Paper No. ____
`Filed: February 5, 2020
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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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`_____________________________
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`ALPHATEC HOLDINGS, INC. and ALPHATEC SPINE, INC.
`Petitioners,
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`v.
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`NUVASIVE, INC.,
`Patent Owner.
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`—————————————————
`Case IPR2019-00362
`Patent No. 8,361,156
`_____________________________
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`PATENT OWNER’S OBJECTIONS TO EVIDENCE
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`Filed: February 5, 2020
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`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 IPR2019-00362
`Patent No. 8,361,156
`_____________________________
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.64(b)(1), NuVasive, Inc. (“Patent Owner”)
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`submits the following objections to Alphatec Holdings, Inc. and Alphatec Spine,
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`Inc.’s (“Petitioners”) Exhibits 1053-1056 and 1059-1065, and any reference to or
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`reliance on the foregoing Exhibits in the Petition or future filings by Petitioners.
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`Patent Owner’s objections are made pursuant to the Code of Federal Regulations
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`(“C.F.R.”) governing this proceeding, including without limitation 37 C.F.R. §§
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`42.61-42.65 and § 42.6(a)(3). As required by 37 C.F.R. § 42.62, Patent Owner’s
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`objections below apply the Federal Rules of Evidence (“F.R.E.”).
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`II. OBJECTIONS.
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`1. Objections to Exhibits 1053 and 1054, and any Reference to/Reliance
`Thereon
`Grounds for Objection: F.R.E. 401 (Test for Relevant Evidence); F.R.E. 402
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`(General Admissibility of Relevant Evidence); F.R.E. 403 (Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).
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`Petitioner relies on exhibits 1053 and 1054 as the basis for a theory of
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`unpatentability presented for the first time in reply. Accordingly, these exhibits are
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`not relevant to the proceeding. 2018 Revised Trial Practice Guide at 14 (“Petitioner
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`may not submit new evidence or argument in reply that it could have presented
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`earlier, e.g. to make out a prima facie case of unpatentability.”); SAS Inst., Inc. v.
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`Iancu, 138 S. Ct. 1348, 1355 (2018) (quoting 35 U.S.C. § 312(a)(3)) (“[T]he
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`statute envisions that a petitioner will seek an inter partes review of a particular
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`kind—one guided by a petition describing ‘each claim challenged’ and ‘the
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`grounds on which the challenge to each claim is based.’”). Further, to the extent
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`any of these exhibits is deemed relevant, admission of these exhibits would be
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`unduly prejudicial, misleading, and a waste of time.
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`2. Objections to Exhibit 1055, and any Reference to/Reliance Thereon
`Grounds for Objection: F.R.E. 401 (Test for Relevant Evidence); F.R.E. 402
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`(General Admissibility of Relevant Evidence); F.R.E. 403 (Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons); F.R.E. 802
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`(The Rule Against Hearsay).
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`Exhibit 1055 appears to be a reference authored by Dr. Brantigan in 1993
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`with handwritten notes throughout the document. Additionally, much of the figures
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`in the document are of such low quality as to be illegible. The reply brief fails to
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`explain how this document is relevant to the case Petitioner set forth in its
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`materials. To the extent Petitioner is relying on the handwritten notes, these are
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`hearsay. To the extent that Petitioner relies on the reference itself, much of it is
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`illegible and, as noted above, not relevant to this proceeding. Further, to the extent
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`that the exhibit is deemed relevant, admission of the exhibit would be unduly
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`prejudicial, misleading, and a waste of time.
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`3. Objections to Exhibits 1056, 1059-1061, and 1065, and any Reference
`to/Reliance Thereon
`Grounds for Objection: F.R.E. 106 (Remainder of or Related Writings or
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`Recorded Statements); F.R.E. 401 (Test for Relevant Evidence); F.R.E. 402
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`(General Admissibility of Relevant Evidence); F.R.E. 403 (Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).
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`Exhibits 1056, 1059-1061, and 1065 represent short excerpts of documents
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`filed in the related district court case and in prior patent office proceedings. If these
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`exhibits are considered admissible, as a point of fairness, the complete documents
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`should be considered at the same time.
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`4. Objections to Exhibits 1060 and 1062, and any Reference to/Reliance
`Thereon
`Grounds for Objection: F.R.E. 401 (Test for Relevant Evidence); F.R.E. 402
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`(General Admissibility of Relevant Evidence); F.R.E. 403 (Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).
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`Exhibits 1060 and 1062 are not cited in the Petitioner Reply or elsewhere in
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`this proceeding. Additionally, these exhibits are from proceedings concerning
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`patents that are not at issue here. Accordingly, these exhibits are not relevant to
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`the proceeding. Further, to the extent any of these exhibits is deemed relevant,
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`admission of these exhibits would be unduly prejudicial, misleading, and a waste
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`of time in view of the fact that these are not cited in the Petitioner Reply.
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`5. Objections to Exhibit 1064, and any Reference to/Reliance Thereon
`Grounds for Objection: F.R.E. 106 (Remainder of or Related Writings or
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`Recorded Statements); F.R.E. 401 (Test for Relevant Evidence); F.R.E. 402
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`(General Admissibility of Relevant Evidence); F.R.E. 403 (Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons); F.R.E. 901
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`(Authenticating or Identifying Evidence).
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`Exhibit 1064 appears to be a printout from a website that allegedly reports
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`payment data for an unspecified period of time. Petitioner also fails to include
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`related writings which should in fairness be included. No evidence has been
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`submitted to support a finding that the item is what the Petitioner claims it is.
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`Because the document has not been authenticated it is not relevant to this
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`proceeding. Further, to the extent the exhibit is deemed relevant, admission of the
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`exhibit would be unduly prejudicial, misleading, and a waste of time.
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`6. Objections to Exhibit 1059, 1060, and 1063, and any Reference
`to/Reliance Thereon
`Grounds for Objection: F.R.E. 401 (Test for Relevant Evidence); F.R.E. 402
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`(General Admissibility of Relevant Evidence); F.R.E. 403 (Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons).
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`Exhibits 1059, 1060, and 1063 contain a cover page that suggests that these
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`exhibits are part of a declaration not in evidence and not relevant to any issue in
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`this case. To the extent any portion of these exhibits is deemed relevant, admission
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`of these exhibits with the cover page would be unduly prejudicial, misleading, and
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`a waste of time.
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`III. CONCLUSION
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`The aforementioned exhibits were filed on January 29, 2020. These
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`objections are made within 5 business days of institution pursuant to 37 C.F.R. §
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`42.64.
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`Dated: February 5, 2020
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`Respectfully submitted,
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`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing Patent Owner’s Objections to
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`Evidence was served on February 5, 2020, at the following electronic service
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`addresses:
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`Jovial Wong
`Nimalka R. Wickramasekera
`David P. Dalke
`WINSTON & STRAWN LLP
`Alphatec-IPRs@winston.com
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`Dated: February 5, 2020
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`Respectfully submitted,
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`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
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`-6-
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