Device Capable Of Infringing Use Is Not Exempt From Liability Because Such Use Is "Improper, Unknown, And Dangerous"

Accused device could be found to infringe even though the infringing use would be "improper, unknown, and dangerous," provided such use did not require any physical alteration of the accused device. "[Defendant] argues that the [accused device] does not infringe because there is no evidence that (1) it 'intended or anticipated' physicians to use the [accused device in an infringing manner]; (2) physicians actually operate the [accused device] this way; (3) promotional materials or instructions teach or reference [using the accused device in an infringing manner]; or (4) this method serves a functional purpose not already accomplished. . . .The [infringing method] does not require physical alteration of the [accused device]; it is an alternative method of using the device. Therefore, whether physicians or users of the [accused device] actually employ the [infringing method] is irrelevant."

Baran v. Medical Device Technologies, Inc., 1-04-cv-01251
(OHND September 30, 2009, Memorandum & Order) (O'Malley, J.)