The Johns Hopkins University v. Datascope Corp.

United States Court of Appeals for the Federal Circuit
2007-1530

THE JOHNS HOPKINS UNIVERSITY
and ARROW INTERNATIONAL, INC.,

Plaintiffs-Appellees,
v.

DATASCOPE CORPORATION,

Defendant-Appellant.

Kenneth P. George, Amster, Rothstein & Ebenstein LLP, of New York, New York,
argued for plaintiffs-appellees. With him on the brief were Ira E. Silfin, Marc J. Jason, and
Rebecca R. Eisenberg.

Roy H. Wepner, Lerner, David, Littenberg, Krumholz & Mentlik, LLP, argued for
defendant appellant. With him on the brief was Paul H. Kochanski.

Appealed from: United States District Court for the District of Maryland

Judge William D. Quarles, Jr.
 United States Court of Appeals for the Federal Circuit

2007-1530

THE JOHNS HOPKINS UNIVERSITY and
ARROW INTERNATIONAL, INC.,

Plaintiffs-Appellees,

v.

DATASCOPE CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court for the Northern Division of Maryland in
consolidated case nos. 05-CV-00759 and 06-CV-02711, Judge William D. Quarles, Jr.

DECIDED: October 2, 2008

Before NEWMAN and SCHALL, Circuit Judges, and ZOBEL, District Judge. *

Opinion for the court filed by District Judge, ZOBEL. Dissenting opinion filed by Circuit
Judge, NEWMAN.

Datascope Corporation (ADatascope@) appeals from a final judgment of infringement

and contributory infringement of claim 1 of United States Patent No. 5,766,191 (Athe =191

patent@), claims 16-17, 27 and 34 of United States Patent No. 6,824,551 (Athe =551 patent@)

and claims 1, 3-7 and 15-18 of United States Patent No. 7,108,704 (Athe =704 patent@).

Johns Hopkins Univ. & Arrow Int=l, Inc. v. Datascope Corp., 513 F. Supp. 2d 578 (D. Md.

*
Honorable Rya W. Zobel, District Judge, United States District Court for
the District of Massachusetts, sitting by designation.
2007). For the reasons set forth below, we reverse the judgment of infringement of the

asserted claims of the three patents-in-suit.

BACKGROUND

Johns Hopkins University (AHopkins@) is the owner and Arrow International, Inc.

(AArrow@) the exclusive licensee of the =191, =551 and =704 patents, each titled

APercutaneous Mechanical Fragmentation Catheter System.@ All three patents are directed

to methods for mechanically fragmenting blood clots, particularly thrombus material

occluding synthetic vascular grafts, and all share a common specification.

The patented methods address the problem that patients undergoing chronic

hemodialysis experience blockage of their dialysis access grafts approximately three or four

times per year. In each of the claimed methods, a fragmentation catheter is introduced into

the vascular conduit, typically through an outer sheath. Upon deployment, a fragmentation

cage or basket at the distal end of the catheter expands to conform to the inner lumen of

the vascular conduit (as shown in figure 11C reproduced below). After deployment, the

fragmentation cage is rotated at a speed high enough to homogenize the thrombotic

material obstructing the vascular conduit. The homogenized debris can then be safely

flushed or aspirated.

2007-1530 2
 Plaintiffs= complaint alleges that use of defendant=s ProLumen device infringes the

=191 and =551 patents. After the =704 patent issued, plaintiffs filed a second action alleging

infringement of that patent as well. The two cases were consolidated and then bifurcated,

with infringement and Datascope=s affirmative defense of obviousness to be tried to a jury

first and Datascope=s affirmative defenses of inequitable conduct and unclean hands as to

the =704 patent to be determined by the court after a later trial. On June 15, 2007, a jury

found: (1) that Datascope indirectly infringed all asserted claims of the three patents; (2)

that the asserted independent claim of each patent was not invalid and not obvious; and (3)

that each plaintiff is entitled to damages, $460,583 to Arrow and $230,292 to Hopkins.

The following month, the district court held the bench trial on Datascope=s defenses

of inequitable conduct and unclean hands. It concluded that Datascope had not proven any

misconduct by the attorney who prosecuted the =704 patent and therefore upheld the

enforceability of the three patents against these defenses. Johns Hopkins Univ., 513 F.

