Trials@uspto.gov
`571-272-7822
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`
`
`
`Paper No. 55
`
`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 IPR2019-00361 (Patent 8,187,334 B2)
`Case IPR2019-00362 (Patent 8,361,156 B2)
`Case IPR2019-00546 (Patent 8,187,334 B2)
`____________
`
`Record of Oral Hearing
`Held: April 3, 2020
`____________
`
`
`
`
`Before DENISE M. POTHIER, HYUN J. JUNG, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`Paper No. 55
`
`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 IPR2019-00361 (Patent 8,187,334 B2)
`Case IPR2019-00362 (Patent 8,361,156 B2)
`Case IPR2019-00546 (Patent 8,187,334 B2)
`____________
`
`Record of Oral Hearing
`Held: April 3, 2020
`____________
`
`
`
`
`Before DENISE M. POTHIER, HYUN J. JUNG, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
`IPR2019-00546 (Patent 8,187,334 B2)
`
`
`
`APPEARANCES
`
`ON BEHALF OF THE PETITIONER:
`
`
`JOVIAL WONG, ESQ.
`DAVID P. DALKE, ESQ.
`NIMALKA R. WICKRAMASEKERA, ESQ.
`Winston & Strawn LLP
`1700 K Street, NW
`Washington, D.C. 20006
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MICHAEL T. ROSATO, ESQ.
`SONJA R. GERRARD, ESQ.
`JAD A. MILLS, ESQ.
`Wilson Sonsini Goodrich & Rosati
`701 5th Avenue, Suite 5100
`Seattle, Washington 98104
`
`
`
`
`The above-entitled matter came on for hearing on Friday, April 3,
`
`2020, commencing at 12:51 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`IPR2019-00362 (Patent 8,361,156 B2)
`IPR2019-00546 (Patent 8,187,334 B2)
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`
`P R O C E E D I N G S
`- - - - -
`JUDGE JUNG: All right, we’ll proceed on the record. This is the
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`oral hearing for IPR2019-00361, 362, and 546. Petitioner Alphatec Holding
`and Alphatec Spine challenge certain claims of U.S. Patent Numbers
`8,187,334 and 8,361,156 both of which are owned by NuVasive
`Incorporated. Starting with the Petitioner’s Counsel and followed by Patent
`Owner’s Counsel, please state your names for the record.
`
`MR. WONG: Good morning, Your Honors. Jovial Wong from
`Winston & Strawn for Petitioner. Also with me are co-counsel, and
`hopefully you can see them as well, Nimalka Wickramasekera and David
`Dalke.
`
`JUDGE JUNG: Thank you, welcome.
`
`MR. ROSATO: Good afternoon, Your Honor, Michael Rosato, on
`behalf of Patent Owner, and I have with me co-counsel Sonja Gerrard and
`Jad Mills.
`
`JUDGE JUNG: Thank you. First, thank you all for your flexibility in
`conducting this all-video hearing today. We know that this is a departure
`from our typical practice. Given that, we want to start off by clarifying a
`few items. First, our primary concern is your right to be heard. If at any
`time during the proceeding you encounter technical or other difficulties that
`you feel fundamentally undermines your ability to adequately represent your
`client, please to let us know immediately. For example, by contacting the
`team members who provided you a connection information.
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`Second, when not speaking, please mute yourself. Third, please
`
`identify yourself each time you speak. This helps the court reporter prepare
`an accurate transcript. Fourth, we have the entire record including
`demonstratives. When referring to demonstratives, papers or exhibits,
`please do so clearly and explicitly by slide or page number. Please also
`pause a moment after identifying it to provide us time to find it. This also
`helps with the accurate preparation of the hearing transcript. And finally,
`please be aware that members of the public may be listening to this oral
`hearing.
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`Turning to objections, Patent Owner has filed objections to several
`slides in Petitioner’s demonstratives. Petitioner did not file any objections,
`and, Mr. Wong, I would like you to verify that Petitioner has no objections
`to Patent Owner’s demonstratives.
`
`MR. WONG: That’s correct, Your Honor.
