Full opinion text
OPINION SUE L. ROBINSON, Chief Judge. I. INTRODUCTION Plaintiffs Expandable Grafts Partnership and Cordis Corporation, a division of Johnson & Johnson (collectively, “Cordis”), originally filed this patent infringement action on October 3, 1997 against defendants Medtronic AVE, Inc., Boston Scientific Corporation and Scimed Life Systems, Inc. Cordis alleges that AVE infringed certain claims of United States Patent Nos. 4,739,762 (the “’762 patent”) and 5,195,984 (the “ ’984 patent”). Cordis accuses BSC of infringing certain claims of the ’762 patent and United States Patent Nos. 5,902,332 (the “ ’332 patent”), 5,643,-312 (the “ ’312 patent”), and 5,879,370 (the “ ’370 patent”). The court held a seven-week bifurcated jury trial on the issues of infringement and invalidity, and a four-day bench trial on the issue of unenforceability. Currently before the court are the parties’ motions for judgment as a matter of law and a new trial, and proposed findings of fact and conclusions of law regarding inequitable conduct. II. BACKGROUND A. The Technology The dispute relates to balloon expandable stents. Balloon expandable stents and other types of stents are used to treat diseased blood vessels in the heart (“coronary arteries”) and in other areas of the body (“peripheral arteries”). Coronary artery disease is caused by the buildup of fatty deposits on the inner lining of the coronary arteries. Known as atherosclerosis, this buildup narrows coronary arteries and may eventually block the flow of blood to the heart. Untreated coronary disease can have serious consequences, including angina, heart attack or even death. Similar narrowing in arteries away from the heart causes problems for people with peripheral artery disease. Until about twenty-five years ago, the primary treatment for coronary lesions was medication or coronary artery bypass graft surgery. In approximately 1975, physicians began to use a non-surgical treatment called percutaneous translumi-nal coronary angioplasty, commonly known as “balloon angioplasty.” During this procedure, a balloon attached to a wire catheter is snaked through a diseased artery until it reaches the site of blockage. A physician inflates the balloon, which compresses the fatty deposits against the vessel wall to open the artery and restore blood flow. The balloon and catheter are then removed from the body. Although balloon angioplasty represented a major advancement in combating artery disease, blood vessels often closed again within several months of the procedure. This recurrence of blockage is called “restenosis.” A stent improves the success of balloon angioplasty by minimizing the occurrence of restenosis. A stent is a small device that holds open an artery just like scaffolding inside a tunnel keeps the tunnel from collapsing. At issue in this case are balloon expandable stents which are used in conjunction with angioplasty balloons. The stent is placed on a balloon and inserted into an artery via a catheter. Once the balloon is at the area of blockage, it is inflated, which causes the stent to expand and press against the vessel wall, thereby opening the artery. The balloon is then deflated and removed, leaving the expanded stent in the artery to keep the vessel open and allow blood to flow. B. The Patents in Suit 1. The ’762 Patent The ’762 patent, entitled “Expandable Intraluminal Graft, and Method and Apparatus for Implanting an Expandable Intra-luminal Graft,” is a continuation-in-part of patent application serial no. 796,009 (the “ ’009 application”), which issued as United States Patent No. 4,733,665 (the “ ’665 patent”). Dr. Julio C. Palmaz is the named inventor of the ’762 patent, and plaintiff Expandable Grafts Partnership (“EGP”) is the listed assignee. Dr. Palmaz filed the ’009 application on November 7, 1985, and the ’762 patent issued on April 26, 1988. A reexamination certificate (the “ ’762 reexamination certificate”) issued on October 27, 1998 with amended and additional claims. The ’762 patent includes both apparatus and method claims. The apparatus claims are directed to an expandable tubular member that serves as vascular scaffolding. Figures 1A and IB shown below depict the preferred embodiment of the ’762 patent in its unexpanded state (“first diameter”) and expanded state (“second diameter”), respectively. The method claims of the 762 patent describe the process of implanting the stent into a diseased vessel. As depicted in Figures 3 and 4 below, a stent is mounted upon a catheter and delivered in its first diameter to the diseased vessel. Next, the stent is expanded and deformed radially into contact with the vessel. Finally, the balloon is deflated and removed along with the catheter, leaving the stent in the artery to support the vessel wall. Claim 23 of the ’762 patent is an apparatus claim which is dependent upon claim 13. The claims read: 13. An expandable intraluminal vascular graft, comprising: a thin-walled tubular member having first and second ends and a wall surface disposed between the first and second ends, the wall surface having a substantially uniform thickness and a plurality of slots formed therein, the slots being disposed substantially parallel to the longitudinal axis of the tubular member; the tubular member having a first diameter which permits intraluminal delivery of the tubular member into a body passageway having a lumen; and the tubular member having a second, expanded and deformed diameter, upon the application from the interior of the tubular member of a radially, outwardly extending force, which second diameter is variable and dependent upon the amount of force applied to the tubular member, whereby the tubular member may be expanded and deformed to expand the lumen of the body passageway. 23. The expandable intraluminal vascular graft of claim 13, wherein the outside of the wall surface of the tubular member is a smooth surface, when the tubular member has the first diameter. (’762 patent, col. 11, In. 63 — col. 12, In. 14; col. 12, Ins. 56-59) Claim 44, a method claim added during reexamination, reads: 44. A method for implanting a balloon expandable stent prosthesis within a passageway of a coronary artery having an area of stenosis, comprising the steps of: utilizing a thin-walled, tubular member as the stent prosthesis, the tubular member having a plurality of slots formed therein, the slots being disposed substantially parallel to the longitudinal axis of the tubular member; disposing the stent prosthesis and catheter having an inflatable balloon portion; inserting the stent prosthesis and catheter within the passageway by percutaneous catheterization; delivering the catheter and stent prosthesis to the area of stenosis without surgically exposing the area of the passageway; and expanding and deforming the stent prosthesis at the area of stenosis within the coronary artery passageway by expanding the inflatable balloon portion of the catheter associated with the stent prosthesis to force the stent prosthesis radially outwardly into contact with the area of stenosis in the passageway, the stent prosthesis being controllably deformed beyond its elastic limit. (’762 reexamination certificate, col. 3, Ins. 22-44) Claims 51 and 54, also added during reexamination, read: 51. In combination, a balloon expandable