Tuesday, September 20, 2011

Copy! Copy! Copy!

It's Game 7 of the Championship Series and NuVasive has the home court advantage, the anticipation is that this should be a blow out, considering that their opponent Medtronic hasn't won a game in many years.  Medtronic has taken their blows.  Some industry insiders began to wonder would they ever rebound, could they make the right pass, was their offense turning into an impenetrable defense.  After the Michelson debacle, it seemed that Big Blue has been staggering.  Even with a home crowd and the potential of some home calls, it was announced today that the NuVasive has taken it on the chin.  No fellow bloggers it wasn't a Floyd Mayweather sucker punch.  NuVa saw it coming.

It was announced earlier in the day, that a San Diego Jury with "laser like focus" awarded Medtronic $ 101.2 million in damages related to patent infringements by Nuvasive.   Of course other publications in the industry will come to NuVa's defense claiming a wash since the jury also found that Big Blue owes NuVasive $660 thousand for infringing upon one of NuVa's patents.  NuVa will now have to regroup and consider its legal option as to how to proceed with the verdict.  To quote NuVa's attorney, "Nuvasive copied nothing!" A San Diego jury thought otherwise.

But some questions must be asked.  How do investors continue to pour money into a company that has already lost a $60 plus million dollar trademark suit?  And now, $101.2 million?  It will be interesting to hear the "spin" on how "laser like" the Purple People Eaters will become as they continue their quest and journey to be a $1 Billion Dollar Company. There's no joy in Rancho Santa Fe tonight, nor do we think that anyone is drinking any Petrus.  It will be interesting to see how OTW reacts and spins this verdict, considering that our boy, the oracle of the industry, loves the Big Bear.  TSB wants to know how much will the markets react tomorrow to this decision?

81 comments:

  1. NUVA was award 660 thousand .... Not 660 million.

    Big blow to NUVA, but this was going to be appealed no matter who prevailed in the jury trial. Not sure it's a "game 7" but it sure wasn't game 1 or 2. .

    Long way to go but NUVA got knocked down. I hope they get back up or MDT could put us all out of business.

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  2. Will NUVA have to pay ongoing royalties? What does this mean for all the other lateral systems on the market?

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  3. It's not 660m but 660K.

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  4. Couldn't have happened to a nicer, more arrogant group of people. The question now surely must be is how exactly does a CEO & Chairman of the Board who has now overseen losses for his company in excess of $160M+ stay in those (2) positons? How is the board of that company not asking,, "Alex,, What the F--!?"

    (2), count em' (2) huge hits on the least 9 months,,

    Sure, Nuvasive "will become a $1B start up", but at what expense to its investors & employees? Think Alex has a call into G. Bush asking for a "favor"?

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  5. BOOYA NUVA! How does this exactly work anyway? Do they pay a lump sum of $100 mil at once? Or is it spread over time? Seems like big companies can always come up with this cash and it changes nothing in the day to day world.

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  6. Chit!!

    http://www.bloomberg.com/news/2011-09-20/medtronic-nuvasive-infringed-each-other-s-patents-jury-finds.html

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  7. What other lateral systems do enough in sales to give another big award? If anything this may deter them from pushing forward.

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  8. None. Next closest to NuVasive is probably Medtronic with 10-13% of the lateral market and then probably Globus with about 7%.

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  9. Medtronic's motto:

    If you can't innovate, litigate!

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  10. Yes they will pay ongoing royalties to Medtronic on each patent at 3%, 6%, and 10%...This is a blow no matter how you look at it. Not to mention this validates Medtronic's patents and has set a precedent moving forward for any company that may violate their patents. In my mind, that’s huge for MDT.

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  11. Bad news for Purple. Funny how the only public company to grow market share in the last three years gets punched in the face by a bunch of lawyers. What is the incentive to innovate? JNJ/Synthes merger is looking better and better. Like MSD was going to do anything with lateral before Purple started kicking their ass. Sad for innovation. Agree with 6:44 it is huge for MSD.

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  12. whats the over/under for NUVA stock tomorrow's closing bell?

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  13. The shot callers in Wall Street covered themselves weeks ago.

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  14. Load up on NUVA stock by Friday and ride the gravy train. Why?
    NUVA will be a $1B company once MSD acquires them.

    "It's nothing personal. Just business."

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  15. Add another $10-20M to the BIG, BIG REALLY BIG Award for NuVa's past 15 months...

    Alexander MacKinnon, a lawyer for Medtronic, said in an interview after the verdict that “the jury award only reflects damages through June 2010 and Medtronic will file a motion for an accounting from NuVasive to bring the damages up to date.”

