Paper No. 70
`Trials@uspto.gov
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`RTI SURGICAL, INC.,
`Petitioner,
`
`v.
`LIFENET HEALTH,
`Patent Owner.
`__________________
`
`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
`__________________
`
`Record of Oral Hearing
`Held Virtually: Tuesday, June 2, 2020
`__________________
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`Before GEORGE R. HOSKINS, TIMOTHY J. GOODSON, and
`CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
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`Trials@uspto.gov
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`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`RTI SURGICAL, INC.,
`Petitioner,
`
`v.
`LIFENET HEALTH,
`Patent Owner.
`__________________
`
`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
`__________________
`
`Record of Oral Hearing
`Held Virtually: Tuesday, June 2, 2020
`__________________
`
`
`Before GEORGE R. HOSKINS, TIMOTHY J. GOODSON, and
`CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
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`
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID D. HEADRICK, ESQUIRE
`HERBERT D. HART, III, ESQUIRE
`STEVEN J. HAMPTON, ESQUIRE
`PETER J. LISH, ESQUIRE
`BEN J. MAHON, ESQUIRE
`GREGORY C. SCHODDE, ESQUIRE
`MCANDREWS, HELD & MALLOY, LTD.
`500 West Madison Street
`34th Floor
`Chicago, Illinois 60661
`(312) 775-8000
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`MICHAEL H. JACOBS, ESQUIRE
`SHANNON LENTZ, ESQUIRE
`ALI TEHRANI, ESQUIRE
`CROWELL & MORING
`1001 Pennsylvania Avenue Northwest
`Washington, D.C. 20004
`(202) 624-2568
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, June 2,
`2020, commencing at 1:11 p.m. EST, by video/by telephone.
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`P R O C E E D I N G S
` JUDGE GOODSON: I see that we have Mr. Headrick on.
`Do we have anybody from Patent Owner?
` MR. JACOBS: Yes, Your Honor, this is Michael Jacobs
`for Patent Owner LifeNet Health.
` JUDGE GOODSON: Okay.
` MR. JACOBS: Good afternoon, Your Honor. The PTO
`technology person just emailed us a new Webex connection. Our
`video is not working at our end, just the audio. And our folks
`have been on the line with the PTO's IT folks.
` JUDGE GOODSON: Okay. Thank you, Mr. Jacobs. Let me
`announce the cases first and we'll see if we can have a brief
`discussion about the technical issues and what to do about them.
` So this is the hearing for two proceedings between
`Petitioner, RTI Surgical, Inc. and Patent Owner, LifeNet Health.
`The case numbers are IPR2019-00569 and IPR2019-00570. The
`patents involved are 6,458,158 and 8,182,532, respectively. I'm
`Judge Goodson. Judges Hoskins and Kennedy are also present.
`And before we dive into the merits, we have some technical
`issues, I understand. The current situation is that we see
`Mr. Headrick on and we are able to hear Mr. Jacobs.
` Mr. Jacobs, I understand you have a request to make?
` MR. JACOBS: Yes, Your Honor. Our technology people
`-- and again, this is Michael Jacobs for LifeNet Health. Thank
`you, Your Honor. Our IT people have been in touch with the
`PTO's people, and apparently the PTO person just sent new
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`connection information to us. So I would request -- and
`apparently, Your Honor, the number has been changed two or three
`different times.
` I would request two things as an initial matter. One,
`that we take a short break to see if the video can be resolved
`at our end, and if that doesn't work, then I would request that
`the entire hearing be done strictly telephonically since we will
`not be able to see Your Honors and you will not be able to see
`-- and I will not be able to see opposing counsel and no one
`will be able to see me.
` JUDGE GOODSON: Okay. I understand. I think we need
`to get started here because I don't want to keep the staff
`later. This is already kind of a long hearing just for the
`afternoon, so what I think we will do is we'll ask Mr. Headrick
`to mute his video connection so that we're all strictly audio.
`And if we can get this resolved during the first break, similar
`to the last set of hearings in this family, we'll plan to take a
`break after Mr. Headrick's initial presentation and we'll see if
`we can get the video restored at that time. If not, we'll just
`continue on with audio only. So Mr. Headrick has now muted his
`video, we don't see anything from him, and we will --
`Mr. Headrick, is it correct that you can not see us either?
` MR. HEADRICK: Judge Goodson, good afternoon. I can
`see you. I cannot see any of the other judges.
