[00:00:04] Speaker 06:
Final case for argument this morning is 14-1483 to please send this product versus Loebis Medical.

[00:00:33] Speaker 05:
I'm going to let the other side get settled.

[00:00:35] Speaker 05:
They had a harder time getting up here.

[00:00:36] Speaker 05:
Thank you.

[00:00:42] Speaker 04:
Okay.

[00:00:47] Speaker 04:
Mr. Thompson.

[00:00:48] Speaker 04:
Thank you, Chief Judge Prost.

[00:00:49] Speaker 04:
And may it please the Court.

[00:00:51] Speaker 04:
There are several grounds for reversal of the District Court judgments here, and I'd like to focus principally on acclaimed construction issues which cut across all three patents.

[00:00:59] Speaker 04:
Beginning with the connection issue for the 076 patent, the key concept is simple.

[00:01:04] Speaker 04:
Claim 1, the only independent claim, requires the implant's bone screws to be sized and configured, quote, to anchor the intervertebral implant to the upper and lower vertebrae and the heads of the first and second bone screws.

[00:01:20] Speaker 04:
So three things follow from this language.

[00:01:23] Speaker 04:
First of all, the implant has to be anchored to both the vertebrae and the bone screw heads.

[00:01:29] Speaker 04:
Second, the word anchor has to mean the same thing as the both connections.

[00:01:34] Speaker 04:
It's the same word in the same phrase.

[00:01:37] Speaker 04:
So whatever it means for screws to be anchored to the vertebrae, that's what it means for the screw heads to be anchored to the implant.

[00:01:45] Speaker 04:
And third, the plain meaning of anchor, and this is confirmed by Cynthia's own definition and the specification,

[00:01:51] Speaker 04:
is a rigid or firm connection.

[00:01:53] Speaker 03:
On the last day of trial, Your Honor, he was the first time he had construed this claim.

[00:02:10] Speaker 04:
The claim was not construed at the claim construction phase, and Globus, as a defendant not bearing the burden on the issue of infringement, relied on the claim's plain meaning.

[00:02:20] Speaker 04:
Then, so the trial proceeded, Globus presented evidence on the issue of what the claim meeting of anchor is.

[00:02:27] Speaker 04:
We said it required a rigid connection.

[00:02:30] Speaker 04:
And on the last day of trial, after Globus' whole defense had been presented, Cynthia said, this needs to be construed.

[00:02:39] Speaker 04:
And the district court said, I'm going to construe this as follows.

[00:02:43] Speaker 04:
And I'll quote.

[00:02:44] Speaker 04:
He said, nothing in this claim or any other claim of the asserted patents

[00:02:49] Speaker 04:
requires that an accused device have bone screws that are locked, threaded, or otherwise rigidly connected to the front plate in order to infringe.

[00:02:58] Speaker 06:
Now, he thought he had... Is that your... I'm just to add on a little bit of a question to your time.

[00:03:05] Speaker 06:
So, what was going on here, he had construed the 2007 patent that way, and then he just thought, well, I've already construed that term in that context, and it ought not to be different.

[00:03:16] Speaker 06:
But your view is you clearly maintained, preserved your ability to argue two different constructions.

[00:03:21] Speaker 06:
Were you arguing rigid for the 2007 patent?

[00:03:24] Speaker 04:
We were arguing rigid for the 2007, Your Honor, but I would note that there are different patents with different specifications and some differences in claim language as well.

[00:03:33] Speaker 06:
If we were to hypothetically agree with you on the claim construction of the 2007 fixed patent,

[00:03:39] Speaker 06:
Is there still a question of infringement that lies out there under that kind of construction?

[00:03:45] Speaker 04:
No, Your Honor.

[00:03:45] Speaker 04:
If a rigid connection is required, it's undisputed that Glovis's bone screw heads are round.

[00:03:52] Speaker 04:
The boreholes in its products are round.

[00:03:54] Speaker 04:
They're smooth.

[00:03:54] Speaker 04:
They toggle.

[00:03:56] Speaker 04:
There is no rigid connection.

[00:03:57] Speaker 03:
But maybe there's an argument that the camming screw that arguably serves as a securing plate

[00:04:07] Speaker 03:
provides that rigid connection.

[00:04:09] Speaker 04:
That speaks to a separate limitation under the 207 pattern.

[00:04:12] Speaker 03:
First of all, the 076 pattern.

[00:04:14] Speaker 03:
Right, right.

[00:04:14] Speaker 03:
I want to keep it straight, too.

[00:04:16] Speaker 03:
But I'm just trying to say that in terms of trying to understand, I guess, your conception of what rigid connection means, it may not necessarily be scoped down to just threadings of the screw heads and the boreholes.

[00:04:29] Speaker 02:
Correct.

[00:04:30] Speaker 03:
And so that's why, to follow up on the chief's question, maybe there's still an infringement question

[00:04:36] Speaker 03:
that would have to be resolved below, assuming we were to agree with you on this construction of the anchor.

[00:04:42] Speaker 04:
The first thing you need to know, Your Honor, is that the 076 patent does not contain the securing plate limitation.

[00:04:48] Speaker 03:
No, I know.

[00:04:49] Speaker 03:
We're talking about just comparing the understanding of what this claim is to your accused property.

[00:04:55] Speaker 03:
Forget about any other patent.

