  United States Court of Appeals
      for the Federal Circuit
                ______________________

      SYNGENTA CROP PROTECTION, LLC,
              Plaintiff-Appellant

                           v.

  WILLOWOOD, LLC, WILLOWOOD USA, LLC,
WILLOWOOD AZOXYSTROBIN, LLC, WILLOWOOD
                 LIMITED,
        Defendants-Cross-Appellants
           ______________________

                 2018-1614, 2018-2044
                ______________________

   Appeals from the United States District Court for the
Middle District of North Carolina in No. 1:15-cv-00274-
CCE-JEP, Judge Catherine C. Eagles.
                 ______________________

              Decided: December 18, 2019
                ______________________

    RUSSELL EVAN LEVINE, Kirkland & Ellis LLP, Chicago,
IL, argued for plaintiff-appellant. Also represented by
HARI SANTHANAM, MEREDITH ZINANNI.

    STEVEN EDWARD TILLER, Whiteford, Taylor & Preston
LLP, Baltimore, MD, argued for defendants-cross-appel-
lants. Also represented by PETER JAMES DAVIS; BARRY S.
NEUMAN, Washington, DC; ALAN DUNCAN, LESLIE COOPER
HARRELL, Mullins Duncan Harrell & Russell PLLC,
Greensboro, NC.
2        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




    MEGAN BARBERO, Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC, ar-
gued for amicus curiae United States. Also represented by
MARK R. FREEMAN, JOSEPH H. HUNT; MATTHEW G.T.
MARTIN, The United States Attorney’s Office, Middle Dis-
trict of North Carolina, United States Department of Jus-
tice, Greensboro, NC.

   MELVIN C. GARNER, Leason Ellis LLP, White Plains,
NY, for amicus curiae New York Intellectual Property Law
Association. Also represented by LAUREN BETH EMERSON,
ROBERT M. ISACKSON, MARTIN SCHWIMMER.

    JAMES PETER RATHVON, Paley Rothman, Bethesda,
MD, for amici curiae Aceto Agricultural Chemicals Corp.,
Aceto Corporation, AgLogic Chemical, LLC, Agro-Gor
Corp., Albaugh, LLC, Argite, LLC, Atticus, LLC, Axss
Technical Holdings, LLC, Chemstarr, LLC, Consus Chem-
icals, Inc., Decco US Post-Harvest, Inc., Drexel Chemical
Company, Ensystex, Inc., Ensystex II, Inc., Ensystex III,
Inc., Ensystex IV, Inc., Extremis, LLC, GeneraTec, LLC,
Gharda Chemicals International, Inc., Helm Agro US, Inc.,
LG Chem, Ltd., MEY Corporation, PBI Gordon Corp.,
Promika, LLC, Raymat Crop Science, Inc., Raymat Mate-
rials, Inc., RedEagle International, LLC, RiceCo, LLC, Ro-
tam Agrochemical Company, Ltd., Rotam Ltd., Rotam
North America Inc., Sharda CropChem Ltd., Sharda USA,
LLC, Summit Agro US, LLC, Summit Agro North America
Holding Corporation, Tacoma AG, LLC, Tide International
USA, Inc., Troy Corporation, United Phosphorus, Inc., UPL
Delaware Inc., Woodstream Corporation.

    JEFFREY PAUL KUSHAN, Sidley Austin LLP, for amici
curiae Biotechnology Innovation Organization, CropLife
International. Also represented by KATHI A. COVER, iBiq-
uity Digital Corporation, Columbia, MD.
                 ______________________
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC             3



   Before REYNA, TARANTO, and STOLL, Circuit Judges.
REYNA, Circuit Judge.
    Syngenta Crop Protection, LLC, sued Willowood, LLC,
Willowood USA, LLC, Willowood Azoxystrobin, LLC, and
Willowood Limited in the U.S. District Court for the Middle
District of North Carolina for copyright infringement and
patent infringement, asserting four patents directed to a
fungicide compound and its manufacturing processes.
Prior to trial, the district court dismissed the copyright in-
fringement claims, determining them to be precluded by
the Federal Insecticide Fungicide and Rodenticide Act.
The district court granted-in-part and denied-in-part Syn-
genta Crop Protection, LLC’s summary judgment motion
with respect to patent infringement. The district court also
denied-in-part the defendants’ motion to exclude expert
testimony on damages.
     After a jury trial, the district court entered judgment
in favor of Willowood Limited on all patent infringement
claims; in favor of all defendants on infringement of one
patent at issue; and against Willowood, LLC, and Wil-
lowood USA, LLC, on infringement of the remaining three
patents. The district court denied Syngenta Crop Protec-
tion, LLC’s motions for judgment as a matter of law. Syn-
genta Crop Protection, LLC, appeals the district court’s
denials of its motions for judgment as a matter of law and
its final judgment. Defendants conditionally cross-appeal
the district court’s partial denial of their motion to exclude
expert testimony on damages. For the reasons explained
below, we affirm-in-part, reverse-in-part, vacate-in-part,
and remand for further proceedings consistent with this
opinion.
                        BACKGROUND
                  I. The Asserted Patents
    Syngenta Crop Protection, LLC, (“Syngenta”) is the as-
signee of U.S. Patent Nos. 5,602,076 (“the ’076 patent”),
4         SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




5,633,256 (“the ’256 patent”), 5,847,138 (“the ’138 patent”),
and 8,124,761 (“the ’761 patent”). The ’076 patent is enti-
tled “Certain Fungicides, Pesticides and Plant Growth Reg-
ulants.”      The ’256 patent is entitled “Certain
Pyrimidinyloxy-phenyl Acrylates, Derivatives Thereof and
Their Fungicidal Use.” The ’076 and ’256 patents (collec-
tively, “the Compound Patents”) expired on February 11,
2014. The Compound Patents are directed to a group of
chemical compounds, including azoxystrobin, a fungicide
commonly used in agriculture to control fungal growth on
crops. J.A. 7; Appellant’s Br. 9.
    The ’138 patent is entitled “Chemical Process” and ex-
pired on December 8, 2015. The ’138 patent is directed to
a two-step process for manufacturing azoxystrobin that in-
cludes an etherification step followed by a condensation
step. Appellant’s Br. 12; J.A. 6672. The etherification step
produces an intermediate compound that is then used in
the condensation step to produce azoxystrobin. J.A. 6672.
    The ’761 patent is entitled “Processes for the Prepara-
tion of Azoxystrobin Using DABCO as a Catalyst and Novel
Intermediates Used in the Processes” and does not expire
until April 15, 2029. The ’761 patent is directed to a pro-
cess of using the chemical catalyst 1,4-diazabicy-
clo[2.2.2]octane (“DABCO”) during the condensation step
to manufacture azoxystrobin. ’761 patent col. 1 ll. 20–25;
J.A. 6682–83. Each claim of the ’761 patent requires at
least “the presence of between 0.1 and 2 mol % of
[DABCO].” ’761 patent col. 20 ll. 1–2, 25–26.
               II. The Asserted Copyrights
    Syngenta uses azoxystrobin as an active ingredient in
formulating its fungicide end-use products. Appellant’s
Br. 7. Syngenta markets and sells these end-use products
under several brand names, including QUADRIS® and
QUILT XCEL®. Id. Both products are sold with detailed
labels that provide directions for use, storage, and disposal,
as well as first-aid instructions and environmental,
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC          5



