`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
`
`
`
`Paper No. ____
`Filed: July 23, 2019
`
`
`
`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. IPR2019-00362
`Patent No. 8,361,156
`_____________________________
`
`
`PATENT OWNER’S OBJECTIONS TO EXHIBITS SUBMITTED BEFORE
`INSTITUTION PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`I.
`
`INTRODUCTION
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), NuVasive, Inc. (“Patent Owner”)
`
`submits the following objections to Alphatec Holdings, Inc. and Alphatec Spine,
`
`Inc. (“Petitioners”)’ Exhibit 1002, and any reference to or reliance on the foregoing
`
`Exhibit in the Petition or future filings by Petitioners. Patent Owner’s objections
`
`are made pursuant to the Code of Federal Regulations (“C.F.R.”) governing this
`
`proceeding, including without limitation 37 C.F.R. §§ 42.61-42.65 and § 42.6(a)(3).
`
`As required by 37 C.F.R. § 42.62, NuVasive’s objections below apply the Federal
`
`Rules of Evidence (“F.R.E.”).
`
`II. OBJECTIONS.
`
`1. Objections to Exhibit 1002, and any Reference to/Reliance Thereon
`Grounds for Objection: F.R.E. 401-402 (Relevance); F.R.E. 403 (Excluding
`
`Evidence for Prejudice, Confusion, Waste of Time); 37 C.F.R. § 42.6(a)(3). F.R.E.
`
`702, 703 (Expert Foundation and Opinions); 37 C.F.R. § 42.65(a) (Underlying
`
`Bases).
`
`Patent Owner objects to Exhibit 1002 because it purports to provide expert
`
`testimony, but this testimony is not based on sufficient facts and data, is not the
`
`product of reliable principles and methods, does not reliably apply the principles
`
`and methods to the facts of this case, does not disclose the underlying facts on
`
`which the testimony relies, and does not establish that experts in a particular field
`
`-1-
`
`
`
`would reasonably rely on those underlying facts in forming an opinion on the
`
`subject. F.R.E. 702, 703; 37 C.F.R. § 42.65(a). Exhibit 1002 should be excluded as
`
`irrelevant, confusing, and a waste of time. F.R.E. 401-403; 37 C.F.R. § 42.6(a)(3).
`
`III. CONCLUSION
`
`The aforementioned exhibit was filed together with the petition, prior to
`
`institution. Trial was instituted on July 9, 2019. These objections are made within
`
`10 business days of institution pursuant to 37 C.F.R. § 42.64.
`
`
`
`
`
`
`
`
`
`Dated: July 23, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
`
`
`
`-2-
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that the foregoing Patent Owner’s Objections to
`
`Exhibits Submitted Before Institution Pursuant to 37 C.F.R. § 42.64(b)(1) was
`
`served on July 23, 2019, at the following electronic service addresses:
`
`Jovial Wong
`Nimalka R. Wickramasekera
`David P. Dalke
`WINSTON & STRAWN LLP
`Alphatec-IPRs@winston.com
`
`
`
`Dated: July 23, 2019
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
`-3-
`
`