stent prosthesis for implementation in the passageway of a coronary artery having an area of stenosis and a catheter comprising: an expandable stent prosthesis being a thin-walled tubular member having first and second ends and a wall having an outer wall surface disposed between the first and second ends, the wall surface having a substantially uniform thickness and a plurality of slots formed therein, the slots being disposed substantially parallel to the longitudinal axis of the tubular member: a catheter having an expandable, inflatable balloon portion; the tubular member having a first diameter which permits intraluminal delivery of the tubular member and the catheter into a lumen of a coronary artery having an area of stenosis and wherein the outside of the wall surface of the tubular member is a smooth surface when the tubular member has the first diameter; and the tubular member having a second, expanded and deformed diameter, upon the application from the interior of the tubular member of a radially, outwardly extending force, which second diameter is variable and controlled by the amount of force applied to the tubular member, whereby the tubular member may be expanded and deformed to expand the coronary artery in the area of stenosis. 54. The combination of claim 51, wherein said tubular member includes at least one ring portion defined by circum-ferentially adjacent slots so as to define a plurality of peak portions and valley portions. (’762 reexamination certificate, col. 4, Ins. 4-33, 41-44) Prior to trial, the court construed disputed terms of the ’762 patent as follows: (1) “Graft” and “Prosthesis.” A graft and prosthesis must be functional, that is, once it is expanded and deformed it must be capable of serving to prevent a body passageway from collapsing. (2) “Tubular member.” A discrete structure that has the form of a tube, that is, a hollow, elongated, usually cylindrical structure with two ends. “Elongate” is defined in the dictionary as “stretched out, lengthened; especially: having a form notably long in comparison to its width.” (3) “Thin-walled.” The wall of the tubular member must have little extent from one surface to its opposite at both its first and second diameters. (4) “Wall surface.” The outer surface of the tubular member must be disposed in a common cylindrical plane. (5) “Substantially uniform thickness.” The thickness at all points along the wall surface of the tubular member, both at its first and second diameters, must be substantially the same. Variances as little as .001 inches fall outside the scope of “substantially uniform.” (6) “Plurality of slots.” More than ■ one slot. A “slot” is a long and narrow opening or groove, an opening whose length is substantially greater than its width. The claim requires slots in the tubular members that run substantially parallel to the longitudinal axis. (7) “Slots formed therein.” Slots must be formed in the wall surface of a tubular member, as by the removal of material. (8) “Smooth surface.” The outside of the wall surface of the unexpanded tubular member has a continuously even surface, without roughness, points, bumps or ridges, especially to the touch. (D.I.790,1115,1116) 2. The’984 Patent The ’984 patent, entitled “Expandable Intraluminal Graft,” was filed on February 19, 1991 as a continuation of abandoned patent application serial number 253,115, filed on October 4, 1988. Dr. Richard A. Schatz is the named inventor, and EGP is the listed assignee. The ’984 patent is directed to an improvement upon prior art stents, namely, connecting tubular members to “permitf] tissue of an elongated section of a body passageway to be supported by an elongated graft; and provide[ ] the necessary flexibility to negotiate the bends and curves in tortuous body passageways, such as the vascular system.” (’984 patent, col. 4, Ins. 20-25) Figures 7 and 8 depict the angularly offset connector members of the ’984 patent and the resulting added flexibility in a body passageway. Claims 1 and 3 of the ’984 patent read: 1. An expandable intraluminal vascular graft, comprising: a plurality of thin-walled tubular members, each having first and second ends and a wall surface disposed between the first and second ends, the wall surface having a substantially uniform thickness and a plurality of slots formed therein, the slots being disposed substantially parallel to the longitudinal axis of each tubular member; only one connector member being disposed between adjacent tubular members to flexibly connect adjacent tubular members, the connector member being disposed in a substantially parallel relationship with respect to the longitudinal axis of the tubular members and coplanar with each tubular member; each tubular member having a first diameter which permits intraluminal delivery of the tubular members into a body passageway having a lumen; and the tubular members having a second, expanded and deformed diameter, upon the application from the interior of the tubular members of a radially, outwardly extending force, which second diameter is variable and dependent upon the amount of force applied to the tubular members, whereby the tubular members may be expanded and deformed to expand the lumen of the body passageway. 3. The expandable intraluminal graft of claim 1, wherein a first connector member is disposed between the second end of a first tubular member and the first end of a second tubular member; a second connector member is disposed between the second end of the second tubular member and the first end of a third tubular member, the first and second connector members being angularly offset from one another and with respect to the longitudinal axes of the tubular members they interconnect. (’984 patent, col. 11, In. 44 — col. 12, In. 8; col. 12, Ins. 13-22) The court construed disputed terms of the ’984 patent as follows: (1) “Only one.” A single unit and no more. (2) “Connector member.” A discrete structure disposed or particularly arranged between adjacent tubular members in order to join them together. (3) “To flexibly connect adjacent tubular members.” To connect in such a way as to allow turning, bowing or twisting without breaking. The connector member must provide flexibility, whether or not the adjacent tubular members themselves are flexible. (4) “Substantially parallel.” The connector member must run in substantially the same direction as the longitudinal axis of the adjacent tubular members. This means that the slots and the connectors run in the same direction and are substantially aligned with one another. (5) “Coplanar.” The connector member must lie within the planes formed by the inner and outer wall surfaces of the adjacent tubular members. (D.I.790,1115) 3. The ’332 Patent The ’332 patent, entitled “Expandable Intraluminal Graft,” was filed on November 24, 1992 as a continuation of patent application no. 07/657,296, which issued as the ’984 patent. The specification of the ’332 patent, therefore, is virtually identical to that of the ’984 patent. Claim 22 of the ’332 patent reads: 22. A balloon expandable coronary stent for delivery to a coronary artery through an access artery, the stent comprising: at least two segments, each segment having a generally tubular shape and a first end and a second end; each segment having a plurality of openings