       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 MEDTRONIC INC.,
               Plaintiff-Cross-Appellant,

                           v.

    BOSTON SCIENTIFIC CORPORATION AND
         GUIDANT CORPORATION,
                Defendants,

                          AND

       MIROWSKI FAMILY VENTURES, LLC,
              Defendant-Appellant.
             ______________________

                   2011-1313, -1372
                ______________________

    Appeals from the United States District Court for the
District of Delaware in No. 07-CV-0823, Judge Sue L.
Robinson.
                ______________________

                Decided: March 11, 2014
                ______________________

    MARTIN R. LUECK, Robins, Kaplan, Miller & Ciresi
L.L.P., of Minneapolis, Minnesota, for plaintiff-cross-
appellant. With him on the brief were JAN M. CONLIN and
STACIE E. OBERTS.
2         MEDTRONIC INC.   v. BOSTON SCIENTIFIC CORPORATION




    ARTHUR I. NEUSTADT, Oblon, Spivak, McClelland,
Maier & Neustadt, LLP, of Alexandria, Virginia, for
defendant-appellant. With him on the brief were THOMAS
J. FISHER and JOHN F. PRESPER.
                ______________________

     Before LOURIE, LINN, and PROST, Circuit Judges.
LINN, Circuit Judge
    This case is before us on remand from the Supreme
Court. In a declaratory judgment action in which the
defendant-patentee is precluded from pursuing infringe-
ment counterclaims by the continued existence of a li-
cense to the plaintiff, we previously held on appeal that
the district court in the limited circumstances of this case
erred in allocating the burden of persuasion to the pa-
tentee and remanded for reconsideration of the infringe-
ment question with the burden allocated to the
declaratory judgment plaintiff. Medtronic, Inc. v. Boston
Scientific Corp., 695 F.3d 1266, 1274–75 (2012) (“Med-
tronic I”). On cross-appeal, we held that the district court
incorrectly construed the claim terms in question and
remanded for reconsideration of the claims’ validity in
light of the correct constructions. Id. at 1275–76. With-
out reviewing or disturbing this court’s claim construction
ruling, the Supreme Court reversed with respect to the
burden of persuasion, holding that the burden falls on the
patentee. Medtronic, Inc. v. Mirowski Family Ventures,
LLC, 134 S.Ct. 843, 850–851 (2014) (“Medtronic II”). The
Court then remanded the case to us for further proceed-
ings consistent with its opinion. We now affirm the
district court’s determination of noninfringement, reiter-
ate our vacatur of the district court’s determination of no
invalidity, and remand.
MEDTRONIC INC.   v. BOSTON SCIENTIFIC CORPORATION        3



            I. DECISION ON NONINFRINGEMENT
    The facts of this case were recited in detail in this
court’s previous opinion and need not be repeated. Med-
tronic I, 695 F.3d at 1269–71. At the district court, Med-
tronic served the report of its noninfringement expert, Dr.
Charles Love (“Love”), and MFV subsequently served the
report of its infringement expert, Dr. Ronald Berger
(“Berger”). Berger’s report largely was responsive to
Love’s report, and Berger admitted that he did not ex-
pressly map the Medtronic products in question to every
limitation of the relevant claims. Medtronic, Inc. v.
Boston Scientific Corp., 777 F. Supp. 2d 750, 768–69 (D.
Del. 2011) (“Opinion”).
    At the conclusion of a bench trial, the district court
“determined that defendants, as patentees, have the
burden to prove infringement.” Id. at 767. The Supreme
Court has now held that the district court was correct in
looking to the patentee to carry that burden. In assessing
whether the patentee carried its burden, the district court
found that Berger’s infringement opinions lacked suffi-
cient foundation because of his failure to consider “each
limitation of each asserted claim in comparison to each
accused product before rendering his infringement opin-
ions,” and that MFV “failed to prove literal infringement
by a preponderance of the evidence.” Id. at 769. The
court also found Berger’s report and testimony conclusory
and insufficient to show that the products infringe the
patents under the doctrine of equivalents. Id. at 769–70.
     With respect to literal infringement, the issue is not
whether Dr. Berger’s report mentions a “sense amplifier”
in some capacity in his report, but rather whether the
district court abused its discretion in concluding that
Berger’s report lacked foundation sufficient to deem him a
reliable infringement expert. MFV “relied primarily on
[its] burden-shifting view of the case,” in which there was
“no need for Dr. Berger to concentrate on claim elements
4         MEDTRONIC INC.   v. BOSTON SCIENTIFIC CORPORATION



that Medtronic did not dispute.” Opinion at 767, 767
n.10. This left the district court the task of reviewing Dr.
Berger’s report for the sufficiency of MFV’s infringement
analysis in order to make an infringement determination
based on the appropriate evidence. In reviewing Berger’s
report, the district court selected his analysis of claim 15
of the ’987 patent “as an example of the issue at bar.” Id.
at 768. The district court was unable to locate any refer-
ence to this claim’s “sense amplifier” limitation and found
that “[o]nly vague perfunctory language potentially covers
the remaining elements of asserted claims.” Id. at 769
(emphasis added). Concluding that Dr. Berger was an
unreliable infringement expert on this record was not an
abuse of discretion.
    This court agrees with the district court that Med-
tronic’s noninfringement contentions based on certain
elements alleged to be missing from its devices do not
relieve Dr. Berger of the requirement to opine on the
presence of structure meeting every claim limitation, nor
was it incumbent on the district court to scour the record
for whatever other evidence may have supported MFV’s
infringement position. Id. Having determined that Dr.
Berger’s opinion lacked foundation, the district court was
correct to conclude that MFV failed to prove literal in-
fringement by a preponderance of the evidence. Id.
    With respect to infringement under the doctrine of
equivalents, we again agree with the district court that
Berger’s opinion was unreliable. The district court cor-
rectly noted that conclusory statements are insufficient to
support a verdict finding infringement under the doctrine
of equivalents, id. at 769, and that Dr. Berger’s doctrine of
equivalents report and testimony failed “to execute proper
doctrine of equivalents analysis” by relying merely on
statements that “‘[t]he difference would not be substantial
at all. The purpose is the same . . . ,’ or words of a very
similar nature,” id. at 770. Having excluded Dr. Berger’s
opinion, the district court was correct to conclude that
MEDTRONIC INC.   v. BOSTON SCIENTIFIC CORPORATION        5



MFV failed to prove infringement of the doctrine of equiv-
alents by a preponderance of the evidence. For these
reasons, we affirm the district court’s noninfringement
decision.
       II. DECISION ON MEDTRONIC’S CROSS-APPEAL
     The Supreme Court’s decision did not disturb this
court’s previous decision on Medtronic’s cross-appeal,
which held that the district court erred by restricting the
claimed invention to the treatment of congestive heart
failure, vacated the determination of no invalidity predi-
cated on the improper claim construction, and remanded
for further proceedings. Medtronic I at 1276. This previ-
ous decision remains in effect.
                      III. CONCLUSION
    For the foregoing reasons, the judgment of the district
court is affirmed in part and vacated in part. The case is
remanded for additional proceedings consistent with this
opinion and this court’s previous decision in Medtronic I
on Medtronic’s cross-appeal.
  AFFIRMED-IN-PART, VACATED-IN-PART AND
               REMANDED
                         IV. COSTS
   Each party to bear its own costs.
