1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

By a Clerk’s notice filed July 22, 2010, the matter was taken under submission.

2

The FAC was filed on November 14, 2008 in Vnus Medical Technologies, Inc. v.

Total Vein Solutions, LLC, Case No. 08-4234 (“TVS Action”). By order filed November 18,

2008, the Court consolidated the TVS Action with Tyco Healthcare Group LP v. biolitec,

Inc., Case No. 08-3129 (“biolitec Action”) and, by separate order filed November 18, 2008,

directed that all further filings in the TVS Action be made in the biolitec Action.

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TYCO HEALTHCARE GROUP LP d/b/a

VNUS MEDICAL TECHNOLOGIES

Plaintiff

 v.

BIOLITEC, INC., et al.,

Defendants /

No. C-08-3129 MMC

ORDER GRANTING IN PART AND

DENYING IN PART TOTAL VEIN

SOLUTIONS, LLC’S MOTION FOR

SUMMARY JUDGMENT OF NO

CONTRIBUTORY INFRINGEMENT

Before the Court is defendant Total Vein Solutions, LLC’s (“TVS”) “Motion for

Summary Judgment of No Contributory Infringement,” filed June 25, 2010. Plaintiff Tyco

Healthcare Group LP d/b/a VNUS Medical Technologies (“VNUS”) has filed opposition, to

which TVS has replied. Having read and considered the papers filed in support of and in

opposition to the motion, the Court rules as follows.1

BACKGROUND

In its First Amended Complaint (“FAC”),2

 VNUS alleges it owns all rights to five

patents, specifically, U.S. Patent Nos. 6,752,803 (“‘803 Patent”), 6,769,433 (“‘433 Patent”),

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 1 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

6,258,084 (“‘084 Patent”), 7,396,355 (“‘355 Patent”), and 7,406,970 (“‘970 Patent”). (See

FAC ¶ 8.) VNUS further alleges that “TVS has directly and/or indirectly infringed (including

contributory and/or inducement of infringement) the claims of the ‘803, ‘433, ‘084, ‘355 and

‘970 [P]atents by making, using, selling, offering to sell and/or instructing users how to use

products for endovenous laser and/or radiofrequency treatment, including laser fibers,

procedure packs, access devices and kits, under the trade names ‘Total Vein Systems’ and

‘Total Vein Solutions.’” (See FAC ¶ 9.)

LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that a court may grant

summary judgment “if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(c).

The Supreme Court’s 1986 “trilogy” of Celotex Corp. v. Catrett, 477 U.S. 317 (1986),

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co.

v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary

judgment show the absence of a genuine issue of material fact. Once the moving party

has done so, the nonmoving party must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.” See Celotex, 477

U.S. at 324 (internal quotation and citation omitted). “When the moving party has carried

its burden under Rule 56(c), its opponent must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “If the

[opposing party’s] evidence is merely colorable, or is not significantly probative, summary

judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (citations omitted). 

“[I]nferences to be drawn from the underlying facts,” however, “must be viewed in the light

most favorable to the party opposing the motion.” See Matsushita, 475 U.S. at 587

(internal quotation and citation omitted).

//

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 2 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

TVS does not seek summary judgment on VNUS’s claim that TVS has engaged in

inducement of infringement.

3

DISCUSSION

By the instant motion, TVS argues it is entitled to summary judgment on VNUS’s

claim of direct infringement and on VNUS’s claim of contributory infringement.3

A. Direct Infringement

Each claim in the five subject patents claims a method for treating either a “vein,”

see, e.g., ‘433 Patent, col. 19, ll. 15-17, or a “hollow anatomical structure,” see, e.g., ‘803

Patent, col. 17, ll. 666-67. Consequently, a person who engages in direct infringement

would necessarily be a person treating a vein or hollow anatomical structure. See Joy

Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 775 (Fed Cir. 1993) (“A method claim is

directly infringed only by one practicing the patented method.”) (emphasis in original).

In its motion, TVS states that, although the FAC alleges TVS has directly infringed

the claims in each of the five subject patents, TVS does not “understand” VNUS to

“continue” to pursue such allegation. (See TVS’s Mem. of P. & A., filed June 25, 2010, at

2:26-27.) TVS requests that, “for clarity,” the Court nonetheless “rule that TVS is not liable

for direct infringement” for the reason that “TVS is not a medical facility and does not offer

or perform medical procedures” (see id. at 2:27-28).

