Warsaw Orthopedic, Inc. v. Nuvasive, Inc. , 824 F.3d 1344 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
WARSAW ORTHOPEDIC, INC.,
Plaintiff/Counterclaim Defendant-Appellant
MEDTRONIC SOFAMOR DANEK USA, INC.,
Counterclaim Defendant-Appellant
MEDTRONIC PUERTO RICO OPERATIONS CO.,
MEDTRONIC SOFAMOR DANEK DEGGENDORF,
GMBH,
Counterclaim Defendants
v.
NUVASIVE, INC.,
Defendant/Counterclaimant-Cross-Appellant
______________________
2013-1576, 2013-1577
______________________
Appeals from the United States District Court for the
Southern District of California in No. 08-CV-1512, Judge
Cathy Ann Bencivengo.
______________________
Decided: June 3, 2016
______________________
LUKE DAUCHOT, Kirkland & Ellis LLP, Los Angeles,
CA, for plaintiff/counterclaim defendant-appellant, coun-
2 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
terclaim defendant-appellant. Also represented by
ALEXANDER FRASER MACKINNON, NIMALKA R.
WICKRAMASEKERA, SHARRE LOTFOLLAHI; JOHN C. O’QUINN,
LIAM PATRICK HARDY, JASON M. WILCOX, WILLIAM H.
BURGESS, Washington, DC.
DEANNE MAYNARD, Morrison & Foerster LLP, Wash-
ington, DC, for defendant/counterclaimant-cross-
appellant. Also represented by BRIAN ROBERT MATSUI;
RYAN MALLOY, Los Angeles, CA; FRANK SCHERKENBACH,
Fish & Richardson, P.C., Boston, MA; CRAIG E.
COUNTRYMAN, MICHAEL ARI AMON, TODD GLEN MILLER,
San Diego, CA; MICHAEL J. KANE, Minneapolis, MN; PAUL
DAVID TRIPODI II, Wilson, Sonsini, Goodrich & Rosati,
P.C., Los Angeles, CA; MICHAEL T. ROSATO, Seattle, WA.
______________________
Before LOURIE, DYK, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge DYK.
Concurring opinion filed by Circuit Judge REYNA.
DYK, Circuit Judge.
This case returns to this court on vacatur and remand
from the Supreme Court, “for further consideration in
light of Commil USA, LLC v. Cisco Systems, Inc., [135 S.
Ct. 1920 (2015)].” Medtronic Sofamor Danek USA, Inc. v.
NuVasive, Inc., 136 S. Ct. 893 (2016) (Mem.). On remand,
we reaffirm the district court’s judgment with respect to
U.S. Patent No. 7,470,236 (“the ’236 patent”) and rein-
state our earlier judgment in other respects.
BACKGROUND
The vacated decision, Warsaw Orthopedic, Inc. v.
NuVasive, Inc., 778 F.3d 1365 (Fed. Cir. 2015), began as a
patent infringement suit by Warsaw Orthopedic, Inc. and
WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC. 3
a related company, Medtronic Sofamor Danek USA, Inc.,
(“MSD”) 1 against NuVasive, Inc. (“NuVasive”). NuVasive
counterclaimed for infringement of its patent, U.S. Patent
No. 7,470,236 (“the ’236 patent”). Only our decision with
respect to the ’236 patent is affected by the Supreme
Court’s remand. That aspect of our decision affirmed a
jury verdict of infringement, holding that the asserted
claims of NuVasive’s ’236 patent were directly infringed
by users of MSD’s “NIM-Eclipse” device and that MSD
induced this infringement. Id. at 1369, 1373, 1379.
Our opinion issued on March 2, 2015. The Supreme
Court decided Commil shortly thereafter, on May 26,
2015. 135 S. Ct. at 1920. MSD subsequently petitioned
for certiorari in this case, requesting that the Court grant
certiorari, vacate, and remand (“GVR”) on the basis that
our court did not correctly apply the test for induced
infringement under 35 U.S.C. § 271(b) articulated in
Commil and the Court’s earlier decision in Global-Tech
Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011). MSD
contended that while the jury had been properly instruct-
ed as to the standard of induced infringement set out in
Commil, NuVasive had failed to prove that MSD had the
requisite knowledge to induce infringement. MSD did not
raise any issue concerning a belief in patent invalidity,
the Supreme Court in Commil having held that a belief in
patent invalidity is not a defense to inducement. 135 S.
