Case: 23-1627    Document: 34    Page: 1   Filed: 09/04/2024




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                OSSEO IMAGING, LLC,
                   Plaintiff-Appellee

                            v.

                 PLANMECA USA INC.,
                   Defendant-Appellant
                  ______________________

                        2023-1627
                  ______________________

     Appeal from the United States District Court for the
 District of Delaware in No. 1:17-cv-01386-JFB, Senior
 Judge Joseph F. Bataillon.
                 ______________________

                Decided: September 4, 2024
                  ______________________

    SETH OSTROW, Meister Seelig & Fein PLLC, New York,
 NY, argued for plaintiff-appellee. Also represented by
 ROBERT FEINLAND.

     WASIF QURESHI, Jackson Walker LLP, Houston, TX, ar-
 gued for defendant-appellant. Also represented by LEISA
 TALBERT PESCHEL; BLAKE DIETRICH, Dallas, TX; MICHAEL
 J. FLYNN, Morris, Nichols, Arsht & Tunnell LLP, Wilming-
 ton, DE.
                  ______________________
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 2                   OSSEO IMAGING, LLC v. PLANMECA USA INC.




     Before DYK, CLEVENGER, and STOLL, Circuit Judges.
 STOLL, Circuit Judge.
     This case presents a question about the qualifications
 necessary to provide expert testimony from the perspective
 of one of ordinary skill in the art.
      Planmeca USA Inc. (“Planmeca”) appeals the District
 of Delaware’s denial of its motion for judgment as a matter
 of    law    (JMOL) upholding         the    jury’s verdict
 that: (1) Planmeca infringes Osseo Imaging, LLC’s (“Os-
 seo”) U.S. Patent Nos. 6,381,301, 6,944,262, and 8,498,374;
 and (2) certain claims of the ’301 patent, ’262 patent, and
 ’374 patent are not invalid for obviousness. The district
 court did not err in holding that Osseo’s expert testimony
 and other evidence provide substantial evidence support-
 ing the jury’s verdict of infringement. Likewise, substan-
 tial evidence supports the jury’s verdict of nonobviousness
 of the challenged patent claims. We thus affirm.
                         BACKGROUND
     Planmeca develops and manufactures ProMax 3D im-
 aging systems that generate and display, with Planmeca’s
 Romexis software, a 3D model to a user. Osseo sued
 Planmeca alleging that its ProMax 3D imaging systems
 (the “Accused Systems”) infringe the ’301 patent, ’262 pa-
 tent, and ’374 patent (collectively, the “Asserted Patents”).
 The Asserted Patents relate to orthopedic imaging systems
 that use X-ray beam techniques to create tomographic
 and/or densitometric models of a scanned object.
     A jury trial was held in August 2022. The jury was in-
 structed to determine the requisite level of ordinary skill
 and was told that a person of ordinary skill in the art would
 have a bachelor’s degree in electrical or computer engineer-
 ing, plus 3 to 5 years working in a diagnostic imaging envi-
 ronment that uses the techniques described in the Asserted
 Patents. During cross-examination of Osseo’s technical ex-
 pert, Dr. Omid Kia, Planmeca sought to demonstrate that
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 OSSEO IMAGING, LLC v. PLANMECA USA INC.                     3



 Dr. Kia did not have the requisite 3 to 5 years of diagnostic
 imaging experience in 1999, the patents’ alleged date of in-
 vention. Instead, Planmeca asserted that Dr. Kia did not
 acquire such experience until nearly 10 years after the time
 of the invention.1
     Planmeca moved for JMOL as to invalidity and nonin-
 fringement under Federal Rule of Civil Procedure Rule
 50(a), which the court took under advisement before sub-
 mitting the issues to the jury. The jury then rendered its
 verdict, finding that Planmeca directly infringed all as-
 serted claims except claim 6 of the ’374 patent. The jury
 also determined that none of the asserted claims were in-
 valid for obviousness. After the verdict, the district court
 denied Planmeca’s Rule 50(a) motions for JMOL as moot.
 Planmeca then renewed its motions for JMOL under Rule
 50(b) as to, inter alia, noninfringement of claims 1 and 7 of
 the ’301 patent, claim 1 of the ’262 patent, and claim 1 of
 the ’374 patent, and invalidity for obviousness as to
 claims 1 and 7 of the ’301 patent, claim 1 of the ’262 patent,
 and claims 1 and 6 of the ’374 patent. The district court
 determined that Planmeca was not entitled to JMOL on
 any issue because substantial evidence supported the
 jury’s verdict. With respect to Planmeca’s argument that