Supp. 2d at 584.

On the issues of infringement and obviousness, defendant moved pursuant to Rules

50 and 59 for judgment as a matter of law (AJMOL@) or, in the alternative, a new trial. The

district court denied both. On obviousness, the court noted that Datascope=s evidence of

prior art was presented through the testimony of its expert, Dr. Thomas Aretz. Id. Because

the jury was free to determine the credibility of the witness and disbelieve his testimony, its

verdict was not wrong as a matter of law and the court therefore denied the motion for

JMOL. Id. at 584-85. The court also denied the motion for a new trial because

Datascope=s arguments did not address the grounds for a new trial under Fed. R. Civ. P.

59(a), as articulated by the Fourth Circuit. On infringement, the district court held that the

2007-1530 3
jury=s conclusion was not against the clear weight of the evidence, and therefore denied the

motion for JMOL or a new trial on that issue as well. Id. Finally, the court entered

judgment in accordance with the jury=s verdict and its own findings. Datascope filed a

timely appeal from the judgment, and we have jurisdiction thereof under 28 U.S.C. '

1295(a)(1).

DISCUSSION

I

We review the denial of JMOL without deference by applying the JMOL standard

used by the district court. BBA Nonwovens Simpsonville, Inc. v. Superior Nonwovens, LLC,

303 F.3d 1332, 1336 (Fed. Cir. 2002). In the Fourth Circuit, Aa motion for judgment as a

matter of law should be granted if a district court determines, without weighing the evidence

or considering the credibility of the witnesses, that substantial evidence does not support

the jury=s findings.@ Id. The denial of a motion for a new trial is reviewed for an abuse of

discretion. Id. We review A[the] jury=s conclusions on obviousness, a question of law,

without deference, and the underlying findings of fact, whether explicit or implicit within the

verdict, for substantial evidence.@ LNP Eng=g Plastics, Inc. v. Miller Waste Mills, Inc., 275

F.3d 1347, 1353 (Fed. Cir. 2001). The determination of inequitable conduct is committed to

the discretion of the district court and we review its decision for abuse of that discretion.

Scanner Techs. Corp. v. ICOS Vision Sys. Corp. N.V., 528 F.3d 1365, 1374 (Fed. Cir.

2008).

II

We hold that the jury=s verdict of infringement of claim 1 of the =191 patent, claims

16-17, 27 and 34 of the =551 patent and claims 1, 3-7 and 15-18 of the =704 patent was not

2007-1530 4
supported by substantial evidence and that defendant=s motion for JMOL should have been

granted. We do not reach the other issues raised on appeal given Datascope=s concession

at oral argument that we need not reach a decision on invalidity if we find that its motion for

JMOL was wrongly denied.

III

Each of the asserted independent claims in the patents-in-suit requires introducing,

into a vascular conduit, a fragmentation catheter comprised either of a fragmentation

member or an expanding distal end that automatically Aexpands to conform to the shape

and diameter of the inner lumen@ of the vascular conduit. Only claim 1 is asserted in the

=191 patent. That claim provides in its entirety:

A method for fragmenting thrombotic material in a vascular conduit
comprising the steps of:

introducing a fragmentation catheter in a vascular conduit to a thrombotic
occlusion, wherein the fragmentation catheter comprises a fragmentation
member at a distal end portion thereof that automatically expands to conform
to the shape and diameter of the inner lumen of the vascular conduit upon
deployment of the fragmentation member;

deploying the fragmentation member; and

rotating the fragmentation member at a speed to homogenize the thrombotic
material.

=191 patent, col.8 ll.31-42 (filed Feb. 29, 1996) (emphasis added).

Asserted independent claim 16 of the =551 patent is identical to claim 1 of the =191

patent except that it does not require the Aexpands to conform@ limitation to occur Aupon

deployment of the fragmentation member@ and it does not include the second step requiring

Adeploying the fragmentation member.@ =551 patent, col.9 ll.44-54 (filed Dec. 3, 2002). Two

of the other asserted claims of the =551 patent, 27 and 34, depend from four independent

2007-1530 5
claims, 1, 9, 16 and 19, of which 16 is the broadest, but all of which include the Aexpands to

conform@ limitation. Asserted claim 17 depends solely from claim 16.

