FLEXUSPINE, INC.
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`Plaintiff,
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`v.
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`GLOBUS MEDICAL, INC.,
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`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`CIVIL ACTION NO.
`6:15-cv-00201-JRG-KNM
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`JURY TRIAL DEMANDED
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`PLAINTIFF’S P.R. 3-1 AND 3-2 DISCLOSURE OF ASSERTED CLAIMS AND
`INFRINGEMENT CONTENTIONS AND ACCOMPANYING PRODUCTION
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`Plaintiff Flexuspine, Inc. (“Plaintiff” or “Flexuspine”) hereby provides its disclosure of
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`asserted claims and infringement contentions and accompanying document production pursuant to
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`P.R 3-1 and 3-2.
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`P.R. 3-1 DISCLOSURE OF ASSERTED CLAIMS AND INFRINGEMENT
`CONTENTIONS
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`I.
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`Pursuant to P.R. 3-1, Plaintiff discloses as follows:
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`Asserted Claims
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`(a)
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`Based on presently available information, Plaintiff contends that Defendant Globus Medical,
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`Inc. (“Defendant” or “Globus”) directly infringes at the following claims of the Patents-in-Suit:
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`U.S. Patent No.
`7,204,853
`7,316,714
`7,909,869
`8,123,810
`8,647,386
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`Asserted Claims
`1, 5
`1, 2
`37
`17
`1, 2, 3, 4
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`GLOBUS MEDICAL, INC.
`EXHIBIT 1002
`IPR2015-to be assigned
`(Globus v. Flexuspine)
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`These claims are collectively referred to as the “Asserted Claims” and these patents are collectively
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`referred to as the “Patents-in-Suit.” Plaintiff expressly reserves the right to seek leave of Court to
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`amend or to supplement this disclosure after discovery from Defendant or as permitted under the
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`rules.
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`(b)
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`Accused Products
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`On information and belief, Plaintiff accuses Defendant of infringing the Asserted Claims
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`under 35 U.S.C. § 271(a) by virtue of its manufacture, use, offer for sale, sale, and/or importation of
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`expandable intervertebral fusion devices including, but not limited to, the Caliber, Caliber-L, Rise,
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`Rise IntraLIF, Rise-L, and Altera. These products are collectively referred to as the “Accused
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`Products.” The Accused Products infringe the Asserted Claims as set forth below:
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`U.S. Patent No
`7,204,853
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`7,316,714
`7,909,869
`8,123,810
`8,647,386
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`Asserted Claims
`1
`5
`1-2
`37
`17
`1
`1-4
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`Accused Products
`Caliber, Caliber-L
`Rise, Rise IntraLIF, Rise-L
`Altera
`Caliber, Caliber-L
`Caliber, Caliber-L
`Rise, Rise IntraLIF, Rise-L, Altera
`Caliber, Caliber-L,
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`Plaintiff expressly reserves the right to seek leave of Court to amend or supplement these
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`disclosures after discovery from Defendant or as permitted under the rules.
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`(c)
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`Claim Charts
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`Defendant’s Accused Products practice the Asserted Claims as shown in the claim charts
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`attached hereto as Exhibits A - G. Any citations to Defendant’s publicly available documentation in
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`the attached claim charts are exemplary and not exhaustive, as are the examples provided of the
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`ways in which the Accused Products satisfy the elements of each of the Asserted Claims. Moreover,
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`any and all citations or references to publicly available documentation should be understood to
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`encompass any and all prior versions that incorporate the same or similar functionality, as well as
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`any similar or derivative products which Plaintiff has been unable to discover from publically
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`withheld information to this point. Plaintiff expressly reserves the right to seek leave of Court to
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`amend or supplement this disclosure after discovery from Defendant or as permitted under the rules.
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`(d)
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`Literal Infringement/Doctrine of Equivalents
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`At this time, and except as otherwise expressly noted in the claim chart, Plaintiff contends
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`and reasonably believes that all limitations of the Asserted Claims are present literally. To the
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`extent that any specific limitation of the Asserted Claims is found to not be present literally, then
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`Plaintiff contends that, if there are any differences between the claim elements and the Accused
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`Products, the differences are insubstantial and the products would therefore infringe under the
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`doctrine of equivalents. Plaintiff expressly reserves the right to amend or supplement these
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`disclosures after discovery from Defendant or as permitted under the rules.