     1   The parties dispute when Dr. Kia acquired the req-
 uisite 3 to 5 years of diagnostic imaging experience, and
 thus became qualified as a person of ordinary skill in the
 art. On appeal, Osseo maintains Dr. Kia acquired this req-
 uisite experience as of 1999 “through his work studying
 and building dental imaging systems.” Appellee’s Br. 17.
 Planmeca contends Dr. Kia did not acquire the requisite
 diagnostic imaging experience until 8 to 10 years after
 1999. See Appellant’s Br. 21. The district court did not re-
 solve this factual dispute, and instead resolved whether
 Dr. Kia was qualified as a person of ordinary skill in the
 art regardless of timing as a matter of law.
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 4                   OSSEO IMAGING, LLC v. PLANMECA USA INC.




 Dr. Kia’s testimony should be disregarded in its entirety
 because he was not a person of ordinary skill in the art at
 the time of the patents’ alleged date of invention in 1999,
 the district court rejected it as legally incorrect. The dis-
 trict court explained that “[Planmeca] points to no legal
 support for the supposed requirement that an expert attain
 his or her expertise prior to a patent’s effective date.” Osseo
 Imaging, LLC v. Planmeca USA Inc., No. 1:17-cv-01386,
 

, at *3 (D. Del. Feb. 8, 2023). As such,
 the district court concluded that “[t]he jury was free to
 credit Dr. Kia’s testimony in reaching its conclusions on in-
 fringement.” 

    Planmeca timely appealed the district court’s decision.
 We have jurisdiction under 

(a)(1).
                          DISCUSSION
      Planmeca raises three issues on appeal. In particular,
 Planmeca argues that the district court erred in denying
 JMOL of noninfringement for two reasons: (1) although
 Dr. Kia became a person of ordinary skill 8 to 10 years after
 the time of the invention, he was not so skilled at the time
 of the invention, and thus the verdict cannot be supported
 by his testimony; and (2) even with Dr. Kia’s testimony, the
 jury’s verdict of infringement is not supported by substan-
 tial evidence. Planmeca also contends the district court’s
 denial of JMOL of obviousness constitutes legal error be-
 cause no evidence supports the jury’s verdict. We address
 each issue in turn.
     We review the denial of JMOL under the law of the re-
 gional circuit, here, the Third Circuit. Ironburg Inventions
 Ltd. v. Valve Corp., 

 (Fed. Cir. 2023).
 “In the Third Circuit, review of denial of JMOL is plenary.”
 Finjan, Inc. v. Secure Computing Corp., 

 (Fed. Cir. 2010). JMOL “is a sparingly invoked rem-
 edy, granted only if, viewing the evidence in the light most
 favorable to the nonmovant and giving it the advantage of
 every fair and reasonable inference, there is insufficient
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 OSSEO IMAGING, LLC v. PLANMECA USA INC.                   5



 evidence from which a jury reasonably could find liability.”
 Marra v. Phila. Hous. Auth., 

 (3d Cir.
 2007), as amended (Aug. 28, 2007) (internal quotation
 marks and citations omitted). JMOL “is appropriate where
 ‘the record is critically deficient of the minimum quantum
 of evidence’ in support of the verdict.” TI Grp. Auto. Sys.
 (N. Am.), Inc. v. VDO N. Am., L.L.C., 

, 1133
 (Fed. Cir. 2004) (quoting Gomez v. Allegheny Health Servs.,
 Inc., 

, 1083 (3d Cir. 1995)). “The question is
 not whether there is literally no evidence supporting the
 unsuccessful party, but whether there is evidence upon
 which a reasonable jury could have found its verdict.” Id.
 (quoting Gomez, 71 F.3d at 1083). “In performing this nar-
 row inquiry, we must refrain from weighing the evidence,
 determining the credibility of witnesses, or substituting
 our own version of the facts for that of the jury.” Marra,
 

