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Altus Partners, LLC v. Globus Medical, Inc.

United States District Court, Third Circuit

October 28, 2013




Presently before the Court are Plaintiffs/Counterclaim Defendant Altus Partners, LLC’s (“Altus”) and Defendant/Counterclaimant Globus Medical Inc.’s (“Globus”) Claim Construction Briefs. This Memorandum addresses the appropriate construction of the disputed terms.


On February 14, 2013, Altus filed a patent infringement action against Globus. The patent at issue is United States Patent No. 8, 162, 989, entitled “Orthopedic Rod System” (“the 989 patent”).[1]

A. The 989 Patent Technology

Altus owns the 989 patent. As the title suggests, the 989 patent is generally directed to a “pedicle screw and rod system . . . for joining two or more bone segments, such as vertebrae.” Joint Appendix[2] Ex. 1. col. 1, 11. 14-16. The “Background of the Invention” discloses that “pedicle screw systems used for fastening spinal rod systems to the pedicle region of two or more vertebral bodies exist in a variety of forms.” Id., col. 1, 11. 20-22. However, prior art pedicle screw systems had associated problems of “difficulty of installation and cross-threading.” Id., col. 1, 11. 30-31. For example, in some prior art designs, installation was difficult because “the surgeon must manipulate and tighten the cap while holding the pedicle screw and rod at a particular desired angle.” Id., col. 1, 11. 28-30. The 989 patent was intended to overcome the problems associated with prior known designs. Id., col. 1, 11. 40-42.

All seven claim terms/phrases in dispute are found in independent claim 1, bolded and underlined below:

1. An apparatus for bridging one or more vertebrae of a spine, the apparatus comprising:
a fastener having a threaded shaft adapted to be driven into the vertebrae and a head at a proximal end of the shaft;
a tulip having: (a) outer and inner walls defining opposing, and generally circularly open, first and second ends, (b) opposing first and second slots extending from the open first end toward the open second end, and (c) first and second grooves, each extending in opposing relation to one another along the inner wall from at least one of the first and second slots toward the other of the first and second slots, wherein: (i) the head of the fastener is retained within the tulip and proximate to the second end thereof, with the threaded shaft extending out of the tulip through the second opening thereof, and (ii) the opposing first and second slots are sized and shaped to receive a rod therethrough in a transverse orientation with respect to the threaded shaft of the fastener, such that the rod passes over the head; and
a cap including: (a) a generally cylindrical body having first and second opposing ends, an outer surface, and a bore extending through the first and second opposing ends of the body along a central, longitudinal axis, (b) first and second shoulders disposed in opposing relationship to one another proximate to the first end of the body, and extending radially away, and circumferentially along, the other surface of the body, (c) third and fourth shoulders disposed in an opposing relationship proximate to the second end of the body, and extending radially away, and circumferentially along, the outer surface of the body, wherein:
the third and fourth shoulders are sized and shaped to be: (i) received into the first and second slots, respectively, to positions adjacent to the first and second grooves, respectively, and (ii) slidingly received into the first and second grooves by rotation of the cap about the longitudinal axis; and
at least portions of the first and second shoulders are sized and shaped to slide over, and overlie, respective portions of a lip of the tulip at the periphery of the first open end of the tulip by the rotation of the cap about the longitudinal axis.

Id., col. 5, 1. 40- col. 6, 1. 15.


In order to prevail in a patent infringement action, a plaintiff must show that the patent claim “covers the alleged infringer’s product or process.” Markman v. Westview Instruments, Inc., 517 U.S. 370, 374 (1996). Thus, the initial step in an infringement analysis focuses on determining the meaning and scope of the claims of the patent. Wyeth v. Abbott Labs., No. 08-230, 2010 WL 3001913, at *1 (D.N.J. July 28, 2010) (citing Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 988 (Fed. Cir 1995)). Notably, “[c]laim construction is a matter of law . . . therefore, it is ‘[t]he duty of the trial judge . . . to determine the meaning of the claims at issue.’” Id. (citing Exxon Chem. Patents, Inc. v. Lubrizoil Corp., 64 F.3d 1553, 1555 (Fed. Cir. 1995)).