that are disposed substantially parallel to the longitudinal axis of the segment, the openings forming a series of alternating open and closed portions in each of the first and second ends of the segment; the segments being arranged so that at least one closed portion of the second end of a first segment is in longitudinal alignment with a closed portion of the first end of a second segment; a connector extending between and connecting the aligned closed portion of the second end of the first segment to the aligned closed portion of the first end of the second segment, the connector being an elongate flexible member that extends between and is integrally formed with the aligned closed portions; whereby each of the segments may be displaced at an angle with respect to the longitudinal axis of an adjacent segment when the stent is delivered through a curved portion of the access or coronary arteries; and the stent having a first diameter which permits intraluminal delivery of the stent through the access artery by percutaneous catheterization and a second, expanded and deformed diameter, the second diameter being attained upon the application from the interior of the stent of a radially, outwardly directed force by inflating a balloon, which second diameter is variable and dependent upon the amount of force applied to the stent, whereby the stent may be expanded and deformed beyond its elastic limit to expand the lumen of the coronary artery. (’332 patent, col. 13, In. 13 — col. 14, In. 13) The court construed disputed terms of the ’332 patent as follows: (1) “Segment.” A piece or separate fragment of something; one of the constituent parts into which a body is or may be divided. (2) “Generally tubular shape.” The phrase “segment having a generally tubular shape” is broader in scope than the phrase “tubular member” and may encompass segments that are not perfectly hoEow, elongated or cylindrical in shape. (3) “Plurality of openings.” More than one opening, that is, more than one breach or aperture. (4) “Openings forming a series of alternating open and closed portions.” All openings have “open” and “closed” portions, the closed portions comprising the material that gives form to or encloses the openings and serves to block or shut off entry or passage in some fashion. The claim requires that the openings in the segment alternate around the circumference so that each end of the segment consists of alternating open and closed portions. The court construes the phrase at issue to mean a combination of openings, some of which are “open,” that is, without enclosing material at the end of the segment, thus permitting ingress and egress, and some of which are “closed,” that is, having enclosing material at the end of the segment thus blocking or shutting off entry or passage. (5) “Connector.” A discrete structure disposed or particularly arranged between adjacent tubular members in order to join them together. The language of the claim (“comprising ... a connector”) does not require that the claim be Emited to a single connector. (6) “Whereby each of the segments may be displaced at an angle with respect to the longitudinal axis of an adjacent segment when the stent is delivered through a curved portion of the access or coronary arteries.” “Displaced” means to remove from the usual or proper place, to put out of place. An “angle” is a figure formed by two Enes diverging from the same point or by two surfaces diverging from the same line. “Axis” is defined as a straight line with respect to which a body or figure, or system of points is either radially or bilaterally symmetrical. The phrase modifies the word “segment;” the phrase as written indicates that the entire segment (not a portion thereof) must be capable of angular displacement with respect to the longitudinal axis of the adjacent segment (not a portion thereof). In light of the specification, which speaks only in terms of a connector being disposed to flexibly connect rather than in terms of flexible segments, the court concludes that the limitation requires relatively rigid segments and relatively flexible connectors. (D.I.790,1116) 4. The ’312 and ’370 Patents The ’312 patent, entitled “Stent Having a Multiplicity of Closed Circular Structures,” was filed on February 25, 1994 by inventors Robert E. Fischell, David R. Fischell and Tim A. Fischell. The ’370 patent, entitled “Stent Having a Multiplicity of Undulating Longitudinals,” was filed on May 28, 1997 as a continuation of patent application serial no. 08/202,128, which issued as the ’312 patent. Thus, the ’312 and ’370 patents have virtually identical specifications. The patents are directed to stents containing generally circular “rings” for radial strength upon expansion and “undulating longitudinals” for added flexibility. (’312 and ’370 patents, col. 1, Ins. 40-55) Claim 21 of the ’312 patent reads: 21. A predeployment stent structure adapted for placement in curved vessels of the coronary arteries, the stent structure being in the form of a thin-walled metal cylinder having a longitudinal axis, the stent including at least two undulating longitudinal structures each longitudinal structure having a multiplicity of straight sections and undulating sections with each straight section being joined continuously to at least one undulating section, the straight sections of all of the longitudinal structures being generally parallel to the longitudinal axis of the stent, the undulating sections of each longitudinal structure being of a generally curved shape so as to allow each undulating longitudinal structure to readily expand and contract in length when the stent is bent while passing through a curved coronary artery. (’312 patent, col. 7, Ins. 4-17) Claim 25 of the ’370 patent is dependent upon claim 22. The claims read: 22. A pre-deployment balloon expandable stent structure adapted for percuta-neous delivery to the curved coronary arteries, the stent structure being generally in the form of a thin-walled metal tube having a longitudinal axis, the stent structure having a multiplicity of closed perimeter cells, each cell having one or more undulating sections, each undulating section having a generally curved shape and having a first end point and a second end point wherein a line drawn from the first end point to the second end point is generally parallel to the stent’s longitudinal axis. 25. The stent of claim 22 wherein the undulating section of each closed perimeter cell comprises a “U” shaped curve. (’370 patent, col. 6, Ins. 17-26, 35-36) Claim 26 of the ’370 patent reads: 26. A balloon expandable coronary stent comprising: (a) a stent in the form of a thin-walled metal tube capable of being mounted on an expandable balloon for percutaneous delivery of the stent into a coronary artery, the stent having a plurality of zig-zag segments, the zig-zag segments capable of being expanded by the balloon; and (b) a plurality of longitudinally undulating sections of a generally curved shape positioned between and connection the zig-zag segments, wherein the plurality of longitudinally undulating sections can expand and contract in length while being passed through a curved coronary artery. (’370 patent, col. 6, Ins. 37-49) The court construed disputed terms of the ’312 and ’370 patents as follows: (1) “Undulating.” Rising