On January 19, 2016, the Supreme Court issued a grant-vacate-remand order in a dispute between rival medical device companies Medtronic and NuVasive. The order directs the Federal Circuit to revisit its decision in light of the Supreme Court’s ruling in Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920 (2015). Commil clarified that induced infringement “requires proof the defendant knew the acts [it induced others to take] were infringing.” Id. at 1928. On remand, the case should provide insight on how the Federal Circuit will analyze evidence to determine whether a defendant possessed the state of mind necessary for induced infringement.
NuVasive’s patent is directed to a method for detecting the presence of and measuring the distance to a nerve during surgery. The patented monitoring device sends a series of “stimulus signals” in increasing strength. When a nerve fires after receiving a stimulus signal, the device “stops” sending the signal and can predict its proximity to the nearest nerve based on the signal strength most recently sent by the device. Warsaw Orthopedic, Inc. v. NuVasive, Inc., 778 F.3d 1365, 1372 (Fed. Cir. 2015).