Claim 1 of the =704 patent is similar to the independent claims asserted in the other

two patents except that it does not specifically require a fragmentation member. Rather, it

requires only that the fragmentation catheter include an Aexpandable distal end.@ =704

patent, col.8 l.43 (filed Oct. 7, 2004). This claim also includes an additional limitation

requiring Awithdrawing the rotating expandable distal end through the thrombotic material in

the vascular conduit.@ Id., col.8 ll.52-53. All of the asserted dependent claims of the =704

patent depend from independent claim 1.

The parties disagreed on the meaning of the phrase Aexpands to conform to the

shape and diameter of the inner lumen@ and the term Afragmentation member,@ used in the

=191 and =551 patents. In its memorandum on claim construction, the district court held that

the latter was a means-plus-function term and limited it to the wire cage or basket

described in the specification, along with any equivalents. See 35 U.S.C. ' 112, & 6. As to

the former, the court concluded that Adiameter@ referred to a Ahorizontal cross-section@ of

the vein Aregardless of whether it forms a circle,@ while Ashape@ referred to the capability of

the fragmentation member to Aadjust to remain in contact with the sides of the inner lumen

along its length.@ Johns Hopkins Univ. & Arrow Int=l, Inc. v. Datascope Corp., Nos. 05-CV-

0759 and 06-CV-2711, 2007 WL 1575077, at *3 (D. Md. May 30, 2007). Based on this

interpretation, the court instructed the jury as follows:

The other term that is at issue here is the Aexpands to conform to the shape
and diameter of the inner lumen.@ The claims at issue contain this phrase,
which means that the fragmentation member in the =191 and =551 patents
and the distal end in the =704 patent expands and adjusts to remain in
contact with the inner lumen in three dimensions along its length and width.

2007-1530 6
(Trial Tr. vol. 3, 812, Jun. 14, 2007 (AJury Instructions@).)

In the place of a basket, defendant=s device, the ProLumen, uses a single AS@

shaped wire (AS-wire@) which is rotated to break up thrombotic material (as shown below,

160 in figure 18 from United States Patent No. 7,037,316). 1

The only evidence supporting plaintiffs= contention that use of the ProLumen literally meets

the Aexpands to conform@ limitation was presented through the testimony of their expert, Dr.

Karim Valji (AValji@). Valji opined that the S-wire in the ProLumen device expands and

adjusts to remain in contact with the inner lumen in three dimensions along its length and

width. He based this opinion on an animation Datascope produced showing the operation

of the ProLumen and a demonstration of the deployment of the device before the jury. In

each case he testified that as it is deployed, the S-wire Acorkscrews@ and expands in Aboth

the shape and diameter of the inner lumen@ as it exits its outer protective sheath:

[A]s it=s deployed, it travels in a spiral-type direction, so it=s moving forward in
one direction, and then it=s also moving outwardly in the shape of a cylinder
in the other two directions, much as a corkscrew would be used to remove a

1
The fact that Datascope=s device is separately patentable does not preclude a
finding of infringement. See Nat=l Presto Indus. v. West Bend Co., 76 F.3d 1185, 1191
(Fed. Cir. 1996).

2007-1530 7
 cork from a bottle of wine.

(Trial Tr. vol. 5, 277-78, Jun. 12, 2007.) While Valji agreed that the asserted methods also

require that the fragmentation member or distal end remain in contact with the inner lumen

in three dimensions even after deployment, the only basis he offered to support his opinion

that the ProLumen met this limitation, even after it springs back to its original AS@ shape,

was his description of the Datascope animation:

And we can see again that [the ProLumen is] expanding, it=s filling the lumen
in all three dimensions around the circumference of it, spinning around,
breaking up the clot.