Ct. at 1928. The Supreme Court granted certiorari and
issued its GVR order on January 19, 2016.
We recalled our mandate and reopened the case on
March 3, 2016. We requested supplemental briefing from
1 For simplicity, we refer to Warsaw Orthopedic,
Inc. and Medtronic Sofamor Danek USA, Inc. collectively
as “MSD.”
4 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
MSD and NuVasive on “the question of what action this
court should take on remand from the Supreme Court ‘for
further consideration in light of Commil . . . .’” March 2,
2016, Order, ECF No. 93. We now consider what action is
appropriate in this case in light of the Supreme Court’s
remand.
DISCUSSION
I
The only question here is whether there was substan-
tial evidence for the jury to conclude that MSD induced
infringement of NuVasive’s ’236 patent. The Supreme
Court’s decision in Commil reaffirmed and clarified the
Court’s earlier decision in Global-Tech on the standard for
inducement under § 271(b) but did not change the law.
See Commil, 135 S. Ct. at 1927–28. Commil, like Global-
Tech, held that proof of induced infringement requires not
“only knowledge of the patent” but also “proof the defend-
ant knew the [induced] acts were infringing.” Id. at 1926,
1928. Commil, in reaffirming Global-Tech, also necessari-
ly reaffirmed that willful blindness can satisfy the
knowledge requirement for active inducement under
§ 271(b) (and for contributory infringement under
§ 271(c)), even in the absence of actual knowledge. Glob-
al-Tech, 131 S. Ct. at 2070.
Global-Tech also held that knowledge of infringement
can be inferred from circumstantial evidence. Id. at
2071–72. In this respect, Global-Tech affirmed the Su-
preme Court’s and our court’s earlier precedents, which
held that the “requisite intent to induce infringement may
be inferred from all of the circumstances.” Broadcom
Corp. v. Qualcomm Inc., 543 F.3d 683, 699 (Fed. Cir.
2008) (quoting Water Techs. Corp. v. Calco, Ltd., 850 F.2d
660, 669 (Fed. Cir. 1988)); see also MGM Studios Inc. v.
Grokster, Ltd., 545 U.S. 913, 936, 939–940 (2005) (apply-
ing the inducement standard of patent law in a copyright
WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC. 5
context and holding that circumstantial evidence demon-
strated an “unmistakable” “unlawful objective” to induce
infringement); Lucent Techs., Inc., v. Gateway, Inc., 580
F.3d 1301, 1322 (Fed. Cir. 2009) (“A plaintiff
may . . . prove the intent element through circumstantial
evidence, just as with direct infringement . . . .”); Fuji
Photo Film Co., Ltd. v. Jazz Photo Corp., 394 F.3d 1368,
1377 (Fed. Cir. 2005) (“A patentee may prove intent
through circumstantial evidence.”); Water Techs., 850
F.2d at 660 (“While proof of intent is necessary, direct
evidence is not required; rather, circumstantial evidence
may suffice.”).
II
The ’236 patent is directed to a method for detecting
the presence of and measuring distance to a nerve during
surgery. Warsaw, 778 F.3d at 1372. The patented meth-
od requires sending a series of electrical pulses that
gradually increase in strength until a pulse reaches
sufficient strength to elicit a nerve response. Id. Proxim-
ity to the nearest nerve is proportional to the strength of
the pulse that elicited the response. Id. NuVasive as-
serted claims 1, 5, and 9 of the ’236 patent, of which claim
1 is representative. Claim 1 is reproduced in full in our
earlier opinion, id., but only one limitation, the “stopping”
step, is relevant to this case on remand. The “stopping”
step of claim 1 is step (c), which requires “increasing the
intensity level of said stimulus signal until said prede-
termined neuro-muscular response is elicited by said
stimulus pulse and stopping the emission of said stimulus
signal immediately after said predetermined neuro-
muscular response is detected.” ’236 patent col. 17 ll. 56–
60. In the earlier appeal we held that substantial evi-
dence supported the jury’s finding of direct infringement
of claim 1 of the ’236 patent by surgeons using MSD’s
device, the “NIM-Eclipse.” Id. at 1373. That determina-
tion is not reopened by the Supreme Court’s remand.
