as recorded at the United States Patent and Trademark Office, Reel
`
`018207, Frame 0410. Plaintiffs Medtronic USA, Medtronic Puerto Rico, and
`
`Medtronic Deggendorf are co-exclusive licensees of the ’586 patent and, together with
`
`Plaintiff Warsaw, share the exclusive right to bring suit for infringement of the patent.
`
`45. NuVasive is infringing and has infringed the ’586 patent by making,
`
`selling, offering for sale, and using infringing products, including but not limited to its
`
`Helix product, within the United States.
`
`46. NuVasive’s infringement of the ’586 patent has caused and will continue
`
`to cause Plaintiffs substantial damages, and has caused and will continue to cause
`
`Plaintiffs irreparable harm for which there is no adequate remedy at law.
`
`WHEREFORE, Plaintiffs request that the Court:
`
`PRAYER FOR RELIEF
`
`1.
`
`2.
`
`Adjudge that NuVasive has infringed and is infringing the ’973 patent;
`
`Adjudge that NuVasive has contributed and is contributing to the
`
`infringement of the ’661 patent.
`
`3.
`
`4
`
`5.
`
`6
`
`Adjudge that NuVasive has infringed and is infringing the ’051 patent;
`
`Adjudge that NuVasive has infringed and is infringing the ’050 patent;
`
`Adjudge that NuVasive has infringed and is infringing the ’320 patent;
`
`Adjudge that NuVasive has infringed and is infringing the ’933 patent;
`
`KOOO\]O\UI-I>UJI\.)r—l
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`8
`
`

`

`\OOONONUI-wap—t
`
`NNNNNNNNNr—lr—Ir—tr—Ap—Ar—Av—ib—ir—nr—A
`
`WVQM-bWNF—‘OKOOONONM-bWNV—‘O
`
`7.
`
`8.
`
`9.
`
`Adjudge that NuVasive has infringed and is infringing the ’390 patent;
`
`Adjudge that NuVasive has infringed and is infringing the ’542 patent;
`
`Adjudge that NuVasive has infringed and is infringing the ’586 patent;
`
`10.
`
`Preliminarily and permanently enjoin NuVasive and its affiliates,
`
`subsidiaries, officers, directors, employees, agents, representative, licensees,
`
`successors, and assigns, and all those acting for it and on its behalf, or acting in concert
`
`with it, from further infringement, including contributory infringement, of the ’973,
`
`’661, ’051, ’050, ’320, ’933, ’390, ’542, and ’586 patents.
`
`11. Award compensatory damages to Plaintiffs, together with interest;
`
`12. Award Plaintiffs their costs and, where appropriate, reasonable attorneys
`
`fees under 35 U.S.C. § 285; and
`
`13. Award Plaintiffs any other such relief as the Court deems just and proper.
`
`Dated: October 6, 2008
`
`Respectfiilly submitted,
`
`s/Robert A. Auchter
`Stephen C. Holmes (CA SBN 200727)
`Ema11: sholmes
`dl.com
`DEWEY & LEB EUF LLP_
`1950 Un1verSIty Avenue Suite 500
`East Palo Alto, CA 94363—2225
`Telephone: 650) 845-7000
`Facs1mile:
`( 50) 845-7333
`
`Dirk.D. Thomas, Esq. (appearing pro hac vice)
`Ema11: dthomas
`dl.com
`Jeff E. Schwartz,
`5 . (appearing pro hac vice)
`Ema11: Jschwartz@ .com
`Robert A. Auchter, Esq. (appearing pro hac vice)
`Emceiuljrelgiclhter dl.cpm
`.
`h
`_
`)
`n re .
`a ou,
`s . a
`earm r0 ac vzce
`abahou dewe lebgeuffzgm gp
`DEWE & L OEUF LLP
`1101 New York Avenue, NW.
`Washington, DC. 20005-4213
`Telephone: 202) 346-8000
`Fac51m11e: ( 02) 346-8102
`
`Jonathan Hangartner, Esq. (CA SBN 196268)
`Ema11: Jon@x— atents.com
`
`5670 La Jo a oulevard
`
`9
`
`

`

`\OOO\]O\UIJ>UJ[\)I—A
`
`NNNNNNNNNh—Iv—dv—iv—ir—tr—tr—AI—tt—Ar—t
`
`muam-war—‘oxooouamwar—‘o
`
`La J011a, CA 92037
`Telephone: 858) 454-4313
`Fa051mile: ( 58) 454-4314
`
`Attornefig‘br Plaintifs
`MEDT NIC SOF MOR DANEK USA INC.;
`WARSAW ORTHOPEDIC, INC: MEDTRONIC
`PUERTO RICO OPERATIONS CO; and
`MEDTRONIC SOFAMOR DANEK
`DEGGENDORF, GmbH.
`
`10
`
`10
`
`10
`
`