In its opposition, VNUS fails to respond in any manner to TVS’s statements

regarding its understanding of VNUS’s claim of direct infringement; rather, VNUS focuses

exclusively on its claim of contributory infringement. Moreover, although TVS did not cite to

any evidence to show it does not perform medical procedures, VNUS itself has offered

such evidence. Specifically, VNUS offers, for another purpose, the testimony of David

Centanni, TVS’s Chief Executive Officer, that TVS “provide[s] supplies for in-office-based

surgical procedures” (see Lisson Decl. Ex. 34 at 44), and an American College of

Phlebology document stating TVS is a company that “markets” certain “surgical packs” and

“a complete line of surgical laser fibers and venous access products (see id. Ex. 15 at 38).

Accordingly, to the extent VNUS alleges a claim of direct infringement against TVS,

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 3 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

TVS is entitled to summary judgment.

B. Contributory Infringement

“The patent laws provide that whoever sells an apparatus for use in practicing a

patented method, knowing it 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.’” Vita-Mix Corp. v.

Basic Holding, Inc., 581 F.3d 1317, 1327 (Fed. Cir. 2009) (quoting 35 U.S.C. § 271(c)). 

“Contributory infringement imposes liability on one who embodies in a non-staple device

the heart of a patented process and supplies the device to others to complete the process

and appropriate the benefit of the patented invention.” Id.

A noninfringing use is “substantial” when it is “not unusual, far-fetched, illusory,

impractical, occasional, aberrant, or experimental.” See id. Whether a noninfringing use is

“substantial” is an issue of fact. See, e.g., i4i Limited Partnership v. Microsoft Corp., 598

F.3d 831, 851 (Fed. Cir. 2010) (affirming jury’s decision that defendant engaged in

contributory infringement, in light of evidence accused product’s noninfringing use “was not

a practical or worthwhile use for the [consumers] for which the [accused device] was

designed and marketed”). Consequently, for purposes of summary judgment, a defendant

is entitled to summary judgment unless a trier of fact could reasonably find the accused

product’s noninfringing use(s) is/are insubstantial. See, e.g., Vita-Mix, 581 F.3d at 1328

(affirming order granting summary judgment of no contributory infringement, where “no

reasonable jury could find [the accused product’s noninfringing use] is an insubstantial

use”); cf., e.g., Ricoh Co. v. Quanta Computer, Inc., 550 F.3d 1325, 1340 (Fed. Cir. 2008)

(reversing order granting summary judgment of no contributory infringement in light of

“material issue of fact of whether [the accused products] have no substantial noninfringing

use other than to practice [the] claimed methods”).

As discussed below, TVS argues that certain of its accused products are not

especially made or especially adapted for use in practicing VNUS’s patented methods, but,

rather, are products suitable for substantial noninfringing uses.

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 4 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

In its opposition, VNUS states that Dr. Andrews’ reference to “long” introducers is a

reference to introducers “greater than 11 cm in length.” (See Pl.’s Opp. at 7:19.) Although

VNUS does not cite to the portion of Dr. Andrew’s expert report or testimony in which he so

opines, TVS, in its reply, does not dispute that Dr. Andrews defined “long” in such manner.

5

1. Introducers

TVS sells “introducer kits” (see Buche Decl. Ex. F), which kits, according to TVS,

include at least one “introducer” of various lengths (see TVS’s Mem. of P. & A. at 4:19-23). 

In support of the instant motion, TVS offers evidence that “introducers” are capable of

being used in a number of medical procedures “other than endovenous treatment.” (See

Buche Decl. Ex. AAA ¶ 11.) In particular, TVS relies on the declaration of the President of

Argon Medical, Inc., the company that sells introducers to TVS for resale, who states that

introducers are “often used in diagnostic/interventional cardiac catheterization labs [and]

interventional radiology.” (See id.)

In its opposition, VNUS offers no evidence to establish that “introducers,” as a

general matter, are incapable of substantial, non-infringing uses and, indeed, admits its

expert has concluded that “generic” introducers can be used in “nonvenous applications.” 

(See Pl.’s Opp., filed July 9, 2010, at 7:20-22; see also id. at 8:3 (“Generic introducers may

well be used in other procedures.”).) Instead, relying on its expert, Robert T. Andrews,

M.D. (“Dr. Andrews”), VNUS submits evidence that particular types of introducers sold by

TVS, specifically, “long” introducers that also have “markers” or a “locking adapter” or both,

have no substantial non-infringing use. (See Lisson Decl. Ex. 31 at 227; see Pl.s’ Opp. at

7:19.)4 In particular, Dr. Andrews, in his expert report and at his deposition, offered the

opinion that such introducers would not be used for medical procedures other than the

claimed methods. (See id. Ex. 31 at 226-28, 235, Ex. 41 at 84; Andrews Decl. ¶ 2.) 

