Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 1 of 8 PageID #: 289
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`CIVIL ACTION NO.
`6:15-cv-00201-JRG-KNM
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`JURY TRIAL DEMANDED
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`PLAINTIFF’S FIRST AMENDED COMPLAINT
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`Pursuant to Fed. Civ. P. 15(a)(1)(b), Plaintiff FLEXUSPINE, INC. files this First
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`Amended Complaint against Defendant GLOBUS MEDICAL, INC., alleging as follows:
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`I. THE PARTIES
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`1.
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`FLEXUSPINE, INC. (“Plaintiff” or “Flexuspine”) is a corporation organized and
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`existing under the laws of the State of Delaware, with a principal place of business in Tyler,
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`Texas.
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`2.
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`Flexuspine is a company that develops novel devices for the treatment of
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`degenerative spine disease.
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`3.
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`Upon information and belief, GLOBUS MEDICAL, INC. (“Globus”) is a
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`corporation organized and existing under the laws of the State of Delaware, with its principal
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`place of business located at 2560 General Armistead Avenue, Audubon, Pennsylvania. Globus
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`has been served with process, made an appearance through counsel, and is presently before this
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`Court.
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`FLEXUSPINE, INC.
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`Plaintiff,
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`Defendant.
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`v.
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`GLOBUS MEDICAL, INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`
`
`
`CIVIL ACTION NO.
`6:15-cv-00201-JRG-KNM
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`JURY TRIAL DEMANDED
`
`''
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`PLAINTIFF’S FIRST AMENDED COMPLAINT
`
`
`
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`
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`Pursuant to Fed. Civ. P. 15(a)(1)(b), Plaintiff FLEXUSPINE, INC. files this First
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`Amended Complaint against Defendant GLOBUS MEDICAL, INC., alleging as follows:
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`
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`I. THE PARTIES
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`1.
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`FLEXUSPINE, INC. (“Plaintiff” or “Flexuspine”) is a corporation organized and
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`existing under the laws of the State of Delaware, with a principal place of business in Tyler,
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`Texas.
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`2.
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`Flexuspine is a company that develops novel devices for the treatment of
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`degenerative spine disease.
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`3.
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`Upon information and belief, GLOBUS MEDICAL, INC. (“Globus”) is a
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`corporation organized and existing under the laws of the State of Delaware, with its principal
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`place of business located at 2560 General Armistead Avenue, Audubon, Pennsylvania. Globus
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`has been served with process, made an appearance through counsel, and is presently before this
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`Court.
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`FLEXUSPINE, INC.
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`Plaintiff,
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`Defendant.
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`v.
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`GLOBUS MEDICAL, INC.,
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`Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 2 of 8 PageID #: 290
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`4.
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`Globus is a medical device company focused on the design, development and
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`commercialization of musculoskeletal implants that promote healing in patients with spine
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`disorders, including invertebral spinal fusion and minimally invasive spine products.
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`II. JURISDICTION AND VENUE
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`5.
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`This is an action for patent infringement arising under the patent laws of the
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`United States, Title 35 United States Code. This Court has exclusive subject matter jurisdiction
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`over this case for patent infringement under 28 U.S.C. §1338(a). Venue is proper under 28
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`U.S.C. §§ 1391(b) and (c).
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`6.
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`Upon information and belief, Globus has had minimum contacts with the Tyler
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`Division of the Eastern District of Texas such that this venue is a fair and reasonable one. Globus
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`has committed such purposeful acts and/or transactions in Texas that it reasonably knew and/or
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`expected that it could be hailed into a court as a future consequence of such activity. Upon
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`information and belief Globus has transacted and, at the time of the filing of this Complaint, is
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`transacting business within the Tyler Division of the Eastern District of Texas.
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`7.
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`Flexuspine is an existing business located within the Tyler Division of the Eastern
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`District of Texas. All of Flexuspine’s documents and prototypes relating to the Patents-in-Suit
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`and its business are located in this Division.
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`8.
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`Two of the named inventors for the Patents-in-Suit and the founders of
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`Flexuspine, Dr. Charles Gordon, M.D. and Corey Harbold, are located within the Tyler Division
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`of the Eastern District of Texas.
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`III. PATENTS-IN-SUIT
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`9.
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`On April 17, 2007, United States Patent No. 7,204,853 (“the ‘853 patent”) was
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`duly and legally issued for an “ARTIFICIAL FUNCTIONAL SPINAL UNIT ASSEMBLIES.”
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`Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 3 of 8 PageID #: 291
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`A true and correct copy of the ‘853 patent is attached hereto as Exhibit “A” and made a part
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`hereof.
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`10.