6 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
The district court concluded that the “stopping” step—
specifically, the claim term, “stopping the emission of said
stimulus signal immediately after said predetermined
neuro-muscular response is detected”—did not need to be
construed and consequently did not provide the jury with
any construction (although the court did construe the
embedded term “stimulus signal,” as discussed below). In
determining whether the NIM-Eclipse met the “stopping”
step, the jury was required to apply the “plain meaning to
a person of ordinary skill in the art at the time of the
invention.” J.A. 206.
There is no dispute that the jury was correctly in-
structed as to the standard for induced infringement
under Global-Tech (and Commil). The jury was instruct-
ed that it was NuVasive’s burden to prove that “the
alleged infringer knew or was willfully blind to the fact
that the induced acts constituted patent infringement of
at least one patent claim,” in addition to the other ele-
ments of induced infringement. J.A. 213. MSD does not
dispute that the jury was correctly instructed as to the
relevant claim limitations of the ’236 patent and as to
NuVasive’s burden to prove infringement by a preponder-
ance of the evidence.
Thus, the question before us now is a limited one:
whether the jury was presented with substantial evidence
that MSD knew (or was willfully blind to the fact) that it
was instructing doctors to infringe the ’236 patent. MSD
acknowledges that its “challenge is to the sufficiency of the
evidence that it indirectly infringed.” Appellants’ Supp.
Br. at 14. In the earlier appeal we did not address that
question explicitly, stating only that “[t]here was evidence
that MSD was aware of the patent prior to the litigation
and that MSD specifically taught doctors to use the
product during the surgical procedures in an infringing
manner.” Warsaw, 778 F.3d at 1373. We now address the
question. We must sustain the jury’s verdict if there was
WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC. 7
substantial evidence before the jury to support an infer-
ence that MSD knew (or was willfully blind to the fact)
that doctors’ use of its device infringed the ’236 patent.
III
MSD argues that no reasonable jury could have in-
ferred from the evidence before it that MSD had
knowledge of (or was willfully blind to) its customers’
infringement of the ’236 patent. However, here we con-
clude that there was substantial evidence that MSD’s
infringement position was objectively unreasonable and
that the jury, based on this evidence, could reasonably
have concluded that MSD had knowledge (or was willfully
blind to the fact) that it was infringing.
The central premise of MSD’s non-infringement posi-
tion is that it reasonably construed narrowly the “stop-
ping” limitation of the claims of the ’236 patent to require
a complete termination of emission of any and all electri-
cal pulses. “Stopping the emission of the signal thus
means the electrode – i.e., the device – must stop emitting
any signal, which indisputably is not what occurs when a
NIM-Eclipse device detects a nerve.” Appellants’ Supp.
Br. at 10. After the NIM-Eclipse emits a stimulus signal
that detects a nerve, it continues emitting electrical
pulses at a lower energy rather than stopping emission of
all electrical signals. MSD argues that this property of
the NIM-Eclipse led MSD to believe that the device did
not infringe the ’236 patent.
But on its face, claim 1 of the ’236 patent says some-
thing different. Claim 1 requires “stopping the emission
of said stimulus signal immediately after said predeter-
mined neuro-muscular response is detected.” ’236 patent
col. 17 ll. 58–60. That is, claim 1 requires stopping a
particular kind of signal, “said stimulus signal,” and does
not require stopping any and all electrical signals emitted
by the device.
8 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
At the district court, both parties agreed that “a stim-
ulus signal” is a signal able to elicit a neuromuscular
response (i.e., a nerve response). MSD asked the district
court to construe “stimulus signal” to mean “a signal that
can stimulate.” J.A. 1871 (MSD’s Responsive Claim
Construction Brief). MSD expressly explained that, under
its construction, a stimulus signal is one capable of stimu-
lating a nerve. “Per Medtronic’s construction, ‘a signal
that can stimulate,’ a stimulus signal is able to elicit a
response to detect nerve proximity, but does not cease
being a ‘stimulus signal’ merely because it is not currently
eliciting a response . . . .” J.A. 1871 (emphasis added).