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`JUDGE JUNG: Thank you. As a reminder, any arguments and
`evidence that are not in the record will not be considered by the panel. The
`demonstratives are not evidence and are used only as a visual aid. The
`concern is that demonstratives may be used as a springboard to add new
`arguments not in the record, and as mentioned before, new arguments and
`evidence are not permissible. Rather than spending the time to go through
`all of Patent Owner’s objections now, we are going to decline to strike some
`of the demonstratives at this time. However to be clear to the extent that
`some of the graphics, characterizations, and arguments are not in the record,
`they will be disregarded. The Board can discern the appropriateness of the
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`arguments and evidence and the counsel can use their allotted time as they
`see fit.
`
`As discussed in the hearing order, each party has one hour of total
`time to present its arguments, and each party may reserve time for rebuttal. I
`will track time and interrupt when you have only a few minutes remaining,
`and as backup, I would like each party to also independently track argument
`time. With all that said, Mr. Wong, you may proceed when you’re ready.
`
`MR. WONG: Yes, thank you, Your Honors, and for Petitioners, the
`argument will be handled by Ms. Wickramasekera and Mr. Dalke, so I will
`be deferring to them.
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`JUDGE JUNG: Okay, thank you.
`
`MS. WICKRAMASEKERA: Good morning, Your Honors, just
`confirm that you can hear me?
`
`JUDGE JUNG: I can hear you, and how much time would you like to
`reserve for rebuttal?
`
`MS. WICKRAMASEKERA: I’d like to reserve 30 minutes. I’m
`hoping to go less than that in my opening, but at this stage, I think 30
`minutes would be good.
`
`JUDGE JUNG: Okay. I have right now on my computer 12:55, so
`you may start when you’re ready.
`
`MS. WICKRAMASEKERA: Okay, thank you, Your Honor. Thank
`you to everyone for coming into this oral argument during these difficult
`times. We appreciate it. We’ve provided a set of slides that largely covers
`many of the issues that we have briefed in our petition and that have been
`fully briefed in the papers. We do not depart from anything in the papers,
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`but we are happy to go into any issues that the Board would like to hear
`more about or that the Board has more questions about. I’m happy to start
`with my slide presentation, and we’ll try to go through it relatively quickly.
`I will of course not be covering every issue that we briefed although many
`slides around those issues appear.
`
`So I’d like to start with -- I will turn to Petitioner’s demonstratives,
`and I will start with the overview of the grounds which starts at about Slide
`3. So as Your Honors know, we are challenging two patents here, the ’334
`patents and the ’156 patents owned by Patent Owner NuVasive. For the
`’334 patents, we have two petitions that cover that, the 361 and the 546, and
`ground 1 for each of the 361 and the 546 relies largely on the same art that
`the Federal Circuit used to invalidate claim 1, the only independent claim in
`the ’334 patent, as well as a number of other claims that have been
`cancelled.
`
`The grounds rely on the same art: Frey and Michelson, and we have
`additionally added Berry. It is our position, and we stated this in the
`petition, that Berry would have been known to people of ordinary skill in the
`art, however out of an abundance of caution, we added Berry as an
`additional ground regarding the known dimensional measurements of the
`vertebrae.
`
`In ground 2, we have raised some new art that wasn’t previously
`considered by the Board in the prior petitions relating to the ’334 or the ’156
`patents, and that involves the primary reference, Brantigan. As we stated in
`our petition, and have briefed this at length in our papers, Patent Owner
`relied on Brantigan, and on many of the same teachings using the same
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`rationale of Brantigan in an attempt to invalidate the Michelson patents that
`is prior art here as well as a parent Michelson patent, the ’997 patent. We
`have briefed these in our petition, and we will address a few more of the
`Patent Owner’s statements regarding this reference in the slide presentation,
`and we’ve also discussed in (inaudible) everything.
`
`For the ’156 patent grounds, those are listed on slide 4, and again, for
`the ’156 patent, we largely rely on Brantigan in view of Baccelli and Berry.
`So with that, I will go on to a brief overview of the anatomy here at slide 6.
`I’m not going to go over this in detail, however the known dimensions of the
`human vertebrae were published in Berry. There were detailed
`measurements that were published that were available to people of ordinary
`skill in the art.
`On slide 7, there is an overview of the ’334 and ’156 patents, what the
`claims cover, and many of these features that you can see in slide 7 were
`ubiquitous in the prior art. They were ubiquitous in the references that we
`have cited as prior art. They were ubiquitous in many other references that
`were also known to people of ordinary skill in the art at the time. So with
`that, I’d like to turn to just a brief overview of the state of the art, and I’d
`like to turn first to slide 9 which gives you the different features of the prior
`art implants that were generally known.