[00:04:57] Speaker 03:
That's all we're trying to figure out.

[00:04:59] Speaker 03:
And if we understand the claim, it's best understood to be about rigid connection.

[00:05:04] Speaker 03:
Now the question is whether your Q's product with your camming screw, does that provide a rigid connection?

[00:05:13] Speaker 03:
Is that an open question that needs to be resolved?

[00:05:15] Speaker 04:
It doesn't, and I don't believe that Cynthia has suggested that.

[00:05:18] Speaker 04:
And that's because the securing plate and the anchorability within the boreholes serve different functions, and they're basically independent ways of accomplishing the same objective of providing back out.

[00:05:31] Speaker 04:
They both are designed to prevent back out.

[00:05:33] Speaker 04:
There's sort of a belt and spenders approach, but they do it in different ways.

[00:05:36] Speaker 04:
In the case of the securing place by covering, in the case of the connection in the borehole, whether it's the 207.

[00:05:45] Speaker 03:
And maybe we'll hear in 10 minutes what their theory is on whether, should the claim construction be overturned?

[00:05:52] Speaker 03:
Is there still an open question on infringement?

[00:05:54] Speaker 03:
So that's maybe a better question for them.

[00:05:56] Speaker 03:
But getting back to you, I'm assuming you're

[00:06:00] Speaker 03:
in your J-mall or in opposition to the J-mall, or no, it was your J-mall motion, did you argue this grammatical question about the entire clause and therefore what this entire clause means?

[00:06:15] Speaker 03:
We did, Your Honor.

[00:06:16] Speaker 03:
And then what did Judge Stark say in response to that?

[00:06:19] Speaker 03:
I mean, everything else you were telling me is what happened at trial.

[00:06:21] Speaker 03:
Sure.

[00:06:22] Speaker 03:
What did Judge Stark say in the J-mall decision on this particular grammatical question?

[00:06:28] Speaker 04:
You'll find his analysis on pages 13 to 14 of the appendix.

[00:06:32] Speaker 04:
And I think the best answer to their argument is that this argument is in ways.

[00:06:37] Speaker 04:
He didn't dig deeply into the text.

[00:06:40] Speaker 04:
He simply said, at the end of trial, this came up at the end of trial, on the last day of trial, Cynthia raised a new argument.

[00:06:46] Speaker 04:
And he says, I basically explained why.

[00:06:48] Speaker 04:
And if you look at it, it's 17440 to 17441 of the appendix.

[00:06:52] Speaker 04:
That's what he explains at the end of the trial.

[00:06:55] Speaker 04:
I decided this at claim construction.

[00:06:57] Speaker 04:
He didn't decide to claim construction.

[00:06:59] Speaker 04:
He never interpreted the relevant language of the 076 patent.

[00:07:03] Speaker 04:
He interpreted the anchorable within limitation of the 207.

[00:07:06] Speaker 03:
He rested on his 207 construction for any argument he would make on anchor for the 076.

[00:07:15] Speaker 04:
Essentially, that's right.

[00:07:16] Speaker 04:
He said, I don't believe these patents require a rigid connection.

[00:07:20] Speaker 04:
Now, I'll get to in a minute why we think that's wrong even as to the 207.

[00:07:24] Speaker 04:
But I'd like to focus the court's attention on page A-92.

[00:07:28] Speaker 01:
Just a quick question.

[00:07:29] Speaker 01:
I believe I know the answer to this.

[00:07:33] Speaker 01:
Did Judge Stark rely on any type of intrinsic evidence in his claim construction?

[00:07:38] Speaker 01:
No, Your Honor.

[00:07:38] Speaker 01:
OK.

[00:07:40] Speaker 04:
It's easy to know what was in his claim construction.

[00:07:42] Speaker 06:
Well, just in defense of Judge Stark, not that he needs my defense, but looking in what you were just pointing, page 13 and 14,

[00:07:50] Speaker 06:
He's dealing, in some part, he raised due process arguments, right?

[00:07:54] Speaker 06:
So he was left with, I mean, we're not talking here about whether or not your due process rights are violated.

[00:08:00] Speaker 06:
And he's dealing with those arguments you're making, which are correctly understandably disposed of.

[00:08:06] Speaker 04:
That was part of his analysis, right?

[00:08:08] Speaker 04:
And you don't need to reach the due process issue if you agree with us on the claim construction.

[00:08:13] Speaker 04:
But I would note that what he did goes far beyond what's been permitted by this court's rolling claim construction cases.

[00:08:19] Speaker 04:
He construed this key term at the end of trial and after we had rested.

[00:08:25] Speaker 06:
Can we move on?

[00:08:27] Speaker 01:
Just a quick question.

[00:08:28] Speaker 01:
So on 076, didn't Judge Stark say that the specification included non-rigid examples?

[00:08:37] Speaker 04:
On the 076, he concluded they both did.

[00:08:40] Speaker 04:
That's inaccurate.

[00:08:41] Speaker 04:
There are not non-rigid connections in the 076 specifications.

[00:08:46] Speaker 01:
But they are on the 207.

[00:08:48] Speaker 04:
There is one example of non-rigid connections in the 207 patent.

[00:08:52] Speaker 01:
So your argument is by making the same claim construction on both, then he's importing a limitation in the... That's right, from the wrong patent.