physical, and chemical hazard warnings. Id. at 19. The
QUADRIS® label comprises fifty-four pages of small-type
text and charts. J.A. 276; 424–77. The QUILT XCEL® la-
bel comprises twenty-nine pages of small-type text and
charts. J.A. 276; 481–509. Syngenta registered these two
labels with the U.S. Copyright Office on March 25, 2015.
Appellant’s Br. 19; J.A. 276–77, 479.
             III. District Court Proceedings
    On March 27, 2015, Syngenta brought suit against Wil-
lowood, LLC (“Willowood LLC”), Willowood USA, LLC
(“Willowood USA”), and Willowood Limited (“Willowood
China”) (collectively, “Willowood”)1 for patent and copy-
right infringement. Willowood China is a Hong Kong com-
pany that contracts for the manufacture of azoxystrobin in
China and sells the fungicide to Willowood USA, its Ore-
gon-based affiliate. Willowood USA and Willowood LLC
contract with third parties to formulate azoxystrobin into
Willowood’s generic end-use fungicide products, and mar-
ket and sell azoxystrobin and those end-use products in the
United States. Shortly before the expiration of the Com-
pound Patents, Willowood filed applications with the Envi-
ronmental Protection Agency (“EPA”) to register its Azoxy
2SC and AzoxyProp Xtra generic products, which corre-
spond in composition and labeling to Syngenta’s
QUADRIS® and QUILT XCEL® fungicides, respectively.
J.A. 278, 714; Appellant’s Br. 19.
    Syngenta asserted in its suit that Willowood’s Azoxy
2SC and AzoxyProp Xtra products infringed claims 1–4
and 12–14 of the ’076 patent, claims 1–3, 5, and 7 of the
’256 patent, claims 6 and 12–14 of the ’138 patent, and
claims 1, 3–5, and 9–10 of the ’761 patent. J.A. 1617–



   1    Syngenta also sued Willowood Azoxystrobin, LLC,
but does not appeal the district court’s rulings concerning
this entity. Appellant’s Br. 6 n.1.
6         SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




1619, 1627. Syngenta also asserted that Willowood in-
fringed Syngenta’s registered copyrights in its QUADRIS®
and QUILT XCEL® labels by copying those labels for Wil-
lowood’s Azoxy 2SC and AzoxyProp Xtra product labels.
J.A. 289–91.
                   A. Pre-Trial Motions
    On October 31, 2016, both parties filed motions for
summary judgment. Syngenta moved for summary judg-
ment that all asserted claims of the four patents were in-
fringed by Willowood.        Willowood cross-moved for
summary judgment, seeking dismissal of Syngenta’s copy-
right claims and its claim of infringement of the ’761 pa-
tent.
              1. Patent Infringement Claims
    The district court granted summary judgment against
Willowood USA for direct infringement of the Compound
Patents on the basis of Willowood’s concession that Wil-
lowood USA imported five kilograms of azoxystrobin into
the United States in 2013, prior to the Compound Patents’
expiration. Syngenta Crop Prot., LLC v. Willowood, LLC,
No. 1:15-CV-274, 2017 WL 1133378, at *2 (M.D.N.C.
Mar. 24, 2017) (“Summary Judgment Order”); see also J.A.
1617–18. The district court also granted summary judg-
ment against Willowood LLC for induced infringement of
the Compound Patents on the basis of Willowood’s conces-
sion that Willowood LLC contributed to and induced the
formulation and testing of Willowood’s Azoxy 2SC and
AzoxyProp Xtra products by third parties using the same
imported five kilograms of azoxystrobin. Summary Judg-
ment Order, 2017 WL 1133378, at *2–3; see also J.A. 1618.
The district court, however, denied summary judgment
against Willowood China for direct infringement of the
Compound Patents. Summary Judgment Order, 2017 WL
1133378, at *2. The district court found a genuine dispute
of material fact as to whether Willowood China’s sale of five
kilograms of azoxystrobin to Willowood USA took place in
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC             7



China or within the United States as required under 35
U.S.C. § 271(a). Id.
    The district court next denied summary judgment as to
infringement of the ’138 patent. Id. at *5. The district
court found that it was undisputed that Willowood China
purchases azoxystrobin from its Chinese supplier, Yang-
cheng Tai He Chemicals Corp. (“Tai He”), and sells it to
Willowood USA, which then imports the azoxystrobin into
the United States. Id. at *4; see also J.A. 1619. The district
court found that it was also undisputed that the
azoxystrobin in question was manufactured in China by
performing both steps of the process claimed in the ’138 pa-
tent. Summary Judgment Order, 2017 WL 1133378, at *4.
Relying on our decision in Akamai Technologies., Inc. v.
Limelight Networks, Inc., the district court determined
that 35 U.S.C. § 271(g) requires that all steps of a claimed
process be performed by or attributable to a single entity.
Id. at *5 (citing 797 F.3d 1020, 1022 (Fed. Cir. 2015)). On
this basis, the district court found a genuine dispute of ma-
terial fact as to whether Tai He performed both steps of the
process claimed by the ’138 patent during its manufacture
of azoxystrobin or whether Willowood directed Tai He and
others to practice the claimed process. Id. at *4–5.
    With respect to the ’761 patent, both parties agreed
that the issue of infringement turned on whether the
azoxystrobin that Willowood China purchases and Wil-
lowood USA imports was manufactured using DABCO at
concentrations within the claimed range of 0.1 and 2
mol %. Summary Judgment Order, 2017 WL 1133378,
at *6; J.A. 1627. The district court denied summary judg-
ment on this issue, finding a genuine dispute of material
fact as to whether Willowood’s suppliers used DABCO
within the claimed range in the manufacturing process.
See Summary Judgment Order, 2017 WL 1133378, at *7.
    The district court next granted Syngenta’s motion to
shift the burden of proof to Willowood under 35 U.S.C.
8        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




§ 295 on the claim of infringement of the ’761 patent. The
district court found that Syngenta demonstrated a sub-
stantial likelihood of infringement, rejecting Willowood’s
argument that neither Tai He nor any of its intermediaries
manufacture azoxystrobin using DABCO within the
claimed range. Id. at *7–8. The district court credited the
testimony of Syngenta’s expert, who testified that it would
not be commercially reasonable to manufacture
azoxystrobin using DABCO outside the claimed range. Id.
at *8. The district court noted that Willowood’s expert did
not rebut this testimony, and Willowood’s only rebuttal
witness, the president of Tai He, had “credibility issues.”
Id. The district court also determined that Willowood did
not produce any manufacturing records demonstrating
that DABCO was not used or describing what process was
used instead. Id. at *8, *10. The district court further
found that Syngenta made reasonable efforts to discover
Tai He’s actual manufacturing process, but was unsuccess-
ful because of Willowood’s failure to cooperate. Id. at *9–
10. Finding both elements of § 295 satisfied, the district
court shifted the burden to Willowood to prove non-in-
fringement of the ’761 patent. Id. at *11.
            2. Copyright Infringement Claims
    In its cross-motion for summary judgment, Willowood
argued that Syngenta’s copyright claims should be dis-
missed because the Federal Insecticide, Fungicide, and Ro-
denticide Act (“FIFRA”) precludes copyright protection for
Syngenta’s labels. J.A. 730–37. Willowood asserted that
FIFRA requires generic fungicide products to have labels
that are “identical or substantially similar” to brand-name
labels. J.A. 730–31. Willowood further contended that be-
cause much of its labels’ text comprises instructions and
warnings mandated by FIFRA and EPA regulations, and
only limited means of expressing such information exist,
extending copyright protection to Syngenta’s labels “would
make subsequent labeling practically impossible.” J.A. 731
& n.14, 733–35 (citing SmithKline Beecham Consumer
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC            9