`
`Now both sides I think agree on the person of ordinary skill in the art.
`What the parties dispute, it appears, is what would have been known to those
`people of ordinary skill in the art. In particular it is Petitioner’s position that
`Dr. Youssef, Patent Owner’s expert, does not do proper analysis and does
`not provide a qualified analysis because he ignores or was deliberately
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`ignorant of the information that was readily available, accessible, and used
`by people of ordinary skill in the art before the critical date.
`
`JUDGE JUNG: Ms. Wickramasekera?
`
`MS. WICKRAMASEKERA: Yes?
`
`JUDGE JUNG: If we decide there is a dispute regarding your level of
`ordinary skill, does it affect your argument at all if we decide to use the
`references as a gauge of what the level of ordinary skill was at the time of
`the invention?
`
`MS. WICKRAMASEKERA: No, and I think that that is exactly the
`proper analysis that references -- in many cases, what Patent Owner is
`disputing is that their position is that the references don’t actually say what
`they say. We think that the references are the best example of what is the
`state of the art at the time.
`
`JUDGE JUNG: Okay, thank you. And also as a follow-up, in your
`reply you cite McAfee and Michelson ’770, but it seems to the Panel that
`those two references are being cited for a proposition that’s already present
`in the references you’ve asserted in your petition. Would that be a correct
`statement?
`
`MS. WICKRAMASEKERA: That’s a correct statement, and the
`reason why we did cite those references is because we could not anticipate
`that Patent Owner would take the position in the Patent Owner response that
`what was actually disclosed in the prior art references that we rely on would
`not have actually been done, and that appears to be Patent Owner’s position.
`And because people of ordinary skill in the art at the time not only knew of
`these prior art references we rely on, Brantigan, Frey, Michelson, Berry, and
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`Baccelli, not only did they know of these prior art references, but they
`actually had followed them before the critical date.
`And so it is in light of Patent Owner’s arguments that, for example,
`even though Frey, Michelson, and Brantigan all disclose using multiple
`implants in the same disc space Patent Owner has taken the position that no
`one would ever do that at the time, and so in light of those statements we
`provided real world evidence that Patent Owner was well aware of because
`this is the evidence that Patent Owner had used in prior proceedings for that,
`so does that --
`JUDGE JUNG: So would you agree that we may not need to reach
`your arguments in the reply to actually decide this case, for the final written
`decisions?
`MS. WICKRAMASEKERA: With respect to the two references that
`we added, McAfee and Michelson ’770, I actually agree. I think that those
`two references are consistent with the teachings in Michelson, and they’re
`consistent with our motivation to combine to modify Brantigan and
`Michelson in view of Baccelli to add the four markers, the three markers and
`four markers, and to modify Frey in view of Michelson and Berry for the
`dimensional limitations and the teaching of modularity. So, yes, we
`absolutely agree that is covered in our petition. Those references were
`added simply on reply because Patent Owner took the position that
`essentially the prior art would have been impossible.
`
`JUDGE JUNG: I see. And while we’re on the topic of motivation,
`can you clarify; did you mean to combine these modular implants before
`insertion, or did you mean to have them combined after insertion?
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`MS. WICKRAMASEKERA: And that’s the key question here in
`
`terms of the strawman that we believe that Patent Owner has set up to knock
`down. We never took the position in the petition or in any of our papers that
`modularity required assembly. In fact, that is expressly not what each of the
`prior art references states. What the prior art references, each one of them,
`Brantigan, Frey, and Michelson each one of them is drawn to this concept of
`being able to customize the implant that you need for the space that you’re
`trying to achieve the fusion at.
`So each one of them contemplates either one implant in that space or
`multiple implants in the same space. There was never any teaching in
`Michelson that you must assemble when you insert the implants side-by-side
`that you must assemble them. There was never any teaching in Brantigan
`either. We referenced this in the petition, Brantigan’s side-by-side
`disclosure of implants in the same disc space. The point is that you can do
`this using one implant or for various reasons that are actually expressed in
`the prior art references themselves that just Michelson and Frey saying you
`may want to insert this using a tube to do it then and more invasively. If you
`want to follow that teaching in Michelson, Michelson says make it a long-
`and-narrow implant.
`So, no, we never took the position that modularity required assembly.
`I think we were very, very clear that that was not the position, and not only
`that, I think the prior art references, themselves, are very, very clear that that
`is not required for the modular.