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`On January 8, 2008, United States Patent No. 7,316,714 (“the ‘714 patent”) was
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`duly and legally issued for an “ARTIFICIAL FUNCTIONAL SPINAL UNIT ASSEMBLIES.”
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`A true and correct copy of the ‘714 patent is attached hereto as Exhibit “B” and made a part
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`hereof.
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`11.
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`On March 22, 2011, United States Patent No. 7,909,869 (“the ‘869 patent”) was
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`duly and legally issued for an “ARTIFICIAL SPINAL UNIT ASSEMBLIES.” A true and correct
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`copy of the ‘869 patent is attached hereto as Exhibit “C” and made a part hereof.
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`12.
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`On February 28, 2012, United States Patent No. 8,123,810 (“the ‘810 patent”)
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`was duly and legally issued for an “EXPANDABLE INTERVERTEBRAL IMPLANT WITH
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`WEDGED EXPANSION MEMBER.” A true and correct copy of the ‘810 patent is attached
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`hereto as Exhibit “D” and made a part hereof.
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`13.
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`On February 11, 2014, United States Patent No. 8,647,386 (“the ‘386 patent”)
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`was duly and legally issued for an “EXPANDABLE INTERVERTEBRAL IMPLANT SYSTEM
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`AND METHOD.” A true and correct copy of the ‘386 patent is attached hereto as Exhibit “E”
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`and made a part hereof.
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`14.
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`Collectively, the ‘853, ‘714, ‘869, ‘810, and ‘386 patents are referred to as “the
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`Patents-in-Suit.”
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`15.
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`As it pertains to this lawsuit, the Patents-in-Suit, very generally speaking, relate to
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`a device which can be implanted between two vertebral bodies of a human spine to increase or
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`maintain the separation distance between vertebrae (distraction) and facilitate the fusion of such
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`vertebral bodies as treatment for degenerative spinal conditions.
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`Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 4 of 8 PageID #: 292
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`16.
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`In 2003, Dr. Gordon and Mr. Harbold, founded FSU Technologies, Inc. (later
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`renamed Flexuspine) to design and develop devices for spinal surgery, including the devices
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`disclosed in the Patents-in-Suit. With years of experience in spinal surgery and engineering,
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`respectively, Dr. Gordon and Mr. Harbold conceived, reduced to practice, and patented an
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`improved interbody fusion device that could be inserted between two vertebral bodies and then
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`be expanded to provide distraction of the vertebral bodies, thereby decompressing the spine and
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`facilitating spinal fusion as disclosed in the Patents-in-Suit.
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`IV. FIRST CLAIM FOR RELIEF
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`(Patent Infringement)
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`17.
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`Flexuspine is the owner of all right, title and interest of the Patents-in-Suit,
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`including all rights to enforce and prosecute actions for infringement and to collect damages for
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`all relevant times against infringers of the Patents-in-Suit. Accordingly, Flexuspine possesses the
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`exclusive right and standing to prosecute the present action for infringement of the Patents-in-
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`Suit by Globus.
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`18.
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`Upon information and belief, Globus manufactures, makes, has made, uses,
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`practices, imports, provides, supplies, distributes, sells and/or offers for sale products and/or
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`systems that infringe one or more claims of the Patents-in-Suit.
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`19.
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`Globus’ expandable intervertebral fusion devices including, at a minimum, the
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`Caliber and Caliber-L have infringed in the past and continue to infringe at least one claim of the
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`‘853 patent, at least one claim of the ‘869 patent, at least one claim of the ‘810 patent, and at
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`least one claim of the ‘386 patent.
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`Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 5 of 8 PageID #: 293
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`20.
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`Globus’ expandable intervertebral fusion devices including, at a minimum, the
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`Rise and Rise IntraLIF have infringed in the past and continue to infringe at least one claim of
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`the ‘853 patent.
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`21.
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`Globus’s expandable intervertebral fusion devices including, at a minimum, the
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`Altera have infringed in the past and continue to infringe at least one claim of the ‘714 patent and
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`at least one claim of the ‘386 patent.
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`22.
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`As a result of Globus’s infringing conduct, Globus has damaged Flexuspine.
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`Globus is, thus, liable to Flexuspine in an amount that adequately compensates Flexuspine for
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`its’ infringement, which by law in no event can be less than a reasonable royalty, together with
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`interest and costs as fixed by this Court under 35 U.S.C. § 284.
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`23.
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`As a consequence of Globus’s infringement, Flexuspine has been irreparably
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`damaged and such damage will continue without the issuance of an injunction by this Court.
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`24.
