Globus Medical, Inc.v.Flexuspine, Inc.

Patent Trial and Appeal Board

Jun 3, 2016

10634950 (P.T.A.B. Jun. 3, 2016)

Trials@uspto.gov Paper 15
571-272-7822 Entered: June 3, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

GLOBUS MEDICAL, INC.,
Petitioner,

v.

FLEXUSPINE, INC.,
Patent Owner.
____________

Case IPR2015-01749
Patent 7,204,853 B2
____________

Before WILLIAM V. SAINDON, HYUN J. JUNG, and
TIMOTHY J. GOODSON, Administrative Patent Judges.

SAINDON, Administrative Patent Judge.

JUDGMENT
Granting Request for Adverse Judgment After Institution of Trial
37 C.F.R. § 42.73(b)
IPR2015-01749
Patent 7,204,853 B2

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I. INTRODUCTION
Globus Medical, Inc. filed a Petition requesting inter partes review of
claims 1 and 5 of U.S. Patent No. 7,204,853 B2 (Ex. 1001, “the ’853
patent”). Paper 1. On February 24, 2016, we instituted inter partes review
of claim 5 of the ’853 patent. Paper 11, 18. On May 24, 2016, Flexuspine,
Inc. (“Patent Owner”) filed a Request for Adverse Judgment asking that the
Board cancel claim 5 of the ’853 patent. Paper 14. “In view of the
cancellation of all claims remaining in this proceeding,” Patent Owner
submits that its request for adverse judgment should be granted pursuant to
37 C.F.R. § 42.73(b)(2). Id. at 1.
II. DISCUSSION
A party may request entry of adverse judgment against itself at any
time during a proceeding. 37 C.F.R. § 42.73(b). Also, under 37 C.F.R.
§ 42.73(b)(2), actions construed as a request for entry of adverse judgment
include cancellation of a claim such that the party has no remaining claim in
the trial. Here, Patent Owner has requested cancellation of all the claims
identified for trial and expressly requested entry of adverse judgment.
Paper 14. Patent Owner’s requests for cancellation of claim 5 of the ’853
patent and for entry of adverse judgment are granted.
III. ORDER
For the foregoing reasons, it is
ORDERED that judgment is entered against Patent Owner under
37 C.F.R. § 42.73(b);
FURTHER ORDERED that a certificate canceling claim 5 of U.S.
Patent No. 7,204,853 B2 will be issued in due course pursuant to 35 U.S.C.
§ 318(b) and 37 C.F.R. § 42.80;
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Patent 7,204,853 B2

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FURTHER ORDERED that this constitutes a final written decision
under 35 U.S.C. § 318(a); and
FURTHER ORDERED that this proceeding is hereby terminated.

IPR2015-01749
Patent 7,204,853 B2

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PETITIONER:
George D. Moustakas
gdmoustakas@hdp.com

David P. Utykanski
davidu@hdp.com

PATENT OWNER:

Brett M. Pinkus
pinkus@fsclaw.com