`JUDGE JUNG: I see. And so just to verify, when we look at the
`Patent Owner’s arguments, we should understand your petition to be saying
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`that these modular implants are already assembled before they’re being
`inserted?
`MS. WICKRAMASEKERA: Sorry?
`JUDGE JUNG: When we look at the Patent Owner’s arguments, we
`should see the petitions as taking the position that the modular implants are
`already assembled prior to insertion?
`MS. WICKRAMASEKERA: That is Patent Owner’s position, and if
`I may, I might be able to flip you to a slide that has -- if you could, turn to
`slide 25 of our demonstrative, the Petitioner’s demonstrative. This is Patent
`Owner’s statement about what our argument is, and I’ve underlined there
`assembling them within the disc space. You don’t have to assemble them
`before you insert them into this space or after. The prior art that we rely on
`is very clear; when you insert these in a modular fashion, all it is saying is
`that you insert them so that they are seated side-by-side. No assembly is
`required before or after the insertion. No assembly is required in the
`references themselves, and we do not state that any assembly is required.
`This is consistent with the Federal Circuit’s opinion invalidating claim
`1, where the Federal Circuit expressly found that the modular disclosure, the
`point of it was to insert more than one implant. There was never any
`requirement from the Federal Circuit or in the references themselves to
`assemble it either before or after you insert it. The assembly isn’t required
`so long as they are seated side-by-side and they achieve the overall fusion
`that you’re trying to achieve. Did I answer your question, Your Honor? I’m
`not sure of that.
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`JUDGE JUNG: Well, I’ll think about it, but please proceed with your
`presentation.
`MS. WICKRAMASEKERA: Okay. So if we could just turn to the
`next, actually. So I had you on slide 25 which has Patent Owner’s
`characterizations of our arguments, and this is what I wanted to point out,
`this characterization of our argument is not accurate. This is the strawman
`that Patent Owner has set up to knock down in terms of trying to defeat the
`motivation to combine. The Federal Circuit never found that assembly was
`required when it combined Michelson’s long-and-narrow teaching with
`Frey.
`And very quickly, I want to turn an additional point regarding the
`state of the art. I’d like to just give an overview of, if you turn to slide 31,
`Frey’s disclosures of 3 radiopaque markers is on 31, and 32 is Baccelli’s
`disclosure of 4 radiopaque markers. And this is another area where there
`appears to be a dispute over what Baccelli discloses, and I want to be very
`clear. In the Petition I think we were very clear; we never relied on Baccelli
`for the dimensions of the implants. Those are disclosed by the combination
`of the primary reference, either Frey or Brantigan, in view of Michelson and
`Berry, but Baccelli has a specific disclosure of the orientation of 4
`radiopaque markers.
`So the claims require a longitudinal length importantly that extends
`between a distal wall and a proximal wall of the implant, so how do you
`identify what the proximal wall is and what the distal wall is; what does that
`mean? All of the experts in this case agree, the proximal wall is the wall that
`would have the threaded insertion hole. It would be the closest to the
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`surgeon, an identifiable end of the implant. It’s what you call the trailing
`end as well. The Federal Circuit has used that language.
`The distal wall is the wall of the implant that’s going to be opposite
`the proximal wall. It’s going to be opposite the surgeon. What passes
`between on the sides of the sidewall. Baccelli teaches very clearly you have
`a marker in the distal wall, you have a marker in the proximal wall, and then
`you have a marker dead center in each of the sidewalls between the distal
`and the proximal wall; that this is the middle of the sidewalls. That is the
`teaching, those spikes which are denoted 24, Baccelli teaches you’ll have
`spikes located in this orientation and that you could make those spikes
`radiopaque.
`JUDGE POTHIER: Counselor, this is APJ Pothier. In your petition,
`did you not call that central region the medial plane?
`MS. WICKRAMASEKERA: Yes, Your Honor. So the central region
`is required in the feature in the ’334 patent, and the medial plane is a
`limitation in the ’156 patent. But I’d like to point out -- and thank you, Your
`Honor, for posing the question. This is one of the areas based on the initial
`determination that I thought would be helpful to explain. The medial plane
`has a specific location in the ’156 patent. Give me one second to turn to the
`claim language. Okay, so the ’156 patent requires a longitudinal length
`extending from the proximal end of the proximal wall to a distal end of the
`distal wall.