and falling in waves, thus having at least a crest and a trough. (2) “Longitudinals” and “longitudinal structures.” Structures that extend or run lengthwise, in the direction of the stent’s longitudinal axis. Although there is no requirement that the longitudinals or longitudinal structures extend the entire length of the stent, the structures have to extend long enough to be considered continuous across a number of points of support. (3) “Closed perimeter cells.” A relatively small area on the perimeter of the stent that is bounded on all sides by continuous metal. The word “close” means to block or shut off entry or passage. The word “perimeter” means the boundary of a closed plane figure; outer limits. (4) “Zig-zag segments.” A portion of a stent that has one or more short sharp turns or angles. (5) “Stent” or “stent structure.” A device used to support, expand or hold open an artery or other body passageway. (D.I. 1116; *D.1.154) C. The Accused Devices 1. AVE’s MicroStent II, GFX and GFX2 Stents The stents manufactured by AVE at issue in this case include the MicroStent II, GFX, and GFX2 stents (the “AVE stents”). The AVE stents consist of multiple sinusoidal segments fused together to form a continuously connected device. Each sinusoidal segment is made from a torus, a circular-shaped object that has a circular cross-sectional shape, similar to a doughnut. AVE refers to these tori as “rings.” After undergoing a heating process, the rings are bent from their normal configuration into a sinusoidal design characterized by a series of peaks and valleys called “crowns” interconnected by substantially straight portions called “struts.” The segments are connected by fusing adjacent crowns together while the segments ahe positioned end to end in a helical arrangement. The crowns are fused to form a joint or weld using AVE’s proprietary autogenous laser fusion process, which melts and fuses existing material from the two crowns so as to ultimately decrease the distance between them. Although it is still possible to identify the fused region using high magnification, there are no discrete sides, facets, faces, or other recognizable geometric features to the fused joints, which have a generally hourglass shape. There is only one weld between adjacent segments. The following is a drawing of an AVE stent with one of its welds circled: The segments of the MicroStent II have four upper and lower crowns and are 3 mm in length. The segments of the GFX and GFX2 have six upper and lower crowns and are 2 mm in length. The AVE stents are constructed in a variety of sizes and lengths, created by connecting a number of individual 3 mm MicroStent II or 2 mm GFX segments together. They are no longer manufactured by AVE. (D.I. 296 at 3-9) 2. BSC’s NIR Stent The NIR stent is the only stent manufactured by BSC that is at issue in this litigation. It is manufactured from a flat sheet of metal upon which a design is etched. The sheet is then rolled into a cylindrical shape and the ends welded together, resulting in a stent composed of segments connected by U-shaped structures. (*D.I. 201 at 1924-27) A drawing of the NIR stent appears below. D. The Trial On November 6, 2000, the court commenced a seven-week jury trial in this case, with two separate juries (the “AVE jury” and the “BSC jury”), in four separate phases, per the parties’ request. In the first phase of the trial, the AVE jury determined whether the AVE stents infringed the asserted patent claims. In the second phase, the BSC jury determined whether BSC’s NIR stent infringed the asserted patent claims. After reaching a verdict regarding BSC’s liability, the BSC jury determined damages owed by BSC. Finally, the AVE jury returned after a three-week hiatus to determine damages owed by AVE. On November 21, 2000, the AVE jury returned a verdict finding that the AVE stents infringed claims 23, 51 and 54 of the ’762 patent and claims 1 and 3 of the ’984 patent under the doctrine of equivalents. (D.I.955) The AVE jury also found that the above claims were not invalid for failure to comply with the written description requirement. (Id.) On December 22, 2000, the AVE jury awarded Cor-dis $271,075,085 in damages, including $192,800,460 in lost profits, $77,274,625 based on a 25% reasonable royalty for domestic sales of stents, and a $1,000,000 payment for foreign sales of stents made in the United States. (D.I.1013) On December 11, 2000, the BSC jury returned the following verdict regarding the liability of BSC over its NIR stent: (1) Claim 23 of the ’762 patent: no literal infringement; infringement under the doctrine of equivalents. (2) Claim 44 of the ’762 patent: contributory infringement; invalid pursuant to 35 U.S.C. § 305. (3) Claim 22 of the ’332 patent: no literal infringement; no infringement under the doctrine of equivalents; invalid for obviousness; not invalid for failure to comply with the written description requirement. (4) Claim 21 of the ’312 patent: no literal infringement; not invalid for obviousness; not invalid for failure to comply with the written description requirement. (5) Claim 25 of the ’370 patent: literal infringement, but no infringement by the reverse doctrine of equivalents; not invalid for failure to comply with the written description requirement. (6) Claim 26 of the ’370 patent: literal infringement, but no infringement by the reverse doctrine of equivalents; invalid for failure to comply with the written description requirement. (*D.1.182) On December 15, 2000, the BSC jury awarded Cordis $324,403,250 in damages, including $253,595,750 in lost profits and $70,807,500 based on a 20% reasonable royalty rate. (*D.I.189) On February 7, 2001, the court commenced a four-day bench trial on the issue of unenforceability. The court’s findings of fact and conclusions of law are rendered in the instant opinion. III. STANDARDS OF REVIEW A. Motion for Judgment as a Matter of Law To prevail on a renewed motion for judgment as a matter of law following a jury trial, the moving party “ ‘must show that the jury’s findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusions implied [by] the jury’s verdict cannot in law be supported by those findings.’ ” Pannu v. Iolab Corp., 155 F.3d 1344, 1348 (Fed.Cir.1998) (quoting Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 893 (Fed.Cir.1984)). “ ‘Substantial’ evidence is such relevant evidence from the record taken as a whole as might be acceptable by a reasonable mind as adequate to support the finding under review.” Perkin-Elmer Corp., 732 F.2d at 893. In assessing the sufficiency of the evidence, the court must give the non-moving party, “as [the] verdict winner, the benefit of all logical inferences that could be drawn from the evidence presented, resolve all conflicts in the evidence in his favor, and in general, view the record in the light most favorable to him.” Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1348 (3d Cir.1991); Perkin-Elmer Corp., 732 F.2d at 893. The court may not determine the credibility of the witnesses nor “substitute its choice for that of the jury between conflicting elements of the evidence.” Perkin-Elmer Corp., 732 F.2d at 893. In sum, the court must determine whether the evidence reasonably supports the jury’s verdict. See Dawn Equip. Co. v. Ky. Farms Inc., 140 F.3d 1009, 1014 (Fed.Cir.1998). B. Motion for a New Trial Federal Rule of Civil Procedure 59(a) provides, in pertinent part: A new trial may be granted to all or any of the parties and on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. Fed.R.Civ.P. 59(a). The decision to grant or deny a new trial is within the sound discretion of the trial court and, unlike the standard for determining judgment as a matter of law, the court need not view the evidence in the light most favorable to the verdict winner. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Olefins Trading, Inc. v. Han Yang Chem. Corp., 9 F.3d 282 (3d Cir.1993); LifeScan Inc. v. Home Diagnostics, Inc., 103 F.Supp.2d 345, 350 (D.Del.2000), aff'd per curiam, 13 Fed. Appx. 940 (2001) (citations omitted). Among the most common reasons for granting a new trial are: (1) the jury’s verdict is against the clear weight of the evidence, and a new trial must be granted to prevent a miscarriage of justice; (2) newly-discovered evidence exists that would likely alter the outcome of the trial; (3) improper conduct by an attorney or the court unfairly influenced the verdict; or (4) the jury’s verdict was facially inconsistent. See Zarow-Smith v. N.J. Transit Rail Operations, 953 F.Supp. 581, 584 (D.N.J.1997) (citations omitted). The court must proceed cautiously, mindful that it must not substitute its own judgment of the facts and the credibility of the witnesses for those of the jury. The court should grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand. See Williamson, 926 F.2d at 1352; EEOC v. Del. Dep’t of Health and Soc. Servs., 865 F.2d 1408, 1413 (3d Cir.1989). IV. CORDIS’ STANDING TO SUE In yet another challenge to Cordis’ standing to sue, AVE and BSC argue that Ethicon NJ, a former exclusive licensee to the patents in suit, did not validly transfer its exclusive license to Technicare/Ethicon Ohio, a company with which it merged. This break in the chain of title, according to AVE and BSC, left Cordis with no right to sue on the patents. The court examined the corporate transactions that led to Cor-dis’ license when it denied in part and granted in part ACS’s motion to dismiss for lack of standing. (D.I.162) The court declines to repeat this exercise, and maintains that Cordis was assigned an exclusive license to the patents at the time the complaint was filed. V. INFRINGEMENT, INVALIDITY AND DAMAGES A. Infringement and Invalidity— AVE Trial 1. Infringement of Claims 23, 51 and 54 of the ’762 Patent A determination of infringement requires a two-step analysis. First, the court must construe the asserted claims so as to ascertain their meaning and scope. Second, the claims as construed are compared to the accused product. See KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1355 (Fed.Cir.2000). Claim construction is a question of law while infringement is a question of fact. See id. To establish literal infringement, “every limitation set forth in a claim must be found in an accused product, exactly.” Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.1995). An accused product that does not literally infringe a claim may still infringe under the doctrine of equivalents if each limitation of the claim is met in the accused product either literally or equivalently. See Sextant Avionique, S.A. v. Analog Devices, Inc., 172 F.3d 817, 826 (Fed.Cir.1999). An element in an accused product is equivalent to a claim limitation if the differences between the two are “insubstantial” to one I of ordinary skill in the art. KCJ Corp., I 223 F.3d at 1359. A fact finder may also determine equivalence by assessing whether an element “does substantially the same thing in substantially the same way to get substantially the same result” as a claim limitation. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1260 (Fed.Cir.1989). Occasionally, “the issue of literal infringement may be resolved with the step of claim construction, for upon correct claim construction, it may be apparent whether the accused device is within the claims.” Multiform Desiccants, Inc. v. Medzam, 133 F.3d 1473, 1476 (Fed.Cir.1998). Similarly, the determination of infringement under the doctrine of equivalents may be limited as a matter of law. For example, a finding of infringement under the doctrine of equivalents is barred if a claim was amended during prosecution to overcome the prior art. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 234 F.3d 558, 585 (Fed.Cir.2000) (en banc), cert. granted, 533 U.S. 915, 121 S.Ct. 2519, 150 L.Ed.2d 692, 69 U.S.L.W. 3673 (U.S. June 18, 2001) (No. 00-1543). The scope of equivalents may also be limited by statements in the specification or prosecution history that disclaim coverage of certain subject matter. See Pharmacia & Upjohn Co. v. Mylan Pharms., Inc., 170 F.3d 1373, 1377 (Fed.Cir.1999); Dawn Equip., 140 F.3d at 1016. In the case at bar, the court granted AVE’s motion for summary judgment of no literal infringement of claim 23 of the ’762 patent by the AVE stents because they did not literally meet the “plurality of slots formed therein” limitation. -AVE now challenges the jury’s finding that the AVE stents met that limitation by equivalence, arguing that the addition of the “formed therein” language to claim 13 of the ’762 patent constitutes a narrowing amendment to the ’009 application which bars Cordis from asserting the doctrine of equivalents on claim 23 under Festo. In discussing the relationship between the doctrine of equivalents and prosecution history estoppel, the Federal Circuit in Festo ascribed to the doctrine of equivalents the purpose of “preventing] an accused infringer from avoiding liability for infringement by changing only minor or insubstantial details of a claimed invention while retaining the invention’s essential identity.” Festo, 234 F.3d at 564. Prosecution history estoppel, on the other hand, is an equitable tool “that prevents the doctrine of equivalents from vitiating the notice function of claims.” Id. More specifically, “ ‘[p]roseeution history estoppel precludes a patentee from obtaining under the doctrine of equivalents coverage of subject matter that has been relinquished during the prosecution of its patent application.’ ” Id. (quoting Pharmacia & Upjohn Co., 170 F.3d at 1376-77). “The standard for determining whether particular subject matter was relinquished is an objective one that depends on what a competitor reasonably would conclude from the patent’s prosecution history.” Mark I Mktg. Corp. v. R.R. Donnelley & Sons Co., 66 F.3d 285, 291 (Fed.Cir.1995). In this regard, “[t]he prosecution history must be examined as a whole.” Id. Original claim 19 of the ’009 application, the precursor to claim 13 of the ’762 patent, is a relatively broad claim, covering both the woven wire mesh and slotted tube embodiments of the “expandable intralumi-nal graft” first introduced by the ’665 patent. The claim reads in relevant part: [A] tubular shaped member having first and second ends and a wall surface disposed between the first and second ends, the wall surface being formed by a plurality of intersecting elongate members, at least some of the elongate members intersecting with one another intermediate the first and second ends of the tubular member ... (PX 10 at 2353-54) (emphasis added) As explained in greater detail in the court’s claim