.
                              I
     At the outset, we note the unusual procedural posture
 of Planmeca’s challenge regarding Dr. Kia’s technical ex-
 pert testimony. Planmeca did not file a Daubert motion
 seeking to exclude Dr. Kia’s testimony because he was not
 a person of ordinary skill in the art. Nor did Planmeca ap-
 peal the denial of a motion to exclude Dr. Kia’s testimony
 or a denial of an objection to that testimony at trial. In-
 stead, consistent with its Rule 50 motions for JMOL filed
 during and after trial, Planmeca asserts that Dr. Kia’s tes-
 timony cannot constitute substantial evidence to support
 the jury verdict of infringement. The district court held
 that Planmeca’s argument found no support in precedent
 and rejected it as a matter of law. We review the district
 court’s legal determination de novo. See Finjan, 

 (quoting McKenna v. City of Phila., 

 (3d Cir. 2009)).
     “To offer expert testimony from the perspective of a
 skilled artisan in a patent case—like for claim
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 6                    OSSEO IMAGING, LLC v. PLANMECA USA INC.




 construction, validity, or infringement—a witness must at
 least have ordinary skill in the art.” Kyocera Senco Indus.
 Tools Inc. v. Int’l Trade Comm’n, 

, 1376–77
 (Fed. Cir. 2022). All that is required “to be qualified to offer
 expert testimony on issues from the vantage point of an or-
 dinarily skilled artisan in a patent case” is that “an expert
 must at a minimum possess ordinary skill in the art.” Id.
 at 1377. Our precedent is clear—nothing more is required.
     Planmeca urges us to add a timing requirement to the
 minimum qualifications necessary to offer expert testi-
 mony from the perspective of a person of ordinary skill.
 Planmeca contends that a technical expert opining on in-
 fringement must possess the requisite ordinary skill in the
 art “at the time of the alleged invention.” Appellant’s Br. 16
 (emphasis added). Planmeca relies on language in Kyocera
 and our court’s precedent on claim construction for sup-
 port. Neither persuades us here.
     First, Planmeca asserts that while “Kyocera does not
 specifically state that an expert must be a [person of ordi-
 nary skill] at the time of the invention, Kyocera does hold
 that an expert witness must ‘be qualified to offer expert
 testimony on issues from the vantage point of an ordinarily
 skilled artisan in a patent case.’” Appellant’s Br. 17 (quot-
 ing Kyocera, 22 F.4th at 1377 (emphasis added)).
 Planmeca infers too much from this language in Kyocera.
 To start, there is no direct support for Planmeca’s proposed
 timing requirement in Kyocera. Indeed, the court in Kyoc-
 era did not even consider the requirement Planmeca asks
 this court to impose. The issue presented in Kyocera was
 simply whether an expert who did not qualify as a person
 of ordinary skill in the art—at any time—could present re-
 liable testimony as a technical expert. The court in Kyocera
 said no. As stated above, all that Kyocera requires “[t]o of-
 fer expert testimony from the perspective of a skilled arti-
 san in a patent case” is that “a witness must at least have
 ordinary skill in the art.” Kyocera, 22 F.4th at 1376–77.
 Kyocera does not state that an expert must be a person of
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 OSSEO IMAGING, LLC v. PLANMECA USA INC.                      7



 ordinary skill in the art at the time of the invention to offer
 expert testimony from the vantage point of a skilled arti-
 san.
     Nor do we think that we should impose such a require-
 ment. It is undisputed that Dr. Kia’s qualifications meet
 that of a person of ordinary skill in the art in this case. See
 J.A. 5472; J.A. 4116–24 at 309:19–317:25; J.A. 4128
 at 321:7–12. While Planmeca correctly notes that claim in-
 terpretation (step one of the infringement analysis) re-
 quires knowledge of a person of ordinary skill “at the time
 of the invention,” Appellant’s Br. 17 (quoting Phillips
 v. AWH Corp., 

