{"id":958,"date":"2016-06-03T10:25:53","date_gmt":"2016-06-03T14:25:53","guid":{"rendered":"https:\/\/patents.harnessip.com\/?p=958"},"modified":"2016-06-04T12:01:33","modified_gmt":"2016-06-04T16:01:33","slug":"incorrect-position-on-infringement-is-not-a-defense-to-inducement","status":"publish","type":"post","link":"https:\/\/patents.harnessip.com\/?p=958","title":{"rendered":"Incorrect Position on Infringement is not a Defense to Inducement"},"content":{"rendered":"

In\u00a0Warsaw Orthopedic, Inc. v. NuVasive, Inc.<\/em>, [2013-1576, 2013-1577] (June 3, 2016), on vacatur and remand\u00a0from the Supreme Court (for further consideration in\u00a0light of Commil<\/em>) the Federal Circuit reaffirmed its\u00a0the district court\u2019s judgment with respect to induced infringement of\u00a0U.S. Patent No. 7,470,236 and reinstated its\u00a0earlier judgment in other respects.<\/p>\n

The only question was\u00a0whether there was substantial\u00a0evidence for the jury to conclude that the counterclaim defendant, MSD,\u00a0induced\u00a0infringement of the\u00a0\u2019236 patent. \u00a0The Federal Circuit reviewed the law of inducement, noting that under Global-Tech<\/em> and Commil<\/em>\u00a0proof of induced infringement requires not\u00a0only knowledge of the patent, but also proof the defendant\u00a0knew the induced acts were infringing, and that Commil\u00a0<\/em>reaffirmed that\u00a0willful blindness can satisfy the\u00a0knowledge requirement for active inducement. The Federal Circuit further said that\u00a0Global-Tech<\/em> also held that knowledge of infringement\u00a0can be inferred from circumstantial evidence.<\/p>\n

At issue was the claim limitation:<\/p>\n

increasing the\u00a0intensity level of said stimulus signal until said predetermined\u00a0neuro-muscular response is elicited by said\u00a0stimulus pulse and stopping the emission of said stimulus\u00a0signal immediately after said predetermined neuromuscular\u00a0response is detected.<\/p><\/blockquote>\n

MSD argued that no reasonable jury could have inferred that it\u00a0had\u00a0knowledge of (or was willfully blind to) its customers\u2019\u00a0infringement of the \u2019236 patent, arguing that under its claim construction, the acts were not ifnringement. \u00a0The Federal Circuit found that MSD’s position was “clearly inconsistent” with the claim construction. \u00a0The Federal Circuit said that the\u00a0undisputed\u00a0evidence before the jury showed that, immediately
\nafter nerve stimulation, the NIM-Eclipse device stopped “stimulus pulses” within the meaning of the claims. The Federal Circuit found\u00a0that\u00a0there is no support in the language of claim\u00a0or its prosecution history to support\u00a0MSD\u2019s construction.<\/p>\n

The Federal Circuit said that given the strength of the evidence presented,\u00a0a reasonable jury could have concluded that MSD\u00a0must have known, or was willfully blind to the fact that its device met the properly construed claims, and in particular the “stopped” limitation.<\/p>\n

After Commil<\/em>, a belief of invalidity was no longer a defense of inducement, \u00a0Now, after NuVasive<\/em>, an incorrect belief that the actions do not infringe also is not a defense to infringement. \u00a0The Federal Circuit did not appear concerned with the reasonableness of MSD’s position, just its correctness, \u00a0Thus, if a party\u00a0induces conduct that is eventually found to infringe a valid patent, that party had induced infringement if it knew about the patent.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In\u00a0Warsaw Orthopedic, Inc. v. NuVasive, Inc., [2013-1576, 2013-1577] (June 3, 2016), on vacatur and remand\u00a0from the Supreme Court (for further consideration in\u00a0light of Commil) the Federal Circuit reaffirmed its\u00a0the district court\u2019s judgment with respect to induced infringement of\u00a0U.S. Patent No. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[27],"tags":[],"class_list":["post-958","post","type-post","status-publish","format-standard","hentry","category-inducement"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/958","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=958"}],"version-history":[{"count":1,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/958\/revisions"}],"predecessor-version":[{"id":959,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/958\/revisions\/959"}],"wp:attachment":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=958"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=958"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=958"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}