construction analysis, claim 13 of the ’762 patent is narrower in scope, describing only one of the embodiments covered by the ’665 patent, that is, the slotted tube embodiment. Claim 13 requires a thin-walled tubular member having first and second ends and a wall sux--face disposed between the first and second ends, the wall surface having a substantially uniform thickness and a plurality of slots formed therein ... (’762 patent, col. 11, Ins. 64-68) (emphasis added) The court opined that, unlike the tubular member of the ’665 patent whose wall surface is formed by “intersecting elongate members,” the tubular member claimed by the ’762 patent starts with a wall surface and the elongate members are formed by removing material from the wall surface (to wit, “slots [are] formed therein”). (D.I. 464 at 10-17) In light of this background, it is the court’s conclusion that Cordis is not entitled to the protection of the doctrine of equivalents with respect to tubular members that do not have a pre-existing wall surface, such as the AVE stents. The patentee at bar chose to more narrowly define his invention in the ’762 patent by emphasizing a specific feature of the balloon expandable intraluminal graft — a pre-existing wall surface that was required to have certain characteristics, i.e., “thin-walled,” the wall surface having a “substantially uniform thickness,” and “a plurality of slots formed therein.” The notice function of patent claims would be ill served if this court were to allow Cor-dis, under the guise of equivalency, to embrace within the scope of the ’762 patent stents lacking the very feature that distinguishes the ’762 patent from the broader ’665 patent. A competitor reviewing the development of Dr. Palmaz’s slotted tube invention reasonably would conclude that a tubular member whose wall surface is formed by bending wire does not fall within the scope of claim 23 of the ’762 patent. Therefore, the range of equivalents sought by Cordis is barred by the prosecution history of the ’762 patent and the jury’s verdict of infringement under the doctrine of equivalents is reversed. 2. Invalidity of Claims 23, 51 and 54 of the ’762 Patent AVE challenges the jury’s verdict that the asserted claims of the ’762 patent are not invalid for failure to comply with the written description requirement of 35 U.S.C. § 112, ¶ 1, which provides: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. 35 U.S.C. § 112, ¶ 1. Patent claims are presumed valid. See 35 U.S.C. § 282. See also Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1054 (Fed.Cir.1989) (“The presumption of validity under 35 U.S.C. § 282 carries with it a presumption the examiner did his duty and knew what claims he was allowing.”). To overcome this presumption, AVE was required to “provide clear and convincing evidence that persons skilled in the art would not recognize in the disclosure a description of the claimed invention.” Biacore v. Thermo Bioanalysis Corp., 79 F.Supp.2d 422, 467 (D.Del.1999), aff'd per curiam, 30 Fed.Appx. 994 (2002). AVE contends that Cordis’ use of the “building block” theory during trial renders claims 23, 51 and 54 of the asserted claims of the ’762 patent invalid for failure to comply with the written description requirement. The “building block,” shown below, is essentially a severed portion of Figure 1A of the ’762 patent, resembling a completely half-slotted stent. AVE argues that the specification of the ’762 patent fails to contemplate an all half-slotted stent and, therefore, the court should either find the asserted claims invalid as a matter of law, or clarify the definition of “plurality of slots” to require at least one complete slot. The court has declined over the course of these proceedings to limit the word “slot” to a long and narrow opening that is completely surrounded by material (i.e., a closed or complete slot), based on the ordinary meaning of the word (e.g., the “slots” of a comb) and the fact that each of Dr. Palmaz’s tubular structures had to have open or half-slots in order to expand. The tension between adequate disclosure of the scope of an invention and construing claims more broadly than the preferred embodiment has permeated the litigation at bar. The court declines to revisit the question. AVE’s motion for judgment as a matter of law on this issue is denied. 3. Infringement of Claims 1 and 3 of the ’984 Patent Prior to trial, the court granted AVE’s motion for no literal infringement of claims 1 and 3 of the ’984 patent because the AVE stents did not literally contain the “plurality of slots formed therein” limitation. (D.I.462) AVE now challenges the jury’s finding that its stents infringed claims 1 and 3 under the doctrine of equivalents because of arguments made by the patentee during prosecution of the ’984 patent to distinguish two prior art references: United States Patent No. 4,969,458 (“Wiktor”) and the Gianturco Connected Z-Stent disclosed m an article by Tetsuya Yoshioka, et al, entitled, “Self-Expanding Endovascular Graft: An Experimental Study in Dogs,” published in the American Journal of Roentgenology in October 1988 (“Yoshioka”). (AVEX 438) The “bent wire” stents disclosed by Wiktor and Yo-shioka are reproduced below. In arguing that Wiktor is simply not responsive to the claimed structural limitations of [cjlaims 1 and 4,” the patentee explained that Wiktor does not disclose a plurality of “thin-walled tubular members, each having first and second ends and a wall surface disposed between the first and second ends, the wall surface having a substantially uniform thickness and a plurality of slots formed therein, the slots being disposed substantially parallel to the longitudinal axis of each tubular member.” Wiktor discloses a single stent, or graft made up of coiled wire. There is no wall surface having a plurality of slots, nor slots disposed parallel to the longitudinal axis of each tubular member. (PX 16, Tab 49 at 631) (emphasis added) A reasonable interpretation of this declaration is that the patentee surrendered bent wire stents, as AVE argues. Such an interpretation is consistent with the prosecution history of the ’984 patent, which is replete with references to the ’665 and ’762 patents, describing such prior art as disclosing expandable intraluminal grafts and methods and apparatus for implanting expandable intraluminal grafts which may be used in practicing the present invention. These three patents are commonly owned with the present application. (PX 16, Tab 19 at 509; see also id., Tab 22 at 518) The above statement reflects the fact that the ’665, ’762 and ’984 patents, among others, share essentially the same specification and the ’984 patent claims the same basic structure (albeit in multiples) in the same language as does the ’762 patent, to wit: [A] plurality of thin-walled tubular members, each having first and second ends and a wall surface disposed between the first and second énds, the wall surface having a substantially uniform thickness and a plurality of slots formed therein, the slots being disposed substantially parallel to the longitudinal axis of each tubular member. (’984 patent, claims 1 and 4, col. 11, Ins. 46-52; col. 12, Ins. 25-31) (emphasis added) Given the common history of the ’762 and ’984 patents, this court construed common claim limitations