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`Upon information and belief, Globus was on notice of the Patents-in-Suit and of
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`its infringing conduct, and has, respectively, knowingly and willfully infringed the Patents-in-
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`Suit at least as early as June 2014.
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`25.
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`Globus has had contact and communications with representatives acting on behalf
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`of Flexuspine and has been fully aware of Flexuspine’s technology and patent portfolio,
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`including Flexuspine’s allegations that Globus infringes the Patents-in-Suit, beginning in June
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`2014.
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`26.
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`On or around June 4, 2014, representatives acting on behalf of Flexuspine notified
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`Globus of its portfolio and its applicability to Globus’s products. In particular, on June 4, 2014,
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`representatives of Flexuspine sent a presentation to Globus explaining how the patents in the
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`Flexuspine portfolio cover a variety of Globus’s expandable intervertebral fusion devices,
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`Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 6 of 8 PageID #: 294
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`including claim charts demonstrating the infringement of the Caliber and Caliber-L. Globus and
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`representatives acting on behalf of Flexuspine had continuing communications about the
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`Flexuspine patent portfolio and a potential license until July 9, 2014, at which point
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`communications ceased.
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`27.
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`Since that time, Globus has proceeded to infringe the Patents-in-Suit with full and
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`complete knowledge of the patents and objectively high likelihood that selling its products
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`constituted infringement. Globus’s infringement of the Patents-in-Suit is willful and deliberate,
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`entitling Flexuspine to increased damages under 35 U.S.C. § 284 and to attorneys’ fees and costs
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`incurred in prosecuting this action under 35 U.S.C. § 285.
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`V. JURY DEMAND
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`Flexuspine hereby requests a trial by jury pursuant to Rule 38 of the Federal Rules of
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`Civil Procedure.
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`VI. PRAYER FOR RELIEF
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`WHEREFORE, Flexuspine respectfully requests that the Court find in its favor and
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`against Globus, and that the Court grant Flexuspine the following relief:
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`a.
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`b.
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`c.
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`d.
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`Judgment that one or more claims of the Patents-in-Suit have been infringed,
`either literally and/or under the doctrine of equivalents, by Globus;
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`Judgment that Globus’s infringement is willful from the time Globus became
`aware of the infringing nature of its products and that the Court award treble
`damages for the period of such willful infringement pursuant to 35 U.S.C. § 284.
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`Judgment that Globus account for and pay to Flexuspine all damages to and costs
`incurred by Flexuspine because of Globus’s infringing activities and other
`conduct complained of herein;
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`That Flexuspine be granted pre-judgment and post-judgment interest on the
`damages caused by Globus’s infringing activities and other conduct complained
`of herein;
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`Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 7 of 8 PageID #: 295
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`e.
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`f.
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`g.
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`That the Court declare this an exceptional case and award Flexuspine its
`reasonable attorney’s fees and costs in accordance with 35 U.S.C. § 285;
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`That Globus be permanently enjoined from any further activity or conduct that
`infringes one or more claims of the Patents-in-Suit; and
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`That Flexuspine be granted such other and further relief as the Court may deem
`just and proper under the circumstances.
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`Dated: June 26, 2015.
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`Respectfully submitted,
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`/s/ Mark D. Strachan
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` Mark D. Strachan
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`Texas State Bar No. 19351500
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`SAYLES│WERBNER, P.C.
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`1201 Elm Street, Suite 4400
` Dallas, Texas 75270
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`(214) 939-8700 – Telephone
`(214) 939-8787 – Facsimile
`mstrachan@swtriallaw.com
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`Jonathan T. Suder
`State Bar No. 19463350
`Brett M. Pinkus
`State Bar No. 24076625
`Todd I. Blumenfeld
`State Bar No. 24067518
`FRIEDMAN, SUDER & COOKE
`Tindall Square Warehouse No. 1
`604 East 4th Street, Suite 200
`Fort Worth, Texas 76102
`(817) 334-0400 - Telephone
`(817) 334-0401 - Facsimile
`jts@fsclaw.com
`pinkus@fsclaw.com
`blumenfeld@fsclaw.com
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` ATTORNEYS FOR PLAINTIFF
`FLEXUSPINE, INC.
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`CERTIFICATE OF SERVICE
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`Case 6:15-cv-00201-JRG-KNM Document 17 Filed 06/26/15 Page 8 of 8 PageID #: 296
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`The undersigned hereby certifies that, on this the 26th day of June, 2015, the foregoing document
`was filed electronically in compliance with Local Rule CV-5(a). As such, this document was
`served on all counsel who have consented to electronic service. Local Rule CV-5(a)(3)(A).
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`/s/_Mark D. Strachan___________
`Mark D. Strachan
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