` JUDGE GOODSON: Okay. Let's see, is there a way --
`I’ll just ask our technical staff if there's a way to -- so that
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`IPR2019-00570 (Patent 8,182,532 B2)
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`there's no kind of one-way communication video wise. Is that
`something we can -- the panel can do by muting our video or
`something that can be done centrally there?
` PTO HEARING STAFF: Yeah, Judges, we can all see you on
`video now, so if you hit the button that says stop my video --
` JUDGE GOODSON: Okay.
` PTO HEARING STAFF: You'll be -- you'll still be able to --
`we'll still hear you on audio but your video will be muted.
` JUDGE GOODSON: Okay. So I hit the stop my video so,
`Mr. Headrick, are you able to see anybody now?
` MR. HEADRICK: No, I am not, Your Honor. But I would
`like to clarify something. If we're going to go audio only,
`then my suggestion and request would be that it be audio only
`for the entirety of the hearing and not just my portion of the
`hearing.
` JUDGE GOODSON: Right. That's understandable. Okay.
`Yeah, let's do that, that makes sense. So -- but let's get
`going. Unfortunately, we can't really spend another portion of
`time here this afternoon trying to get the video established for
`everybody, so we're just going to have to carry on, and thank
`you for your understanding on that. It’s unknown, you know, whose
`fault that is, but let's just carry on.
` So, let's see, since we're on audio, let's just take
`special care so that we're communicating only with our voices
`and that it's clear what we're referring to, so let's just keep
`that in mind throughout the course of the hearing today. And
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`we've already introduced ourselves and Mr. Headrick for
`Petitioner.
` Mr. Headrick, is there anyone else for Petitioner?
` MR. HEADRICK: There is, Your Honor. And I'm happy to
`introduce them now if you'd like.
` JUDGE GOODSON: Sure, go ahead.
` MR. HEADRICK: So, from my office of McAndrews, Held &
`Malloy, on the line with us is Herb Hart, lead counsel in this
`matter; my partner, Steve Hampton; my partner, Peter Lish; my
`partner, Greg Schodde, that's S-C-H-O-D-D-E; and associate Ben
`Mahon, that's M-A-H-O-N.
` From RTI Surgical on the line is Josh Derienzis,
`that's D-E-R-I-E-N-Z-I-S, vice president and general counsel for
`RTI Surgical; and also Ben Sanders, director of global
`intellectual property.
` JUDGE GOODSON: Okay. Thank you. Mr. Jacobs, do you
`have anyone else with you for Patent Owner today?
` MR. JACOBS: I do, Your Honor. And initially I'd like
`to thank Your Honors for being accommodating here with the
`technical issues. Your Honor, in the room with me -- I'm in our
`offices of Crowell & Moring, I have my colleagues who are also
`backup counsel, Shannon Lentz, L-E-N-T-Z; and Ali Tehrani,
`T-E-H-R-A-N-I. On the phone, Your Honor, is LifeNet's executive
`vice president, Douglas Wilson; LifeNet's chief technology
`officer, Dr. Jingsong Chen, and the first name is
`J-I-N-G-S-O-N-G. I also have our litigation counsel from the
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`underlying district court case who's not -- who's not admitted
`in this proceeding, Michael Songer from the law firm of White &
`Case. And finally, additional backup counsel, also from Crowell
`& Moring, Your Honor, Jacob Zambrzycki, the first name
`J-A-C-O-B, the last name Z-A-M-B-R-Y-C-Z-K-I -- S-K-I [sic],
`excuse me; and Vincent Galluzzo, G-A-L-L-U-Z-Z-O.
` JUDGE GOODSON: Great. Thank you, Mr. Jacobs.
`Mr. Headrick, we'll turn it over to you just in a moment here.
`Just to remind everybody of the flow of things today. The trial
`hearing order that we sent out on May 13th will govern the
`procedures that we'll follow today. Each party has 90 minutes
`total for its arguments addressing both cases.
` Mr. Headrick, do you plan to reserve any time for
`rebuttal?
` MR. HEADRICK: Yes, Your Honor, I'd like to reserve 30
`minutes for rebuttal. Also, if there's going to be oral
`arguments on the motion to exclude, my partner, Peter Lynch will
`handle that.
` JUDGE GOODSON: Okay, that's fine. Mr. Jacobs, do you
`plan on reserving time for surrebuttal?
` MR. JACOBS: 15 minutes, Your Honor, would be great.
`Thank you.