[00:09:03] Speaker 01:
Right, from the wrong patent.

[00:09:05] Speaker 04:
And I'd like to focus this court's attention on page 92 of the appendix.

[00:09:08] Speaker 04:
This is a critical passage in the brief summary of the invention on the 076.

[00:09:11] Speaker 04:
This is what the inventor said.

[00:09:14] Speaker 04:
This invention creates an intervertebral implant

[00:09:17] Speaker 04:
Which is column one of the 076 on page A92.

[00:09:27] Speaker 04:
This invention creates an intervertebral implant, which is able to rigidly connect to bone fixation means

[00:09:45] Speaker 04:
in a manner that even in the event of bone structure weakening, loosening between the intracartibial implant and the bone fixation means shall be precluded.

[00:09:53] Speaker 04:
That's first sentence.

[00:09:53] Speaker 04:
Second sentence, and this is critical.

[00:09:55] Speaker 04:
The above problem, the loosening, and it's elaborated even more further above, is solved in the present invention

[00:10:01] Speaker 06:
by an intervertebral implant exhibiting the features of Claim 1.

[00:10:19] Speaker 04:
The 207 contains similar but not identical language.

[00:10:22] Speaker 06:
No, but can we turn to the position between limitations?

[00:10:25] Speaker 04:
Sure.

[00:10:25] Speaker 04:
Happy to talk about whatever you want.

[00:10:27] Speaker 06:
You're almost done here, so I just want to get into this position between stuff.

[00:10:31] Speaker 06:
Right.

[00:10:32] Speaker 06:
Okay.

[00:10:32] Speaker 06:
Give us your argument so I can start to miss that one.

[00:10:35] Speaker 04:
Sure.

[00:10:35] Speaker 04:
The text requires to place boreholes to be, quote, positioned between the spacers upper and lower planes.

[00:10:42] Speaker 04:
District court said boreholes can be positioned, quote, partly or entirely within the upper and lower planes.

[00:10:48] Speaker 04:
Problem with that is that Cynthia's expressly disclaimed that reading during prosecution to overcome an anticipation objection based on Frazier's.

[00:10:56] Speaker 04:
And this is really a situation where a picture paints a thousand words.

[00:11:00] Speaker 04:
You'll see the pictures on page 48 of our opening brief and 22 of our reply.

[00:11:04] Speaker 04:
Cynthia's own annotation of Frazier's, it shows that the boreholes and the screw heads are partly inside and partly outside the claim.

[00:11:14] Speaker 04:
And the clear and unambiguous takeaway of this

[00:11:17] Speaker 04:
is that the claim only covers boreholes that are completely within the plant.

[00:11:25] Speaker 06:
Frazier puts its boreholes on tabs, and it's the tabs that extend inwardly and outwardly, right?

[00:11:32] Speaker 06:
Let me just finish and then you can tell me whether I'm right or wrong.

[00:11:35] Speaker 06:
So it seems to me if their boreholes are on tabs, then they just claimed implants

[00:11:42] Speaker 06:
that put the boreholes on these types of tabs.

[00:11:45] Speaker 06:
But why does that necessarily lead us to where you want us to go, which is this claims your embodiments, which are the eyebrows.

[00:11:53] Speaker 04:
I think Frasier essentially uses the tabs and boreholes as synonymous concepts.

[00:11:58] Speaker 04:
If you look at the pictures, you see that the cross-section, and this is on page 20 of our reply, you look at the upper and lower planes, you see the boreholes.

[00:12:10] Speaker 04:
and the cross-section of the upper plane cuts right through them, cuts through the middle of them.

[00:12:15] Speaker 04:
Now, Frazier used locking screws.

[00:12:17] Speaker 04:
You'll find that at page 28,000.

[00:12:19] Speaker 04:
He runs 10 of the appendix.

[00:12:20] Speaker 04:
He used locking screws so that their argument that essentially there's some difference.

[00:12:25] Speaker 03:
These red lines on grade reef 22?

[00:12:27] Speaker 03:
Whose lines are those?

[00:12:29] Speaker 04:
We added the annotations on 22.

[00:12:31] Speaker 04:
They added the plane annotations in our opening reef, which is a figure eight.

[00:12:38] Speaker 04:
Figure eight is

[00:12:39] Speaker 04:
simply a different view, and Frasier explains, is the figures one, two, and three.

[00:12:43] Speaker 04:
So everything contained in figure eight, or figure eight contains all the elements that are contained in the first three figures in Frasier.

[00:12:52] Speaker 04:
So the features shown in figures one, two, and three are present in figure eight, although it's shown from a cross-section.

[00:12:58] Speaker 03:
What is it in the prosecution history that gets you to the conclusion that the Patent Honor indisputably

[00:13:05] Speaker 03:
disclaimed everything except when the boreholes and the screw heads are entirely between the plane lines.

[00:13:13] Speaker 04:
Well, there are two things.

[00:13:14] Speaker 04:
There are the pictures themselves.

[00:13:16] Speaker 04:
We can clearly show that.

[00:13:17] Speaker 04:
They're annotated by synthetes and further annotated in arteries.

[00:13:21] Speaker 04:
And second of all, what they said about figure eight, it says the bone screw holes, and hence the heads of the bone screws, are not positioned between the upper and lower plates of the body.