Whether, as TVS argues in its reply, such opinion is unworthy of credence is a matter for

the trier of fact. See McGinest v. GTE Service Corp., 360 F.3d 1103, 1113 n. 5 (9th Cir.

2004) (holding “it is axiomatic that disputes about material facts and credibility

determinations must be resolved at trial, not on summary judgment”).

//

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 5 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

Neither party has identified the product numbers corresponding to introducers

greater than 11 cm in length that have markers or a locking adaptor, or both.

6

Accordingly, to the extent TVS seeks summary judgment on VNUS’s contributory

infringement claim as it pertains to introducers greater than 11 cm in length that have

markers and/or a locking adapter, the motion will be denied, and to the extent TVS seeks

summary judgment on VNUS’s contributory infringement claim as it pertains to other

introducers, the motion will be granted.5

2. Procedure Packs

TVS sells “procedure packs,” which are medical-related products sold as a package. 

(See Buche Decl. Ex. R.) For example, one of the accused products, a procedure pack

with the model number “TVS 4002” includes, inter alia, a 35 cm introducer, two extra-large

gowns, ten sponges, a table cover, an IV set, and a scalpel. (See id. Ex. R at

TVSB04028.) TVS argues that its “packs” have substantial non-infringing uses.

At the outset, the Court notes that VNUS, in its opposition, states that the accused

packs are packs with an introducer greater than 11 cm in length with markers and/or a

locking adapter, and TVS, in its reply, does not appear to dispute such assertion. As

discussed above, a triable issue of fact exists as to whether such an introducer lacks any

substantial, noninfringing use. For this reason, summary judgment is not appropriate as to

procedure packs that include such introducers. See Vita-Mix, 581 F.3d at 1327 (holding

“infringer does not evade liability [for contributory infringement] by bundling an infringing

device with separate and distinct components that are capable of noninfringing use”).

Moreover, the evidence on which TVS relies is insufficient to “point[ ] out” an

“absence of evidence to support the nonmoving party’s case.” See Exigent Technology,

Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1308 (Fed. Cir. 2006) (setting forth showing

necessary for party seeking summary judgment as to issue on which it does not have

burden at trial). In that regard, TVS first relies on testimony offered by its expert, Wayne S.

Gradman, M.D. (“Dr. Gradman”), who opines that a particular pack with the product name

“TVS 4018” can be used by physicians engaged in noninfringing “treatment of ovarian vein

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 6 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

embolization” (see Buche Decl. Ex. N at 111). TVS’s reliance on such testimony is

misplaced, however, because TVS 4018 is not an accused product. (See Buche Reply

Decl. Ex. EEE.) Similarly unhelpful is Dr. Gradman’s testimony that he has used “packs” to

perform “[m]icro phlebectomies” (see Buche Decl. Ex. N at 15); because Dr. Gradman did

not identify any particular pack he may have used when performing micro phlebectomies,

the Court cannot determine whether he was referring to any of the accused packs.

Accordingly, to the extent TVS seeks summary judgment on VNUS’s contributory

infringement claim as it pertains to procedure packs, the motion will be denied.

3. Laser Fibers

TVS sells laser fibers of various lengths. (See id. Ex. S at TVSB14000.) VNUS has

identified TVS’s 400 micron and 600 micron laser fibers as accused products. (See Buche

Reply Decl. Ex. EEE.)

In support of the instant motion, TVS offers evidence that 400 micron and 600

micron lasers are used in a number of medical procedures “other than endovenous laser

ablation” (“EVLA”). (See Buche Decl. Ex. BBB ¶ 9.) In particular, according to the

company that sells lasers to TVS, the same lasers it sells to TVS for resale are “used in

connection with the following non-EVLA procedures: ENT, thorax surgery, general surgery,

[ ] orthopedics surgery (disc decompression)[,] urology [and] lipolysis.” (See id.) 

Additionally, TVS relies on the opinion of its expert, Dr. Gradman, who opines that 400

micron and 600 micron laser fibers “have a huge variety of medical uses,” such as use “in

neurological microsurgery” and “in treating spinal osteoid osteomas.” (See Buche Decl. Ex.

DDD at 6-8.)

VNUS fails to identify any evidence to the contrary, and, consequently, fails to show

that 400 micron and 600 micron laser fibers have no substantial noninfringing uses. 