 (Fed. Cir. 2005) (en
 banc)), we are reluctant to conclude that an expert’s subse-
 quent acquisition of the requisite level of skill per se ren-
 ders an expert’s infringement testimony unreliable such
 that it should be excluded. Even assuming Planmeca is
 correct in asserting that that Dr. Kia did not have the req-
 uisite 3 to 5 years of diagnostic imaging experience until 8
 to 10 years after the time of the invention, we are not con-
 vinced that Dr. Kia’s infringement analysis was unreliable
 such that it cannot form a basis for supporting the jury ver-
 dict.
      Indeed, it makes little sense to add Planmeca’s sug-
 gested timing requirement. An expert need not have ac-
 quired that skill level prior to the time of the invention to
 be able to testify from the vantage point of a person of ordi-
 nary skill in the art. Rather, an expert can acquire the nec-
 essary skill level later and develop an understanding of
 what a person of ordinary skill knew at the time of the in-
 vention. In practice, the fact that the expert was not a per-
 son of ordinary skill at the time of the invention may well
 be used during cross examination to undermine the credi-
 bility of the expert. Relatedly, an expert who later acquires
 the requisite knowledge could avoid such potential damage
 to her credibility by explaining to the judge and jury how
 she gained the perspective of a person of ordinary skill at
 the time of the invention. In fact, Dr. Kia did something
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 8                   OSSEO IMAGING, LLC v. PLANMECA USA INC.




 similar here. Contrary to Planmeca’s assertion that
 “Dr. Kia offered no trial evidence or testimony that his
 opinions reflected the views of a [person of ordinary skill in
 the art] in 1999,” Appellant’s Br. 21, Dr. Kia testified about
 what was known in the field at the relevant time. See, e.g.,
 J.A. 4254–57 at 447:22–450:25; J.A. 4140–41 at 333:4–
 334:15.
     Accordingly, we see no reversible error. We agree with
 the district court that the proposed timing requirement is
 not a basis for excluding Dr. Kia’s expert testimony as a
 matter of law.
                               II
     “A determination of infringement, both literal and un-
 der the doctrine of equivalents, is a question of fact, re-
 viewed for substantial evidence when tried to a jury.” TI
 Grp., 375 F.3d at 1133. “A factual finding is supported by
 substantial evidence if a reasonable jury could have found
 in favor of the prevailing party in light of the evidence pre-
 sented at trial.” Amgen Inc. v. Hospira, Inc., 

 (Fed. Cir. 2019) (citing Tec Air, Inc. v. Denso
 Mfg. Mich. Inc., 

, 1357–58 (Fed. Cir. 1999)).
     Planmeca contends that, even with Dr. Kia’s testi-
 mony, no reasonable jury could have found infringement of
 claims 1 and 7 of the ’301 patent, claim 1 of the ’262 patent,
 or claim 1 of the ’374 patent because Planmeca’s Accused
 Systems did not practice the densitometry, tomographic
 modeling, or comparing limitations in the asserted claims.
 We address each limitation in succession.
                        Densitometry
     The district court construed densitometry as “quantita-
 tively calculated bone density.” J.A. 1207–08. Planmeca
 argues that, under the district court’s construction, no rea-
 sonable jury could have found infringement of the densi-
 tometry limitation because “Osseo provided no evidence at
 trial that the Accused Systems quantitatively calculated
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 OSSEO IMAGING, LLC v. PLANMECA USA INC.                   9



 bone density (e.g., by calculating mass divided by volume)
 as required by all asserted claims.” Appellant’s Br. 26 (em-
 phasis omitted). Instead, Planmeca is of the view that “Os-
 seo did nothing more than show that [Hounsfield Unit
 (HU)] values used by the Accused Systems may indicate
 relative density, which is not the same as performing or
 showing ‘quantitatively calculated bone density.’” Appel-
 lant’s Br. 27. To Planmeca, the presentation of HU values
 did not satisfy the densitometry limitation because “the Ac-
 cused Systems used HU values for gray-scale representa-
 tions that a person could use to merely qualitatively (or
 relatively) assess bone density based on the HU values.”
 Appellant’s Br. 31 (emphasis in original). Osseo responds
 that the evidence at trial showed that Planmeca’s Accused
 Systems calculated HU values which, in fact, represent
 bone density, thus satisfying the densitometry limitation.
 Appellee’s Br. 30–31.
     Substantial evidence supports the jury’s infringement
 verdict. To start, the Accused Systems’ user manual states
 that HU values are calculated by the Accused Systems in
 operation. J.A. 5352. And Osseo’s expert, Dr. Kia, ex-
 plained that HU values correspond to bone densities.
 J.A. 4175–76 at 368:3–369:2 (discussing J.A. 5376). Thus,
 taken together, the jury heard evidence on which it could
 reasonably rely to find that Planmeca’s Accused Systems
 met the densitometry limitation.
                    Tomographic Model
     The district court construed tomographic model as
 “merging information from multiple tomographic scans.”
 See J.A. 1204–07. Planmeca argues that the evidence at
 trial showed that the tomographic model generated by the
 “Accused Systems was created using individual, non-tomo-
 graphic images from a single scan of the patient.” Appel-
 lant’s Br. 37 (emphasis omitted). Planmeca stresses that
 Dr. Kia’s testimony showed that the tomographic model
 was not created by merging multiple tomographic scans,
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 10                 OSSEO IMAGING, LLC v. PLANMECA USA INC.