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  16. MDT not MSD (Metropolitan Sewer District)

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  17. 6:52 What you call "innovation" on NUVA's part involves not only copying the ideas of others (as this jury found), but also copying the friggin name of their product (as the other jury found). The industry doesn't need this kind of "innovator"!

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  18. MSD = Medtronic Sofamor Danek, the original name for the MDT spine division. Us oldtimers sometimes still call it that.

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  19. Call it Danek then oldtimer.

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  20. Michelson technology at work!

    What's the Medtronic/Michelson ledger look like now? I think MDT needs to win a few more of these before they recognize the full value of what they paid Dr. Michelson for his IP a couple years ago.

    Interesting times we live in.

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  21. Whatever happened to the Maverick disk? Clinicatrials.gov shows the last patient hitting 2 years back in 2006 and the study completed in November 2010. Was it killed when Synthes got the ruling on the keel patent? Did it not meet its endpoint in the IDE? Anyone know if either or both are true? Just curious what happened to it.

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  22. What about the Spinecore disk?

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  23. I recently stumbled upon this haiku. Quite fascinating.

    "Globus Medical
    Initial public offer
    Or the new Stryker"

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  24. Oh, you outdid yourself / yourselves there! Bravo!

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  25. What should NuVasive reps think about this verdict? I don't see how this changes anything but maybe I am wrong

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  26. Sell more! they have to pay for the verdict....

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  27. And NUVA will have ~15% less after royalties to pay them with. Forget about the one time charge, this is going to have a significant impact going forward!

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  28. Thank God that we finally see some justice in this industry, even if the evil empire got the victory (as though they don't copy everything). It is wrong to steal other people's intellectual property, yet in our industry it is not just the norm, it is vulgarly rampant.

    Shame on you Big Bear for building one of the most successful market segments in the last ten years with someone else's property. We love to love ya, but this is just wrong. It is no different than plagarism and steroids its all cheating and immoral. We all should file for damages because we all have suffered loses to XLIF.

    "Where have you gone Joe Dimaggio...? Our heroes are not legit!

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  29. What is extremely entertaining is all of the "shareholders" aka koolaid drinkers with worthless stock options at a strike price of over $21.00. Most still dont even understand the value of these options is ZERO as they are too afraid to question Alex The Magnificent CARNAC. A little advice to all, don't listen to the spin - EXERCISE your vested options that are over $5.00 NOW! If you don't believe take a look at NUVA symbol on yahoo finance and then the insider transactions. Looks like most officers and directors cant exercise enough of theirs. SUCKERS!

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  30. If we are going to pile on how many half assed distributors or companies have reversed engineered others products only to evade litigation because they fly under the radar or sell them to their POD friends on a regional basis? Ever see their products marketed in any commercial journal? How long will investors continue to invest in a company that has shown no profitability? Revenue and Profits are not one in the same. As 5:01 said, SUCKERS!

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  31. Can someone please explain, in as simplistic terms as possible, what "lateral" patent was violated? Does this mean that any company preforming this procedure is now at risk of infringement or was this something specific to NuVa's system?

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  32. Could be...See patent description:

    http://www.google.com/patents?id=gGcpAAAAEBAJ&printsec=description&zoom=4#v=onepage&q&f=false

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  33. Woo wee! That patent is money! Literally. MSB is now the owner of all lateral approach technology. Let the royalties roll in!

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  34. will this verdict cause any delay to Globus' efforts in going public?

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  35. Well, Nuvasive appears to be 0-2 in patent/ trademark suits to the tune of $160M or so, so I guess this bodes well for Globus, as what could Nuvasive actually be suing them for since they just lost to MDT?

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  36. Yeah, but Globus is in the middle of the road of a Memphis juggernaut!

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  37. As a reminder... This was Phase 1 of 3! MDT has 2 more potential knock out punches coming... Also, note the additional royalties and legal costs being set aside.


    SAN DIEGO, September 20, 2011 – NuVasive, Inc. (Nasdaq: NUVA), a medical device company focused on developing minimally disruptive surgical products and procedures for the spine, announced today that a jury in the U.S. District Court for the Southern District of California has reached a verdict in the company’s ongoing patent lawsuit with Medtronic Sofamor Danek USA, Inc. and its related entities (Medtronic).