(Id. at 272.) However, each of the asserted independent claims in the three patents

requires the Aexpands to conform@ limitation to be met prior to rotation. The =191 and =704

patents require the limitation to be met Aon deployment@ and they each include, as a

separate step, Adeploying the fragmentation member/expandable distal end@ prior to the

rotation step. =191 patent, col.8 ll.37, 39; =704 patent, col.8 ll.46, 48. Asserted claim 16 of

the =551 patent does not include a separate deployment step. However, it still requires

introduction of Aa fragmentation member at a distal end portion thereof that automatically

expands to conform to the shape and diameter of the inner lumen of the vascular conduit@

prior to the rotation step. =551 patent, col.9 ll.50-52. The Aexpands to conform@ limitation is

separate from the rotation element, therefore the distal end of the fragmentation member

must meet the Aconforms to@ requirement whether it is rotating or not. Valji=s testimony, that

the S-wire fills the lumen in all three dimensions as it rotates does not address the

requirement that the fragmentation member or distal end remain in contact with the inner

lumen in three dimensions before rotation. In addition, the fact that the S-wire sweeps

2007-1530 8
through a volume, i.e. that it fills the lumen as it rotates, is not evidence that it makes

contact with the inner lumen in three dimensions at any particular instant in time.

Indeed, on cross-examination Valji testified repeatedly that the ProLumen only

contacts the lumen at two points, even while rotating:

Q. Is it your testimony that, when the S wire of the ProLumen is
deployed, the wire, at any time, makes the same kind of helical
wraparound contact with the inside of the lumen B continuous contact,
so to speak? Does it ever do that?

A. It B the device does make continuous contact with the lumen at certain
points.

Q. At certain points. How many points?

A. Two.

Q. Two and only two, right?

A. Right.

(Trial Tr. vol. 5, 304, Jun. 12, 2007.)

Q. Now, let me ask you this: When [the ProLumen] rotates, if you were
to take a very fast camera and take a stop action kind of shot at any
given millisecond or whatever, what would you see in the tube?

A. You would see the stationary wire.

Q. The S wire making contact at only two points, correct?

A. Correct.

(Id. at 314; see also id. at 318 (AThere are two points of contact . . .@); id. at 324 (Valji

describing the contact of the S wire with the vessel wall as Athe two-point contact@).) 2

2
Plaintiffs assert that A[t]he evidence included the testimony by Dr. Valji that
>when the ProLumen is rotated, there are effectively infinite numbers of contact . . . .=
(A477), not just the two points of contact as contended by Datascope.@ (Pls= Brief at 35.)
First, this is an equivalency argument; Valji=s use of Aeffectively@ acknowledges that there
are not literally an infinite number of contacts. Yet, in the next sentence, plaintiffs assert

2007-1530 9
 The video animation demonstrating the operation of the ProLumen device and relied

on by Valji provides no evidence to support his opinion that the Aexpands to conform@

limitation is literally met; rather, it is in agreement with his factual testimony. It clearly

shows that, at deployment and prior to rotation, the S-wire fragmentor contacts the lumen

at only two points along the longitudinal axis of the vessel. On rotation, the S-wire blurs to

effectively fill the lumen and rout out the clot as the catheter is moved along the longitudinal

dimension of the vessel, but there is no evidence to suggest that at any instant there are

more than two points of contact with the inner wall of the lumen.

In reviewing the district court=s denial of JMOL, we must Aassume that testimony in

favor of the non-moving party is credible, unless totally incredible on its face . . . .” Cline v.

Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (internal quotation marks and

citation omitted). Here, accepting as true Valji’s factual testimony, that the ProLumen

device at all times after deployment only contacts the inner lumen at two points, his opinion

that Athe evidence presented to the jury was that this claim term was met literally.@ (Id.)
Second, plaintiffs= selective editing obfuscates the meaning of Valji=s testimony, which,
taken in context, actually supports Datascope=s contention:

Q. Okay. With the ProLumen, the S-shaped wire, again there are only
two points of contact; is that right?

A. There are only two points of contact, but that=s not where the work
is being done B not at the points of contact.

Q. Okay.

A. And, when it’s rotated, there are effectively infinite numbers of
contact with the clot.

(Trial Tr. vol. 5, 318, Jun. 12, 2007 (emphasis added).) The claimed methods, however,
require three dimensional contact with the inner lumen, not the clot.

