NuVasive appealed the decision, arguing in March that the judge who handled the case "fundamentally misunderstood trademark law" and "exhibited hostility toward NuVasive’s counsel in front of the jury."
In a June 5 hearing before Judges Jay Bybee, Kim Wardlaw and Betty Fletcher of the U.S. Court of Appeals for the 9th Circuit, NuVasive argued that Judge Manuel Real of the U.S. District Court for Central California obstructed NuVasive’s arguments, tainted its rapport with the jury and seeded a false ruling by giving the jury improper information on what defined misconduct in the case and how damages should legally be determined.
The judges questioned whether Real properly instructed the jury before the verdict.
"It doesn’t even look like the question that was put to the jury, much less the instruction, was properly formulated," Bybee said. "If [Real] has formulated the question wrongly for the jury, wouldn’t that be the best evidence that [he] didn’t understand what the law required?"
In October 20010, San Diego, Calif.-based NuVasive lost the first round in the case over use of the NeuroVision name on some of NuVasive’s neuromonitoring products.
The $60 million award was calculated as a measure of all of NuVasive’s profits from its nerve monitors, according to the documents, rather than profits gained by NuVasive’s allegedly unlawful use of the NeuroVision name. NuVasive was also barred from using the NeuroVision name and ordered to cancel any trademark registrations for it.
In its appeal, NuVasive argued that NMP failed to prove that it had ownership, geographic rights or continuous use of the name, attesting that Judge Real tainted the case and the subsequent jury judgment by wrongfully excluding evidence, giving the jury improper instructions, interrupting NuVasive’s statements and prohibiting NuVasive’s counsel from responding to arguments.
NuVasive wants the 9th Circuit to overturn all of the lower court’s rulings, or at least remand the case to retrial, with a caveat: There must be a new judge.
"There can be no question that Judge Real ignored governing trademark law. He instead tried the case according to his own conception of what the law should be – for which he affirmatively invited this court’s review," NuVasive’s lawyers said in court documents. "Judge Real should have entered judgment as a matter of law in favor of NuVasive. This court should do so now. At the very least, a new trial is required to give NuVasive its day in court before a judge who applies the correct legal standards, does not wrongly restrict NuVasive’s ability to defend itself, and is not openly hostile to its counsel in front of the jury."
NuVasive is also mired in a legal battle against med-tech titan Medtronic (NYSE:MDT), which landed a $101 million patent infringement win against NuVasive for sales of spinal implants that a jury found to infringe Medtronic patents last year.
NuVasive said it plans to “promptly” file an appeal of that ruling as well.
In re Baxter International: Lather. Rinse. Repeat.
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