    The lawsuit was initially filed in 2008 and Medtronic is asserting a total of nine patents against NuVasive. NuVasive countersued and is asserting three patents against Medtronic. The court has broken the trial into phases, and the first phase included three Medtronic patents and one NuVasive patent. In this phase of the case, NuVasive accused Medtronic’s NIM-Eclipse product of infringing NuVasive’s patent involving the use of neuromonitoring in a lateral approach to spine fusion surgery. The patents asserted by Medtronic accuse the following NuVasive products of infringing Medtronic patents: NuVasive’s CoRoent ® XL implants, MaXcess ® Retractor, and Helix ACP ® Cervical Plate.

    Although a formal judgment has not yet been entered and there are numerous motions and hearings to be determined, the following are the findings of the jury related to the four patents involved in the first phase of the trial:
    • Regarding NuVasive’s assertion that Medtronic NIM-Eclipse System infringes upon patent #7,470,236, the jury found that Medtronic does infringe the patent and awarded monetary damages which includes back royalty payments to NuVasive based on a 5.5% rate.

    • Regarding Medtronic assertion that NuVasive’s CoRoent XL implants infringe upon patent #5,860,973, the jury found the patent to be valid and awarded monetary damages which included lost profits and back royalty payments to Medtronic based on a 10.0% rate

    • Regarding Medtronic assertion that NuVasive’s MaXcess Retractor infringes upon patent #6,945,933, the jury found that NuVasive does infringe the patent and awarded monetary damages which included lost profits and back royalty payments to Medtronic based on a 3.0% rate
    • Regarding Medtronic assertion that NuVasive’s Helix ACP Cervical Plate infringes upon patent #6,592,586, the jury found that NuVasive does infringe the patent and awarded monetary damages which included lost profits and back royalty payments to Medtronic based on a 2.0% rate

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  38. Based on these findings, the jury awarded total monetary damages of $660 thousand to NuVasive which includes back royalty payments. Additionally, the jury awarded total monetary damages of $101 million to Medtronic which includes lost profits and back royalties.

    Any future royalty amounts will not be determined until a final judgment is issued, which is expected in the coming months. At this time, the Company is using the royalty percents utilized by the jury for the basis of on-going accruals. The incremental impact to cost of goods sold of ongoing royalty accruals is expected to be approximately $5 million for the second half of 2011 and approximately $11 million for the full year 2012. As previously guided, the Company will continue to spend approximately $6 million in legal expenses for full year 2011 associated with this trial. The Company will provide more detailed financial guidance as it becomes available and will make further comments at its upcoming Q3 2011 earnings call in October.

    NuVasive expects it will be required to secure the amount of judgment while the appeals process runs. The amount to be secured will be determined in post-trial motions over the next few months. The Company believes it has ample cash reserves to meet any requirement the Court determines is necessary.

    NuVasive believes the facts and the law do not support the jury’s findings of infringement and validity, and will seek to overturn the verdict in post-trial motions with the District Court. If the District Court does not grant NuVasive’s motions, the Company intends to vigorously challenge the verdict through an appeal to the Federal Circuit Court of Appeals. The appellate process with the Federal Court will likely take at least one year.

    Alex Lukianov, Chairman and CEO of NuVasive said, “As you all know, we at NuVasive take immense pride in our unique technology and the intellectual property that surrounds it. We are proud that our intellectual property surrounding our NeuroVision nerve monitoring platform has been validated in this case. While we are disappointed with today’s legal outcome on the remaining three patents, we are mindful that this is only phase one of what will be a multi phase process. This outcome has in no way impacted the daily operations of our business and our salesforce will continue to deliver outstanding service levels to our surgeon customers. We intend to vigorously defend the investments we have made to invent the lateral approach to spine fusion surgery and to become the most innovative spine technology company in the world. As such, we will aggressively challenge this verdict through the appellate process.”

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  39. "Pretend inferiority and encourage his arrogance." ~Sun Tzu

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  40. The last paragraph from 8:10 truely demonstrates the character of Alex. This is the same guy who has George Bush as his keynote speaker at the last NSM, will tell you he is a staunch republican, and a personal beneficiary of the "American Dream" realized by a Russian immigrant. YET wants to completely dismiss patent protection. As most of you know patent protection is a foundation of the US sopciety. Withou it we can all give up on private property rights and any form of capitalism. Hypocrisy at its best. Its over and MSD will get its award - Justice! SELL SELL SELL - hello $5.00/share.

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  41. 8:29 - Thank for enlightening us Pat Miles.

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  42. Alex, Pat, Keith....All part of the Mickelson lawsuit at Danek. There is a track record here.