Healthcare, L.P. v. Watson Pharm. Inc., 211 F.3d 21, 23 (2d
Cir. 2000)).
    Willowood also argued that any language that is not
required by the EPA is nonetheless uncopyrightable be-
cause it is so “basic” and “commonplace in the industry,”
that it merges with the ideas the language is meant to con-
vey. J.A. 732. In the alternative, Willowood argued that
its use of some of the language from Syngenta labels con-
stituted permissible fair use. J.A. 737–40.
     In response, Syngenta argued that nothing in FIFRA
or EPA regulations authorizes or requires Willowood to
copy verbatim Syngenta’s labels. J.A. 2806. Syngenta as-
serted that pursuant to FIFRA’s legislative scheme, the
EPA requires only generic products—not label language—
to be identical or substantially similar to their brand-name
counterparts, and then only to the extent that a generic ap-
plicant seeks expedited review by the EPA. Id. In support
of its arguments, Syngenta relied heavily on FMC Corp. v.
Control Solutions., Inc., a decision from the Eastern Dis-
trict of Pennsylvania, which held that FIFRA does not pre-
clude copyright protection for pesticide labels because
“verbatim or nearly wholesale copying of another regis-
trant’s label is unnecessary to obtain expedited review by
the EPA of a label.” 369 F. Supp. 2d 539, 553–60 (E.D. Pa.
2005); see J.A. 2806.
    The United States filed a statement of interest on this
issue, presenting four arguments in support of Willowood’s
position. J.A. 2969–3005. First, according to the govern-
ment, FIFRA “endorses” copying by generic applicants and
furthers Congress’s intent of expediting market access for
generic fungicide manufacturers. J.A. 2970, 2983–91. Sec-
ond, the government asserted that Syngenta granted Wil-
lowood an implied license to copy its labels by participating
in FIFRA’s labeling scheme. J.A. 2970, 2991–94. Third,
the government argued that Willowood’s labels are pro-
tected under the doctrine of merger, which permits copying
10        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




of material that can only be expressed in a limited number
of ways. J.A. 2971, 2994–98. Lastly, the government ar-
gued that Willowood’s labels are also protected under the
doctrine of fair use. J.A. 2971, 2998–3005.
    The district court agreed with Willowood and the
United States, and issued a short order granting summary
judgment against Syngenta and dismissing its copyright
infringement claims. J.A. 33–34. The district court stated
that it found the analysis in FMC “unconvincing,” and de-
termined that “[e]ven with some changes, use of the origi-
nal pesticide label as a ‘go by’ for the new label will result
in copyright infringement.” Id. The district court con-
cluded that because FIFRA contemplates copying by a ge-
neric applicant “in ways that would otherwise infringe a
copyright, . . . Congress intended a narrow exception to
copyright protection for the required elements” of fungicide
labels. Id. The district court did not otherwise address the
arguments presented on this issue.
             3. Willowood’s Motion to Exclude
    On April 10, 2017, Willowood filed a motion to exclude
the testimony of Syngenta’s damages expert. J.A. 3838–
67; see also J.A. 37. Willowood did not object to the expert’s
methodology; rather, Willowood contended that the ex-
pert’s choice of benchmarks was based on unreliable facts
or data. J.A. 44. Willowood argued that the expert’s dam-
ages calculation was speculative and unreliable because he
based his analysis on products unrelated to azoxystrobin
and Syngenta’s “wildly inaccurate” budgets. J.A. 48; see
also J.A. 3851–3861. Willowood also argued that Syn-
genta’s expert did not properly apportion damages for in-
fringement of the ’761 patent because the expert relied on
the same methodology that he used to calculate damages
for infringement of the ’138 patent, even though the ’138
patent claims two steps of the manufacturing process
(etherification and condensation) while the ’761 patent
claims only one step (condensation). J.A. 3861–3865.
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC           11



    The district court denied Willowood’s motion to exclude
with respect to the Compound Patents, determining that
Syngenta’s expert relied on “sufficient facts and data ap-
plied using a reasonable method in a justifiable manner”
based on a hypothetical non-infringing market with a sim-
ilar product as a benchmark. J.A. 35. The district court
approved the expert’s choice of using an herbicide product
as a benchmark, explaining that both products created
similar barriers to generic access to the markets, were sold
in similar markets, protected the same crops, had compa-
rable life cycles, and were both leading products for Syn-
genta. J.A. 47, 50. With respect to using Syngenta’s
budgets as benchmarks, the district court found that the
expert accounted for any errors in budgeting, and ex-
plained that any inaccuracies went to the weight of the ev-
idence instead of its admissibility. J.A. 49.
    The district court, however, granted Willowood’s mo-
tion to exclude Syngenta’s expert’s testimony with respect
to the ’138 and ’761 patents, finding that the expert did not
provide an adequate explanation for his choice of bench-
marks. The district court found that in contrast to the
benchmarks chosen for the Compound Patents, the expert
provided “scant analysis for why non-azoxystrobin fungi-
cides” were a proper benchmark and no evidence of simi-
larities between the products and their markets. J.A. 53–
54. The district court also excluded testimony on lost prof-
its with respect to the ’761 patent, explaining that the ex-
pert failed to address but-for causation or account for
existing non-infringing alternatives in his calculations.
J.A. 55–58.
             B. Trial and Post-Trial Motions
    The district court held a seven-day trial beginning on
September 5, 2017. With respect to the Compound Pa-
tents, the only issues at trial were whether Willowood
China imported into the United States or sold to Willowood
USA within the United States the five-kilogram sample of
12        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




azoxystrobin. Syngenta argued that Willowood China im-
ported azoxystrobin into the United States by arranging for
its entry into the country. J.A. 6961. Syngenta also argued
that Willowood China’s sale of the azoxystrobin necessarily
occurred within the United States because Willowood USA
is located within the United States. Id. Willowood argued
in response that Willowood China did not infringe the Com-
pound Patents because the shipment of five-kilogram sam-
ple of azoxystrobin was marked “f.o.b. China,” 2 meaning
that title to the azoxystrobin passed from Willowood China
to Willowood USA overseas. J.A. 6961. After presenting
its case, Syngenta moved for a judgment as a matter of law
(“JMOL”) on this issue.
    The district court denied Syngenta’s JMOL motion,
and the jury returned a specific verdict in favor of Wil-
lowood China, finding that Syngenta did not prove that
Willowood China imported azoxystrobin into the United
States or sold azoxystrobin within the United States.
J.A. 266. The jury awarded Syngenta $75,600 in damages
for infringement of the Compound Patents by Willowood
USA and Willowood LLC. Syngenta renewed its motion for
JMOL after the verdict, which the district court again de-
nied. J.A. 6523; Appellant’s Br. 12.
    With respect to the ’138 patent, the only issue at trial
was whether both steps of the claimed process were per-
formed by a single entity or attributable to Willowood as
the directing or controlling entity. J.A. 240–241; 266; Ap-
pellant’s Br. 13. Syngenta presented evidence that Wil-
lowood directed or controlled Tai He’s manufacturing
process, and that Tai He performed both claimed steps.


     2   “F.o.b” stands for “free on board” and designates a
method of shipment whereby legal title passes from the
seller to the buyer once goods are delivered at a designated
location. Litecubes, LLC v. N. Light Prod., Inc., 523 F.3d
1353, 1358 n.1 (Fed. Cir. 2008).
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC           13