2007-1530 10
that it remains in contact with the inner lumen in three dimensions along its length and

width is incredible because it is impossible for use of this device to meet this limitation. As

a matter of geometry, the two points of contact of the ProLumen S-wire can describe a two-

dimensional plane along the length of the lumen, but cannot contact the inner lumen in

three dimensions as required by the district court=s claim construction. We therefore do not

accept Valji’s opinion in deciding whether substantial evidence exists to support the jury’s

finding of infringement. See Wechsler v. Macke Int’l Trade, Inc., 486 F.3d 1286, 1294 (Fed.

Cir. 2007) (expert opinion contrary to the factual evidence need not be credited).

Substantial evidence is “more than a mere scintilla” and is “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” z4 Techs., Inc.

v. Microsoft Corp., 507 F.3d 1340, 1353 (Fed. Cir. 2007) (quoting Consol. Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)). If, “after reviewing all of the evidence in a light most

favorable to the prevailing party, this court is convinced that a reasonable jury could not

have found in that party=s favor, we must reverse the denial of a motion for judgment as a

matter of law.” Akamai Techs., Inc. v. Cable. & Wireless Internet Servs., Inc., 344 F.3d

1186, 1192 (Fed. Cir. 2003) (citation omitted). We have carefully considered plaintiffs’

evidence that the S-wire expands and adjusts to “remain in contact with the inner lumen in

three dimensions along its length and width.” (Jury Instructions.) Here, no reasonable jury

could have found that the ProLumen device literally met this limitation based on Valji’s

opinion, given his contradictory testimony that the device only contacts the vessel in two

places. 3 See Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1321 (Fed. Cir.

3
This is not to say that the jury in this case necessarily acted unreasonably.

2007-1530 11
2003) (holding that verdict of literal infringement was unsupported by substantial evidence

because the accused device did not perform the required function as defined in the jury

instruction). The district court=s denial of JMOL on the issue of infringement was, therefore,

in error.

IV

In view of our disposition of the case we need not reach the issues of obviousness or

inequitable conduct nor consider defendant’s alternative request for a new trial.

CONCLUSION

Because the jury’s finding of infringement was not supported by substantial

evidence, we reverse the court=s denial of Datascope’s motion for JMOL of

non-infringement and remand to the district court for entry of a final judgment in favor of

Datascope consistent with this opinion.

COSTS

While the judge instructed the jury on the doctrine of equivalents with respect to the
fragmentation member, he did not explicitly limit the jury’s consideration of the doctrine to
that term. Valji testified that when the ProLumen=s S-wire was rotated, it filled the lumen in
three dimensions and effectively created an infinite number of contacts. In addition, Valji
described to the jury a chart Datascope had submitted to the Food and Drug Administration
(“FDA”) showing that the ProLumen was equivalent to plaintiffs= device in terms of its safe
and effective use in humans. In conjunction with Valji’s generalized testimony as to the
similarity between the claims and the function of the ProLumen, the jury may have
concluded that the regulatory submission was evidence of equivalency, even though FDA
equivalence is irrelevant to patent law because it involves fundamentally different inquiries.
However, even if the jury did base its finding on equivalency rather than literal infringement,
our conclusion would not change, as plaintiffs did not present the particularized testimony
and linking argument necessary to support a jury finding of infringement on the basis of the
doctrine of equivalents. See, e.g., Lear Siegler, Inc. v. Sealy Mattress Co., 873 F.2d 1422,
1426 (Fed. Cir 1989); Comark Communs. v. Harris Corp., 156 F.3d 1182, 1189 (Fed. Cir.
1998); see also Pls.= Br. at 35 (Athe evidence presented to the jury was that [the expands to
conform] claim term was met literally@).

2007-1530 12
Each party shall bear its own costs.

REVERSED and REMANDED.

2007-1530 13
 United States Court of Appeals for the Federal Circuit

2007-1530

THE JOHNS HOPKINS UNIVERSITY
and ARROW INTERNATIONAL, INC.,

Plaintiffs-Appellees,
v.

DATASCOPE CORPORATION,

Defendant-Appellant.

Appeal from the United States District Court for the Northern Division of Maryland in
consolidated case nos. 05-CV-00759 and 06-CV-02711, Judge William D. Quarles, Jr.

NEWMAN, Circuit Judge, dissenting.