NuVasive requested a similar construction, “an electrical
signal for eliciting a neuromuscular response,” which the
district court adopted. J.A. 21–22 (District Court’s
Markman Order). MSD’s Responsive Claim Construction
Brief emphasized its agreement that a “stimulus signal”
is a signal capable of eliciting a nerve response. “In
NuVasive’s words, ‘not every signal is an electrical sig-
nal . . . and not every stimulation can cause a neuro-
muscular response.’ Medtronic agrees, and its construc-
tion of this term does not contradict these assertions.”
J.A. 1871 (quoting NuVasive’s Opening Claim Construc-
tion Brief). The jury was properly instructed to construe
“stimulus signal” according to the district court’s con-
struction to mean “an electrical signal for eliciting a
neuromuscular response.” J.A. 208.
The language of claim 1 clearly requires stopping the
emission not of any or all stimulus signals but of one
particular stimulus signal: “said stimulus signal,” the
signal that triggered a response from the nerve being
probed. As MSD itself put it, “[t]he claim language ‘said’
means that the ‘stimulus signal’ and ‘predetermined
neuromuscular response’ elements modified by ‘said’ are
the same signal and response referenced earlier in the
claim.” J.A. 1872 (MSD’s Responsive Claim Construction
WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC. 9
Brief). In MSD’s words, under “the very clear language of
claim 1,” “the steps contemplate emission of one signal to
elicit one neuro-muscular response, with that same signal
stopping upon the detection of that response.” Id.
MSD’s claim is that the “stopping” limitation requires
total cessation of any and all electrical stimulus pulses
emitted by the nerve-monitoring device. It insists that
“[s]topping the emission of the signal thus means the
electrode – i.e., the device – must stop emitting any sig-
nal.” Appellants’ Supp. Br. at 10. This theory is clearly
inconsistent with the construction of “said stimulus
signal” that MSD itself propounded.
MSD also argues that the prosecution history of the
’236 patent, which was before the jury, supports MSD’s
interpretation of the “stopping” step and its theory that
the jury could not have found the knowledge (or willful
blindness) necessary for induced infringement. The
prosecution history here does not help MSD. The prose-
cution history shows that NuVasive amended the claims
of the application that became the ’236 patent to overcome
the examiner’s obviousness rejection over a prior art
reference, U.S. Patent No. 5,284,153 (“Raymond ’153”), by
adding the “stopping” limitation. Raymond ’153 describes
a method of probing a nerve at a constant level of stimula-
tion, thereby eliciting multiple neuromuscular responses
from the same nerve. Raymond ’153 col. 3 ll. 29–35.
NuVasive argued that its method, with the “stopping”
step, provided increased safety compared to Raymond ’153
because NuVasive’s method avoided overstimulation of
the nerve:
Claim 15 [which became claim 1 of the ’236 patent]
has also been amended to reflect that the emission
of the stimulus signal is immediately stopped after
the predetermined neuro-muscular response is de-
tected. This is a safety mechanism designed to re-
10 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
move the stimulation of the spinal nerve during the
processing time required to communicate the inten-
sity level to a user . . . . This avoids the unneces-
sary stimulation found, for example, in the
Raymond ’153 reference. . . . [Raymond ’153] does
not stop the stimulation altogether, as found in
claim 15, and thus subjects the nerve to unneces-
sary stimulation that may result in irritation
and/or damage over time.
J.A. 2895 (NuVasive’s Amendment and Remarks of Octo-
ber 12, 2007). Contrary to MSD’s argument, the prosecu-
tion history thus demonstrates that “stopping” refers to
stoppage of the stimulus signal capable of eliciting a
neuromuscular response, not necessarily stoppage of any
and all electrical stimulus.