`

`PLAINTIFFS DEMAND A TRIAL BY JURY ON ALL ISSUES SO TRIABLE.
`
`JURY TRIAL DEMAND
`
`Dated: October 6, 2008
`
`s/Robert A. Auchter
`Stephen C. Holmes (CA SBN 200727)
`Emall: sholmes
`d1.com
`DEWEY & LEB EUF LLP
`1950 University Avenue Suite 500
`East Palo Alto, CA 94363—2225
`Telephone: 650) 845—7000
`FaCSImile:
`( 50) 845-7333
`
`DirkD. Thomas, Esq. (appearing pro hac vice)
`Ernall: dthomas
`d1.com
`Jeff E Schwartz,
`8 . (appearing pro hac vice)
`Emall: Jschwartz@ .com
`Robert A. Auchter, Esq. (appearing pro hac vice)
`iglgllzjraéicflllter dl.c€m
`.
`h
`_
`)
`re .
`a ou,
`s . a
`earm pro ac vzce
`abahou dewe lebgeufggm g
`DEWE & L OEUF LLP
`1101 New York Avenue, NW.
`Washington, DC. 20005—4213
`Telephone: 202) 346-8000
`FaCSImlleI ( 02) 346-8102
`
`Jonathan Hangartner, Esq. (CA SBN 196268)
`Emall: JOD@X- atents.com
`5670 La Jo a oulevard
`La Jolla, CA 92037
`Telephone: 858) 454—4313
`Fa051m11e: ( 58) 454-4314
`
`Attornefigor Plaintifs
`MEDT NIC SOF MOR DANEK USA INC.;
`WARSAW ORTHOPEDIC, INC.- MEDTRONIC
`PUERTO RICO OPERATIONS (50.; and
`MEDTRONIC SOFAMOR DANEK
`DEGGENDORF, GmbH.
`
`11
`
`11
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`11
`
`

`

`KOOO\]O\m-I>UJNI—
`
`NMNNNNNNNl—‘I—lv—dh—ih—ib—ib—iI—IHH
`
`WNONM-BWNr—‘OOOONONLIIAUJNl—‘O
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`NE
`
`MED
`
`USA Efigltllvg219%:AA\1}\V/IOR DA K
`ORTHOPEDIC, INC; MEDTRONIC
`PUERTO RICO OPERATIONS CO.;
`and MEDTRONIC SOFAMOR
`DANEK DEGGENDORF, GmbH,
`Plaintiffs
`
`’
`
`V.
`N l ] VASIVE, INC.
`
`Defendant.
`
`I, the undersigned, say:
`
`Case No.: 3:08—cv—01512-LAB-AJB
`
`PROOF OF SERVICE BY
`ELECTRONIC POSTING
`PURSUANT TO SOUTHERN
`DISTRICT OF CALIFORNIA
`LOCAL CIVIL RULE 5.145%
`§13D51§EF GENERAL 0
`
`R
`
`JURY TRIAL DEMANDED
`
`I am a citizen of the United States and am employed in the office of an attorney
`
`appearing in this action.
`
`I am over the age of 18 and not a party to this action. My
`
`business address is 1101 New York Avenue, NW, Washington, DC. 20005-4213.
`
`On October 6, 2008, I served the following document:
`
`FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
`
`on all parties, all of whom are ECF-registered, by posting such document
`
`electronically to the ECF system of the United States District Court for the Southern
`
`District of California. They are:
`
`NuVasive, Inc.
`Kimberl _Kennedy
`Fish & chardson
`12390 El Camino Real
`San Diego, CA 92130
`Telephone: 858)678-4748
`Facsimlle:( 58)678-5099
`Email: kennedy@fr.com
`
`I certify under penalty of perjury under the laws of the United States of America
`
`that the foregoing is true and correct.
`
`Executed: October 6, 2008
`
`S/Robert A. Auchter
`
`12
`
`12
`
`12
`
`

`

`

`

`2011 WL 9820658 (S.D.Cal.)
`
`Page 2
`
`6. The royalty rate determined by the jury for the '236 patent is 5.5%.
`
`7. Interest on the damages awarded shall be calculated in accordance with 28 U.S.C. 1961.
`
`8. A bench trial shall be had to address NuVasive's counterclaim that the '973 patent is unenforceable due to inequi-
`table conduct.
`
`9. While the parties have agreed to the form of this judgment, they expressly reserve their rights to file post-judgment
`motions, including without limitation motions for judgment as a matter of law, new trial, permanent injunction, pre-
`judgment interest, accounting of post-discovery and post-judgment damages, and compulsory royalties.
`
`10. This judgment relates solely to the Phase One proceedings of this litigation as previously established by the Court,
`and does not adjudicate the parties' rights under their respective patents-in-suit not included in the Phase One pro-
`ceedings.
`
`DATED: September 29, 2011
`
`<<signature>>
`
`Hon. Michael M. Anello
`
`United States District Judge
`
`DATED: September 29, 2011
`
`W. Samuel Hamrick
`
`Clerk
`
`s/L. Hammer
`
`(By) Deputy Clerk
`
`ENTERED ON September 29, 2011
`
`END OF DOCUMENT
`
`Appendix not available.
`
`© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`14
`
`

`

`2011 WL 9820658 (S.D.Cal.)
`
`Page 3
`
`© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
`
`15
`
`