Moskowitz Family LLC v. NuVasive LLC

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Moskowitz Family LLC (Maryland)
  • Defendant: NuVasive, LLC, and NuVasive, Inc. (Delaware)
  • Plaintiff’s Counsel: Farnan LLP; Avantech Law, LLP
• Case Identification: 1:25-cv-00711, D. Del., 02/04/2026
• Venue Allegations: Venue is asserted on the basis that Defendant NuVasive is a Delaware corporation and therefore resides in the judicial district.
• Core Dispute: Plaintiff alleges that Defendant’s spinal implant systems infringe ten U.S. patents related to intervertebral spacers and fixation devices for spinal fusion surgery.
• Technical Context: The technology concerns medical devices used in spinal fusion surgery, aiming to provide stability and promote bone growth between vertebrae with minimally invasive, "zero-profile" implants that integrate spacing and fixation functions.
• Key Procedural History: The complaint alleges an extensive pre-suit history, including detailed technical discussions between the inventor, Dr. Moskowitz, and NuVasive executives and legal counsel between 2010 and 2011. A formal notice letter was allegedly sent to NuVasive in 2015, identifying several of the asserted patents and related patent applications. Plaintiff also alleges that NuVasive cited the asserted patents during its own patent prosecution activities. This history forms the basis for Plaintiff's willful infringement allegations.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 7,972,363 - "Bi-directional fixating/locking transvertebral body screw/intervertebral cage stand-alone constructs and posterior cervical and lumbar interarticulating joint stapling guns and devices for spinal fusion," issued July 7, 2011.

The Invention Explained

• Problem Addressed: The patent describes complications associated with traditional spinal fusion techniques, including misplaced screws, implant pullout, and injuries resulting from static, non-expandable implants Compl. ¶9 It specifically notes the risks of supplemental fixation methods like anterior plating (e.g., esophageal or vascular injury) and posterior pedicle screws (e.g., nerve injury, muscle disruption) ’363 Patent, col. 3:1-15
• The Patented Solution: The invention is a "stand-alone" intervertebral construct that combines an intervertebral cage (a spacer) with integrated fixation screws ’363 Patent, abstract This "zero-profile" device is designed to be placed within the disc space and secured directly to the adjacent vertebrae using bi-directional screws that pass through the cage, obviating the need for a separate, externally-projecting plate ’363 Patent, col. 1:26-34
• Technical Importance: This integrated approach was designed to reduce surgical complexity and morbidity by providing fixation and spacing in a single, low-profile device, thereby avoiding the complications of separate plating systems Compl. ¶10

Key Claims at a Glance

• The complaint asserts infringement of at least claim 1 ’363 Patent, col. 29:16-56 Compl. ¶50
• Independent Claim 1 includes the following essential elements:
  • An intervertebral cage for maintaining disc height, including a first internal screw guide and a second internal screw guide.
  • A first screw member having a screw head, a tapered end, and a threaded body disposed within the cage.
  • A second screw member having a screw head, a tapered end, and a threaded body disposed within the cage.
  • A first screw locking mechanism that prevents the screw members from pulling out of the internal screw guides.
• The complaint reserves the right to assert infringement of other claims Compl. ¶49

U.S. Patent No. 9,005,293 - "Bi-directional fixating transvertebral body screws and posterior cervical and lumbar interarticulating joint calibrated stapling devices for spinal fusion," issued April 14, 2015.

The Invention Explained

• Problem Addressed: The patent addresses the need for spinal implants that can be custom-fit to a patient's anatomy to optimize placement and minimize challenges during insertion, while also reducing disruption to muscles and nerves Compl. ¶10
• The Patented Solution: The invention describes an expandable intervertebral implant made of "sliding boxes" that can be adjusted in height by an "adjuster" mechanism ’293 Patent, col. 5:61-6:11 This allows the device to be inserted in a compressed state and then expanded in-situ to a desired height, providing a customized fit between the vertebrae. The device also incorporates bi-directional fixation screws similar to those described in the '363 patent family.
• Technical Importance: The expandable nature of the implant allows for a more minimally invasive insertion and a more precise, "custom-fit" restoration of disc height compared to static-sized implants Compl. ¶10

Key Claims at a Glance

• The complaint asserts infringement of at least claim 43 ’293 Patent, col. 15:1-10 Compl. ¶73
• Independent Claim 43 includes the following essential elements:
  • A self-drilling bone fusion screw apparatus.
  • A first sliding box and a second sliding box positioned relative to the first.
  • A first screw member with a tapered end and threaded body disposed within the first sliding box.
  • A second screw member with a tapered end and threaded body disposed within the second sliding box.
  • An adjuster for adjusting the height of the sliding boxes.
• The complaint reserves the right to assert infringement of other claims Compl. ¶72

Multi-Patent Capsules

• Patent Identification: U.S. Patent No. 9,301,854, "Bi-directional fixating transvertebral body screws and posterior cervical and lumbar interarticulating joint calibrated stapling devices for spinal fusion," issued April 5, 2016.

• Technology Synopsis: This patent relates to intervertebral implants that combine a spacer function with bi-directional transvertebral screws for fixation, similar to the '293 patent. The technology provides a stand-alone fusion device intended to obviate the need for supplemental plating.