[00:13:30] Speaker 04:
Those are synthetes.

[00:13:32] Speaker 01:
Was there an express disclaimer, though, other than the figures?

[00:13:35] Speaker 04:
Well, that what I just read to you was an express disclaimer.

[00:13:39] Speaker 04:
So you've got the pictures telling the story and then the language that corresponds with the story.

[00:13:45] Speaker 04:
And the technology in Frasier was such that because there were locking screws, the diameter of the borehole was essentially the diameter of the screw head.

[00:13:53] Speaker 03:
I agree with you to the extent that you say that when they drew lines and annotations on Frasier figure 8,

[00:14:01] Speaker 03:
Now it's no longer Fraser's figure, it now becomes their figure.

[00:14:06] Speaker 03:
Absolutely, Your Honor.

[00:14:07] Speaker 03:
But at the same time, those annotations don't necessarily convey necessarily that they gave up everything except for screw heads and boreholes to be entirely between.

[00:14:22] Speaker 03:
Because when you look at the annotated Fraser figure, I mean at best what we see are

[00:14:29] Speaker 03:
the tiniest portion of Fraser's screw heads crossing the boundary over the plain lines.

[00:14:36] Speaker 03:
I guess what I'm wondering is maybe there's a problem with a claim construction that says any screw heads or boreholes that are partly inside and outside the boundary lines.

[00:14:49] Speaker 03:
Maybe there's a problem with that, but that's not necessarily the same thing as saying that they disclaimed

[00:14:56] Speaker 03:
Everything except screw heads and boreholes being entirely within the boundary line.

[00:15:00] Speaker 04:
Well, respectfully, I disagree with how much is below the plane.

[00:15:04] Speaker 04:
But even if, in your words, the tiniest portion is below the plane, the district court's claim says partly or entirely.

[00:15:11] Speaker 04:
That construction is foreclosed if even the tiniest portion is below the plane.

[00:15:16] Speaker 04:
So I see that my time, I assume this is, is it 30 seconds in my opening?

[00:15:22] Speaker 04:
You're done.

[00:15:23] Speaker 04:
We'll restore two minutes of your time.

[00:15:25] Speaker 04:
Thank you.

[00:15:36] Speaker 02:
I would actually like to start with the 207 patent, because upholding proper judgment on that patent alone means that Globus is liable for the full amount of damages.

[00:15:48] Speaker 02:
Now, I'd like to go straight to the 207.

[00:15:49] Speaker 02:
What's the theory for that?

[00:15:50] Speaker 03:
I mean, right now, first of all, you've completely scrambled my brain by making me go to 207.

[00:15:57] Speaker 03:
And before I even allow you to do that, can you tell me the theory on why, if the 207 infringement is sustained, then all the damages blow?

[00:16:06] Speaker 02:
Of course, because the jury provided the same royalty for the entire damages period, and that included both the damages period for the 207 patent, which only that patent was in play, and when all three patents were in play.

[00:16:20] Speaker 02:
And both experts throughout the course of the trial applied a flat rate to whether the 207 patent was infringed or to whether all patents were infringed.

[00:16:30] Speaker 02:
Since he's an expert, applied a 15% royalty below this expert.

[00:16:34] Speaker 02:
Did you make this argument in the red brief?

[00:16:36] Speaker 02:
We did, and towards the end.

[00:16:38] Speaker 02:
All right.

[00:16:39] Speaker 02:
We said a 15% royalty was the flat rate.

[00:16:42] Speaker 02:
For all the patents.

[00:16:43] Speaker 02:
For all the patents, correct.

[00:16:44] Speaker 02:
And we cited Mr. Gearing's testimony where he said, I don't believe that the royalty rate would change, and that the A17549.

[00:16:51] Speaker 02:
And just a word about Mr. Gearing and his false testimony.

[00:16:58] Speaker 02:
Judge Stark is reviewing those issues now.

[00:17:01] Speaker 02:
His testimony was about his credentials, not about his actual qualifications.

[00:17:07] Speaker 02:
We're a master's with coursework towards PhD.

[00:17:11] Speaker 02:
But both parties asked the court to rule on the issues before it, and Mr. Gearing is not one of them.

[00:17:16] Speaker 02:
But in all events, we know what the jury did.

[00:17:17] Speaker 02:
They applied a 15% royalty when only the 207 patent was in play.

[00:17:21] Speaker 02:
We know what Judge Stark did, and this is at A2.

[00:17:24] Speaker 02:
He applied a flat ongoing royalty of 18%.

[00:17:27] Speaker 02:
for infringement by any product of any patent.

[00:17:30] Speaker 00:
And that's how the evidence came in.

[00:17:32] Speaker 02:
So this is not a situation where we don't know how the jury allocated damages.

[00:17:37] Speaker 02:
We know exactly how they allocated damages.

[00:17:39] Speaker 02:
And that means that a proper judgment on the 207 patent is upheld.

[00:17:44] Speaker 02:
The damage is verdict six.

[00:17:47] Speaker 02:
Now, as made clear by the 207 patent, the plain meaning of anchorable within is not synonymous with rigidly connected tube or threaded heads

[00:17:57] Speaker 02:
or other types of locking screws.

[00:17:59] Speaker 02:
And we need to look further, no further than the specification on column five, lines one through two, that describe fixation elements, which is the language used in the claim.