` JUDGE GOODSON: Okay. All right. As I mentioned
`earlier, we're planning to take a short break after
`Mr. Headrick's initial presentation so that the reporter can
`stretch. Please stay connected during that break, and please
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`mute yourself when you're not speaking today. Also, after we
`finish hearing arguments, the initial presentations as well as
`the rebuttal and surrebuttal, please stay on the line for a
`brief discussion to see if the court reporter has any questions
`for anybody about terms they've used or spellings or things like
`that.
` So with that, we'll turn it over to Mr. Headrick, and
`you can begin when you're ready.
` MR. HEADRICK: Thank you, Your Honor. Just a moment.
`Good afternoon or good morning, David Headrick for Petitioner,
`RTI Surgical. I'd like to thank you, Your Honors, for your hard
`work on this matter. In my allotted time I plan to highlight
`the significant issues, specifically identifying what is not in
`dispute, briefly examine the patents and their disclosures, and
`briefly examine the prior art on which RTI's grounds are based,
`and then finally highlight certain grounds and points of
`contention between the parties. Of course I will also try to
`answer any questions that you may have.
` First, let me identify what is not in dispute. As
`Your Honor noted, there are two patents involved in these matter,
`they are U.S. patent numbers 6,458,158 and 8,182,532. The
`patents share a common specification. They claim priority to
`original application filed January 5th, 1999. Both patents have
`expired. And the patents disclose a composite bone graft, that
`is a bone which is made up of two or more distinct bone portions
`held together with a connecter.
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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` According to the grounds, what's not in dispute, there
`are 16 of them. RTI challenges 32 claims, 7 independent and 25
`dependent. With respect to the primary prior art references,
`there are four of them. There's the Grooms reference, which is
`Exhibits 1003 and 1004, which is a priority document; the Paul
`reference, which is Exhibits 1006 and 1007, which is its
`priority document; the Wolter reference, which is Exhibit 1010,
`the corrected version of that exhibit; and the Boyce reference,
`Exhibit 1011.
` All four references are prior art. There was no
`attempt to swear behind any of them. Three of the four
`references were never before the patent office with respect to
`these patents. All four references disclose a bone graft which
`is made up of two or more bone portions, distinct bone portions
`held together with a connecter.
` Now, I'd like to refer to the demonstratives that we
`submitted earlier, and I will be referring to them by slide
`number, which can be found in the lower right-hand column. And
`the first issue I'd like to discuss is the patent's disclosure.
`If you could turn to demonstrative slide three. As I mentioned,
`the LifeNet patents, they share a common specification, they're
`related, and there's a reference to a composite bone graft.
` And the alleged problem identified by the patents was
`that prior bone grafts were limited in their physical size.
`Most of these grafts -- and the primary application for these
`grafts are in the spine; however, some of the claims in these
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`two patents are not limited to spinal implants. But the primary
`source of bone for these type of grafts is cortical bone, and
`that's the bone that provides for strength in supporting the
`graft on its implant site.
` But the alleged problem was that there was not enough
`cortical bone available or there were problems with how strong
`it might be. So really what they wanted to do was they needed
`to have enough cortical bone to make a graft of appropriate size
`for certain implants, so sizing was a problem. And that
`citation can be found in Exhibit 1001, column one, lines 48
`through 58. Turning to slide four, the alleged solution to this
`problem was to make a composite graft. A graft made up of two
`or more distinct bone portions, and it was held together with
`some type of connecter. And you would do that primarily because
`the patient may not -- if you're taking bone from a patient,
`there might not be enough. So these bones -- these grafts are
`directed to allograft implants, implants made of bone taken from
`another source.
` And the composite bone graft could then be
`appropriately sized and it would have adequate mechanical
`strength. That citation can be found at Exhibit 1001, column 2,
`line 15 through 29.
` If you could turn to slide five. Here we have
`representative claims, one from each of the two patents, the 532
`patent and the 158 patent. These were identified in either the
`institution decision or the POR for the respective matters.
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`Claim 12 of the 532 is representative. It recites roughly a
`composite spinal bone graft comprising a first cortical bone
`portion having a textured surface, a second cortical bone
`portion, again having a textured surface, and one or more
`osteoconductive substances exposed between those cortical bone
`portions. And then one or more non-adhesive mechanical
`connecters for holding together the graft unit. Those are the
`primary elements. And I'll get into the primary points of
`contention between the parties in a moment.
