Paper No. ____
`Filed: April 1, 2020
`
`
`Filed on behalf of: NuVasive, Inc.
`By: Michael T. Rosato (mrosato@wsgr.com)
`
`Paul D. Tripodi II (ptripodi@wsgr.com)
`
`Jad A. Mills (jmills@wsgr.com)
`
`Sonja R. Gerrard (sgerrard@wsgr.com)
`Wilson Sonsini Goodrich & Rosati
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________________
`
`ALPHATEC HOLDINGS, INC. and ALPHATEC SPINE, INC.,
`Petitioners,
`
`v.
`
`NUVASIVE, INC.,
`Patent Owner.
`_____________________________
`
`Case No. IPR2019-00361
`Patent No. 8,187,334
`_____________________________
`
`
`PATENT OWNER’S OBJECTIONS TO
`PETITIONER DEMONSTRATIVES
`
`
`
`
`
`
`
`
`Filed: April 1, 2020
`
`
`Filed on behalf of: NuVasive, Inc.
`By: Michael T. Rosato (mrosato@wsgr.com)
`
`Paul D. Tripodi II (ptripodi@wsgr.com)
`
`Jad A. Mills (jmills@wsgr.com)
`
`Sonja R. Gerrard (sgerrard@wsgr.com)
`Wilson Sonsini Goodrich & Rosati
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________________
`
`ALPHATEC HOLDINGS, INC. and ALPHATEC SPINE, INC.,
`Petitioners,
`
`v.
`
`NUVASIVE, INC.,
`Patent Owner.
`_____________________________
`
`Case No. IPR2019-00361
`Patent No. 8,187,334
`_____________________________
`
`
`PATENT OWNER’S OBJECTIONS TO
`PETITIONER DEMONSTRATIVES
`
`
`
`
`
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`Pursuant to the Board’s hearing order (Paper 44, 3), NuVasive, Inc. (“Patent
`
`Owner”) submits the following objections to Alphatec Holdings, Inc. and Alphatec
`
`Spine, Inc. (“Petitioners)’s demonstrative slides, and any reference to or reliance
`
`on the foregoing by Petitioners.
`
`II. OBJECTIONS.
`
`1.
`Left side panel of slide 6
`This is an improper new argument because the Petition (at 47) does not cite
`
`this image and does not cite paragraph 22 of the Branch Declaration and Petitioner
`
`identifies no paper where this is cited.
`
`2.
`Left side panel of slide 12
`This is an improper new argument because the Petition (at 9-12) does not
`
`cite EX1032 (Michelson), 6:36-37 and Petitioner identifies no paper where this is
`
`cited.
`
`3.
`Reliance on paragraph 3 of EX1038 on slide 15
`This is an improper new argument because the relied upon paragraph does
`
`not appear on the cited paper page of the cited paper and Petitioner identifies no
`
`paper where this is cited.
`
`-1-
`
`
`
`
`
`4.
`Reliance on paragraph 27 of EX1038 on slide 16
`This is an improper new argument because the relied upon paragraph does
`
`not appear on the cited page of the cited paper and Petitioner identifies no paper
`
`where this is cited.
`
`5.
`
`Reliance on EX1054 in slides 18, 26, 34, 75, 106 and any slides
`relying on EX1054.
`EX1054 was improperly submitted by Petitioner in reply and Petitioner
`
`improperly attempts to rely on EX1054 to raise new theories of unpatentability.
`
`6.
`
`Reliance on EX1053 in slides 20, 27 and any slides relying on
`EX1053
`EX1054 was improperly submitted by Petitioner in reply and Petitioner
`
`improperly attempts to rely on EX1054 to raise new theories of unpatentability.
`
`7.
`Slide 43
`Paragraphs 40-56 of the Branch declaration are not cited in the Petition and
`
`Petitioner has identified no paper where these paragraphs are cited, making this
`
`citation an improper new argument.
`
`8.
`Slide 47
`The red text on slide 47 asserts unsupported claims constructions that were
`
`not provided in the petition and are improper new arguments.
`
`9.
`Slide 48
`The red text on slide 48 asserts an unsupported claim constructions that was
`
`not provided in the petition and is an improper new argument.
`
`-2-
`
`
`
`
`
`10. Slide 51
`The red text on slide 51 asserts unsupported claims constructions that were
`
`not provided in the petition and are improper new arguments.
`
`11. Slide 52
`The red text on slide 52 asserts unsupported claims constructions that were
`
`not provided in the petition and are improper new arguments.
`
`12. Slides 63 and 86
`The depicted text was not cited in the petition and is an improper new
`
`argument.
`
`13. Slides 66 and 144
`The red text “Petitioner never suggested inserting 2 implants each having
`
`18.95 mm width” is an improper new argument not made in the petition.
`
`Left side panel of slide 70
`
`This is an improper new argument not made in the petition.
`
`14. Slide 73
`Petitioner’s paper citations do not demonstrate this testimony was relied
`
`upon in a timely manner and the slide is thus an improper new argument.
`
`15. Red text on slide 90
`Petitioner’s paper citations do not demonstrate the arguments in the two red
`
`bullet points were made in a timely manner
`
`-3-
`
`
`
`
`
`16. Slide 91
`No petition citation supports this improper new argument
`
`17. Slide 94
`The relied upon text is not cited in the cited paper, Petitioner’s paper
`
`citations do not demonstrate this testimony was relied upon in a timely manner,
`
`and the slide is thus an improper new argument.
`
`18. Title of slide 95
`The title of slide 95 is argumentative and misleading.
`
`19. Bottom left panel of slide 100 and of slide 146
`The cited pages of the Petitions do not cite EX1007 (Brantigan), 7:4-6,
`
`Petitioner’s paper citations do not demonstrate this citation was relied upon in a
`
`timely manner, and the inclusion of that panel on these slides is thus an improper
`
`new argument.
`
`20. Slide 104
`Petitioner’s paper citation indicates this text was relied upon for the first
`
`time in its Supplemental Sur-Sur Reply, which reliance was therefore not presented
`
`in a timely manner and the slide is thus an improper new argument.
`
`21. Slide 105
`Petitioner’s paper citation indicates this text was relied upon for the first
`
`time in its Supplemental Sur-Sur Reply, which reliance was therefore not presented
`
`in a timely manner and the slide is thus an improper new argument.
`
`-4-
`
`
`
`
`
`22. Slide 106
`Petitioner’s reliance on McAfee Figure 4 to support the argument that
`
`“Marker Argument Not Hindsight: POSAs knew the benefits” is an improper new
`
`argument not previously presented in any paper submitted in this case.
`
`23. Slide 118
`Collateral estoppel arguments not contained in the petition are improper new
`
`arguments.
`
`24. Any attempt to depart from the modularity of Michelson
`NuVasive objects to slides 24, 53, 61, 114, and any other of Petitioner’s
`
`slides to the extent they attempt to depart from the modularity of Michelson’s
`
`block implants as illustrated in Michelson Figs. 18-19.
`
`
`
`
`
`
`
`
`
`Dated: April 1, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
`
`
`
`-5-
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that the foregoing Patent Owner’s Objections to
`
`Petitioner’s Demonstratives was served on April 1, 2020, at the following
`
`electronic service addresses:
`
`Jovial Wong
`Nimalka R. Wickramasekera
`David P. Dalke
`WINSTON & STRAWN LLP
`Alphatec-IPRs@winston.com
`
`
`
`Dated: April 1, 2020
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
`-6-
`
`
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