Alphatec On-Sale Arguments Not Barred After Patent Tribunal Review

Alphatec Spine Inc. can argue NuVasive Inc. spinal implant patents are invalid under patent law’s on-sale bar, a California federal judge ruled, refusing to find the challenge off-limits after a tribunal reviewed the patents.

Judge Cathy Ann Bencivengo in the U.S. District Court for the Southern District of California denied NuVasive’s attempt to strike the argument by Alphatec. The judge said inter partes review estoppel doesn’t apply to Alphatec’s on-sale bar challenge.

IPR estoppel blocks challengers from raising in district court any ground that was raised, or reasonably could have been raised, at the board.

NuVasive sued Alphatec in 2018, ...