[00:18:09] Speaker 02:
Fixation elements can have a smooth head so that there will not be a rigid connection with the implant.

[00:18:16] Speaker 02:
Globus's construction would read that embodiment out of the claim.

[00:18:20] Speaker 02:
Secondly, claim 30 just describes trellis delinearable tin.

[00:18:25] Speaker 02:
Those, by the way, are also described in the 076 pad.

[00:18:28] Speaker 02:
So there is non-rigid connections, fixation elements, described in the 076 pad.

[00:18:34] Speaker 02:
The claim 30 here describes threadless cylindrical pins.

[00:18:38] Speaker 02:
Column 5, 29 through 31 describes those as trocarps.

[00:18:42] Speaker 02:
That's essentially a hollow nail.

[00:18:44] Speaker 02:
That is distinctly not a rigid connection.

[00:18:48] Speaker 02:
So Glovis's construction would read the dependent claim out of the pad.

[00:18:52] Speaker 02:
And third, recall that the claim says that

[00:18:55] Speaker 02:
The fixation elements have to be anchorable within the boreholes and the partial boreholes.

[00:19:00] Speaker 02:
And if you take a look at page six of the red brief, we have a blow-up of the 616 and the 207 patent figures.

[00:19:07] Speaker 02:
Those partial boreholes are labeled as nine ounces.

[00:19:10] Speaker 02:
There are some little cutouts on the spacer.

[00:19:13] Speaker 02:
Even if you had threaded inserts on those cutouts, you cannot have a rigid connection, particularly with a threadless cylindrical pin as in claim 30.

[00:19:22] Speaker 03:
But your spec does contemplate having threaded heads and threaded boreholes.

[00:19:27] Speaker 03:
Of course.

[00:19:27] Speaker 03:
So just because you have some figures that don't show that doesn't answer the question.

[00:19:32] Speaker 02:
But it also contemplates having things like threadless cylindrical pins.

[00:19:36] Speaker 03:
Yeah, you've got two alternatives.

[00:19:38] Speaker 03:
But every time the word anchor shows up in the spec,

[00:19:42] Speaker 03:
It seems to be really talking about the rigid connection embodiment, not the non-rigid connection embodiment.

[00:19:47] Speaker 02:
An anchor shows up in the stack.

[00:19:48] Speaker 02:
It's talking about anchoring the implant to the bone.

[00:19:51] Speaker 02:
And I think that's important here because the specification actually criticizes.

[00:19:56] Speaker 02:
And this is at column one, lines 31 through 39.

[00:19:59] Speaker 02:
It criticizes a rigid connection between the bone screws of the fixation element and the spacer.

[00:20:06] Speaker 02:
It says it puts too much stress on the spacer.

[00:20:09] Speaker 02:
So Globus' construction would actually read in to the claims, the very problem that the inventors were attempting to solve.

[00:20:15] Speaker 03:
Well, I disagree, because your patent also encompasses an embodiment with the threaded heads and the threaded boreholes.

[00:20:22] Speaker 03:
The whole point of your invention is you've got the securing plate on the backside, so now you have the belt and suspenders.

[00:20:27] Speaker 03:
You didn't disclaim all embodiments that have a possibility of threaded heads and threaded boreholes.

[00:20:35] Speaker 02:
Oh, absolutely not.

[00:20:36] Speaker 02:
In fact, that's a preferred embodiment.

[00:20:38] Speaker 03:
Exactly.

[00:20:38] Speaker 03:
So the fact that there's criticism of an embodiment in the prior art that has only threaded heads and threaded boreholes doesn't necessarily take us into reading the claim as necessarily excluding that embodiment.

[00:20:53] Speaker 02:
But those are between the plate and the bone screws.

[00:20:57] Speaker 02:
not between the bone screws in the spacer.

[00:20:59] Speaker 02:
And that's what the pad criticizes because when you have a rigid connection and the claim says within the boreholes and the partial boreholes, the rigid connection with the partial boreholes is precisely what's criticized in the pad.

[00:21:09] Speaker 03:
How does that answer the question about why the usage of the term anchorable in the written description seems to be devoted to the threaded environment?

[00:21:20] Speaker 02:
I would submit that it's not.

[00:21:22] Speaker 02:
What's anchored is the implant to the bone.

[00:21:24] Speaker 02:
What's used to anchor the implant to the bone, as claimed, is the fixation elements.

[00:21:28] Speaker 02:
Those fixation elements are described as non-rigid and rigid connections.

[00:21:33] Speaker 02:
So that's how anchorable is used.

[00:21:35] Speaker 02:
And whatever anchorable means, it has to be consistent with, for example, on column two, when it's describing anchoring the implant to the bone, there's such thing called, sorry, column three,

[00:21:51] Speaker 02:
There's this, at the bottom, it's called stress healing.

[00:21:54] Speaker 02:
And this is when the plate and the spacer are slidable.

[00:21:59] Speaker 02:
That is described as being anchored to the bone, yet those components can move relative to each other and therefore relative to the bone.

[00:22:07] Speaker 02:
So anchor cannot mean a rigid, locked connection.

[00:22:10] Speaker 02:
In fact, even the ordinary meaning of anchor is not a rigid connection.

[00:22:13] Speaker 02:
We all know what anchor means.

