Paper No. 28
`Filed November 6, 2019
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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 No. IPR2019-00362
`United States Patent No. 8,361,156
`________________
`
`PETITIONERS’ OBJECTIONS PURSUANT TO 37 C.F.R. § 42.64(B)(1)
`TO PATENT OWNER’S EVIDENCE SUBMITTED WITH
`PATENT OWNER RESPONSE
`
`
`
`
`
`Filed November 6, 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
`United States Patent No. 8,361,156
`________________
`
`PETITIONERS’ OBJECTIONS PURSUANT TO 37 C.F.R. § 42.64(B)(1)
`TO PATENT OWNER’S EVIDENCE SUBMITTED WITH
`PATENT OWNER RESPONSE
`
`
`
`
`
`
`IPR2019-00362
`Petitioners’ Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64(b)(1) and the Federal Rules of Evidence
`
`(“FRE”), Petitioners submit the following objections to evidence served with
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`Patent Owner Response Pursuant to 37 C.F.R. § 42.120 (Paper No. 27).
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`Petitioners’ objections are timely filed within 5 business days of the October 30,
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`2019 Patent Owner Response.
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`Petitioners reserve the right to present further objections to this or any
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`additional evidence submitted by Patent Owner, consistent with the applicable
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`rules and other authority.
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`Ex. 2021 – Petitioners object to Exhibit 2021 under FRE 801 and 802.
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`Petitioners also object to Exhibit 2021 under FRE 401, 402, and 37 C.F.R. § 42.61
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`because the Exhibit does not have a tendency to make a consequential fact in this
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`action more or less probable than it would without the evidence, and under FRE
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`403 because any probative value is substantially outweighed by the risk of unfair
`
`prejudice, confusing the issues, wasting time, or needlessly presenting cumulative
`
`evidence. Additionally, Petitioners maintain the objections to this exhibit as
`
`lodged during the deposition of Dr. Charles L. Branch.
`
`Exs. 2022 and 2036 – Petitioners object to Exhibits 2022 and 2036 under
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`FRE 801 and 802. Petitioners also object to Exhibits 2022 and 2036 under FRE
`
`401, 402, and 37 C.F.R. § 42.61 because the Exhibits do not have a tendency to
`
`make a consequential fact in this action more or less probable than it would
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`1
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`IPR2019-00362
`Petitioners’ Objections to Evidence
`without the evidence, and under FRE 403 because any probative value is
`
`substantially outweighed by the risk of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`Exs. 2028 through 2031, 2033, 2038 through 2040, and 2052 – Petitioners
`
`object to Exhibits 2028 through 2031, 2033, 2038 through 2040, and 2052 under
`
`FRE 401, 402, and 37 C.F.R. § 42.61 because the Exhibits do not have a tendency
`
`to make a consequential fact in this action more or less probable than it would
`
`without the evidence, and under FRE 403 because any probative value is
`
`substantially outweighed by the risk of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence. Petitioners also object
`
`because Exhibits 2028 through 2031, 2033, 2038 through 2040, and 2052 are
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`hearsay pursuant to FRE 801 and FRE 802. Petitioners further object to Exhibits
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`2028 through 2031, 2033, 2038 through 2040, and 2052 because they are
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`unauthenticated and not self-authenticating (FRE 901 and FRE 902).
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`Exs. 2032, 2034, 2035, 2037, 2041, 2042, 2045, 2053, 2054, 2056 and 2058
`
`– Petitioners object to Exhibits 2032, 2034, 2035, 2037, 2041, 2042, 2045, 2053,
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`2054, 2056 and 2058 under FRE 401, 402, and 37 C.F.R. § 42.61 because the
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`Exhibits do not have a tendency to make a consequential fact in this action more or
`
`less probable than it would without the evidence. For example, and without
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`limitation, these Exhibits are not relevant because they were not cited in the Patent
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`2
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`IPR2019-00362
`Petitioners’ Objections to Evidence
`Owner Response, and as such, any probative value of these Exhibits is
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`substantially outweighed by the danger of unfair prejudice, especially because
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`Patent Owner provides no indication of how Patent Owner intends to rely on the
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`Exhibit (FRE 403).
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`Exs. 2055, 2057 and 2059 – Petitioners object to Exhibits 2055, 2057 and
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`2059 under FRE 702. The opinions set forth in Exhibits 2055, 2057 and 2059 are
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`not reliably based on scientific, technical, or other specialized knowledge,
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`sufficient facts or data, reliable principles and methods, or the reliable application
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`of principles and methods. These exhibits also include statements that are not
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`relevant to the issues in this case, and therefore, do not have a tendency to make a
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`consequential fact in this action more or less probable than it would without the
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`evidence, and Petitioners object under 37 C.F.R. § 42.61, FRE 402 and FRE 403
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`because any probative value is substantially outweighed by the risk of unfair
`
`prejudice, confusing the issues, wasting time, or needlessly presenting cumulative
`
`evidence. Argument and analysis in these exhibits are improperly incorporated by
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`reference into the Patent Owner Response in contravention of 37 C.F.R. §§
`
`43.6(a)(3) and 42.42(b)(2).
`
`
`Date: November 6, 2019
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`Respectfully submitted,
`
`/Jovial Wong/
`Jovial Wong
`
`3
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`
`
`IPR2019-00362
`Petitioners’ Objections to Evidence
`Reg. No. 60,115
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006-3817
`Tel: (202) 282-5200
`Fax: (202) 282-5100
`Email:jwong@winston.com
`
`Lead Counsel for Petitioners
`
`
`
`
`
`4
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`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. §§ 42.6(e) and 42.105(a), I certify that, on November 6,
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`2019, true and correct copies of the foregoing Petitioners’ Objections Pursuant
`
`to 37 C.F.R. § 42.64(b)(1) to Patent Owner’s Evidence Submitted with Patent
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`Owner Response was served by via email to the following counsel for the Patent
`
`Owner:
`
`Michael T. Rosato (Reg. No. 52,182)
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Tel.: 206-883-2529
`Fax: 206-883-2699
`Email: mrosato@wsgr.com
`
`Paul D. Tripodi II (Reg. No. 40,847)
`WILSON SONSINI GOODRICH & ROSATI
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Tel.: 323-210-2902
`Fax: 866-974-7329
`Email: ptripodi@wsgr.com
`
`Sonja R. Gerrard (Reg. No. 72,802)
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`Tel.: 206-883-2649
`Fax: 206-883-2699
`Email: sgerrard@wsgr.com
`
`Jad A. Mills (Reg. No. 63,344)
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`
`
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`Date: November 6, 2019
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`Seattle, WA 98104-7036
`Tel.: 206-883-2554
`Fax: 206-883-2699
`Email: jmills@wsgr.com
`
`
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`Respectfully submitted,
`
`
`
`
`
`/Jovial Wong/
`Jovial Wong (Reg. No. 60,115)
`Lead Counsel for Petitioners
`
`
`
`
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