In short, there is no support in the language of claim
1 of the ’236 patent or its prosecution history to support
MSD’s position that infringement of the “stopping” limita-
tion requires complete termination of any and all electri-
cal stimulus pulses from a nerve-probing device. Claim 1
recites “stopping the emission of said stimulus signal,” not
stopping the emission of all electrical signals.
In any event, MSD’s effort at this late stage amounts
to a request for a revised claim construction that it never
sought. That is improper, as we previously ruled in our
earlier opinion. Warsaw, 778 F.3d at 1373 (citing
Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314,
1321 (Fed. Cir. 2003)). Moreover, claim construction is, of
course, ultimately a question of law that must be left to
the court, not the jury. Teva Pharm. USA, Inc. v. Sandoz,
Inc., 135 S. Ct. 831, 837 (2015). We have previously held
that it is improper for juries to hear conflicting expert
testimony on the correctness of a claim construction,
given the risk of confusion. CytoLogix Corp. v. Ventana
Med. Sys., Inc., 424 F.3d 1168, 1172 (Fed. Cir. 2005); see
WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC. 11
also Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d
1356, 1364 n.6 (Fed. Cir. 2009).
IV
Turning to the issue that is properly before us, undis-
puted evidence before the jury showed that, immediately
after nerve stimulation, the NIM-Eclipse reduced the
strength of the electrical stimulus pulses it emitted to a
level that was not capable of stimulating the nerve that
had provided the neuromuscular response. In other
words, the “said stimulus signal” emitted by the NIM-
Eclipse was stopped immediately after the neuromuscular
response was detected.
MSD does not dispute that whenever the NIM-Eclipse
device emits a “stimulus signal” at the threshold intensity
sufficient to elicit a nerve response, the next pulse is
emitted at lower intensity. As such, the record shows that
“said stimulus signal” as construed by the court—the
electrical signal for eliciting a neuromuscular response,
capable of stimulating the nerve being probed—“stops”
immediately after the response is detected, just as the
claims of the ’236 patent require. This evidence was
before the jury, and the jury could reasonably have con-
cluded that MSD had the requisite knowledge of in-
fringement.
Given the strength of the evidence NuVasive pre-
sented, a reasonable jury could have concluded that MSD
must have known that its NIM-Eclipse device “stopped”
emitting “said stimulus signal” immediately after that
signal elicited a neuromuscular response. MSD’s
knowledge of the ’236 patent is undisputed. As such,
under these circumstances, a reasonable jury could have
concluded that MSD’s non-infringement position was
objectively unreasonable and that MSD must have known
that NIM-Eclipse meets the limitations of the claims of
the ’236 patent. A reasonable jury could therefore have
12 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
inferred that MSD must have known, or was willfully
blind to the fact, that doctors using the device infringe
those claims. 2
CONCLUSION
We again affirm the district court’s judgment of
January 26, 2012, with respect to direct and indirect
infringement of the ’236 patent. In view of that judgment,
we also affirm the district court’s June 10, 2013, award of
an ongoing royalty to be paid by MSD to NuVasive for
post-verdict sales of the NIM-Eclipse device. We reinstate
our earlier judgment with respect to NuVasive’s in-
fringement of MSD’s patents, which was unaffected by the
Supreme Court’s GVR order. Warsaw, 778 F.3d at 1379.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED-IN-PART
COSTS
Costs to NuVasive.
2 The concurrence expresses concern that the ma-
jority opinion could be read to suggest “that any time a
defendant’s products are found to directly infringe, the
plaintiff has sufficiently established the defendant’s
intent to induce infringement.” Concurrence at 4. To be
clear, we do not suggest that inducement liability is that
broad. To show the intent to induce infringement, it is
sufficient that the plaintiff establish that a defendant’s
asserted belief in non-infringement was unreasonable.
United States Court of Appeals
for the Federal Circuit
______________________
WARSAW ORTHOPEDIC, INC.,
Plaintiff/Counterclaim Defendant-Appellant,
AND
MEDTRONIC SOFAMOR DANEK USA, INC.,
Counterclaim Defendant-Appellant,
AND
MEDTRONIC PUERTO RICO OPERATIONS CO.
AND
MEDTRONIC SOFAMOR DANEK DEGGENDORF,
GMBH,
Counterclaim Defendants,
v.
