Opinion
ORDER GRANTING REQUEST FOR ENTRY OF JUDGMENT [Docket No. 112]
ROGER T. BENITEZ, District Judge.
On November 28, 2014, Defendant Alphatec Spine, Inc. filed a Request for Entry of Judgment. (Docket No. 112.) The motion lacked a hearing date, but briefing on the motion proceeded. Plaintiff Dr. Samy Abdou filed an Opposition on December 3, 2014 and Alphatec filed its Reply on December 8, 2014. (Docket Nos. 113, 115.) This would generally have provided the Court with complete briefing on a motion, however, Dr. Abdou then filed a Response to Alphatec's Reply. (Docket No. 117.) Then, on December 30, 2014, Alphatec filed a Notice of Recent Court Decision consisting of one paragraph drawing this Court's attention to a recent Federal Circuit decision. (Docket No. 117.) Dr. Abdou then filed a one page brief attempting to distinguish this case from the recent decision. (Docket No. 118). The Court considers the motion more than fully briefed and GRANTS the request for entry of judgment.
Alphatec's motion for summary judgment asked the Court to "grant summary judgment that claims 1, 3-6, 8-35 of [United States Patent No. 7, 951, 153] the '153 Patent and claims 6-29, 32-42 of [United States Patent No. 8, 172, 855] the '855 Patent are indefinite under 35 U.S.C. § 112, ¶ 2." These are all the claims Dr. Abdou asserts that Alphatec infringed in this action. Although the parties' briefing, and correspondingly the Court's decision, did not explicitly and individually address every single dependent claim, the Court granted Alphatec's motion. (Docket No. 111.)
Ignoring the breadth of Alphatec's granted motion for summary judgment, Dr. Abdou now argues that Alphatec is only entitled to an entry of judgment as to the independent claims it provided individual and substantial argument on. In doing so, Dr. Abdou essentially attempts to do now, what he could have done in opposition to summary judgment. He argues that the asserted dependent claims are not indefinite because these claims might provide greater specificity than the indefinite independent claims.
Dr. Abdou demonstrated an awareness of the significance of dependent claims in his argument on summary judgment as to provisional damages, arguing that the claims of the published application and issued patent were substantially identical if dependent claims were also considered. The same attention was not given to the dependent claims as to indefiniteness.
Having considered the parties' briefing on the issue now, it is unlikely this argument would have succeeded on summary judgment because the dependent claims are no more definite than the independent claims from which they depend. But, the Court need not address it because now is not the time to make that argument. Additionally, the Court was not required to explicitly address every individual claim in its decision. See Content Extraction and Transmission LLC v. Wells Fargo Bank, National Association, 2012 WL, *4 (affirming district court decision that did not address each claim and noting the Plaintiff's failure to identify claims insufficiently addressed in its opposition brief).
The Court is mindful that parties are limited in the issues that can be explicitly briefed, particularly when many claims are at issue. Alphatec's greater attention to the indefiniteness of the independent claims while moving for summary judgment on all the asserted claims is likely an example of the challenges in allocating limited pages to many issues. However, Dr. Abdou could have argued that Alphatec failed to address or carry its burden as to certain asserted dependent claims with or without substantial argument. But he did not and he is not entitled to raise that argument after the Court has granted Alphatec's motion for summary judgment as to all the asserted claims.
Alphatec's request for entry of judgment is GRANTED. The Clerk shall enter judgment in favor of Alphatec as set forth in the Court's November 19, 2014 Order granting Alphatec's motion that claims 1, 3-6, 8-35 of the '153 Patent and claims 6-29, 32-42 of the '855 Patent are indefinite under 35 U.S.C. § 112, ¶ 2.
IT IS SO ORDERED.