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  43. conference call for NUVA reps at 1pm EST...SPIN SPIN SPIN! Stock below 20 and sinking...do Alex and boys finally sell out?

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  44. Copy Cats. a.ka. Cheetahrs.

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  45. Does this mean that NuVasive will now start working on litigation during regular business hours?

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  46. Hey Cheetah Nation,, How's all of that Purple Kool-Aid tasting right about now? "Shareowners",,How excited are all of you w/ your stock's performance over the last 12 months? Hasn't it been a thrilling ride? While your senior management team has cashed out millions & millions of $$$, you're now left holding nothing but a smoldering pile of ash. How do your ESPP shares look? Just a whole bunch of people led to believe something in a cult like fashion,while those at the top have continued to capitalize on the situation, sounds an awful lot like a Jim Jones event doesn't it,,??

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  47. How does the Neurovision decision affect Medtronic and it's Neuro monitoring? Just a royalty payment?

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  48. Lot of nuva haters which is understandable when a company grabs that type of marketshare. Pretty sure I read MDT lost the directional dialator patent portion of the trial. Seems like all those companies running around with pirated dialators(globus, desynthes,pioneer,etc)now face a prosecution history that will make it very easy work to shut them down. More than likely, MDT and Nuva will barter and have the only two viable trans-psoas systems that dont skewer the femoral nerve. But what do I know? Also, I guess MDT gonna shut down every laterally placed corpectomy cage now right?

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  49. Hmnnnnn, lets see who else makes an implant that infringes on claim #1 A translateral spinal implant for insertion from the lateral aspect of the spine in the disc space between two adjacent vertebrae, said implant having a length that is greater than one half the transverse width of the vertebrae, said length being substantially greater than the depth of the vertebrae, and a height for contacting each of the two adjacent vertebrae.

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  50. Such a broad and bogus patent. Michelson claiming he invented XLIF is akin to Al Gore's creating the Internet.

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  51. Does anyone know a timeline on Phase II and Phase III and what products are included in each?

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  52. 10:33 Yes, Alex, we understand that you're upset about the decision, but you should have provided better guidance to your band of Cheetahs. Perhaps working in such a "cheetah" like frenzy has helped land you in this predicament? Perhaps too this is one of those "be careful what you wish for" scenarios,, After all, you've stood on stageat the NSM, made your silly videos, poked fun at the "1000lb. gorilla" in your qtr. meeting skits, and all put anatagonized MDT to step into the ring w/ you,,

    Well, how does it feel now?

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  53. This loss will also kill any potential aquisitions that Nuvasive was exploring.

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  54. Expect, on top of the patent infringement, the rapidly deteriorating healthcare reimbursement environment, the severe recession forcing consumers to delay any unnecessary expenses...YOU can add a likely lawsuit against NUVA and it's management for mis-representing why they needed to float the convertible loan...watch for that shortly...these guys KNEW why they needed the funding...don't be stupid...the mad russian is an egomaniac who'll suck ya' dry... what a disgrace.

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  55. does this actually make xlif surgeons think twice about doing xlif's? or does the loyal xlif surgeons who believe Nuvasive was the pioneers in lateral surgery revolt against big blue? Saw where Nuvasive currently has 85% of all lateral business to date. Have to think this doesnt change much in terms of lateral surgery, and purple's strangle hold on all lateral surgery. Especially when this is now going to appeals court, and no jurors are involved. Only a panel of judges. answer coming in 1-2 years in Washington i guess.

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  56. anonymous 1:19

    Im a stimulator rep in Florida, and obviously this is a huge XLIF state. Cant go anywhere where in my territory in the north part of florida where DLIF is being performed over XLIF. The rep and the surgeon i work w/ were talking exactly that while scrubbing in for a nuvasive case today. NuVasive must either do a really good job brain washing these surgeons in training, or they actually believe in the corporate line. Either way, this particular surgeon uses some MDT, and said he couldnt believe this garbage. And was talking about pulling biz from MDT and giving to someone else. Nuvasive at the very least will be paying MDT for doing nothing. Cant beat some mail box money. BTW, is it a requirement for the Nuvasive reps in florida to be some type of former athlete? Ridiculous

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  57. I guess if you but enough of surgeons they will back you one way or another

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  58. The real question is when will Globus go public?

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  59. 1:37
    Typical surgeon attitude. He has no clue about the patent, the verdict or the settlement, yet he's pissed and is gonna pull business from the Evil Empire. And all because he likes XLIF over DLIF for whatever reason. It won't effect him at all, yet he chooses to change his practice pattern in order to punish someone because he can. His ego and power take precedent over all of the reasons he chose to use MDT, or whoever, for the other parts of his business.