Appellant’s Br. 13–15. In rebuttal, Willowood presented
evidence that Tai He did not perform the etherification step
when manufacturing Willowood’s azoxystrobin.             See
J.A. 8232–8241; J.A. 7682 at 63:22–64:11; Appellant’s Br.
15. The jury returned a specific verdict in favor of Wil-
lowood with respect to the ’138 patent, finding that Syn-
genta did not prove that both steps of the claimed process
were performed by or attributable to a single entity. J.A.
266.
    With respect to the ’761 patent, the only issue at trial
was whether during manufacture of Willowood’s
azoxystrobin, the condensation step was performed using
the DABCO catalyst within the range claimed by the ’761
patent. J.A. 248–50; Appellant’s Br. 17. The burden of
proof was on Willowood pursuant to the district court’s or-
der under 35 U.S.C. § 295. Summary Judgment Order,
2017 WL 1133378, at *11. After presenting its case, Syn-
genta moved for JMOL on this issue, which the district
court denied. J.A. 7045; Appellant’s Br. 18. After trial, the
jury returned a specific verdict in favor of Syngenta that
“the Defendants” did not prove that DABCO was not used
as claimed. J.A. 267. The jury awarded $900,000 in dam-
ages to Syngenta for infringement of the ’761 patent “by the
Defendants.” Id.
     After trial, the parties submitted proposed final judg-
ments to the district court. J.A. 6489. At that point, a dis-
pute arose between the parties as to whether the jury found
that Willowood China infringed the ’761 patent. In resolv-
ing the dispute, the district court noted that the jury found
with respect to the Compound Patents that Willowood
China did not import azoxystrobin into the United States
or sell azoxystrobin within the United States. Id. The dis-
trict court explained that “[n]either party asked the court
to submit a separate issue as to Willowood China’s in-
fringement of the ’138 patent or the ’761 patent,” and con-
cluded that “the parties implicitly agreed to resolve
Willowood China’s liability for the [’138 and ’761 patents]
14        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




based on the answer to the importation question which was
first on the verdict sheet.” Id. The district court concluded
that “[t]here is no evidentiary basis” for finding that Wil-
lowood China infringed the ’761 patent. Id.
    On November 20, 2017, the district court entered final
judgment. The district court entered judgment in favor of
Willowood China on “all claims” and in favor of all Wil-
lowood defendants on the claim of infringement of the ’138
patent. J.A. 3. The district court entered judgment against
Willowood USA and Willowood LLC on the claims of in-
fringement of the Compound Patents and the ’761 patent.
Id. After the district court entered final judgment, Syn-
genta renewed its JMOL motion with respect to Willowood
China’s infringement. J.A. 6522–6523; Appellant’s Br. 18.
Syngenta contended that Willowood waived its argument
that Willowood China did not infringe the ’761 patent by
not objecting to the wording of the jury verdict form.
J.A. 6522. The district court denied Syngenta’s renewed
JMOL motion. J.A. 91.
    Syngenta appeals the district court’s dismissal of its
copyright claims, the district court’s conclusion that
§ 271(g) requires every step of a claimed process to be per-
formed by or attributable to a single entity, the jury’s ver-
dict that Willowood did not infringe the ’138 patent even
with the single entity requirement imposed on § 271(g),
and the district court’s judgment that Willowood China did
not infringe any of the asserted patents. Willowood condi-
tionally cross-appeals the district court’s partial denial of
its motion to exclude the testimony of Syngenta’s damages
expert. We have jurisdiction under 28 U.S.C. § 1295(a)(1).
                        DISCUSSION
                  I. Standard of Review
    We review a district court’s decisions on motions for
summary judgment and JMOL under the law of the re-
gional circuit, in this case the Fourth Circuit. Supernus
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC           15



Pharm., Inc. v. Iancu, 913 F.3d 1351, 1356 (Fed. Cir. 2019);
Mohsenzadeh v. Lee, 790 F.3d 1377, 1381 (Fed. Cir. 2015).
The Fourth Circuit reviews the grant of a motion for sum-
mary judgment de novo, viewing all evidence in the light
most favorable to the non-moving party. Amdocs (Israel)
Ltd. v. Openet Telecom, Inc., 761 F.3d 1329, 1337–38 (Fed.
Cir. 2014) (citing Ramos v. S. Maryland Elec. Co–op., Inc.,
996 F.2d 52, 53 (4th Cir. 1993)). The Fourth Circuit re-
views a district court’s post-verdict JMOL decisions de
novo, determining whether the jury’s verdict is supported
by substantial evidence. LifeNet Health v. LifeCell Corp.,
837 F.3d 1316, 1322 (Fed. Cir. 2016) (citing Carolina
Trucks & Equip., Inc. v. Volvo Trucks of N. Am., 492 F.3d
484, 488 (4th Cir. 2007)). The Fourth Circuit reviews a dis-
trict court’s pre-verdict grant of JMOL de novo, viewing all
evidence in light most favorable to the non-moving party
and considering whether a reasonable jury could find for
the non-moving party. ActiveVideo, 694 F.3d at 1319 (cit-
ing Brown v. CSX Transp., 18 F.3d 245, 248 (4th Cir.
1994)).
    We review questions of patent law under Federal Cir-
cuit law. Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201,
1214 (Fed. Cir. 2014). We review a jury’s findings on ques-
tions of fact, such as infringement and damages, for sub-
stantial evidence. Power Integrations, Inc. v. Fairchild
Semiconductor Int’l, Inc., 711 F.3d 1348, 1377 (Fed. Cir.
2013). We review a district court’s decisions concerning
damages methodologies for abuse of discretion. ActiveVi-
deo Networks, Inc. v. Verizon Commc’ns, Inc., 694 F.3d
1312, 1332 (Fed. Cir. 2012) (citing Lucent Techs., Inc. v.
Gateway, Inc., 580 F.3d 1301, 1310 (Fed. Cir. 2009)).
    We apply copyright law as interpreted by the regional
circuit. Amini Innovation Corp. v. Anthony Cal., Inc., 439
F.3d 1365, 1368 (Fed. Cir. 2006). Interpretation of the
rights granted by the Copyright Act is a question of law
that the Fourth Circuit reviews de novo. See Rosciszewski
v. Arete Assocs., Inc., 1 F.3d 225, 229 (4th Cir. 1993).
16        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




    We also review a district court’s rulings on admission
of expert testimony under the law of the regional circuit.
ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 516
(Fed. Cir. 2012). The Fourth Circuit reviews such eviden-
tiary rulings for abuse of discretion. Id. (citing Kopf v.
Skyrm, 993 F.2d 374, 378 (4th Cir. 1993)).
    We review questions of statutory interpretation de
novo. Mohsenzadeh, 790 F.3d at 1381 (citing AD Global
Fund, LLC v. United States, 481 F.3d 1351, 1353 (Fed. Cir.
2007)). If two statutory provisions are “capable of co-exist-
ence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as
effective.” Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1018 (1984) (quoting Regional Rail Reorganization Act
Cases, 419 U.S. 102, 133-34 (1974)) (internal quotation
marks omitted).
             II. Syngenta’s Copyright Claims
     Syngenta challenges the district court’s summary judg-
ment order dismissing its copyright claims in their en-
tirety. The dismissal was based on the court’s holding that
FIFRA “precludes copyright protection for the required el-
ements of pesticide labels as against the labels of me-too
[i.e. generic 3] registrants.” J.A. 33. We conclude that this
determination was premature. Because the text of FIFRA
does not, on its face, require a me-too registrant to copy the
label of a registered product, the statute only conflicts with
the Copyright Act to the extent that some particular ele-
ment of Syngenta’s label is both protected under existing



     3  Consistent with terminology used by the EPA, the
parties and the district court use the term “me-too” to refer
to applications requesting registration of generic pesticide
products pursuant to FIFRA’s criteria for expedited review.
See EPA, PRIA Glossary, https://www.epa.gov/pria-
fees/pria-glossary (last visited December 9, 2019).
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC            17



copyright doctrines and necessary for the expedited ap-
proval of Willowood’s generic pesticide product. This de-
termination requires this court to review the merits of
Syngenta’s copyright claims, which the district court did
not reach. Thus, we remand for the court to do so in the
first instance.
    When evaluating the “alleged preclusion of a cause of
action under one federal statute by the provisions of an-
other federal statute,” we rely on traditional rules of statu-
tory interpretation. POM Wonderful LLC v. Coca-Cola Co.,
573 U.S. 102, 111 (2014). Among these principles is the
presumption that a later-enacted statute does not im-
pliedly repeal, even in part, an earlier one. Id. (citing Car-
cieri v. Salazar, 555 U.S. 379, 395 (2009)). Thus, where the
later-enacted statute does not cover the whole subject of
the earlier one and is not “clearly intended as a substitute,”
an implied repeal will only be found where provisions in
the two statutes are in “irreconcilable conflict”—a strin-
gent standard that renders implicit repeals a “rarity.”
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 662-63 (2007); J.E.M. Ag Supply, Inc. v. Pioneer Hi-
Bred Int’l, Inc., 534 U.S. 124, 142 (2001). In the absence of
such conflict, statutory provisions acting upon the same
subject should be interpreted and applied in a way that
“gives effect to each” and “preserves the purposes of both.”
United States v. Borden Co., 308 U.S. 188, 198 (1939); Zen-
ith Elecs. Corp. v. Exzec, Inc., 182 F.3d 1340, 1347 (Fed.
Cir. 1999).
    Here, the Copyright Act prohibits parties from repro-
ducing the protected elements of a valid copyright without
authorization, except where such actions would constitute
fair use. See Harper & Row Publishers, Inc. v. Nation En-
terprises, 471 U.S. 539, 547 (1985); Lyons P’ship, L.P. v.
Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir. 2001);
Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d
137, 143 (4th Cir. 2000). At the same time, FIFRA provides
for expedited EPA review of applications for generic
18        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