NUVASIVE, INC.,
Defendant/Counterclaimant-Cross-Appellant.
______________________
2013-1576, -1577
______________________
Appeals from the United States District Court for the
Southern District of California in No. 08-CV-1512, Judge
Cathy Ann Bencivengo.
______________________
2 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
REYNA, Circuit Judge, concurring.
While I concur in the result reached by this court, I
write to express several concerns regarding how the result
was reached and its future implications. First, I am
concerned about Section III of the opinion, which address-
es the reasonableness of MSD’s infringement position.
This section concludes that “there is no support in the
language of claim 1 of the ’236 patent or its prosecution
history to support” MSD’s reading of the claims. Op. at
10. MSD’s petition for certiorari argued that, because this
court’s prior opinion did not discuss whether MSD’s
reading of the claims was reasonable, the Supreme Court
should grant, vacate, and remand in light of Commil
USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920 (2015).
Petition for Writ of Certiorari, Medtronic Sofamor Danek
USA, Inc. v. NuVasive, Inc., 2015 WL 4397393, at *i. 1
While the Supreme Court in Commil stated that a de-
fendant lacks the intent for induced infringement where
his reading of the claims is both different from the plain-
tiff’s and reasonable, I do not believe Commil opens the
door for this court to assess the reasonableness of a de-
fendant’s non-infringement position that is based on a
claim construction that a defendant failed to raise, or that
was not before the jury. 2 In this case, MSD proposed no
construction for the “stopping” limitation, arguing that
the limitation has a plain meaning to one of ordinary skill
in the art. I would resolve this case on this basis. Where
1 In Warsaw Orthopedic, Inc. v. NuVasive, Inc., 778
F.3d 1365, 1373 (Fed. Cir. 2015), this court found that
MSD was precluded from raising on appeal its construc-
tion of the “stopping limitation,” because it was raised too
late in the proceeding and was therefore waived.
2
See supra note 1.
WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC. 3
a defendant proposes no construction of a claim term, this
court is speculating to determine what the defendant’s
reading of the claims is. We should not be in the business
of creating claim constructions for defendants in induced
infringement actions so that we may then assess whether
the claim constructions are reasonable.
Second, if the question before us is whether the jury
had sufficient evidence to find that MSD induced in-
fringement, such as circumstantial evidence showing that
MSD was willfully blind, our analysis should discuss that
evidence. But, the only evidence the opinion cites as
showing MSD’s intent to induce infringement is evidence
that MSD’s device itself directly infringed. Op. at 11.
Thus, the opinion’s analysis is suspect. Commil indicated
that a defendant’s reliance on a claim construction under
which it did not infringe, while incorrect or wrong, could
still suffice to show that the defendant lacked the intent
to induce infringement as long as the construction was
reasonable. 135 S. Ct. at 1928. Because the jury was not
instructed on this, I find it difficult at best to say that the
jury necessarily decided that MSD’s “claim construction”
was unreasonable, as the opinion seems to do. Of note,
the jury was not presented with the claim construction
briefing that the court here relies on in its analysis criti-
cizing MSD’s “claim construction.”
Third, the opinion concludes by stating that “[g]iven
the strength of the evidence NuVasive presented, a rea-
sonable jury could have concluded that MSD must have
known” its device infringed under the claim constructions
adopted by the district court and now affirmed by this
court. Op. at 12. It is not clear what evidence leads to
this conclusion, let alone that the evidence is so strong
that it shows MSD “must have known” it was infringing.
In Global-Tech, the Supreme Court cited evidence that
the accused infringer had intentionally withheld key
information from its patent attorney when seeking a
4 WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC.
right-to-use opinion. Global-Tech Appliances, Inc. v. SEB
S.A., 563 U.S. 754, 131 S. Ct. 2060, 2071 (2011). In
Global-Tech, the evidence demonstrated the defendant’s
willful blindness. The opinion here cites no similar evi-
dence. The opinion’s analysis suggests that any time a
defendant’s products are found to directly infringe, the
plaintiff has sufficiently established the defendant’s
intent to induce infringement. This proposition conflicts
with Global-Tech, Commil, and our caselaw.