NEUROVISION Judge Overturned, Admonished

NuVasive, Inc. is getting a new trial.

Neurovision Medical Products’ $60 million court victory over NuVasive over the use of the “NEUROVISION” trademark has been overturned and sent back for another trial.

On September 10, the U.S. Court of Appeals for the Ninth Circuit sent the judge who oversaw the jury trial a stinging rebuke by basically, firing him from the case and pointing out shoddy and lazy legal work.

After a five-day jury trial last January, the jury, based on the judge’s instructions, found that NuVasive committed fraud in procuring the NEUROVISION trademark registration, that Neurovision Medical had prior rights to the NEUROVISION mark and that NuVasive willfully infringed on Neurovision Medical’s rights.

NuVasive had serious problems with, among other things, the judge’s instructions to the jury and appealed.

The appeals court didn’t hold back by practically accusing the district judge of rubber stamping Neurovision Medical’s allegations. The appeals court noted that each of the orders strongly favoring the company was prepared by Neurovision Medical’s lawyers, and that the district court engaged in the “regrettable practice” of signing each one without altering a single line.

“The district court abused its discretion by excluding relevant evidence based on its legally erroneous determination…, ” stated the appeals court opinion. Furthermore, the appeals court said another judge should hear the new trial because the district court judge “ignored our precedent, persistently cut off or excluded relevant testimony, and repeatedly [incorrectly] instructed the jury.”

Ouch. But wait, there was more.

“In light of the district court’s adherence to a view of trademark law that is at odds with clear Ninth Circuit precedent, there is reason to believe that the district judge may have substantial difficulty in putting out of his…mind previously expressed views or findings determined to be erroneous.”

Specifically, the appeals court said the district court erroneously instructed the jury as to the elements required to prove fraud on the United States Patent and Trademark Office. The district court also erred by instructing the jury to determine only whether NuVasive omitted knowledge of Neurovision’s prior use of the NEUROVISION mark.

The appeals court concluded that the district court failed to properly instruct the jury as to the showing required to challenge an “incontestable” mark and that Neurovision may not challenge NuVasive’s use of the NEUROVISION mark unless it can prove that its own use of the mark was “maintained without interruption.”

In a regulatory filing, NuVasive stated it expects the new proceedings to begin in the coming months.