pesticide products when the proposed “me-too” product, as
compared to the currently registered product, (1) “would be
identical or substantially similar in composition and label-
ing” or (2) would “differ in composition and labeling” "only
in ways that would not significantly increase the risk of un-
reasonable adverse effects on the environment.” 7 U.S.C.
§ 136a(c)(3)(B)(i)(I) (emphasis added).
    In finding that FIFRA precluded copyright claims
against me-too applicants, the district court relied on its
understanding that “FIFRA contemplates that a ‘me-too’
applicant will copy from the original pesticide label in ways
that would otherwise infringe a copyright.” J.A. 33. But
while use of FIFRA’s expedited generic pathway is prem-
ised on similarity to a registered product, the text of § 136
does not require a me-too applicant to ensure that its prod-
uct label is identical to a registered label; nor does it re-
quire applicants to otherwise derive the elements of its
label from that of the registered label. Rather, the statute
provides for expedited review so long as any differences be-
tween the proposed and registered products “would not sig-
nificantly increase the risk of unreasonable adverse effects
on the environment”—a substantive criterion evaluated by
the EPA under its technical expertise.             7 U.S.C.
§ 136a(c)(3)(B)(i)(I).
    This is significant because copyright infringement re-
quires, at a minimum, some copying of protected elements
from the copyrighted work, which does not include “any
idea, procedure, process, system, method of operation, con-
cept, principle, or discovery” embodied by the work. 17
U.S.C. § 102(b); Lyons P’ship, 243 F.3d at 801. FIFRA’s
similarity requirement does not foreclose expedited review
for an independently composed label that relies solely on
unprotected facts, concepts, and methods derived from the
registered label.
    In this respect, the asserted conflict between the Copy-
right Act and FIFRA differs from the conflict between the
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC             19



Copyright Act and the Hatch-Waxman Act that was ad-
dressed in SmithKline, a decision cited by the district court
and Willowood.          SmithKline Beecham Consumer
Healthcare, L.P. v. Watson Pharms., Inc., 211 F.3d 21 (2d
Cir. 2000). There, the Second Circuit found that the Hatch-
Waxman Act “not only permit[s] but require[s] producers of
generic drugs to use the same labeling as was approved for,
and is used in, the sale of the pioneer drug.” 4 Id. at 25 (em-
phasis added). In these circumstances, the court concluded
that generic applicants faced a double-bind: “if [the plain-
tiff’s] copyright claim has merit, then [the defendant] can-
not realistically use the ANDA process to sell its [generic
product] because it will either have to change the label and
lose FDA approval or be enjoined from using a label that
infringes [the plaintiff’s] copyright.” Id. at 27. Thus, the
court found it “obvious” that Congress intended for the
Hatch-Waxman Act to “trump the copyright laws.” Id. at
29. Here, in contrast, FIFRA’s express allowance for dif-
ferences between the proposed and registered labels allows
me-too applicants to avoid this conflict by using an inde-
pendently created label.
    Willowood and 41 Companies Holding Generic EPA
Pesticide Registrations (“Generics Amici”) counter that
there are nonetheless practical and regulatory constraints
that frustrate their reasonable attempts to comply with the
requirements of both the Copyright Act and expedited re-
view under FIFRA. We disagree that these concerns alone
warrant preclusion. To begin with, Generics Amici contend



    4   The Hatch-Waxman Act requires that, except for
changes related to the manufacturer name or approved dif-
ference in the drug, “[a]n abbreviated application for a new
drug shall contain . . . (v) information to show that the la-
beling proposed for the new drug is the same as the labeling
approved for the listed drug . . . .” 21 U.S.C. § 355(j)(2)(A)
(emphases added).
20        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




there are “only so many ways to express the same instruc-
tions and warnings” contained in many portions of these
pesticide labels, such that any attempt to capture the per-
tinent information will inevitably require using substan-
tially the same expressions. Generics Amici Br. at 8
(emphasis in original); see also Appellee’s Br. at 23-25. But
this is precisely the type of problem addressed by the tra-
ditional copyright doctrine of merger, under which courts
have declined to protect against copying when an underly-
ing fact, procedure, or idea can be expressed in so few ways
that “protection of the expression would effectively accord
protection to the idea itself.” Kregos v. Associated Press,
937 F.2d 700, 705 (2d Cir. 1991); see also Morrissey v.
Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967)
(“When the uncopyrightable subject matter is very narrow,
so that the topic necessarily requires, if not only one form
of expression, at best only a limited number, to permit cop-
yrighting would mean that a party or parties, by copyright-
ing a mere handful of forms, could exhaust all possibilities
of future use of the substance.” (internal citations and quo-
tation marks omitted)). Thus, copyright law has its own
solution for the constraints inherent in the expression of
certain information contained in pesticide labels.
    Willowood raises a more difficult problem with respect
to portions of a registered label for which the EPA has al-
legedly required me-too applicants to copy otherwise pro-
tectable elements from the registered label on the grounds
that any differences may adversely affect the environment
by confusing users. 5 For example, Willowood contends that
when it sought to revise the directions for use in its own



     5  This is distinct from portions of the registered label
where the language was originally mandated or suggested
by the EPA. Syngenta has disclaimed any copyright pro-
tection over those label elements. Appellant’s Reply Br. at
11.
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC             21



label from the four-column table format used by Syngenta
to a narrative form, the EPA required Willowood to rein-
state the information in a table, essentially requiring Wil-
lowood to copy Syngenta’s format. Appellee’s Br. at 24
(citing J.A. 3129-3200 (Azoxy 2.08 SC Label); J.A. 3201-
3339 (AzoxProp Xtra label)). But this is a predicament ap-
propriately addressed, at least in the first instance, under
copyright law’s own “equitable rule of reason”: the fair use
doctrine. Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 448 (1984) (quoting H. Rep. No. 94–1476, at
65–66, reprinted in 1976 U.S.C.C.A.N. 5659, 5679). Under
that established framework, the district court can assess,
based on factors such as the character of the allegedly cre-
ative elements, their substantiality in the context of the la-
bels as a whole, and the nature and effect of their use by
Willowood, whether the presence of those elements in Wil-
lowood’s generic labels would fairly constitute infringe-
ment in violation of the Copyright Act. 6
     Thus, we vacate the district court’s grant of summary
judgment on Syngenta’s copyright claims and remand for
further consideration. On remand, the district court
should first discern whether the Copyright Act, as inter-
preted under existing copyright doctrines, would prohibit
Willowood’s use of any portion of Syngenta’s label. The dis-
trict court should, for instance, consider whether the fair-
use doctrine or limits on copyrightable subject matter, such
as the merger doctrine, would eliminate infringement.