`It requires a maximum lateral width extending from one sidewall to
`another sidewall along a medial plane that is generally perpendicular to the
`longitudinal length, and the longitudinal length is greater than the maximum
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`lateral width. The medial plane bisects the sidewalls between the proximal
`and the distal end. We did refer in the Petition to Baccelli having
`radiopaque markers, their spikes, along the medial plane, but the medial
`plane has both spatial orientation with respect to the implant. In other
`words, it needs to be between the proximal, the distal wall at the midpoint,
`and then the medial plane has other claim requirements that relate to
`dimension.
`We did not rely on Baccelli in the petition for the dimensional
`requirements of the medial plane, but rather to show that where that medial
`plane lies in Baccelli, which is the widest part of the implant on the
`sidewalls between the distal and the proximal end in that middle area, medial
`plane, that is where the markers are located on Baccelli, and Baccelli doesn’t
`have the claimed medial plane because that requires an additional
`dimensional requirement that the longitudinal length be greater than the
`maximum lateral width. But the point teaching --
`JUDGE POTHIER: I hate to just interrupt you again, Counselor.
`MS. WICKRAMASEKERA: Yes.
`JUDGE POTHIER: This is APJ Pothier. If I’m looking at your slide
`32, it seems to me you’ve marked the distal wall where 47 is and not where
`the radiopaque markers 24 are.
`MS. WICKRAMASEKERA: Yes, that’s correct.
`JUDGE POTHIER: And what you were just saying prior, maybe I
`misunderstood or misheard, but it seemed that you were saying that the
`markers had to be in the distal wall; is that --
`MS. WICKRAMASEKERA: Yes, sorry.
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`JUDGE POTHIER: So this is where I’m confused by your markings.
`MS. WICKRAMASEKERA: Okay. Okay, you know, and I will be
`clearer. Baccelli refers to 24 as spikes. Baccelli refers to 47 as radiopaque
`markers. Baccelli then also teaches that the spikes 24 can be made of
`radiopaque material, which means that they can act as markers. It doesn’t
`call them markers. It means that if you make them radiopaque, they will act
`as markers. So I was using, perhaps, some emphasized language when I
`referred to all four of them as markers. Baccelli refers to them as radiopaque
`spikes 24, and radiopaque markers 47.
`There’s no meaningful difference if the spikes are made of radiopaque
`material. So what Baccelli specifies is that you’re going to have a marker 47
`in the distal wall, a marker 47 in the proximal wall, and then you’re going to
`have spikes 24, that are in the middle of the sidewalls in that central region
`which would also be the medial plane if you’re following the teaching of the
`medial plane bisecting the walls that extend from the proximal to the distal
`end. So in other words, the very middle of the sidewalls. Baccelli teaches
`24. You’re going to have spikes 24 there, and you can make those spikes
`radiopaque. Does that answer your question, Your Honor?
`JUDGE POTHIER: The last part that you’re saying, stand between
`the proximal and the distal walls; are you talking about sidewalls in this
`figure, which looks like figures 1 and 2 of Baccelli?
`MS. WICKRAMASEKERA: Yes, so in slide 32, what I’m referring
`to is the sidewalls are, if you look at the left-hand figure, it identifies a
`sidewall on the right, a sidewall on the left, a distal wall at the top and a
`proximal wall on the bottom. So the proximal wall is identified. If you look
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`at the figure on the right, the proximal wall is identified primarily by the
`location at 18, which is the insertion hole. This is all taught in Baccelli, so it
`identifies that as a proximal wall. You then are able to determine what the
`distal wall is.
`Now the claims require that there is a -- try to find that -- go. Slide
`56, claim 1 requires an implant that has a maximum lateral width extending
`from a first sidewall, that you’re looking at slide 32. That would be, for
`example, the left sidewall. View the second sidewall, which would be the
`wall on the right, you have a maximum lateral width extending between
`those two sidewalls along a medial plane, and it further requires that the
`medial plane is generally perpendicular to the longitudinal length. Now --
`JUDGE POTHIER: And in this case, it looks like that is the
`longitudinal length.
`MS. WICKRAMASEKERA: So length is actually defined in the
`claim as -- the longitudinal length is defined in the claim according to its
`spatial orientation. In claim 1 of ’156 patent, it expressly says that it has a
`longitudinal length that extends from a proximal end of the proximal wall to
`a distal end of the distal wall. That’s in the express claim language. It’s the
`same claim language in the ’344 patent that specifies that the longitudinal
`length must extend between the proximal and the distal end. Then it tells
`you that there are also dimensional requirements for the length. For
`example, the length has to be greater than the maximum lateral width.