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`(e)
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`Priority Date for Asserted Claims
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`Plaintiff contends that the Asserted Claims are each entitled to a priority date of August 5,
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`2003, which is the filing date of the U.S. Patent 7,204,853 to which each of the Patents-in-Suit claim
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`priority. Plaintiff expressly reserves the right to amend or supplement these disclosures as permitted
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`under the rules.
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`(f)
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`Plaintiff’s Embodiment of the Claimed Invention
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`Plaintiff reserves the right to rely on an assertion that is has developed its own apparatus that
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`practices the claimed invention of the Patents-in-Suit. Plaintiff is in possession of a number of
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`prototypes that were developed by the inventors which embody the Asserted Claims of the Patents-
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`in-Suit. Plaintiff developed the Expanse Vertebral Body Replacement Device that embodies the
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`Asserted Claims of the Patents-in-Suit, and which received 510(k) approval by the U.S. Food and
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`Drug Administration. Plaintiff has also developed a modified device currently called the Flexuspine
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`Expandable Cage that embodies the Asserted Claims of the Patents-in-Suit.
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`Plaintiff expressly reserves the right to amend or supplement these disclosures as permitted
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`under the rules.
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`II. P.R. 3-2 DOCUMENT PRODUCTION ACCOMPANYING DISCLOSURE
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`Pursuant to P.R. 3-2, Plaintiff is serving herewith, on the enclosed CD, non-privileged,
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`responsive documents which have been Bates numbered FLEX0000001 to FLEX0008730.
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`Defendant is reminded of it confidentiality obligations under P.R. 2-2, which governs the disclosure
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`of produced documents unless and until the Court modifies the “default” protective order or the
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`parties agree otherwise.
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`Documents (e.g., contracts, purchase orders, invoices, advertisements, marketing
`materials, offer letters, beta site testing agreements, and third party or joint
`development agreements) sufficient to evidence each discussion with, disclosure to, or
`other manner of providing to a third party, or sale of or offer to sell, the claimed
`invention prior to the date of application for the patent in suit. A party’s production of
`a document as required herein shall not constitute an admission that such document
`evidences or is prior art under 35 U.S.C. § 102.
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`(a)
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`Plaintiff is not aware of any documents responsive to this category that are in Plaintiff’s
`possession, custody, or control.
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`(b)
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`All documents evidencing the conception, reduction to practice, design, and
`development of each claimed invention, which were created on or before the date of
`application for the patent in suit or the priority date identified pursuant to P. R. 3-1(e),
`whichever is earlier; and
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`A copy of all documents responsive to this category are included in Plaintiff’s production.
`See FLEX0007952-FLEX0008437; FLEX0008464-FLEX0008480; FLEX0008562- FLEX0008565;
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`FLEX0008631-8657; and FLEX0008662-FLEX0008730.
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`(c)
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`A copy of the file history for the patents in suit.
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`A copy of all documents responsive to this category are included in Plaintiff’s production.
`See FLEX0000183-FLEX0000250; FLEX0000491- FLEX0006791; FLEX0007412-FLEX0007415;
`and FLEX0007445-FLEX0007951.
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`Dated: July 16, 2015.
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`Respectfully submitted,
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`/s/ Brett M. Pinkus
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` Mark D. Strachan
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`Texas State Bar No. 19351500
`SAYLES(cid:327)WERBNER, P.C.
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`1201 Elm Street, Suite 4400
` Dallas, Texas 75270
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`(214) 939-8700 – Telephone
`(214) 939-8787 – Facsimile
`mstrachan@swtriallaw.com
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`Jonathan T. Suder
`State Bar No. 19463350
`Brett M. Pinkus
`State Bar No. 24076625
`Todd I. Blumenfeld
`State Bar No. 24067518
`FRIEDMAN, SUDER & COOKE
`Tindall Square Warehouse No. 1
`604 East 4th Street, Suite 200
`Fort Worth, Texas 76102
`(817) 334-0400 - Telephone
`(817) 334-0401 - Facsimile
`jts@fsclaw.com
`pinkus@fsclaw.com
`blumenfeld@fsclaw.com
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` ATTORNEYS FOR PLAINTIFF
`FLEXUSPINE, INC.
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 16th day of July, 2015, I electronically served the foregoing
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`document to the attorneys of record for Defendant Globus Medical, Inc.
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`/s/ Brett M. Pinkus
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