    6   The Copyright Act expressly identifies the follow-
ing non-exhaustive factors to be considered in assessing
fair use: “(1) the purpose and character of the use . . . ; (2)
the nature of the copyrighted work; (3) the amount and
substantiality of the portion used in relation to the copy-
righted work as a whole; and (4) the effect of the use upon
the potential market for or value of the copyrighted work.”
17 U.S.C. § 107.
22        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




Only if the district court concludes that the Copyright Act
would in fact prohibit Willowood’s conduct in a manner in-
consistent with the purposes of FIFRA should it revisit the
question of whether and to what extent FIFRA precludes
Syngenta’s copyright claims for any part of its pesticide la-
bels. It is possible that after a full assessment of the re-
quirements of copyright law and FIFRA as applied in this
case, there may come to light a truly irreconcilable conflict
between Copyright Act liability and implementation of
FIFRA. In the absence of a clear facial conflict, however,
we decline to wield the blunt tool of preclusion before the
full factual and legal contours of any latent problem have
been examined.
        III. Infringement Under 35 U.S.C. § 271(g)
     Syngenta next challenges the district court’s interpre-
tation of 35 U.S.C. § 271(g). The district court interpreted
§ 271(g) to require that all steps of a patented process be
performed by or at the direction or control of a single entity
before infringement liability under that section can attach.
Summary Judgment Order, 2017 WL 1133378, at *5. Syn-
genta contends that the district court’s interpretation of
§ 271(g) is contrary to the plain language of the statute and
Congress’s intent expressed in the legislative history. Ap-
pellant’s Br. 41–46. The amici add to this argument by as-
serting that the district court’s interpretation is
inconsistent with the broader context of the statute as a
whole and the purpose behind § 271(g), and creates an im-
possible evidentiary burden on the patent owner. See Ami-
cus NYPLA Br. 10–14; Amici Biotechnology & CropLife Br.
8–14; 17–23. This is an issue of first impression. We con-
clude that the district court erred by imposing a single-en-
tity requirement under § 271(g).
    “As in all statutory construction cases, we begin with
the language of the statute.” Barnhart v. Sigmon Coal Co.,
534 U.S. 438, 450 (2002). The meaning of statutory lan-
guage “is determined by reference to the language itself,
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC             23



the specific context in which that language is used, and the
broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). If the statutory
language does not clearly resolve the disputed issue, we
also consider the legislative history to determine Congres-
sional intent. Burlington N. R. Co. v. Oklahoma Tax
Comm’n, 481 U.S. 454, 461 (1987); In re Swanson, 540 F.3d
1368, 1376 (Fed. Cir. 2008) (citing Timex V.I. v. United
States, 157 F.3d 879, 882 (Fed. Cir. 1998), and Deluxe Corp.
v. United States, 885 F.2d 848, 850 (Fed. Cir. 1989)).
     The resolution of this issue turns on the nature of the
infringing acts covered by § 271(g). Section 271(g) provides
in relevant part that “[w]hoever without authority imports
into the United States or offers to sell, sells, or uses within
the United States a product which is made by a process pa-
tented in the United States shall be liable as an infringer.”
35 U.S.C. § 271(g) (2012). This language makes clear that
the acts that give rise to liability under § 271(g) are the im-
portation, offer for sale, sale, or use within this country of
a product that was made by a process patented in the
United States. Id. Nothing in this statutory language sug-
gests that liability arises from practicing the patented pro-
cess abroad. Rather, the focus is only on acts with respect
to products resulting from the patented process. Thus, be-
cause the statutory language as a whole is clear that prac-
ticing a patented process abroad cannot create liability
under § 271(g), whether that process is practiced by a sin-
gle entity is immaterial to the infringement analysis under
that section.
    The context of the statute as a whole also supports our
conclusion. Section 271(a) states that “whoever without
authority makes, uses, offers to sell, or sells any patented
invention, within the United States or imports into the
United States any patented invention during the term of
the patent therefor, infringes the patent.” 35 U.S.C.
§ 271(a). Derived from this statutory language is the sin-
gle-entity requirement under § 271(a), which limits direct
24        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




infringement liability only to circumstances “where all
steps of a claimed method are performed by or attributable
to a single entity.” Akamai Techs., 797 F.3d at 1022; BMC
Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1379–81
(Fed. Cir. 2007).
     On the basis of this court’s § 271(a) jurisprudence, the
district court concluded that § 271(g) similarly imposes a
single-entity requirement on the performance of a patented
process. Summary Judgment Order, 2017 WL 1133378,
at *5 (citing Akamai, 797 F.3d at 1022). This conclusion
was erroneous because infringement liability under the
two sections is distinct. In contrast to § 271(g), the act that
gives rise to liability under § 271(a) occurs when “a
party . . . make[s], use[s], sell[s], or offer[s] to sell the pa-
tented invention, meaning the entire patented invention.”
BMC, 498 F.3d at 1380. Under this precedent, direct in-
fringement under § 271(a) of a process patent occurs only
when a single party practices every step of the claimed pro-
cess. Id.; see also 35 U.S.C. § 271(a) (infringement occurs
when “whoever without authority makes, uses, offers to sell,
or sells . . . or imports . . . any patented invention” (empha-
sis added)). As discussed above, however, liability under
§ 271(g) is not predicated on practicing the claimed process,
but rather on importing, offering for sale, selling, or using
a product. See 35 U.S.C. § 271(g) (infringement occurs
when “whoever without authority imports . . . or offers to
sell, sells, or uses . . . a product” (emphasis added)). Thus,
the single-entity requirement, which is necessary for direct
infringement liability under § 271(a), has no application to
acts that do not constitute infringement under § 271(g).
    On the same basis we reject Willowood’s argument that
the Supreme Court’s Limelight decision requires us to ap-
ply the single-entity rule to § 271(g). Willowood asserts
that the Court in that case applied “the single entity rule
to allegations of both direct and indirect infringement un-
der [§] 271(a) and (b).” Appellee’s Br. 29 (citing Limelight
Networks, Inc. v. Akamai Techs., Inc., 572 U.S. 915, 921–
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC              25



22 (2014)). Willowood argues that because “§ 271(g) is
simply another form of direct infringement,” we are bound
by the Limelight decision to apply the single-entity rule to
§ 271(g). Id. We disagree.
    Willowood fundamentally misunderstands the nature
of the act that gives rise to liability under § 271(g). Alt-
hough § 271(g) may involve a form of direct liability, that
liability does not arise from practicing a patented process
abroad. Limelight is further inapposite because the statute
at issue in Limelight—§ 271(b)—predicates induced in-
fringement liability on the existence of direct infringement.
35 U.S.C. § 271(b) (“Whoever actively induces infringement
of a patent shall be liable as an infringer.” (emphasis
added)); Limelight, 572 U.S. at 921. Because direct in-
fringement under § 271(a) requires a single entity to per-
form all of the claimed steps, the Supreme Court explained
that where “performance of all the patent’s steps is not at-
tributable to any one person[,] . . . . there has been no direct
infringement,” and consequently “no inducement of in-
fringement under § 271(b).” Id. at 922. By contrast, in-
fringement liability under § 271(g) is not predicated on
direct infringement of the patented process, and we will
“not read into the patent laws limitations and conditions
which the legislature has not expressed.” Diamond v.
Diehr, 450 U.S. 175, 182 (1981) (quoting Diamond v.
Chakrabarty, 447 U.S. 303, 308 (1980)).
     Section 271(f) reinforces our conclusion. Section 271(f)
creates liability for induced infringement when a party
“supplies or causes to be supplied in or from the United
States all or a substantial portion of the components of a
patented invention . . . in such manner as to actively in-
duce the combination of such components outside of the
United States in a manner that would infringe the patent
if such combination occurred within the United States.” 35
U.S.C. § 271(f)(1) (2012) (emphasis added). If Congress in-
tended to limit liability under § 271(g) to instances where
the patented process was practiced in a manner that would
26        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




