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
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`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
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`SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC
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`15
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`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).
`
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`16
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`SYNGENTA CROP PROTECTION, LLC v. WILLOWOOD, LLC
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`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. generic3] 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).
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`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 Builde