`But as a first proposition, you have to identify which direction is the
`length, and the length in both of these patents in both independent claims for
`the ’334 and the ’156, it specifies as a starting point, the length must be -- it
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`must extend between the distal and the proximal wall. That’s how you
`determine what the length is. Then you have to determine does that length
`meet the dimensional requirements that are also expressly recited in the
`claims.
`So, here, we refer to the length. The length doesn’t vary. This is in
`the Federal Circuit opinion that we cited in our petition. The experts,
`everyone uses this type of nomenclature, and it’s expressly claimed in both
`of these patents that the length extends between the distal wall and the
`proximal wall. We don’t rely on Baccelli for the longitudinal length. What
`we do rely on Baccelli for is to say, okay, if the patent claims are telling you
`that you have a length that extends between the distal and the proximal
`walls, it has dimensional requirements and those must be met as well, but the
`first proposition has a length that extends between the distal and the
`proximal walls.
`That allows you to identify where the length is. It tells you need to
`have markers in the proximal and distal walls, and then it tells you that the
`medial plane bisects that direction between the proximal and the distal walls,
`and that you must have also markers along that medial plane for claim 1 of
`the ’156 patent. So to call the -- from the sidewall to the sidewall, to call
`that the length conflicts with the actual claim language. The claim language
`requires that the length be from the distal to the proximal end. It also has
`dimensional requirements that that’s the spatial orientation required for the
`claims.
`Does that answer your question? So this is the issue that Patent
`Owner has raised. They say that Baccelli has -- that we’ve drawn it wrong,
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`and that the longest dimension of Baccelli is actually the width of Baccelli
`that you see here. But the issue is that what Baccelli is teaching you is the
`same thing that the patent claims are teaching you which is that you identify
`your direction of insertion, and you want to make sure you have a marker at
`your leading end, you want to make sure you have a marker at your trailing
`end, and you want to make sure you have a marker in the middle of those
`sidewalls.
`You also have to meet the various dimensional limitations of the
`claims, but as far as the orientation of the markers that is where they want
`the markers. That is exactly what Baccelli teaches. Minus the particular
`dimensions of the implant, Baccelli teaches you exactly the same marker
`location, and that is our point. The medial plane and the central region
`drawn on the diagram, that is where the central region would be when you
`modify the implants Brantigan and Frey in view of Michelson and Berry as
`we’ve suggested in the graphs. We don’t rely in the petitions at all, at all on
`Baccelli to satisfy the dimensional limitations of the medial plane or the
`dimensional limitations of the claim’s central region or the dimensional
`limitations of (inaudible).
`What we rely on Baccelli for is that it’s a quite simple teaching that if
`the direction you’re going to enter an implant, put a marker in the proximal
`wall, put a marker in the distal, and put a marker of some sort or a spike that
`is radiopaque in the middle of the sidewalls, and that orientation of markers
`is the key teaching that we rely on for Baccelli. Did that answer your
`question?
`JUDGE JUNG: Ms. Wickramasekera?
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`MS. WICKRAMASEKERA: Yes?
`JUDGE JUNG: Ms. Wickramasekera, this is Judge Jung. You have
`two minutes left before you go into rebuttal time.
`MS. WICKRAMASEKERA: Okay. I would like to jump in very
`quickly to claim 18 of the ’334 patent because I think that will also cover the
`18-millimeter width of the ’156 patent. So I want to turn your attention to
`slide 40, if you will. One initial point: claim 1 was invalidated by the
`Federal Circuit based on Michelson’s teaching of a long-and-narrow
`modular implant. It’s very critical to remember two points. For one, claim
`18, the prior petitioner did not cite the same evidence that the Federal Circuit
`used to invalidate claim 1 for claim 18. There was a procedural failure in
`the prior petition. They didn’t cite this information.
`And for two, the prior petitioner withdrew their appeal of claim 18
`before this went up on appeal. This is all stated in the Federal Circuit
`opinion. The Federal Circuit never upended the patentability finding of
`claim 1. It could not have because it didn’t have jurisdiction since the
`aperture (inaudible) was discussed. So just turning very quickly to the
`evidence for claim 18, and I just stated this if you’re looking at slide 40.
`Number one, the Federal Cir
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