infringe the patent if such practice occurred within the
United States—such as it did by requiring a single entity
to perform the entire process under § 271(a)—it “kn[ew]
precisely how to do so.” Limelight, 572 U.S. at 923. Con-
gress, however, did not do so, even though § 271(g) was en-
acted four years after § 271(f). See Microsoft Corp. v.
AT & T Corp., 550 U.S. 437, 441 (2007); Kinik Co. v. Int’l
Trade Comm’n, 362 F.3d 1359, 1362 (Fed. Cir. 2004).
“Where Congress includes particular language in one sec-
tion of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intention-
ally and purposely in the disparate inclusion or exclusion.”
Rodriguez v. United States, 480 U.S. 522, 525 (1987) (quot-
ing Russello v. United States, 464 U.S. 16, 23 (1983)) (in-
ternal alterations and quotation marks omitted). The
Supreme Court has warned that “courts should not create
liability for . . . non-infringing conduct where Congress has
elected not to extend that concept.” Limelight, 572 U.S.
923. We heed this warning.
    Willowood asserts that the inclusion of the phrase “if
such combination occurred within the United States” in
§ 271(f) but not in § 271(g) demonstrates that Congress did
not intend for § 271(g) to extend the scope of patent protec-
tion outside the United States to include conduct that
would not constitute direct infringement domestically—
such as the divided practice of a patented process by more
than one entity. Appellee’s Br. 41–42. We agree with this
proposition but reject Willowood’s conclusion that the ab-
sence of that phrase necessitates the application of the sin-
gle-entity requirement to § 271(g). As explained above,
practicing a patented process abroad does not give rise to
infringement liability under § 271(g). Thus, our conclusion
that a single entity need not perform every step of a pa-
tented process abroad under § 271(g) does not extend pa-
tent protection to cover extraterritorial conduct that would
not otherwise trigger liability within the United States.
Rather, it is Willowood who asks us to impermissibly apply
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC              27



§ 271(g) to extraterritorial conduct by attempting to shift
the focus of the statute from domestic acts of importation,
offer for sale, sale, or use of a product to cover a foreign act
of practicing a patented process. See WesternGeco LLC v.
ION Geophysical Corp., 138 S. Ct. 2129, 2137 (2018) (“If
the conduct relevant to the statute’s focus . . . . occurred in
another country, ‘then the case involves an impermissible
extraterritorial application regardless of any other conduct
that occurred in U.S. territory.’” (quoting RJR Nabisco,
Inc. v. European Cmty., 136 S. Ct. 2090, 2094 (2016))). We
are not inclined to do so.
     Other sections of Title 35 add support to our conclusion
that infringement under § 271(g) is not predicated on a sin-
gle entity practicing a patented process abroad. For exam-
ple, § 287(b), which limits available damages under
§ 271(g), states that “[t]he modifications of remedies pro-
vided in this subsection shall not be available to any [in-
fringer under § 271(g)] who . . . had knowledge before the
infringement that a patented process was used to make the
product the importation, use, offer for sale, or sale of which
constitutes the infringement.” 35 U.S.C. § 287(b)(1)(C)
(2012) (emphasis added). This language makes clear that
the act of infringement under § 271(g) occurs after a pa-
tented process has already been used. Thus, because prac-
ticing a patented process does not trigger liability under
§ 271(g), it is immaterial whether that process is practiced
by more than a single entity. Additionally, § 287(b) limits
available remedies under § 271(g) in certain circumstances
where the manufacturer of a product made by a patented
process “is not known.” See 35 U.S.C. §§ 287(b)(3)(B)(iii);
287(b)(4)(A)(iii); 287(b)(5)(C)(i) (2012). It would not have
made sense for Congress to make infringement liability un-
der § 271(g) contingent on a single entity practicing a pa-
tented process while expressly providing limitations on
that liability where it is unknown which manufacturer—or
how many—practiced the process.
28        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




     The legislative history is instructive. A Senate Report
accompanying the Process Patents Amendments Act of
1987, the bill that enacted § 271(g), states that the purpose
of the statute is to provide a remedy “when someone, with-
out authorization, uses or sells in the United States, or im-
ports into the United States a product made by their
patented process.” S. Rep. 100-83, at 29 (1987). The Report
makes clear that § 271(g) was enacted to “extend protection
to the products” resulting from practicing a patented pro-
cess and to “prevent circumvention of a U.S. process pa-
tentee’s rights through manufacture abroad and
subsequent importation into the United States of products
made by the patented process.” Id. at 46, 48 (emphasis
added); see also id. at 30 (stating that § 271(g) would “pro-
tect against the entry into the U.S. marketplace of goods
made abroad without authorization from the inventor”).
Even Willowood concedes that the legislative history’s
clear “focus is on the importation of products,” rather than
on the use of a patented process. Appellee’s Br. 31 The
Report also clarifies that § 271(g) “does not attempt to pre-
vent the use of the process in another country.” S. Rep. 100-
83, at 30 (emphasis added); see also id. at 48. The Report
explains that a “U.S. process patentholder [that] has not
obtained a similar patent in the other country . . . has no
right by virtue of his U.S. patent to prevent anyone from
using the process in that country.” S. Rep. 100-83, at 30.
Thus, because simply practicing a patented process abroad
does not come within the ambit of § 271(g), that there may
be several entities involved in practicing the process is im-
material to the infringement analysis under § 271(g).
    Willowood argues that in enacting § 271(g), Congress
intended to provide patentees with “the same protection
against overse[a]s infringers as they already enjoyed
against domestic entities.” Appellee’s Br. 30 (quoting My-
cogen Plant Sci., Inc. v. Monsanto Co., 252 F.3d 1306, 1318
(Fed. Cir. 2001), judgment vacated on other grounds, 535
U.S. 1109 (2002)) (emphasis removed). On this basis,
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC           29



Willowood contends that because direct infringement of a
process patent under § 271(a) requires the same entity to
perform all of the claimed steps, the same must be true un-
der § 271(g). Id. at 30–31. We disagree.
    The statutory language and legislative history de-
scribed above make clear that practicing a patented pro-
cess abroad does not trigger liability under § 271(g) in the
same manner that practicing a patented process domesti-
cally does under § 271(a). Section 271(a) covers all pa-
tented processes, whether or not they result in a product.
Infringement under § 271(g) instead requires importation,
sale, offer for sale, or use within the United States of a
product made by a patented process. The different scope of
protection offered under § 271(a) and § 271(g) demon-
strates that there is no inconsistency between the two sec-
tions. The legislative history further demonstrates that
Congress did not enact § 271(g) to provide for identical
rights to those enjoyed by patentees under § 271(a) with
respect to process patents. Rather, Congress made clear
that § 271(g) “is prompted by the use of patented processes
in other countries followed by the importation of the result-
ing products into this country,” and simply “extend[s] pro-
tection to the products” made by such processes. S. Rep.
100-83 at 46.
     Lastly, applying a single-entity requirement to the
practice of a patented process under § 271(g) would impose
an undue evidentiary burden on patentees that is contrary
to the intent of Congress. Congress recognized “the great
difficulties a patentee may have in proving that the pa-
tented process was used in the manufacture of the product
in question” where the manufacture occurred abroad. Id.
at 57. As a solution, Congress provided for a rebuttable
presumption in § 295 that shifted the burden to the ac-
cused infringer to prove that the patented process was not
used in manufacturing the accused products. See 35 U.S.C.
§ 295. Congress would not have on the one hand recog-
nized the difficulty in determining how a product was
30        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