 but rather by using multiple single 2D images obtained
 from a single scan of the patient’s head. Osseo responds
 that Planmeca misconstrues the district court’s construc-
 tion of tomographic model, “contort[s] Dr. Kia’s testimony,”
 and ignores Dr. Kia’s further testimony that confirms each
 of the 2D images were in fact 2D projections that each con-
 stitute tomographic scans. Appellee’s Br. 37–38. We agree
 with Osseo—substantial evidence supports the jury’s in-
 fringement verdict.
      The Court’s construction does not require that infor-
 mation be merged from tomographic images, but rather
 that information be merged from multiple tomographic
 scans. To that end, although Dr. Kia testified that the 2D
 projections themselves were not tomographic images, he
 did confirm that each of those 2D projections were tomo-
 graphic scans. J.A. 4361 at 518:15–25. Dr. Kia also clari-
 fied that the Accused Systems merged information from
 multiple tomographic scans. J.A. 4362 at 519:7–23. Thus,
 the jury heard evidence on which it could reasonably rely
 to find that the Accused Systems satisfied the tomographic
 model limitation.
                         Comparing
      The district court determined that no construction was
 necessary for the comparing term in the larger phrase “said
 computer creating, storing and comparing three-dimen-
 sional digital densitometry models without the use of fidu-
 cial markers of patient dental or orthopedic structure.” See
 J.A. 1213. Still, Planmeca continues to assert on appeal
 that claim 1 of the ’262 patent requires a computer of the
 Accused Systems to do a comparison of the densitometry
 models and that Osseo put on no evidence that a computer
 performed the comparison of the densitometry models. See
 Appellant’s Br. 41–42. Instead, Planmeca asserts, there
 was only evidence of a human performing the comparison
 after the computer presented at least two images (i.e., two
 densitometry models). See Appellant’s Br. 42–43. Osseo
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 OSSEO IMAGING, LLC v. PLANMECA USA INC.                   11



 responds that it was not required to present evidence that
 a computer of the Accused System, and not the users them-
 selves, compared the created and stored dental models.
 Appellee’s Br. 41. Rather, Osseo asserts that it “presented
 ample evidence to the jury that the Romexis software of the
 Accused Systems facilitates the comparison of two images
 by registering and displaying them such that the corre-
 sponding parts of the patient’s anatomy are aligned.” Ap-
 pellee’s Br. 42.
     Substantial evidence supports the jury’s verdict of in-
 fringement. First, we do not read this claim to require the
 absence of human involvement in the comparison step.
 That is, the comparing limitation may be satisfied if a com-
 puter of the Accused Systems displays two densitometry
 models in a manner that invites the comparison of the two
 densitometry models. For instance, the presentation of a
 side-by-side arrangement or the presentation of two im-
 ages layered one on top of the other would suffice because
 any differences between the two densitometry models
 would be discernable. Dr. Kia explained that the Accused
 Systems perform this type of presentation to the jury.
 J.A. 4200–04 at 393:12–397:17; J.A. 4217–18 at 410:13–
 411:21.     As such, the jury reasonably found that
 Planmeca’s Accused Systems met the comparing limita-
 tion.
     We conclude that substantial evidence supports the
 jury’s verdict of infringement of claims 1 and 7 of the
 ’301 patent, claim 1 of the ’262 patent, and claim 1 of the
 ’374 patent. Accordingly, we affirm the district court’s de-
 nial of JMOL.
                              III
     As to obviousness, “[t]his court reviews a jury’s conclu-
 sions on obviousness, a question of law, without deference,
 and the underlying findings of fact, whether explicit or im-
 plicit within the verdict, for substantial evidence.” LNP
 Eng’g Plastics, Inc. v. Miller Waste Mills, Inc., 275 F.3d
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 12                  OSSEO IMAGING, LLC v. PLANMECA USA INC.




