NuVasive Inc. v. Alphatec Holdings Inc., et al.

Analysis Group was retained by Winston & Strawn on behalf of Alphatec Spine and Alphatec Holdings, the defendants in a patent infringement lawsuit filed in the US District Court for the Southern District of California. The plaintiff, medical device company NuVasive, alleged that Alphatec infringed several NuVasive patents to develop its Battalion Lateral System and Squadron Retractor, which are used in spinal surgeries. NuVasive sought a total of $10.5 million in claimed lost profits and royalty damages.

An Analysis Group team led by Senior Advisor Keith R. Ugone, and including Vice Presidents Minh Doan, Alex Fiore, and Leah Kitashima, conducted a rebuttal assessment of NuVasive’s claimed damages.  Dr. Ugone testified at deposition and trial that NuVasive failed to prove the magnitude of the lost profits claimed as a result of Alphatec’s alleged infringement. Dr. Ugone also testified as to various alternative reasons for NuVasive’s claimed lost sales, the economic impact of non-infringing alternatives available to Alphatec, and the impact on NuVasive’s lost profits claim of competing products in the marketplace.  Dr. Ugone testified that NuVasive’s claimed damages had been significantly overstated and were no more than $1.147 million, including lost profits and royalties.

A jury found that the patents-in-suit had been infringed by Alphatec and that a subset of the challenged claims were not invalid. Consistent with Dr. Ugone’s testimony, however, the jury awarded NuVasive $1.147 million in damages rather than the requested $10.5 million.