Defendants analogize the present case to one in which a circuit court upheld a lower court's finding of materiality where the nondisclosed reference 1) included a combination of elements that were encompassed by separate references of record, 2) contained pertinent features that exceeded the prior art of record, 3) had been considered by the applicant, in a foreign patent application, to be the most relevant piece of prior art in existence and 4) was considered to be material by patent examiners in other countries. Nevertheless, because of Diomed's failure to comply fully with its discovery obligations, Diomed will make Mr. Green available for a short supplemental deposition, solely on the issue of the lost-profits theory, with all costs (except defendants' legal fees) to be borne by Diomed. physical contact with the vessel wall", is consistent with a claim of infringement "even if there [are] moments when the fiber tip [is] not in contact with the vein wall". Construing the insertion and placement steps of Claim 9, Judge Stearns found that the fiber optic line used to emit laser energy required an uncoated tip and that positioning the laser necessarily required. Poulis-Minott v. Smith, 388 F.3d 354, 358 (1st Cir.2004) (quoting Lohnes v. Level 3 Commc'ns, Inc., 272 F.3d 49, 60 (1st Cir.2001)). In accordance with the prerequisite of novelty, an invention may not be patented where it was anticipated and is, consequently, not new. An element is "inherent" if it is "necessarily present". In the Klopfenstein case, upon which all parties rely, the circuit court held that a printed slide presentation that was pasted onto poster boards and displayed at a conference for two and a half days constituted a printed publication. Citations are also linked in the body of the Featured Case. While the issue presents a close question in some respects, the Court finds that the weakness of defendants' contentions precludes a decision in their favor. Diomed suggests that those "disclaimers" are meaningless absent any instruction on how to avoid contact and in light of the contact which inevitably occurs when defendants' products are used as directed. Cross Med. The Court declines to accept Diomed's argument that none of the elements of the '777 patent were disclosed in prior art references. (quoting Ciba-Geigy Corp. v. Alza Corp., 864 F.Supp. In re Klopfenstein, 380 F.3d 1345 (Fed.Cir.2004). Consideration of extrinsic evidence is permitted to support a contention that an element of the claimed invention was inherently taught by a prior art reference. After setting forth its case for direct infringement, Diomed argues that defendants' marketing, post-sale support, "instructions for use" and design of their products render them liable for actively inducing and contributing to infringement of the '777 patent. Poulis-Minott, 388 F.3d at 358 (quoting Lohnes, 272 F.3d at 60) (internal quotation marks omitted). It contends that precluding Mr. Green's evidence is unwarranted because defendants had sufficient foreknowledge of the analysis contained in his supplemental report and the delay in producing that supplement was caused by defendants' conduct. Consequently, the Court rejects defendants' argument that the use of tumescent anesthesia in conjunction with their products invariably places them outside the scope of the '777 patent. In its answer to plaintiff's complaint, AngioDynamics denies the allegations of infringement and asserts that the '777 patent is invalid both on its face and as applied to the actions of AngioDynamics.

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