` With respect to the 158 patent, claim one is
`representative. It's similar but has a little more detail. It
`recites a composite graft --
` JUDGE GOODSON: Mr. Headrick, which slide are you on
`now or are you referring to a particular slide?
` MR. HEADRICK: Slide five.
` JUDGE GOODSON: Thank you.
` MR. HEADRICK: It refers to -- I'm sorry, yeah. Claim
`one of the 158 recites a composite bone graft, it recites a
`first cortical bone portion, a second cortical bone portion, a
`cancellous bone portion disposed between the first and second
`cortical bone portions, one or more bone pins, so the mechanical
`connecter is specified, and wherein the first cortical bone
`portion and the second cortical bone portion are not in physical
`contact. It's also recited that the bone graft is not
`demineralized.
` Turning to slide six. The challenge for LifeNet here
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`is that composite bone grafts were known prior to the alleged
`invention. Here at the top of slide six we see the definition
`of composite found in the patent. And the prior art references
`Grooms, Paul, Wolter, and Boyce all disclosed composite bone
`grafts. RTI's -- the Grooms reference is actually RTI's prior
`work. The Wolter reference, which is shown in the picture here
`is an autograft reference -- an autograft implant held together
`with a screw, but was published in 1987, 12 years prior to the
`LifeNet's alleged invention.
` Let's turn now to the grounds. And if you could turn
`-- I'm going to deal with the 570 IPR first. And if you could
`turn to slide 13.
` JUDGE GOODSON: Mr. Headrick, looking at your slides,
`it doesn't look like you're planning on going into the level of
`ordinary skill in the art, which I understand, it's sort of a
`minor issue, but I did want to ask about it before we get into
`the grounds here. It seems like the main issue in dispute
`with respect to level of ordinary skill in the art is whether
`the ordinarily skilled artisan has to have some experience with
`bone grafts. Can you explain why Patent Owner’s -- or, I'm
`sorry, Petitioner's view is that experience with bone grafts is
`not required?
` MR. HEADRICK: Well, I mean, I think with respect to
`bone grafts, I'm not 100 percent sure that is correct, Your
`Honor. And I do think that it -- our position is that
`experience with bone grafts is required. And as a matter of
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`fact, our expert, and particularly Mr. Sherman, does have
`experience with bone grafts, so I would refer to our briefing on
`that. It doesn't seem like there was a very -- you know, great
`conflict between the parties on this particular issue. It
`seemed more to be, one, on the level of education necessary, and
`then, two, there was some changing in LifeNet's position as to
`what the relevant field might be.
` Does that answer your question, Your Honor?
` JUDGE GOODSON: Well, what Patent Owner pointed to in
`the Patent Owner response is the portion of Petitioner's
`definition of the level of skill in the art where the
`Petitioner's definition is 5 to 10 years of experience designing
`and developing orthopedic implants and/or spinal antibody
`devices and/or bone graft substitutes. So what -- my
`understanding of Patent Owner's argument is that the and/or
`means that you actually don't need any experience with bone
`grafts. Now I hear you say that experience with bone grafts is
`required, so I guess I'm seeking some clarification on what
`definition Petitioner is proposing.
` MR. HEADRICK: Right. And so it is our position that
`experience with bone grafts is required. Of course what that
`experience might be doesn't mean that you have to actually put
`hands on bone grafts. For example, Dr. Kaplan, LifeNet's
`academic expert, he has no experience putting hands on actual
`bone grafts for spinal implants. So our position is that
`experience with bone grafts is required, and Mr. Sherman
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`explained this in detail in his declaration, Exhibit 1026,
`paragraphs 10 through 12.
` JUDGE GOODSON: Okay. You can go ahead. Thanks.
` MR. HEADRICK: Thank you. So referring to slide 13,
`the grounds, there's nine of them. I will not be going through
`all nine grounds, instead I'll be highlighting the major points
`of contention between the parties and I'll rely on the briefing
`for the details on certain grounds. So if you could turn to
`slide 14, please. The first grounds I'd like to treat are
`grounds 1 and 3, which are asserted against claim 12.
` Bear with me just for a second here.
` And we can see here claim 12, as we
`mentioned earlier, the composite spinal bone graft, first and
`second cortical bone portion, one or more osteoconductive
`substances disposed between the first and second cortical bone
`portions and non-adhesive mechanical connecter.
` The primary point of contention on this ground appears
`to be the disposed between claim language. RTI asserts the
`Grooms and Paul references which are depicted here, which
`disclosed cortical bone portions and that an osteoconductive
`substance can be disposed between those cortical bone portions.