[00:22:15] Speaker 02:
The anchor above to the ocean floor doesn't mean that that boat is locked in place.

[00:22:19] Speaker 02:
It's simply constrained.

[00:22:21] Speaker 02:
That's how the inventors were using it here.

[00:22:23] Speaker 03:
So what does this mean in column five?

[00:22:25] Speaker 03:
Starting in line 11, the head 21 may preferably be provided with an external thread 25, which corresponds to the internal thread 11 of the borehole nine, so that the heads 21 can be anchored in the boreholes nine in a rigid manner.

[00:22:39] Speaker 03:
Anchor.

[00:22:40] Speaker 03:
That seems to be thinking about the word anchor in a very specific way, about rigidly connecting the threaded heads with the threaded boreholes.

[00:22:48] Speaker 02:
It's anchored in the borehole, not to the borehole, anchored in the borehole to a rigid manner.

[00:22:53] Speaker 02:
And it's important to recognize that when it's talking about anchoring, it's talking about anchoring something to the bone.

[00:22:59] Speaker 02:
When it's talking about something rigidly connected, it's talking about the interface between the plate and the fixation elements.

[00:23:05] Speaker 02:
And the patent is entirely consistent throughout in that regard.

[00:23:11] Speaker 06:
Can I move you on to, since you're placing so much reliance on the 207 patent, to the securing plate limitation?

[00:23:25] Speaker 06:
The construction, I guess, is your understanding that the client construction has not been appealed here, and we're just dealing with an infringement question?

[00:23:30] Speaker 06:
That's correct, yes.

[00:23:32] Speaker 06:
Well, when you talk about a securing plate, there's an image of a securing plate.

[00:23:36] Speaker 06:
And that image is not really consistent with when you're looking at this eyebrow stuff and this thing in the middle that's securing plate, right?

[00:23:44] Speaker 06:
So give me your argument as to why the infringement verdict was correct here.

[00:23:49] Speaker 02:
Right.

[00:23:49] Speaker 02:
We never said that a screw is a plate.

[00:23:51] Speaker 02:
We said that the head of the screw is a plate.

[00:23:53] Speaker 02:
And if you take a look, if you're still open on page six on Cynthia's brief, you can see that what's labeled 18 is the exemplified plate.

[00:24:02] Speaker 02:
What's labeled in 16?

[00:24:04] Speaker 02:
It's the referee at stage six.

[00:24:15] Speaker 02:
So 18 is the securing plate.

[00:24:17] Speaker 02:
16 is the mechanism to attach that plate to the implant.

[00:24:22] Speaker 02:
What Globus did was just combine those two components into one, 16 to 18.

[00:24:27] Speaker 02:
But making those things part of an integral structure,

[00:24:29] Speaker 02:
does not change the fact that they have a securing plate.

[00:24:32] Speaker 02:
In fact, Judge Stark confirmed in his J-Mall that his construction did not require the securing plate to be a standalone freestanding structure.

[00:24:41] Speaker 02:
And the jury was permitted to ignore the threaded shaft on their securing plate.

[00:24:46] Speaker 02:
The claim one does not limit the means by which the securing plate has to be attached to the implant.

[00:24:52] Speaker 02:
And the shaft does not turn that securing plate into something other than a securing plate.

[00:24:57] Speaker 02:
In fact, both experts

[00:24:59] Speaker 02:
agreed that they could identify the head.

[00:25:02] Speaker 02:
This is not as if the claim is to a chocolate bunny and we're trying to accuse a block of chocolate.

[00:25:07] Speaker 02:
Every expert could identify the head of the screw as a structure, they could measure it, and it was undisputed that it met Judge Stark's claim construction, planar dimension greater than a thickness, and it's undisputed that that head

[00:25:21] Speaker 02:
blocked the bone screws from backing out.

[00:25:23] Speaker 02:
So the jury was right to find that that was a securing plate.

[00:25:26] Speaker 03:
So the point is, a screw head is still a screw head and serves the normal conventional purpose that the head has, but also, in this particular context, serves a second purpose, which is to be this securing plate.

[00:25:40] Speaker 02:
That's correct, Your Honor.

[00:25:43] Speaker 06:
Can we go back to where we started?

[00:25:45] Speaker 06:
Of course.

[00:25:45] Speaker 06:
Because I caught us off guard on this damages argument.

[00:25:49] Speaker 06:
I mean, the verdict form, the jury was not asked to differentiate between the three patents before it when it awarded damages.

[00:25:59] Speaker 06:
And I think your friend on the other side does talk about at least some testimony by Dr. Gehring that suggests that fewer patents might result in a lesser royalty.

[00:26:10] Speaker 06:
But how much do they really need to show when we are faced

[00:26:14] Speaker 06:
with a damages verdict that deals with these patents.

[00:26:17] Speaker 06:
That is assuming that we disagree with you on at least one of the patents.

[00:26:20] Speaker 02:
All right.

[00:26:21] Speaker 02:
Well, the normal rule applies when it's not clear when there's a bunch of different patents accusing different products.

[00:26:27] Speaker 02:
We don't know how the jury applied the rate to each of those products.

[00:26:31] Speaker 02:
Here, the verdict form laid out, every product infringed every asserted claim.

[00:26:36] Speaker 02:
And the jury wasn't left with much of an option.