manufactured, and on the other hand concluded that deter-
mining who manufactured the product would be an easy
exercise so as to require patentees to prove that a single
manufacturer practiced the claimed process.
     We hold that in light of the plain language of the stat-
ute, the broader context of the statutory scheme as a whole,
and the legislative history, § 271(g) does not require a sin-
gle entity to perform all of the steps of a patented process
for infringement liability to arise from the importation into
the United States or offer to sell, sale, or use within the
United States of a product made by a process patented in
the United States.
    It is undisputed that Willowood USA imported into the
United States an azoxystrobin compound that was manu-
factured abroad using the process patented by the ’138 pa-
tent. Summary Judgment Order, 2017 WL 1133378, at *5.
We therefore reverse the district court’s judgment that Wil-
lowood USA did not infringe the ’138 patent under § 271(g).
The jury found, however, that Willowood China did not im-
port into the United States or sell or offer for sale in the
United States the azoxystrobin compound at issue, and as
discussed below, substantial evidence supports this find-
ing. We therefore affirm the district court’s judgment that
Willowood China did not infringe the ’138 patent under
§ 271(g). Because neither the jury nor the district court
made any findings concerning Willowood LLC’s role, if any,
with respect to the azoxystrobin compound made using the
process claimed in the ’138 patent, we vacate the district
court’s judgement that Willowood LLC did not infringe the
’138 patent under § 271(g) and remand for further proceed-
ings.
          IV. Infringement by Willowood China
    Syngenta argues that the district court erred as a mat-
ter of law by denying its JMOL motion and entering judg-
ment in favor of Willowood China on the issues of
infringement of the Compound Patents and the ’761
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC            31



patent. 7 Syngenta contends that substantial evidence does
not support the jury’s verdict that Willowood China did not
sell or import azoxystrobin within the United States. Syn-
genta points to evidence it presented that Willowood China
“agreed to be ‘the exclusive seller’” of Tai He’s azoxystrobin
within the United States and continued to sell azoxystrobin
to Willowood USA after 2013. Appellant’s Br. 63. Syn-
genta argues that the fact that Willowood China’s sale of
azoxystrobin to Willowood USA was made “f.o.b. China” is
not determinative, because “a sale can take place in more
than one location.” Appellant’s Reply Br. 36. Syngenta
also contends that Willowood China imported azoxystrobin
into the United States, pointing to evidence in the record
that Willowood China coordinates the shipping from China
to the United States, pays freight charges, and makes de-
livery arrangements. Appellant’s Br. 63; Appellant’s Reply
Br. 34–35. We are not persuaded by Syngenta’s argu-
ments.
    The question before us is not whether substantial evi-
dence supports Syngenta’s position but whether substan-
tial evidence supports the jury’s verdict. See Regents of
Univ. of California v. Broad Inst., Inc., 903 F.3d 1286, 1294
(Fed. Cir. 2018) (“We do not reweigh the evidence. It is not
our role to ask whether substantial evidence supports fact-
findings not made . . . , but instead whether such evidence



    7    On the issue of Willowood China’s alleged infringe-
ment of the Compound Patents, Syngenta appeals both the
district court’s denial of its motion for summary judgment
and its post-verdict motion for JMOL. See Appellant’s Br.
58–68. A district court’s denial of summary judgment is
not appealable after a trial on the merits. Ortiz v. Jordan,
562 U.S. 180, 183–84 (2011); Function Media, L.L.C. v.
Google, Inc., 708 F.3d 1310, 1322 (Fed. Cir. 2013). We
therefore limit our review to Syngenta’s appeal of the dis-
trict court’s denial of JMOL.
32       SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




supports the findings that were in fact made.”). Here, the
jury heard evidence that because the shipment of
azoxystrobin was marked “f.o.b. China,” legal title passed
from Willowood China to Willowood USA in Hong Kong.
See J.A. 6794. The jury also heard evidence that Willowood
USA is responsible for clearing the shipments of
azoxystrobin through customs in United States and for reg-
istering the fungicide with the EPA. J.A. 6795. In addi-
tion, Willowood presented testimony that Willowood USA
reimburses Willowood China for the freight charges, and
the jury saw Willowood’s invoices stating that Willowood
USA assumes the entire liability for the shipment of
azoxystrobin from China to the United States. See id.; J.A.
8225–27. 8 We conclude that this is substantial evidence
that supports the jury’s findings that Willowood China did
not infringe the Compound Patents because it sold
azoxystrobin in China and did not import azoxystrobin into
the United States.
    Syngenta also contends that even if Willowood China
did not infringe the Compound Patents, the jury found that
Willowood China infringed the ’761 patent. Syngenta
points to the jury’s finding that “the Defendants” did not
prove that Willowood’s azoxystrobin was not manufactured
using DABCO within the range claimed by the ’761 patent
and the jury’s award of damages for infringement of the
’761 patent by “the Defendants.” Appellant’s Br. 68 (citing
J.A. 267). Syngenta asserts that “the Defendants” referred
to all Willowood entities collectively, including Willowood



     8   Willowood’s counsel confirmed at Oral Argument
that Willowood USA is the importer of record and assumes
the risk of shipment.        Oral Arg. at 22:29–22:31,
http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2018-1614.mp3 (“The importer of record is
Willowood USA.”); id. at 23:16–23:19 (“Willowood USA as-
sumes liability.”).
SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC             33



China, and contends that Willowood waived any argument
to the contrary by failing to object to the wording of the jury
verdict form. Id. at 68, 71–72; see also Appellant’s Reply
Br. 39–42. Syngenta argues that the question on the jury
verdict form regarding Willowood China’s importation or
sale of azoxystrobin applied only to the issue of infringe-
ment of the Compound Patents, not the ’761 patent, and
the district court erred by linking the two issues. Appel-
lant’s Br. 69–72; Appellant’s Reply Br. 39–42.
    We disagree. 9 As we discussed above, substantial evi-
dence supports the jury’s finding that Willowood China did
not import azoxystrobin into the United States or sell or
offer for sale azoxystrobin within the United States. The
district court was thus correct to find that Willowood China
did not infringe the ’761 patent. J.A. 6489. To the extent
there was any ambiguity in the jury verdict form, we have
held that district courts enjoy “broad discretion to interpret
an ambiguous verdict form, because district courts witness
and participate directly in the jury trial process.” Telcordia
Techs., Inc. v. Cisco Sys., Inc., 612 F.3d 1365, 1378 (Fed.
Cir. 2010); see also Prism Techs. LLC v. Sprint Spectrum
L.P., 849 F.3d 1360, 1377 (Fed. Cir. 2017).
    In light of the foregoing, we conclude that the district
court did not err by denying Syngenta’s JMOL motion with
respect to infringement of the Compound Patents and the
’761 patent and entering judgment in favor of Willowood
China on these issues.




    9   We reject Syngenta’s waiver argument because we
“have the discretion to consider issues not raised below ‘as
justice may require.’” Ninestar Tech. Co. v. Int’l Trade
Comm’n, 667 F.3d 1373, 1382 (Fed. Cir. 2012) (quoting
Hormel v. Helvering, 312 U.S. 552, 555–59 (1941)).
34        SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC




               V. Willowood’s Cross-Appeal
    Willowood conditionally cross-appeals the district
court’s denial of its motion to exclude the testimony of Syn-
genta’s expert concerning damages for infringement of the
Compound Patents. Cross-Appellant’s Br. 56–66. Syn-
genta responds that Willowood’s cross-appeal is procedur-
ally improper because it does not seek to expand the scope
of the judgment below. Appellant’s Resp. Br. 49–51. We
need not decide these issues because Willowood’s cross-ap-
peal is conditional on our reversal of the judgment concern-
ing the Compound Patents, and we affirm the district court
in that respect.
                        CONCLUSION
    We have considered the parties’ remaining arguments
and find them unpersuasive. We conclude that the district
court did not provide an adequate analysis of the potential
conflict between FIFRA and the Copyright Act for us to de-
termine whether such a conflict truly exists. We also con-
clude that the district court erred by imposing a single-
entity requirement on the performance of a patented pro-
cess under § 271(g). We agree with the district court in all
other respects. We therefore affirm-in-part, reverse-in-
part, vacate-in-part, and remand for further proceedings
consistent with this opinion.
     AFFIRMED-IN-PART, REVERSED-IN-PART,
       VACATED-IN-PART, AND REMANDED
                           COSTS
     Each party shall bear its own costs.
