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Stern v. Globus Medical, Inc.

United States District Court, D. Delaware

September 24, 2018

JOSEPH D. STERN, Plaintiff,
v.
GLOBUS MEDICAL, INC., Defendant.

          Kenneth Laurence Dorsney, MORRIS JAMES LLP, Wilmington, DE; Joel A. Kauth (argued) and Mark Yeh, KPPB LLP, Anaheim, CA. Attorneys for Plaintiffs.

          Adam Poff, George D. Moustakas (argued), Attorneys for Defendant.

          MEMORANDUM OPINION

          ANDREWS U.S. DISTRICT JUDGE

         Presently before the Court are Plaintiffs Motion for Summary Judgment of Infringement (D.I. 65) and Defendant's Motion for Summary Judgment of Non-Infringement Based on Offer for Sale (D.I. 69). The parties have fully briefed the issues. (D.I. 66, 70, 74, 75, 78, 79). The Court held oral argument on September 11, 2018. (D.I. 84 ("Tr.")). For the reasons set forth below, I grant Defendant's Motion for Summary Judgment of Non-Infringement Based on Offer for Sale and dismiss Plaintiffs Motion of Summary Judgment of Infringement as moot.

         I. Background

         On February 17, 2016, Joseph D. Stern filed suit against Globus Medical, Inc. alleging infringement of U.S. Patent Nos. 8, 556, 895 (the '"895 Patent"), 8, 858, 556 (the '"556 Patent"), and 9, 095, 381 (the '"381 Patent"). (D.I. 1). On August 8, 2016, Defendant filed an Answer and Counterclaim for Declaratory Judgment of Non-Infringement and Invalidity. (D.I. 12). On March 27, 2017, Plaintiff stipulated to dismissal of the '381 Patent, leaving the '895 and '556 Patents in the case. (D.I. 40). This Court ordered briefing for early summary judgment on the issue of offer for sale on August 21, 2017. (D.I. 57). Claim construction was complete on August 29, 2017. (D.I. 61).

         The remaining patents-in-suit share a common specification. They claim cervical plating systems and methods of cervical fusion using these systems. For purposes of infringement based on offer for sale, the following claim of the '895 Patent is representative:

         1. An anterior cervical plating system comprising:

at least one pre-positioned cervical plate defining a cervical plate body having a lower horizontal face configured to be disposed adjacent a first vertebral body and an upper horizontal face opposite said fewer horizontal face, and having at least a first vertebral anchoring mechanism configured to attach to the first vertebral body and at least one interlocking portion arranged on the cervical plate body along a longitudinal axis thereof;
at least one revision cervical plate defining a revision plate body having at least a second vertebral anchoring mechanism configured to attach to a second vertebral body and at least one armature extending from the revision plate body along a longitudinal axis thereof, the at least one armature having a cooperative interlocking portion disposed thereon;
wherein the at least one cooperative interlocking portion of the revision plate is configured to cooperatively engage the at least one interlocking portion of the pre-positioned cervical plate to provide a stabilizing interconnection between adjacent pre-positioned cervical plate and the revision cervical plates, the stabilizing interconnection being capable of resisting movement of the adjacent cervical plates in at least one dimension;
wherein the cooperative interlocking portion of the revision cervical plate is configured such that it initially engages the interlocking portion of the pre-positioned cervical plate from above the upper horizontal face of the pre-positioned cervical plate;
wherein no threaded connector is inserted through or between any portion of the at least one armature in forming and permanently securing the stabilizing interconnection between the interlocking portion of the pre-positioned cervical plate and the cooperative interlocking portion of the revision plate; and
wherein the cooperative interlocking portion of the revision plate does not directly anchor into the first vertebral body or the second vertebral body when the ...

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