    I can guarantee you one thing. If he had anything to do with the IP, his tune would have been completely reversed and he'd be firing Nuvasive for theft of "his" IP. Thus proving that the addition of money to his existing ego and power lust would completely reverse his entire product choice rationale. Fire MDT because they won over his product of choice or fire Nuvasive if they stole "his" IP.

    I would bet your doc has some shady dealings or skeletons in his closet. Just a guess.

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  60. This comment has been removed by a blog administrator.

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  61. Well said 3:03 - this verdict will not affect surgeons decisions to use nuvasive. It will only hurt the company from within and whatever future plans nuvasive may or may not have been flexible with. But honestly, their revenue stream is gonna stay the same.

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  62. Interested in the OsteoMed ISP system. Anyone had experiance with it yet? Looks like it could much easier than Aspen to implant.

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  63. This effects all lateral interbody not only Nuvasive......Think about that

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  64. ok, so right now that effects about what?? 2 companies? NuVu and GloBUST??!!!

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  65. Perhaps Nuvasive should see if Bernie Madoff is available to speak at their next NSM? I'm sure Alex & the team might be able to relate to good ole' Bernie.

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  66. Guys, this effects all of us, the entire industry. Im not biased one way or another. Medtronic had the patient, as well as thousands more sitting in a box with dust. Nuvasive took a risk, developed a good technology that has changed spine surgery, like it or not and now are being penalized. What this will bring is a hault in innovation and increasing PODs. At least innovation rids the industry of shady deals. There are no winners outside MDT short term.

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  67. 6:28 Sorry, but it really doesn't impact me.

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  68. It seems to me that a decent patent attorney should have found the Michaelson patent when NuVasive first started developing the XLIF procedure. It is pretty straight forward in what it says. I disagree that this will stifle innovation rather, I think the opposite will occur. Companies are going to have to develop new technologies or face patent law suites. This will ensure any new products will have a lot more thought put into them.

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  69. how in the hell did Michaelson and his "lawyers" that cirlce like mad cows at every meeting miss this one? I can remember for year Dr. Michaelson as he likes to refer to himself as, would duck his head into every booth spying on everything and anything that remotely looked close to a BAK Cage or something to the effect. How did they miss this one>>??

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  70. pennies to pay over long term. chillax homie.

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  71. God Bless you 3:30.

    Audio Gold.

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  72. 8:02

    Can you fill us in on what was said? We'll pay you

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  73. ALEXI

    ONE PRODUCT DOES NOT CONSTITUTE INNOVATION, NOT WHEN YOU RIDE IT FOR FIVE YEARS, TODAY, NYET

    HARASHO AND DASVIDANYA
    VLADIMIR PUTIN

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  74. Listening to the secret meeting,
    then using the special decoder ring provided by Alex,
    yields:

    ! cilbup gniog reven si subolG

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  75. I had a conversation with my surgeon about this today. He's a longtime Medtronic trained and loyal surgeon, but over the years has started to spread it around to other reps. (Probably because Mdt hasn't developed 1 innovative product in the past 2 years. Cortical screws? Please)

    Anyway this particular surgeon has not adopted DLIF or XLIF, does mainly TLIF. His exact words about the lawsuit and verdict was "typical Medtronic...typical Michelson, it's a joke...."

    I found this interesting so thought i'd share

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  76. Hey 9:29

    What ground breaking innovative products is this surgeon of yours using that makes him shun companies that are not innovative in his not so humble opinion?

    "Loyal" surgeons (oxymoron?) leave their company of choice for many reasons, none of which are because the company is not innovating.

    REP: So Dr. Jones, why are you looking for a new company for your spinal implants?

    DR. JONES: Well Bobby, I am just fed up with the lack of innovation. I need something exciting and I think you can provide that!

    Sorry dude but this is not the case. Either the rep is a douche or the doctor is not getting the stroke he wants so he is fishing in more shallow water for bottom feeders.

    Thats real.

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  77. I saw my Yogi guru today, and I asked him "Oh Wise Guru, what is the One Great Truth?"

    He was doing a head stand at the time, and he told me confidentially:


    ¡ɔıןqnd ƃuıoƃ ɹǝʌǝu sı snqoןƃ

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  78. 10:30

    You aswesome dude!

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  79. Do you like gladiator movies, Bobby?

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  80. Bobby, do you like it when Scraps grabs on to your leg and rubs up and down?

    So does Dr. P.O.D.

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