` If you could turn to slide 15. As I mentioned, the
`primary claim constructing dispute here seems to be the claim
`disposed between. We have here on the left-hand column
`exemplary claim language, we just saw that in claim 12, and
`RTI's construction of disposed between is placed in an
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`intermediate space or interval, that is -- the ordinary meaning's
`supported by Mr. Sherman's testimony at Exhibit 1026, paragraphs
`47 through 49. And LifeNet's construction is that disposed
`between means arranged to be -- arranged to completely separate,
`and that really ends up being the point of contention. The
`panel saw that at the institution decision. LifeNet's position
`is that whatever's disposed between, the osteoconductive
`substance disposed between the two cortical portions must
`completely separate those cortical bone structures.
` JUDGE GOODSON: So, Mr. Headrick, I wanted to ask you
`about Petitioner's construction. What does the words "or
`interval" add? What does that mean?
` MR. HEADRICK: You know, that's interesting, I think
`that if -- that's interesting. I would say that if you go to
`the exhibit that has that dictionary definition, I believe both
`definitions that both sides are pointing to both have spatial
`intervals, and I suspect that interval might be interval in
`time, and so I think it's really more the space that's
`appropriate. But I suppose it could be an interval could also
`mean space, but --
` JUDGE GOODSON: It seems unclear. To me the
`construction that Petitioner has offered seems a little bit less
`clear than the claim language itself. And I agree with what you
`said earlier, that the main dispute the parties have really
`seems to be whether complete separation is required. So I'm
`wondering whether, you know, if we decide that disputed issue of
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`whether complete separation is required, is it even really
`necessary for the board to adopt a construction beyond answering
`that question?
` MR. HEADRICK: No, I would say you could render a
`decision without resolving the actual claim construction, you
`could just decide whether or not complete separation is
`required. I agree with that.
` JUDGE GOODSON: Okay. Go ahead.
` MR. HEADRICK: Returning to slide 16. As the board
`recognized in its institution decision to the 570 matter, claim
`12 does not require the bone portion to be entirely separated.
`The panel preliminarily concluded that we see no requirement in
`the language of claim 12 that the first and second cortical bone
`portions must be physically separated at all points. And that's
`consistent with the disclosure of the patent. If you could turn
`to slide 17. As we pointed out in our petition, and as the
`panel noted in its institution decision, there's additional
`claim language, it's in the related patent, claim one of the 158
`patent, that actually does specify that the cortical bone
`portions are not in physical contact.
` So it's RTI's view that to import that limitation into
`the construction of disposed between would render the claim
`language here highlighted in blue of the 158 patent claim one
`superfluous, because obviously LifeNet when it drafted these
`patents knew how to specify in the claims that -- where the
`cortical bone portions were not in physical contact, and they so
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`did in claim one of the 158 patent.
` So if you could to turn to slide 18. Here we see the
`Grooms and Paul references. On the left is the Grooms
`reference, Exhibit 1000 -- I'm sorry, it shows on Figure 8, two
`cortical bone portions and it's disclosed at the abstract of
`Exhibit 1003, an osteoconductive substance can be disposed
`between those two cortical bone portions. Similarly, the Paul
`reference, again, has two cortical bone portions, and an
`osteoconductive substance can be disposed between those bone
`portions. That disclosure's at Exhibit 1007 at column 3, lines
`4 through 6, and column 5, lines 27 through 31.
` And so RTI's position is pretty straightforward on
`this. Disposed between means placed at an intermediate space or
`interval, and we don't see a need for complete separation
`because that's actually specified. And to use a plain language
`example, if we weren't engaged in social distancing these days,
`perhaps we would all be at your courtroom, Your Honor's
`courtroom in San Jose. And if Judge Goodson and Judge Hoskins
`and Judge Kennedy were all sitting in a row in the courtroom
`with Judge Hoskins in the middle, and if Judge Goodson reached
`across to shake Judge Kennedy's hand, Judge Hoskins would still
`be in between or between Judge Goodson and Judge Kennedy despite
`the physical contact of a handshake.
` And so again, we don't see any need to import an
`additional limitation into the construction of "disposed
`between." Therefore, for these grounds, it boils down to that
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`Grooms and Paul disclosed the cortical bone portions, the
`cancellous bone portion, and the osteoconductive substance that
`can be disposed between them. There's also a non-adhesive
`connecter for holding these grafts together. Both references
`disclose the use of bone pins, and that's what we see as issues
`on those grounds.