 1347, 1353 (Fed. Cir. 2001); see also TI Grp., 375 F.3d
 at 1133. “Where, as here, the jury made no explicit factual
 findings regarding obviousness, we must determine
 whether the implicit findings necessary to support the ver-
 dict are supported by substantial evidence.” Fresenius
 USA, Inc. v. Baxter Int’l, Inc., 

 (Fed. Cir. 2009); see J.A. 3574. “[W]hether there is a reason
 to combine prior art references is a question of fact” that
 we review for substantial evidence. Kinetic Concepts, Inc.
 v. Smith & Nephew, Inc., 

 (Fed. Cir.
 2012).
      Planmeca argues that the evidence at trial demon-
 strated that each limitation of the asserted claims was
 shown in the prior art and that its expert, Dr. Norbert Pelc,
 “diligently presented a combination of prior art references[,
 Guenther, Mazess, Fontevraud, and DIMAXIS,] that
 demonstrated by clear and convincing evidence the obvi-
 ousness of the patent claims at trial.” Appellant’s Br. 51–
 52. In addition, Planmeca asserts that Osseo’s expert,
 “Dr. Kia[,] did not at all challenge the disclosure in Guen-
 ther, Mazess, Fontevraud, and DIMAXIS that Dr. Pelc re-
 lied on to reach his obviousness opinion.” 2 Appellant’s
 Br. 54. Thus, Planmeca concludes that no reasonable jury
 could have found the asserted claims of the Asserted Pa-
 tents nonobvious. Osseo responds that it presented evi-
 dence—Dr. Kia’s testimony—that it would not have been
 obvious to combine the teachings of the primary prior art
 references Guenther, Mazess, and Fontevraud. Planmeca



      2   Oddly, Planmeca does not appear to argue that the
 district court should have given no weight to Dr. Kia’s tes-
 timony regarding obviousness. In any event, as noted
 above, we reject Planmeca’s argument the Dr. Kia’s testi-
 mony cannot constitute substantial evidence because he
 was not a person of ordinary skill in the art until after the
 time of the invention.
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 OSSEO IMAGING, LLC v. PLANMECA USA INC.                   13



 essentially asks us to reweigh the evidence presented to the
 jury, which we will not do.
      Substantial evidence supports the jury’s findings nec-
 essary to support the verdict that the Asserted Patents are
 not invalid as obvious. First, Dr. Kia disputed Dr. Pelc’s
 conclusions regarding obviousness. J.A. 5056 at 1127:3–
 22. Dr. Kia then testified on the differences between tomo-
 synthesis and computed tomography.             J.A. 5057–60
 at 1128:10–1131:13. This discussion served as a backdrop
 against which Dr. Kia explained that densitometry, or bone
 density data, and tomosynthesis are incompatible with
 each other because tomosynthesis scans can produce blurry
 anatomical images.         J.A. 5060–63 at 1131:14–1134:6.
 Based on this entire discussion, Dr. Kia concluded it would
 not have been obvious to a person of ordinary skill in the
 art to combine the tomosynthesis concept in Guenther with
 the densitometry concepts in Mazess and Fontevraud. See
 J.A. 5056 at 1127:3–22 (noting “one of ordinary skill in the
 art would not look to bone general density for a solution for
 a problem related to tomosynthesis”); J.A. 5068 at 1139:9–
 18; J.A. 5064–69 at 1135:13–1140:13. Thus, the jury heard
 evidence demonstrating that it would not have been obvi-
 ous to a skilled artisan to combine the prior art references.
 The jury could reasonably rely on such evidence to find that
 Planmeca did not meet its burden to establish by clear and
 convincing evidence that the asserted claims of the As-
 serted Patents are invalid for obviousness. Accordingly, we
 affirm the district court’s denial of JMOL.
                        CONCLUSION
      We have considered Planmeca’s remaining arguments
 and find them unpersuasive. For the reasons above, we
 affirm the district court’s denial of judgment as a matter of
 law with respect to infringement and invalidity.
                        AFFIRMED