I respectfully dissent, for substantial evidence supported the jury verdict, as was

recognized by the district court in denying judgment as a matter of law. My respected

colleagues on this panel have not shown the absence of such evidence; indeed, they

appear to recognize that it was present. There is no sufficient ground for this court’s

independent appellate trial of the factual issues that were decided by the jury and sustained

by the district court.

In reviewing a jury verdict, the court must draw all reasonable inferences in favor of

the verdict, without making credibility determinations and without reweighing the evidence.

See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000)

(“although the court should review the record as a whole, it must disregard all evidence
favorable to the moving party that the jury is not required to believe.”). When reviewing a

jury verdict, it is impermissible for the appellate court to substitute its own findings based on

the evidence that was before the jury, for “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The device that is shown in the Hopkins patent fragments blood clots through the

rotation of a wire structure at the end of a lumen inserted into the blood vessel. This

structure is claimed as a "fragmentation member," for when rotated the wires fragment the

blood clot, scouring the blood vessel. No fragmentation occurs until the structure is rotated.

The accused device also fragments blood clots through the rotation of a wire structure at

the end of a lumen inserted into the blood vessel. This structure consists of a single S-

shaped wire, not a group of wires as shown by Hopkins. When rotated, the S-shaped wire

fragments the blood clot, scouring the blood vessel. No fragmentation occurs until the

structure is rotated. A reasonable jury could have found that this wire structure is a

"fragmentation member" of the claims, for both the Hopkins device and the Datascope

device fragment the blood clot through the action of rotating wires.

Another claim limitation is that the fragmentation member “expands to conform” to

the blood vessel. The wire structure at the end of the Hopkins lumen spreads, after release

from the end of the lumen by which it is inserted, to contact the clot material in the blood

vessel. The S-shaped wire structure at the end of the Datascope lumen also spreads, after

release from the end of the lumen by which it is inserted, to contact the clot material in the

blood vessel. When rotated, both structures conform to the size of the blood vessel where

they are rotating.

The Hopkins evidence presented to the jury stressed the similarities of the wire
2007-1530 2
structures and their fragmentation action. The Datascope evidence presented to the jury

stressed the differences of the wire structures and their fragmentation action. Datascope

showed an animation of the accused device and both experts testified as to that animation.

The jury saw the competing devices, and their operation was explained. Hopkins’ expert

Dr. Valji testified that the S-shaped wire at the end of the lumen in the accused device is a

fragmentation member in that when it rotates it fragments the clot by wire action, like the

wires at the end of the lumen in the Hopkins device. In considering the “wire cage or

basket” shape of the Hopkins device, the jury heard Dr. Valji’s testimony that “when . . . in .

. . operable position, this S-shaped wire takes on the configuration essentially of a basket.”

Record at A445. Dr. Valji also testified that the accused device “when allow[ed] . . . to

expand by deployment, will expand both the shape and diameter of the inner lumen of . . .

the graft” meeting the “expands to conform” claim limitation. Record at A436. Datascope

made contrary arguments, urging opposite conclusions.

The jury found infringement, on instructions that were agreed by the parties. The

district court, denying Datascope’s JMOL motion, stated that “[t]he jury’s finding was

certainly not against the clear weight of the evidence.” Indeed, there was substantial

evidence in support of the verdict. Whether or not there was also substantial evidence on

the other side, “[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.’” Inwood Laboratories, Inc. v. Ives

Laboratories, Inc., 456 U.S. 844, 857-58 (1982) (quoting United States v. Real Estate

Boards, 339 U.S. 485, 495 (1950)). I do not disagree that there was evidence and

argument on Datascope’s side. However, it is not our province to reweigh the evidence,
2007-1530 3
when there was substantial evidence by which a reasonable jury could have reached its

verdict. See Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35 (1944) (“Courts are

not free to reweigh the evidence and set aside the jury verdict merely because the jury

could have drawn difference inferences or conclusions or because judges feel that other

results are more reasonable.”); DMI, Inc. v. Deere & Co., 802 F.2d 421, 427 (Fed. Cir.

1986) (“When . . . there are conflicting elements in the evidence, neither the trial court on

JNOV nor this court may substitute its choice for that of the jury.”).

As the district court explained, a reasonable jury could have reached the verdict of

infringement. I must, respectfully, dissent.

2007-1530 4