consistently. Having found that the patentee of the ’762 patent surrendered structures that have no pre-existing wall surface, it would be inequitable to find otherwise in connection with the ’984 patent. Therefore, Cordis is barred from asserting infringement of claims 1 and 3 of the ’984 patent under the doctrine of equivalents. This conclusion is based upon the patentee’s concession that Wiktor, a bent wire stent, does not disclose a “wall surface having a plurality of slots,” as well as the common history of the ’762 and ’984 patents. B. Infringement and Invalidity— BSC Trial 1. Infringement of Claim 23 of the ’762 Patent The jury determined that BSC’s NIR stent infringes claim 23 of the ’762 patent under the doctrine of equivalents. BSC contends that prosecution history estoppel narrows or bars the application of the doctrine of equivalents to the “substantially uniform thickness,” “wall surface” and “smooth surface” limitations of claim 23, and that there was insufficient evidence to find that the NIR stent literally met any of those limitations. Because the jury was not given a detailed verdict form, the court must uphold the verdict only if it there was sufficient evidence to support a finding that the NIR stent meets one or more limitations by equivalence, and every other limitation literally. See, e.g., Comark, 156 F.3d at 1188. The court concludes that, although prosecution history estoppel bars the application of the doctrine of equivalents to the “substantially uniform thickness” limitation, Cordis presented substantial evidence to support a finding that the NIR stent contains that limitation literally, and contains the “wall surface” and “smooth surface” limitations under the doctrine of equivalents. Thus, BSC’s motion for judgment as a matter of law that claim 23 of the ’762 patent is not infringed by the NIR stent is denied. a. “Substantially Uniform Thickness” BSC contends that the patentee’s efforts to distinguish- United States Patent No. 3,657,744 (“Ersek”) during reexamination of the ’762 patent estops Cordis from asserting the doctrine of equivalents on the “substantially uniform thickness” limitation of claim 23. Ersek discloses a tubular structure that is manufactured by cutting openings in a flat sheet of metal, pulling the sheet to expand the openings, and then rolling the sheet into a cylindrical shape and welding it together. Expanding the openings causes the struts of the resulting metal tube to be twisted, enabling the structure to become embedded in tissue upon surgical implantation. (BSCX 6228, col. 2, In. 56 — col. 3, In. 9) Figures 2 and 5 of Ersek are shown below. During reexamination, the patentee stated the following to distinguish Ersek from the claims of the ’762 patent: As shown therein and in Ersek Figure 5, in the first diameter configuration, the wall of sleeve 16 is of varying thickness because the strands of the sleeve have twisted out of the plane of the starting material. Moreover, the bonds or bridges at the junctions of the strands protrude inwardly and outwardly of the plane of the starting material, and as a result the Ersek sleeve 16 has a nonuniform wall of varying thickness. (PX 13 at 3049) The patentee also cited the “Amtonsson Affidavit,” which stated that Ersek’s wall thickness “ranged from a minimum thickness of 0.0035 inches to a maximum thickness of 0.0045 inches.” (PX 13 at 3050-51) The court integrated the patentee’s arguments into its construction of the “substantially uniform thickness” limitation: The thickness at all points along the wall surface of the tubular member, both at its first and second diameters, must be substantially the same. Variances as little as .001 inches fall outside the scope of “substantially uniform.” (D.I.790,1116) (emphasis added) BSC contends that Cordis is estopped from claiming equivalence of any accused device that has a variance in wall thickness of 0.001 inches or more. Having incorporated the patentee’s arguments distinguishing Ersek into its claim construction, the court is now confronted with the often puzzling task of determining where claim construction ends and prosecution history estoppel begins. Under the reasoning employed in Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1106 (Fed.Cir. 2000), cert. denied, 532 U.S. 1008, 121 S.Ct. 1734, 149 L.Ed.2d 659 (2001), however, the court concludes that the term “substantially uniform” is not entitled to a scope of equivalents. First, consistent with the court’s construction that a wall surface with a “substantially uniform thickness” must not vary more that .001 inches, to characterize as equivalent what is by definition not of a “substantially uniform thickness” would be to vitiate the limitation. Second, “it would defy logic to conclude that” a wall surface without a substantially uniform thickness “could be insubstantially different from a claim limitation requiring” a substantially uniform thickness, “and no reasonable juror could find otherwise.” Id. Thus, as a matter of law, Cordis is estopped from claiming equivalence of any accused product whose wall surface varies in thickness by 0.001 inches or more. Nevertheless, the court finds that Cordis presented substantial evidence at trial to support a finding that the NIR stent literally contains the “substantially uniform thickness” limitation. Drs. Buller and Collins relied on engineering drawings of the NIR stent to show that the thickness of its struts varies by only .0004 inches, which is within the court’s definition. (*D.I. 197 at 757-58; *D.I. 198 at 1202; PX 8776) They also relied on a weld grind elimination report to show that about 25% of the welds on the NIR stent do not vary in thickness by more than 0.001 inches. (*D.I. 197 at 758-61, 932-33, 938-40; *D.I. 198 at 1198-99, 1202-04; PX 3745) Because the jury was entitled to accept Cordis’ theory of individual tubular members serving as a basis for the infringement analysis, and each tubular member of the NIR stent contains one weld (*D.I. 198 at 1194), the jury reasonably concluded that the NIR stent literally contains the “substantially uniform thickness” limitation of claim 23. b. “Smooth Surface” BSC also argues that the patentee’s efforts to distinguish Ersek during reexamination of the ’762 patent estop Cordis from asserting the doctrine of equivalents on the “smooth surface” limitation. During reexamination, the patentee stated: A clear purpose of Dr. Palmaz’s invention is to provide a low-profile, small diameter product that is smooth enough that it can be intraluminally delivered from a remote location to a desired location without the risk of damaging the body passageway. (PX 13 at 3053) (emphasis added) Based on this argument, Cordis advocated a functional definition of “smooth surface” — that the surface be smooth enough for intralu-minal delivery. The court determined, however, that the patent claims suggested a narrower structural definition. Claim 13 requires a “tubular member having a first diameter which permits intraluminal delivery of the tubular member into a body passageway having a lumen,” whereas claim 23 requires that the “outside of the wall surface of the tubular member is a smooth surface, when the tubular member has the first diameter.” Thus, the inclusion of “smooth surface” in dependent claim 23 suggests that the term must mean more