[00:26:40] Speaker 02:
Our expert said use a flat rate of 15%

[00:26:43] Speaker 02:
They say he equivocated, but he said twice the rate is 15% no matter which patent has been infringed.

[00:26:50] Speaker 02:
And their own expert applied a flat rate.

[00:26:53] Speaker 02:
Granted, it was a different rate, but a flat rate.

[00:26:55] Speaker 02:
And Judge Stark knew this when he applied a flat rate for the ongoing royalty.

[00:26:59] Speaker 02:
So it's not a situation where we don't know which products infringed which patents.

[00:27:05] Speaker 02:
Every product infringed every patent, according to the jury.

[00:27:09] Speaker 02:
And they applied exactly what the experts were telling them to apply, a flat rate, whether it was to the 207 patent alone or to all patents.

[00:27:18] Speaker 02:
And that's precisely what Glovis' expert was asking them to do as well.

[00:27:23] Speaker 02:
So we know how the jury allocated the damages.

[00:27:27] Speaker 01:
Doesn't the instruction, doesn't it assume that a flat rate applies if you have infringement as to all patents?

[00:27:36] Speaker 02:
The instruction wasn't specific as to one or all, and that instruction was agreed upon.

[00:27:41] Speaker 02:
They had not suggested it.

[00:27:44] Speaker 06:
Yeah, but doesn't that cut against you rather than for you?

[00:27:46] Speaker 06:
You agreed to it too, and it doesn't differentiate.

[00:27:49] Speaker 02:
Right, because after the trial, everybody knew during the charge conference that both experts were applying a rate, the same rate, regardless of whether it's a 207 patent alone or all three patents together.

[00:28:00] Speaker 02:
There was no reason to instruct.

[00:28:02] Speaker 02:
That would have just confused the jury.

[00:28:09] Speaker 02:
As to the, with my remaining time, as to the position between this eval, first of all, there was no express disclaimer.

[00:28:21] Speaker 02:
We never said that Frazier did not show partly between or substantially between or entirely between.

[00:28:26] Speaker 02:
We just said Frazier didn't show between.

[00:28:28] Speaker 03:
Do you agree that your annotation during the prosecution history to figure A to Frazier shows those boundary lines, those plain lines,

[00:28:38] Speaker 03:
cutting through the screw heads such that the Fraser screw heads are partly inside the boundaries and partly outside the boundaries.

[00:28:46] Speaker 02:
I would submit, Your Honor, two things.

[00:28:47] Speaker 02:
One, we're reading an awful lot of precision into that figure.

[00:28:51] Speaker 03:
Where those lines... Well, do you see what I see?

[00:28:54] Speaker 02:
How about, let's just... It's our statement, no doubt.

[00:28:56] Speaker 03:
So whatever you say... Yeah, but when we are looking at the figure together, your annotated figure eight, do you see what I see?

[00:29:03] Speaker 02:
If I look at their blow up, I see these red marks and I think there's an argument there.

[00:29:08] Speaker 02:
But the issue is... Just agree that it's there.

[00:29:12] Speaker 02:
Okay.

[00:29:13] Speaker 02:
We'll agree that it's there.

[00:29:15] Speaker 03:
Now what do we do?

[00:29:16] Speaker 03:
Now we look at... How do we defend a claim construction that says that anything that's entirely between or partly between and therefore partly outside the boundary lines

[00:29:29] Speaker 03:
In fact, it infringes this claim.

[00:29:33] Speaker 02:
There's no express disclaimer.

[00:29:35] Speaker 02:
This would be an implied disclaimer.

[00:29:37] Speaker 02:
The problem is that figure eight was not the only figure in the file history.

[00:29:41] Speaker 02:
There was also figure three with plain lines drawn.

[00:29:43] Speaker 02:
It appeared to show that the boreholes were outside.

[00:29:46] Speaker 02:
And this annotation that Loeb has provided in their figure two, which is on- We're just talking about figure eight.

[00:29:51] Speaker 03:
I mean, the public, competitors,

[00:29:55] Speaker 03:
the examiner, they're entitled to rely on each and every individual figure that's annotated or argued about by the applicant.

[00:30:02] Speaker 03:
Let's just talk about Figure 8.

[00:30:04] Speaker 03:
Is there anyone in my mind that matters for the purposes of prosecution disclaiming?

[00:30:10] Speaker 02:
Well, maybe that's true, but what also matters is what Frazier discloses.

[00:30:14] Speaker 02:
No disclosure about the importance of the boreholes being between the flames.

[00:30:18] Speaker 02:
This Figure 2 embodiment, that they drew the red lines, had they drawn those lines,

[00:30:22] Speaker 02:
from back corner to front corner as in Figure 8, those boreholes would be entirely outside of those planes.

[00:30:29] Speaker 02:
So Frasier itself is ambiguous.

[00:30:32] Speaker 02:
And it's hard to imagine how there could be a clear and unmistakable and unambiguous disavow of claim scope when the reference itself is ambiguous.

[00:30:41] Speaker 02:
I'm out of time here.

[00:30:43] Speaker 06:
You can finish it.

[00:30:44] Speaker 06:
Do you have your answer?

[00:30:45] Speaker 03:
Unless we have more questions for you.

[00:30:50] Speaker 02:
Thank you.

[00:30:58] Speaker 03:
Could you start with the damages question?