• Asserted Claims: At least claim 1 is asserted Compl. ¶93

• Accused Features: The complaint alleges that the Brigade and CoRoent systems infringe the '854 patent Compl. ¶92

• Patent Identification: U.S. Patent No. 9,924,940, "Bi-directional fixating transvertebral body screws, zero-profile horizontal intervertebral miniplates, expansile intervertebral body fusion devices, and posterior motion-calibrating interarticulating joint stapling device for spinal fusion," issued March 27, 2018.

• Technology Synopsis: This patent describes expandable intervertebral fusion devices. The technology focuses on an implant that can be adjusted in size after being placed in the intervertebral space, providing a custom fit and distraction of the vertebrae.

• Asserted Claims: At least claim 22 is asserted Compl. ¶116

• Accused Features: The complaint alleges that the X-Core systems infringe the '940 patent Compl. ¶115

• Patent Identification: U.S. Patent No. 10,016,284, "Zero-profile expandable intervertebral spacer devices for distraction and spinal fusion and a universal tool for their placement and expansion," issued July 10, 2018.

• Technology Synopsis: The patent discloses an expandable intervertebral spacer with a "zero-profile" design, meaning it does not protrude beyond the vertebral bodies. The device expands via a wedge mechanism driven by a rotation screw to distract the disc space.

• Asserted Claims: At least claim 1 is asserted Compl. ¶139

• Accused Features: The complaint alleges that the TLX systems infringe the '284 patent Compl. ¶138

• Patent Identification: U.S. Patent No. 10,925,753, "Bi-directional fixating/locking transvertebral body screw/intervertebral cage stand-alone constructs," issued February 23, 2021.

• Technology Synopsis: This patent relates to stand-alone intervertebral cages that incorporate bi-directional screws for fixation. It describes a screw locking mechanism to prevent screw back-out and an intervertebral cage with internal angled screw guides.

• Asserted Claims: At least claim 31 is asserted Compl. ¶159

• Accused Features: The complaint alleges that the Base and CoRoent systems infringe the '753 patent Compl. ¶158

• Patent Identification: U.S. Patent No. 11,376,136, "Expandable spinal implant and tool system," issued July 5, 2022.

• Technology Synopsis: The patent describes an expandable spinal implant system that includes the implant and a specialized tool for its insertion and expansion. The implant expands via an adjuster mechanism to restore disc height.

• Asserted Claims: At least claim 1 is asserted Compl. ¶182

• Accused Features: The complaint alleges that the TLX and MOD-EX PL systems infringe the '136 patent Compl. ¶181

• Patent Identification: U.S. Patent No. 11,771,567, "Artificial disc system," issued October 3, 2023.

• Technology Synopsis: This patent describes a total artificial disc system for posterior insertion. It includes parallel plates that move apart and a core that permits relative motion between vertebral endplates, designed to preserve motion rather than fuse the joint.

• Asserted Claims: At least claim 1 is asserted Compl. ¶205

• Accused Features: The complaint alleges that the Simplify systems infringe the '567 patent Compl. ¶204

• Patent Identification: U.S. Patent No. 12,144,743, "Intervertebral implant," issued November 19, 2024.

• Technology Synopsis: This patent covers an intervertebral implant with a novel screw locking mechanism using leaf springs that interact with ratcheted screw heads. This design allows screws to be advanced but prevents them from backing out.

• Asserted Claims: At least claim 1 is asserted Compl. ¶225

• Accused Features: The complaint alleges that the Base, Brigade, and CoRoent systems infringe the '743 patent Compl. ¶224

• Patent Identification: U.S. Patent No. 12,491,088, "Expandable spinal spacer device," issued December 9, 2025.

• Technology Synopsis: The patent discloses a "zero-profile" expandable intervertebral spacer for spinal fusion. The device is designed to be inserted via various surgical approaches and features unique mechanisms for calibrated expansion.

• Asserted Claims: At least claim 1 is asserted Compl. ¶248

• Accused Features: The complaint alleges that the TLX, MOD-EX PL, and MOD-EX XLIF systems infringe the '088 patent Compl. ¶247

III. The Accused Instrumentality

Product Identification

The accused instrumentalities are multiple families of spinal surgery products sold by NuVasive, including the BASETM Interfixated System ("Base"), BrigadeTM System (“Brigade”), CoRoentTM Small Interlock System (“CoRoent”), MOD-EX PLTM Interbody System (“MOD-EX PL”), MOD-EX XLIF System (“MOD-EX XLIF”), Simplify® Cervical Disc System (“Simplify”), TLXTM Interbody System (“TLX”), and X-CORE® Expandable Vertebral Body Replacement (VBR) System (“X-Core”) Compl. ¶13

Functionality and Market Context

The accused products are intervertebral implants used in spinal fusion and disc replacement surgeries Compl. ¶13 The complaint alleges these devices incorporate technologies such as intervertebral cages with integrated bi-directional screws, as well as expandable spacer mechanisms that allow for in-situ height adjustment Compl. ¶¶58, 81, 101, 124, 147, 167, 190, 213, 233, 256 The complaint positions NuVasive as the third-largest player in the global spine market prior to a recent acquisition, suggesting the commercial importance of these product lines Compl. ¶13

No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint references, but does not include, claim chart exhibits that describe the infringement allegations Compl. ¶50 Compl. ¶73 The following tables summarize the infringement theories for the lead patents as can be constructed from the patent claims and the narrative allegations in the complaint.

