San Diego-based NuVasive, Inc. filed two petitions last Friday with the Patent Trial and Appeal Board for inter partes review of Medtronic subsidiary Warsaw Orthopedic, Inc.’s U.S. Pat. No. 8,251,997. The sole listed inventor of the ‘997 patent is Dr. Gary Michelson.
The ‘997 patent is entitled “Method for Inserting an Artificial Implant Between Two Adjacent Vertebrae Along a Coronal Plane” and “relates generally to instrumentation and methods of performing surgical procedures on the human thoracic and lumbar spine along the lateral aspect of the spine and from a true lateral or anterolateral approach, and specifically to the surgical correction of thoracic and lumbar disc disease and spinal deformities where concomitant fusion is desired.” Figure 13 from the ‘997 patent is shown below:
NuVasive’s first and second petitions collectively seek review of all 30 of the claims of the ‘997 patent, asserting the claims are obvious over a number of references. The associated exhibits can be found by visiting the Board’s website, entering the patent number 8251997, and clicking on the Search button.
Medtronic and NuVasive have a history of spinal patent infringement litigation. In 2008, Medtronic filed a patent lawsuit against NuVasive relating to spinal implants, and NuVasive filed patent infringement counterclaims. The first phase of this litigation went to trial in 2011, where Medtronic won $101 million in damages and NuVasive won $660,000, and is still ongoing.
Of note, the ‘997 patent, among others, was asserted by Warsaw against NuVasive in another pending patent infringement lawsuit originally filed in the Northern District of Indiana. The case has since been transferred to the Southern District of California. Warsaw’s alleged infringement contentions against NuVasive with respect to the ‘997 patent can be found here.