[00:30:59] Speaker 03:
We'd be happy to, Your Honor.

[00:31:02] Speaker 04:
The damages form did not differentiate between the patents.

[00:31:07] Speaker 04:
And it's under the general rule.

[00:31:09] Speaker 04:
He referred to a flat rate.

[00:31:10] Speaker 04:
Well, our expert testified up to a range of 3% to 5%.

[00:31:14] Speaker 04:
You'll see 17,700 of the appendix.

[00:31:18] Speaker 04:
So it's really pure speculation as to what the jury would have done here.

[00:31:23] Speaker 04:
And their own expert, Mr. Gehring, not Dr. Gehring,

[00:31:28] Speaker 04:
acknowledge that they'd be negotiating for less in the case of less than three patents, and that the royalty rate could decrease to 10%.

[00:31:34] Speaker 04:
That's at 17,556.

[00:31:36] Speaker 04:
So there should be no question that the damages verdict is gone entirely if you reverse as to one of these issues.

[00:31:44] Speaker 04:
Second, on Anchorable Within, Mr. Loews said the ordinary meaning of connection does not require rigid connection.

[00:31:50] Speaker 04:
I'd like to quote their definition from Webster's.

[00:31:54] Speaker 04:
Plain meaning general dictionary, as you find it on page 1002 of the appendix.

[00:31:58] Speaker 04:
It says to anchor is to secure firmly colon fix.

[00:32:04] Speaker 04:
Now they omitted the word fix in their quotation of this definition in their briefs.

[00:32:09] Speaker 04:
But it speaks volumes.

[00:32:11] Speaker 04:
The idea of an anchor is to hold.

[00:32:14] Speaker 04:
And if something doesn't hold, it's not serving an anchoring function.

[00:32:18] Speaker 01:
An anchor doesn't necessarily hold rigidly.

[00:32:22] Speaker 01:
Like the example of an anchor on a ship, the road of the rope, well,

[00:32:27] Speaker 01:
will hold the boat secure to the ocean floor, but yet the boat has movement, just like in the pans, there's some movement that's medically necessary, correct?

[00:32:36] Speaker 04:
There is some movement that's medically necessary, but note that what doesn't move is the anchor that doesn't move, the rope moves, the boat moves.

[00:32:44] Speaker 04:
But where the anchor is, if it's not holding, it's not anchoring.

[00:32:48] Speaker 04:
You're drifting across the lake, the ocean, whatever it might happen to be.

[00:32:52] Speaker 04:
So their own definition really undermines their plain meaning argument.

[00:32:57] Speaker 04:
On cylindrical pins, note that the claims of the 076 patent say bone screws.

[00:33:04] Speaker 04:
So the specification actually talks about, and I believe I heard Mr. Lowe to acknowledge that the cylindrical pins could create a firm connection.

[00:33:13] Speaker 04:
But even if they can't, if they're threadless, then they're not a bone screw.

[00:33:18] Speaker 04:
And the patent claims asserted against Globus are for bone screws.

[00:33:22] Speaker 03:
So I don't know, what's that, is that your argument with respect to dependent claim 30 or whatever it is about the threadless cylindrical pins?

[00:33:31] Speaker 04:
Right, the threadless cylindrical pins, the 076 patent is silent on whether they create a firm connection.

[00:33:37] Speaker 04:
I thought I heard Mr. Lowe suggest that they could create a firm connection.

[00:33:41] Speaker 04:
They operate like a nail.

[00:33:42] Speaker 04:
They create it in a different way.

[00:33:43] Speaker 03:
But the critical thing for purposes of- But we're talking about Angrable within in the 207 patent.

[00:33:50] Speaker 03:
Right?

[00:33:50] Speaker 03:
And the 207 patent is talking about these fixation elements.

[00:33:54] Speaker 04:
And then Claim 30 talks about how fixation elements mean red-lipped lengthable span.

[00:34:03] Speaker 04:
And I don't believe Claim 30 is assertive against us, Your Honor.

[00:34:05] Speaker 03:
No, but it's a way to understand what does fixation elements mean in terms of can it or what does anchor mean with respect to those fixation elements.

[00:34:16] Speaker 04:
And the critical thing to understand is Claims 38 to 41.

[00:34:20] Speaker 04:
which don't contain the anchorable within limitation at all.

[00:34:25] Speaker 04:
We're not asserted here, or are not asserted here.

[00:34:27] Speaker 04:
So, though anything in the spec, and we acknowledge that the spec of the 207 does refer to some non-rigid connections, it relates to those claims.

[00:34:37] Speaker 04:
The idea of anchorability, the capability to anchor, refers to a firm connection.

[00:34:45] Speaker 04:
Last on,

[00:34:47] Speaker 04:
on position between, I understood Mr. Lowe to agree that we all see these diagrams the same way.

[00:34:56] Speaker 04:
And it's clear that the best, the public notice function of the patent laws is best served by holding them to what they said.

[00:35:05] Speaker 04:
And it wasn't just in the picture, they said the bone screw holes formed in the plate and hence the heads of the bone screws are not positioned between the upper and lower planes of the body.

[00:35:15] Speaker 04:
So we think that that is unequivocal and clear and dispositive as to the position between the two.

[00:35:22] Speaker 06:
If there are no further questions, here is the court to reverse.

[00:35:28] Speaker 06:
Thank you.