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Expert's internally inconsistent testimony could not support jury's infringement verdict

October 06, 2008
Post by Blog Staff

In a decision last week, the Federal Circuit reversed a district court's denial of judgment as a matter of law after a jury returned a verdict of infringement. The Federal Circuit held the jury's verdict was not supported by substantial evidence, and that the plaintiffs' expert's opinions contradicted his factual testimony, and was thus incapable of supporting the jury's verdict of infringement.Judge Newman dissented. In her opinion, there was substantial evidence to support the verdict, and the district court properly denied the defendant's motion for judgment as a matter of law, and the majority improperly substituted its interpretation of the evidence for the jury's interpretation. More detail of Johns Hopkins Univ. v. Datascope Corp. after the jump.Johns Hopkins University owns three patents relating to "methods for mechanically fragmenting blood clots, particularly thrombus material occluding synthetic vascular grafts." Typically, patients who undergo chronic hemodialysis will have blockage occur in their dialysis access grafts approximately three to four times a year. In the methods of the claims at issue, a fragmentation catheter is inserted into the vascular conduit, often via an outer sheath. At the distal end of the catheter a fragmentation cage or basket expands in order to conform to the inner lumen of the vascular conduit. This is then rotated in order to break up the obstructing material, as illustrated in the figure below:Arrow deviceThe critical claim limitation of the three patents is the requirement that the inserted member "expand[] to conform to the shape and diameter of the inner lumen of the vascular conduit."Hopkins, along with its exclusive licensee, Arrow International, brought suit against Datascope for infringement of the three patents. Datascope makes a device used to break up thrombotic material that is generally shown below:Datascope deviceThe allegedly infringing device uses a rotatable "S" shaped wire to break up the obstructing material. The Plaintiff's contention that the "expands to conform" limitation was met by defendant's device was supported by the testimony of their expert, Dr. Valji. Dr. Valji testified the S-wire of the defendant's device "expands and adjusts to remain in contact with the inner lumen in three dimensions along its length and width." On this basis, the jury found infringement, and the district court denied Datascope's post-trial motion for judgment as a matter of law. Datascope appealed.The Federal Circuit reversed. The court noted that "[t]he 'expands to conform' limitation is separate form the rotation element, therefore the distal end of the fragmentation member must meet the 'conforms to' requirement whether it is rotating or not." Dr. Valji's testimony did not address the question of whether the fragmentation member or distal end of the S-wire "conform[ed] to the shape and diameter of the inner lumen" prior to rotation. Dr. Valji stated the allegedly infringing device contacted the lumen only at two points, even during rotation. The court then noted that, based upon his testimony, his opinion that defendant's device remained in contact with the inner lumen in three dimensions "is incredible because it is impossible for use of this device to meet this limitation." Accordingly, the court held Dr. Valji's opinion could not support the jury's verdict of infringement. On this basis, the court held that no reasonable jury could have found that the defendant's device literally met the "expands to conform" limitation. Interestingly, the court, in a footnote, also stated: "This is not to say that the jury in this case necessarily acted unreasonably."Judge Newman dissented. Citing various parts of Dr. Valji's testimony, she noted that "there was substantial evidence in support of the verdict." In addition, presumably referring to the footnote quoted above, she stated the panel majority appeared to recognize sufficient evidence existed to support the jury's verdict. She quoted Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 857-58 (1982), which stated "'[a]n appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court 'might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent." Here, she argued the majority was doing just that: coming to its own conclusion based on its weighing of the evidence. However, where there was substantial evidence by which a reasonable jury could have reached its verdict, Judge Newman concluded, "it is not our province to reweigh the evidence."To read the full decision in Johns Hopkins Univ. v. Datascope Corp., click here.


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