Rather, VNUS relies on evidence that, VNUS contends, would support a finding that “TVS

targets vein doctors who only use laser fibers for infringing endovenous ablation

procedures.” (See Pl.’s Opp. at 9:18-19.) The evidence on which VNUS relies may be

relevant to establishing a claim of inducement pursuant to 35 U.S.C. § 271(b). See MetroCase 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 7 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936-37 (2005) (describing

“inducement rule” in patent law as “one who distributes a device with the object of

promoting its use to infringe . . . is liable for the resulting acts of infringement by third

parties”); Hewlett Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469 (Fed. Cir.

1990) (noting scope of activities prohibited by § 271(b) is “much broader” than scope

prohibited by § 271(c)). VNUS, however, cites no case, and the Court has located none,

holding that where a defendant sells a “staple article,” see 35 U.S.C. § 271(c), to a narrow

clientele which, in turn, does not use the product to engage in noninfringing activities, the

defendant has engaged in contributory infringement.

The lack of such case authority is not surprising given the language of 35 U.S.C.

§ 271(c), which requires the accused “material or apparatus” be “especially made or

especially adapted for use in an infringement of [a] patent.” See 35 U.S.C. § 271(c); see

also Hewlett Packard, 909 F.2d at 1469 (holding § 271(c) codified common law doctrine

prohibiting sale of “component” that “had no other use except with [a] claimed product or

process”). Here, as discussed above, it is undisputed that 400 micron and 600 micron

lasers fibers are not “especially made or especially adapted” for any particular use, let

alone for use in infringing any of VNUS’s claims. Moreover, as the Supreme Court has

recognized, “a finding of contributory infringement is normally the functional equivalent of

holding that the disputed article is within the monopoly granted to the patentee.” See Sony

Corp. v. Universal City Studios, Inc., 464 U.S. 417, 441 (1984). Plainly, the subject

disputed articles, 400 micron and 600 micron laser fibers, are not within the monopoly

granted to VNUS.

Accordingly, to the extent TVS seeks summary judgment on VNUS’s contributory

infringement claim as it pertains to laser fibers, the motion will be granted.

4. Laser Consoles

TVS sells “laser consoles” known as the “Optical Advantage 1500” (“OA 1500”) and

the “Thermalite 1470” (“1470”). TVS argues that both consoles are capable of substantial,

//

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 8 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

Although the OA 1500 is included on the list of accused products VNUS served on

TVS, the 1470 is not. (See Buche Reply Decl. Ex. EEE.) Both parties, however, appear to

be of the view that VNUS has otherwise identified the 1470 as an accused product.

7

TVS also offers evidence that the FDA is considering whether to approve the 1470

for use in liposuction procedures, and that its expert and the manufacturer of the 1470 each

expect the FDA to grant such approval. (See id. Ex. N at 90, CCC ¶ 10.) TVS, however,

has not shown that a use not presently in existence, but which may occur in the future, can

constitute a “substantial, noninfringing use” for purposes of § 271(c). Cf. Vita-Mix, 581 F.3d

at 1327 (holding substantial noninfringing uses are uses that are “not unusual” or

“experimental”).

9

noninfringing uses.6

With respect to the OA 1500, TVS offers evidence that such product can be used to

treat “skin lesions,” “red [and] blue facial veins,” and “spider telangiectasia” (see Buche

Decl. Ex. OO), as well as “plantar fasciitis” and “hamstring pulls” (see id. Ex. PP). VNUS

offers no evidence to the contrary, and, indeed, fails to discuss the OA 1500 in any manner

in its opposition.

Accordingly, to the extent TVS seeks summary judgment on VNUS’s contributory

infringement claim as it pertains to the OA 1500, the motion will be granted.

With respect to the 1470, TVS offers evidence that the Food and Drug

Administration (“FDA”) has approved the 1470 “for delivery of laser light to soft tissue in

non-contact mode during general surgery procedures” (see id. Ex. QQ), and, in conformity

therewith, that TVS advertises the 1470 as appropriate for “a variety of [g]eneral and

[v]ascular [s]urgical [p]rocedures” (see id. Ex. RR). Additionally, TVS offers the testimony

of its expert, Dr. Gradman, who opines that the 1470 is appropriate for “urological use” (see

id. Ex. N at 90), as well as a declaration from the President of Quanta Systems, SPA., the

company from which TVS purchases the 1470s, who states the 1470 “has been

successfully used in other procedures, such as pulmonary surgery, urology, proctology

[and] dermatology” (see id. Ex. CCC ¶ 9).