7,972,363 Infringement Allegations

9,005,293 Infringement Allegations

• Identified Points of Contention:
  • Scope Questions: A potential point of contention for the '363 patent may be the scope of "screw locking mechanism." The analysis may question whether the specific structures in the accused Base and CoRoent systems that retain the screws perform the function claimed in the patent. For the '293 patent, a question may arise as to whether the term "sliding box," as described in the context of a specific triangular expandable structure, can be construed to read on the expansion mechanisms of the accused products.
  • Technical Questions: For the '293 patent, the complaint accuses the Base, Brigade, and CoRoent systems of infringement Compl. ¶72 A key technical question may be what evidence supports the allegation that these specific systems, which are also accused of infringing the non-expandable '363 patent claims, possess the specific "sliding box" and "adjuster" mechanism for height adjustment as required by claim 43 of the '293 patent.

V. Key Claim Terms for Construction

U.S. Patent No. 7,972,363

• The Term: "a first screw locking mechanism"
• Context and Importance: This term is critical because infringement of claim 1 depends on finding a corresponding structure in the accused devices. The definition will determine whether a variety of screw-retention features (e.g., interference fit, blocking elements, deformable materials) fall within the claim's scope. Practitioners may focus on this term to dispute the presence of this claimed function in the accused devices.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The claims do not specify the structure of the mechanism, only its function: "prevents the first screw member and/or the second screw member from pulling-out" ’363 Patent, claim 1 This functional language may support a construction that covers any structure achieving that result.
  • Evidence for a Narrower Interpretation: The specification describes a specific embodiment as a "screw locking mechanism 20 which can be, for example, press-fit into the top of the cage 10" ’363 Patent, col. 7:18-20 A defendant may argue that the term should be limited to the press-fit component or structurally similar mechanisms disclosed.

U.S. Patent No. 9,005,293

• The Term: "sliding box"
• Context and Importance: This structural term is central to claim 43. Infringement will depend on whether the components of the accused devices that allow for expansion can be characterized as "sliding boxes." Practitioners may focus on this term to argue that the accused products use a different, non-infringing expansion mechanism.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The term "box" is not explicitly defined, which may support a broad interpretation covering any housing-like component that slides relative to another.
  • Evidence for a Narrower Interpretation: The specification and figures consistently depict the "sliding boxes" as "triangular sliding bases" that interact via "sliding rails" and "rail inserts" ’293 Patent, col. 5:61-67 ’293 Patent, FIG. 1D This consistent depiction of a specific triangular wedge structure may support an argument that the term should be construed more narrowly to reflect that embodiment.

VI. Other Allegations

• Indirect Infringement: The complaint alleges both induced and contributory infringement for each asserted patent. Inducement allegations are based on NuVasive's alleged provision of instructions, manuals, brochures, and technical support that instruct and encourage third parties (e.g., surgeons, hospitals) to use the accused products in an infringing manner Compl. ¶¶52-53 Compl. ¶¶75-76 Contributory infringement is alleged on the basis that the components of the accused systems are not staple articles of commerce and are especially made for use in an infringing manner Compl. ¶62
• Willful Infringement: The complaint alleges willful infringement for all asserted patents, based on a detailed history of alleged pre-suit knowledge. The allegations assert that NuVasive had actual knowledge of Dr. Moskowitz's patent portfolio beginning with direct communications and technical presentations between 2010 and 2011 Compl. ¶¶31-34 This was allegedly followed by a formal notice letter from counsel in 2015 that identified the '293 and '363 patents by number and attached a copy of the '293 patent Compl. ¶¶35, 39 The complaint further alleges that NuVasive cited the asserted patents in its own patent prosecution filings and was aware of them through industry publications, but proceeded to commercialize the accused products without conducting a good-faith inquiry into infringement Compl. ¶¶40-41, 65-66

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of claim scope and construction: can the functional term "screw locking mechanism" be construed broadly to cover the screw retention features in NuVasive's products, and can the structural term "sliding box" be construed to read on the specific expansion mechanisms of the accused devices? The outcome of these construction questions may be dispositive for several of the infringement claims.
• A key evidentiary question will be one of technical correspondence: what evidence will Plaintiff present to demonstrate that NuVasive's products, such as the Base and CoRoent systems, meet the limitations of claims directed to both non-expandable constructs (e.g., '363 patent) and expandable constructs with specific mechanisms like an "adjuster" (e.g., '293 patent)?
• A central theme of the case will be willfulness: given the extensive allegations of pre-suit meetings, presentations, and formal notice letters spanning over a decade, a primary focus will be on NuVasive's state of mind and whether its continued commercialization of the accused products in the face of this alleged knowledge constitutes egregious conduct warranting enhanced damages.