` Turning to slide 19. I'd like to address now ground
`two, which is directed against claim 4 and its dependent, and I
`should mention that when I discussed grounds 1 and 3 earlier,
`obviously there were dependent claims there as well, but the
`details are set forth in our briefing.
` Returning to slide 19, ground 2 is asserted against
`claim 4, and then as you can see on slide 20, ground 5 is also
`asserted against claim 4. These are similar -- these are
`similar grounds, but claim four recites a composite spinal bone
`graft comprising a graft unit having one or more through holes
`configured to accommodate one or more pins. The graft unit
`comprising a first plate-like cortical bone portion, a second
`plate-like cortical bone portion, and a plate-like cancellous
`bone portion disposed between those two earlier cortical bone
`portions.
` There's also recitation of cortical bone pins with
`certain shapes, and there's textured surfaces. And most of that
`doesn't seem to be in contention, really the points of
`contention on these grounds appear to center around the meaning
`of the term through holes and the meaning of the claim term
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`plate-like. For this ground, RTI relies again on the Grooms
`reference with its disclosure of the cortical bone portion. And
`then with respect to the plate-like recitation, our expert,
`Mr. Sherman, relied on the McIntyre reference, which taught the
`use of a cancellous plug in a cortical ring, and he said that
`that provided the plate-like shape.
` Similarly, if you take a look at slide 20, there the
`Paul reference is the primary reference with McIntyre again
`providing the plate-like shape of the cancellous bone portion.
`And then the Coates reference is used for the continuous linear
`protrusions, which again, does not appear to be something that's
`hotly contested between the parties.
` So turning to slide 21. The major -- one of the
`important claim construction disputes is the claim term
`plate-like. We have exemplary claim language in the left
`column, RTI's construction of plate-like is similar to a
`generally flat and relatively thin structure, and LifeNet's
`construction is a bone portion having a flat, broad interface to
`adjacent bone portions. And we can look at that in a little
`more detail in a moment.
` Turning to slide 22. I should first point out that
`the patents are somewhat unique in that except for particular
`definitions in the specifications, but for these terms that the
`parties seem to be debating, many of them are not defined in the
`spec, and plate-like is an example of that, it's not defined in
`the specification. So RTI's expert, Mr. Sherman, testified that
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`the term plate does have an ordinary meaning in the orthopedic
`implant industry, and it refers to something that's generally
`flat and has a width and length dimensions that are larger than
`its thickness. And that was set forth in Mr. Sherman's first
`declaration submitted by petition that's Exhibit 1015,
`paragraph 35.
` Turning to slide 23. Mr. Sherman then turned to the
`definition of plate-like, and that's not in the specifications I
`mentioned. And he said the meaning of that is, well, it's like
`a plate, meaning similar to a plate, obviously broader, so he
`said similar to a generally flat, relatively thin structure, and
`then he set forth some examples that he found in LifeNet's
`patents. And this was all set forth in Mr. Sherman's first
`declaration. It's Exhibit 1015 at paragraph 38.
` Turning to slide 24. Mr. Sherman also found in the
`prior art examples of plate-like. For example, here is
`Exhibit 1017, this is a prior art reference, it says spinal
`implant, and you can see the figures here are -- these are
`vertebral spacers and are described as being plate-like, and the
`citation for that is Exhibit 1017, figures 9I through 9N.
` So if you turn to slide 25. Mr. Sherman looked at the
`prior art, including the Grooms and Paul references and said,
`well, there being no definition of plate-like set forth in the
`patents, I find that the Grooms and Paul references had
`plate-like cortical bone portions, and the cancellous bone
`portion, of course, would be provided by the McIntyre reference
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`IPR2019-00569 (Patent 6,458,158 B1)
`IPR2019-00570 (Patent 8,182,532 B2)
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`which I referenced earlier. But each of them have a flat
`surface with a -- generally flat surface with relatively thin
`structure and, again, similar to because the claim recites
`plate-like, not plate.
` JUDGE GOODSON: Mr. Headrick, one of the disputed
`issues on claim construction seems to be whether the plate-like
`term refers to the overall shape of a bone portion. That's an
`argument that Patent Owner made, and then in the reply the
`Petitioner seemed to agree the term addresses the overall shape
`of the bone portion, is that understanding correct?
` MR. HEADRICK: I think so. It does. I mean, that's
`why our construction provides for a relatively thin
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