than simply “suitable for intralumi-nal delivery.” The court adopted a dictionary definition of “smooth,” also mentioned by the patentee in distinguishing Ersek from the ’762 patent: The outside of the wall surface of the unexpanded tubular member has a continuously even surface, without roughness, points, bumps or ridges, especially to the touch. (D.I. 790, 1116; PX 13 at 003049-50) Because the court incorporated the patentee’s arguments distinguishing Ersek into a structural definition of “smooth surface” and finds no reason in the prosecution history to preclude a finding of equivalence, prosecution history estoppel does not narrow the doctrine of equivalents on this limitation. Furthermore, the court finds that there was substantial evidence presented at trial to support a verdict that the NIR stent contains the “smooth surface” limitation either literally or under the doctrine of equivalents. Dr. Buller testified that the NIR stent has a “smooth surface,” and an article by Dr. Kobi Richter in the Handbook of Coronary Stents describes the NIR stent as having a “smooth surface.” (*D.I. 197 at 766-68; *D.I. 200 at 1669; PX 275 at 134) Furthermore, the jury was given the opportunity to handle the NIR stent and determine if it was “without roughness, points, bumps or ridges, especially to the touch.” (*D.I. 199 at 1533) In sum, Cordis presented substantial evidence to support the jury’s verdict and BSC’s motion for judgment as a matter of law on this issue is denied. c. “Wall Surface” Finally, BSC contends that Cordis is estopped from asserting the doctrine of equivalents on the “wall surface” limitation of claim 23. The patentee distinguished Ersek as not having a “wall surface disposed between the first and second ends” because the wall of the stent was not “disposed in a common cylindrical plane:” As is evident from the specification of the ’762 patent, with particular reference to Figure 1A, the connecting members and elongate members that collectively form the tubular member 71 have an outer surface that is disposed in a common cylindrical plane. No comparable wall surface is present in Ersek’s fixation sleeve, and it would render Ersek inoperable for its intended purpose to modify sleeve 16 and eliminate the outwardly projecting edges, since the thus modified sleeve would eliminate the very structure contemplated by Ersek for retaining the associated graft or heart valve within the body passageway. (PX 13 at 3054) Again, the court incorporated the patentee’s prosecution arguments into its claim construction when it defined “wall surface” to require that the “outer surface of the tubular member must be disposed in a common cylindrical plane.” The court finds no evidence in the prosecution history to preclude a finding of equivalence based on this definition, thus, Cordis is not estopped from asserting the doctrine of equivalents on this limitation. The court also finds that substantial evidence supports a finding that the NIR stent contains a “wall surface,” either literally or under the doctrine of equivalents. Dr. Buller stated that the “tubular members of the NIR stent are disposed in a cylindrical shape ... [i]t fulfills exactly that claim language,” and that the welds lie in the same plane as the tubular members. (*D.I. 197 at 754-55) Dr. Collins also testified that the NIR stent’s wall surface, including the welds, lies in a common cylindrical plane. (*D.I. 198 at 1201) In sum, the court finds that there is sufficient evidence in the record to support the jury’s verdict. 2. Contributory Infringement of Claim 44 of the ’762 Patent BSC argues that it is entitled to judgment as a matter of law that claim 44 of the ’762 patent is not infringed or, in the alternative, to a new trial, for three reasons: (1) there is no predicate act of direct infringement by any one entity or related entities; (2) the NIR stent is suitable for substantial noninfringing use; and (3) Cor-dis failed to prove that BSC had the requisite knowledge for contributory infringement. Pursuant to 35 U.S.C. § 271(c), [w]hoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer. There can be no contributory infringement in the absence of direct infringement. See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 341-42, 81 S.Ct. 599, 5 L.Ed.2d 592 (1961). Furthermore, “only proof of a defendant’s knowledge, not intent, that his activity cause[s] infringement [is] necessary to establish contributory infringement.” Hewlett-Packard Co. v. Bausch & Lomb, Inc., 909 F.2d 1464, 1469 (Fed.Cir.1990). a. Predicate Act of Direct Infringement To constitute a predicate act of direct infringement of a process claim, either a single entity must perform every step of the method or, if two or more entities perform different steps of the method, those entities must have some connection to each other. See, e.g., Faroudja Labs., Inc. v. Dwin Elecs., Inc., No. 97-20010,1999 WL 111788, at *5 (N.D.Cal. Feb.24, 1999) (“It is true that several district courts have found a party liable for direct infringement of a process patent even where the various steps included in the patent are performed by distinct entities. However, these cases indicate that some connection between the different entities justified that finding.”). BSC argues that, although physicians who implant NIR stents in coronary arteries may carry out some of the first, third, fourth and fifth steps of the method of claim 44 — utilizing, inserting, delivering and expanding the NIR stent, respectively — they do not carry out the second step of “disposing” the NIR stent on a balloon catheter. Rather, BSC performs this step by selling the NIR stent in the United States premounted on a catheter, and BSC has no relationship to physicians who perform the other steps. The court finds that there was sufficient evidence presented at trial to support the finding of the jury that BSC has “some connection” to physicians who implant the NIR stent. For instance, Dr. Buller testified about the relationship between BSC and the medical community: There’s a very close relationship. I think you heard evidence of the close relationship between Boston Scientific and its personnel and the doctors, and we, in all countries, in Europe as well, depend very much on industry for this relationship, for teaching us about new products, how to use them, when they’re appropriate to be used and generally how the products perform and how they might benefit our patients. (*D.I. 203 at 2549) He also testified that BSC supplies samples of the NIR stent to physicians, and recruits physicians to participate in clinical trials. (Id.) BSC’s chairman, Peter Nicholas, also testified about BSC’s close relationship with physicians: Well, we have a network of thousands of people in the field. These are professional salespeople in the field all throughout the world. And they’re talking to physicians every day. I think we talked to perhaps five, ten thousand physicians every single day with our organization. And we selected a handful, maybe 15 to 20 of those physicians throughout the world who are, in our view, really leaders in the world. And we asked them to tell us about the NIR stent. (*D.I. 199 at 1457) Thus, BSC’s motion for judgment as a matter of law or a new trial on this issue is denied. b. NIR Stent as a Staple Article of Commerce Suitable for