The Court finds the above-referenced evidence offered by TVS is sufficient to meet

its initial burden to demonstrate the 1470 is “suitable for substantial, noninfringing use.”7

 

See 35 U.S.C. § 271(c); cf. Exigent Technology, 442 F.3d at 1308-09 (holding, for

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 9 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

The FDA may approve the use of a device that is “‘substantially equivalent’ to an

existing predicate device to avoid the premarket approval process”; such approval process

is “known colloquially as the ‘§ 501(k) process.’” See In re Orthopedic Bone Screw Liability

Litig., 159 F.3d 817, 818-19 (3rd Cir. 1998).

9

The Court notes that VNUS does not purport to have invented all endovenous laser

treatment methods. Indeed, VNUS, for another purpose, has relied on an opinion

discussing endovenous methods patented by a different entity. See Diomed, Inc. v.

Angiodynamics, Inc., 450 F. Supp. 2d 130, 135 (D. Mass. 2006) (referring to Diomed, Inc.

patent that claims “‘method’ of treating blood vessels through the use of laser energy,” and,

in particular, one claim “address[ing] the means of inserting, positioning and emitting laser

energy into a blood vessel”).

10

purposes of claim of direct infringement, defendant meets initial burden by filing motion for

summary judgment in which defendant “stat[es] that the patentee [has] no evidence of

infringement and point[s] to the specific ways in which accused systems [do] not meet the

claim limitations”).

The Court next considers whether VNUS, by its own evidence, has established a

triable issue of fact exists as to whether the 1470 has no substantial, noninfringing uses. 

As discussed below, the Court finds VNUS has failed to make such a showing.

First, VNUS relies on an email in which an employee of TVS advised an employee of

an import company that the “primary use” of a particular device being imported was

“endovenous laser ablation.” (See Lisson Decl. Ex. 36 at TVSB13725.) Although VNUS

appears to rely on such statement as an admission by TVS, VNUS offers no evidence to

support a finding that TVS’s employee was referring to the 1470. Indeed, the evidence

offered by VNUS indicates the TVS employee was referring to devices described as “Diode

Medical Laser Family, Models 4, 6, 30” and having a “510(k)” number of K072034 (see id.

Ex. 36 at TVSB13724-25), which number, according to evidence offered by VNUS for

another purpose, is not the 510(k) number for the 1470 (see id. Ex. 51).8

Second, VNUS relies on TVS’s 2010 catalog, which includes a description of the

1470 as “the latest in endovenous laser technology.” (See Lisson Decl. Ex. 39 at

TVSB14024.) Even assuming the statement could be understood as an admission that a

user of the 1470 can employ the device to perform VNUS’s claimed methods,9

 the

statement cannot be reasonably understood as an admission that the 1470 has no other

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 10 of 11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

use.

Finally, VNUS relies on its expert, Dr. Andrews, who opines that any use of the 1470

for “transdermal applications” is “insubstantial” (see Lisson Decl. Ex. 41 at 76) and, in

particular, that the 1470 “would not be usable, for example, for treating spider veins or

telangiectasias” (see id. Ex. 31 at 182). Assuming such evidence would be sufficient to

create a triable issue of fact as to whether transdermal applications would constitute

insubstantial uses of the 1470, such evidence is not relevant with respect to the other uses

shown by TVS, such as pulmonary surgery, urology, and proctology applications.

Accordingly, to the extent TVS seeks summary judgment on VNUS’s contributory

infringement claim as it pertains to the 1470, the motion will be granted, and, as noted

above, to the extent TVS seeks summary judgment on VNUS’s contributory infringement

claim as it pertains to the OA 1500, the motion will be granted.

CONCLUSION

For the reasons stated above, TVS’s motion for summary judgment is hereby

GRANTED in part and DENIED in part as follows:

1. To the extent TVS seeks summary judgment on VNUS’s claim of direct

infringement, the motion is GRANTED.

2. To the extent TVS seeks summary judgment on VNUS’s claim of contributory

infringement as it pertains to (a) introducers other than those greater than 11 cm in length

that have markers and/or a locking adapter, (b) laser fibers, and (c) laser consoles, the

motion is GRANTED.

3. In all other respects, the motion is DENIED.

IT IS SO ORDERED.

Dated: August 11, 2010 

MAXINE M. CHESNEY

United States District Judge

Case 3:08-cv-03129-MMC Document 258 Filed 08/11/10 Page 11 of 11