MOSKOWITZ FAMILY LLC v. GLOBUS MEDICAL, INC.

Authored by: Jeremy J. Gustrowsky

The Federal Circuit has affirmed a complete defense win for Globus Medical in a long-running patent dispute over spinal fusion implants and the surgical tools used to place them. Moskowitz Family LLC sued Globus in 2019, asserting (among others) three patents: U.S. Patent No. 8,353,913, which covers a tool for positioning an implant and guiding screws; U.S. Patent No. 9,889,022, which covers a “bidirectional screw” implant that combines a spacer with bone fusion screws; and U.S. Patent No. 10,478,319, which covers an expandable implant used with a two-part tool assembly. Moskowitz lost the first two patents on summary judgment and the third at a jury trial, then appealed all three rulings.

The case revolves around a single adjective: “universal.” That word appeared in the preambles of claims 1 and 10 of the ‘913 patent and claim 47 of the ‘022 patent. Moskowitz argued the preambles were merely descriptive and therefore not limiting. The Federal Circuit disagreed. For the ‘913 patent, the body of the claim repeatedly referred back to “the intervertebral cage” and “the” first and second integral screw guides, terms that appear nowhere except the preamble. When a preamble supplies the antecedent basis for terms used in the claim body, that is a strong signal the preamble is doing real work. The court also noted that the shared specification introduces the invention as a “unique universal bidirectional screw system,” reinforcing that universality was highlighted as important rather than mentioned in passing.

The ‘022 patent fared no better. The court found that claim 47’s body, which lists an intervertebral cage with walls, two internal screw guides, and a circular hole, simply did not describe the complete invention on its own. Read without the preamble’s requirement that the apparatus be a “universal” device configured for insertion between vertebrae and for providing fusion, the claim was incomplete. Moskowitz also tried to carve the word “universal” out of the rest of the preamble, relying on a prior decision that treated one part of a preamble as limiting and another part as a mere statement of intended use. The court rejected that approach here, explaining that “universal” is woven into the rest of the preamble language and, in any event, describes a fundamental characteristic of the invention rather than an intended use.

That left the meaning of “universal.” The district court construed it as a spacer designed to be inserted between vertebrae in any region of the spine (cervical, thoracic, or lumbar) using any approach (posterior, anterior, or lateral). Moskowitz pushed for a much narrower reading tied to the implant’s “stand-alone” dual function as both a spacer and a screw apparatus, and argued the district court’s construction demanded a physically impossible one-size-fits-all device suitable for every patient and every spinal level. The Federal Circuit was not persuaded. The specifications describe constructs used posteriorly and anteriorly, in the lumbosacral and thoracic spine, and modified for cervical, thoracic, and lumbar vertebral body replacement, without dictating a single size or insertion method. It is that adaptability, the court said, that makes the design universal. Because Moskowitz had conceded it could not prove infringement under that construction, summary judgment stood.

The ‘319 patent went to trial and turned on a different word. Claim 1 requires a gripper “cooperating with the first handle.” Neither side had asked the district court to construe “cooperating,” even after being invited to identify remaining disputed terms shortly before trial, so the jury was instructed to apply the term’s plain and ordinary meaning. Globus’s expert told the jury that cooperation implies actuation, meaning something you do to the handle produces a response in the gripper. Globus’s director of product development testified that the handle plays “no role” in operating the accused gripping mechanism. Moskowitz’s expert, by contrast, offered limited testimony on the point and never explained what “cooperating” meant. On appeal, Moskowitz tried to recast the issue as a claim construction error, but the Federal Circuit held it was stuck with the narrower question of whether substantial evidence supported the verdict under the agreed instruction. It did, so the denial of judgment as a matter of law was proper.

Two practical lessons emerge. First, words placed in a preamble are not free. If the claim body refers back to preamble terms, or if the specification treats a preamble feature as central to the invention, expect that language to be enforced as a limitation, and expect it to be construed against the backdrop of everything the specification says about it. Second, if the parties’ experts plainly read a claim term differently, raise it at the construction stage. Once a jury has been instructed to apply plain meaning and has credited the other side’s expert, an appeal challenging that meaning becomes very difficult to win.