In Phillips v. AWH Corp., The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) emphasized that “[i]t is a bedrock principle of patent law that the claims of a patent define the invention to which the patentee is entitled the right to exclude.” 415 F.3d 1303, 1312 (internal quotations omitted) (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (“[W]e look to the words of the claims themselves . . . to define the scope of the patented invention.”)) Generally, the words of a claim are given their “ordinary and customary meaning, ” which is defined as “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Phillips, 415 F.3d at 1312-13 (citations omitted). In this regard, the Federal Circuit has noted the following:

It is the person of ordinary skill in the field of the invention through whose eyes the claims are construed. Such person is deemed to read the words used in the patent documents with an understanding of their meaning in the field and to have knowledge of any special meaning and usage in the field. The inventor’s words that are used to describe the invention-the inventor’s lexicography-must be understood and interpreted by the court as they would be understood and interpreted by a person in that field of technology. Thus the court starts the decisionmaking process by reviewing the same resources as would that person, viz., the patent specification and the prosecution history.

Id. (quoting Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998)).

Importantly, in determining the meaning of a claim as understood by a person of ordinary skill in the art, the court may look to various sources from which the proper meaning may be discerned. Wyeth, 2010 WL 3001913, at *2. Specifically, “[t]hese sources include ‘the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.’” Phillips, 415 F.3d at 1314 (citations omitted). “While a court is permitted to turn to extrinsic evidence, such evidence is generally of less significance and less value in the claim construction process. Extrinsic evidence would include evidence that is outside the patent and prosecution history, and may include expert testimony, dictionaries and treatises.” Wyeth, 2010 WL 3001913, at *2. As courts have explained, “[s]uch evidence, though ‘shed[ding] useful light on the relevant art, ’ is ‘less significant than the intrinsic record in determining the legally operative meaning of claim language, ’ and ‘is unlikely to result in a reliable interpretation of patent claim scope unless considered in context of the intrinsic evidence.’” Eppendorf AG v. Nanosphere, Inc., No. 09-0504, 2010 WL, 2757097, at *2 (D. Del. July 12, 2010)(citing Phillips, 415 F.3d at 1317-19).


A. Groove

Altus’s Proposed Construction

Globus’s Proposed Construction

No construction necessary - the plain and ordinary meaning applies.

If the Court decides to construe the term, it means “long narrow channels or depressions”

channel with a side inclined in a radially outward direction

Altus proposes that the term “groove” does not need to be construed because it is a commonly understood term with no technical meaning within the context of the 989 patent. Globus argues that the term “groove” must include “a side inclined in a radially outward direction.”

Globus also argues that in every instance that “grooves” and “shoulders” are described in the originally-filed application that issued as the 989 patent, the “grooves” and “shoulders” are described as including an incline or angled surface.

Globus cites numerous examples from the specifications and the procedural history, all of which make reference to the “groove” having angled sides or dove-tail like grooves. Claims are generally given their plain meaning unless a patentee: “(1) sets out a definition and acts as his own lexicographer, ” or (2) “disavows the full scope of a claim term either in the specification or during prosecution.” Thorner vs. Sony Computer Entertainment America, LLC, 669 F.3d 1362, 1365, (Fed. Cir. 2012). The 989 patent does not show any clear expression that the meaning of the term “groove” should depart from its common meaning.

Globus argues that, “[w]here the specification ‘describes the features of the ‘present invention’ as a whole, ’ the Court should limit the scope of the claims to the patentees characterization of the present invention.” Globus Opening Br. at 12. The cases cited by Globus can be distinguished from the present factual situation. In Mangosoft Inc. vs. Oracle Corp., 525 F.3d 1327, 1331 (Fed. Cir. 2008), the Court did limit the term “local” to mean directly-attached memory device because, in part, “the specification specifically contrasts local memory devices with ‘network memory devices’, which are remote, network devices providing centralized shared storage for multiple ...

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