Expert Testimony

News & Analysis as of

Conclusory Declaration Testimony Again Leads to Unsuccessful IPR Petition

Some of the best inter partes review lessons can be learned from decisions denying institution of an inter partes review trial. Among the chief grounds for denying petitions, failure to provide competent expert testimony in...more

Judge Forrest authorizes depositions of declarants to support defendant’s motion for summary judgment

Following defendant Monster’s filing of a motion for summary judgment, the patentee provided declarations by two expert witnesses in opposition. Monster noticed depositions of these experts, but the patentee moved for a...more

5 Rules to Minimize Expert Contamination

Attorneys risk expert contamination when they provide information to an expert about a case. Although you need to discuss the case candidly and openly with your expert, you don’t want to contaminate the expert with...more

SJC Issues Decision Concerning Recovery of Lost Profits Damages in Commercial Litigation

In a noteworthy recent decision addressing the parameters of damages in commercial litigation, the Massachusetts Supreme Judicial Court (SJC) affirmed an order excluding expert testimony concerning future lost profits damages...more

An Estimate is Just That - The Seventh Circuit Highlights Several Important Lessons for Employers Navigating Intermittent FMLA...

The U.S. Court of Appeals for the Seventh Circuit recently ruled on two important intermittent Family and Medical Leave Act (FMLA) leave issues in Hansen v. Fincantieri Marine Group. First, the court determined that the FMLA...more

Calderbank offers – Getting more bang for your buck

The cost-protective benefits of Calderbank offers are often more illusory than real. Courts will only award indemnity costs to the party making the offer where the party demonstrates that it was unreasonable for the other...more

Defeating Indefiniteness Challenge with Petitioner’s Witness

In eBay Inc. v. Lockwood, CBM2014-00025, Paper 34, CBM2014-00026, Paper 35 (August 12, 2014) the Board denied eBay’s motion to expunge the declaration of its expert, directed to unpatenability of the prior art, which eBay...more

The Four Main Advantages of Trial Lawyer against Expert Witness

In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness. Against the expert witness defending his home territory, the trial lawyer has four main...more

Treating Physician Testimony May Establish Reasonable Value of Medical Bills

Joaquin Ochoa, et al. v. Jesus Felipe Dorado, et al. - Court of Appeal, Second Appellate District, Division Three (Shasta) (July 22, 2014) - Joaquin Ochoa and Imelda Moreno (“Plaintiffs”) were traveling in a...more

IP Newsflash - July 2014 #2

New Nautilus Indefiniteness Standard Justifies Submission of Expert Evidence at Markman Hearing - The court granted defendants' motion to supplement their claim construction briefing with an expert declaration...more

Daubert Déjà Vu

Plaintiff’s expert is excluded for relying on a “novel” methodology to support opinion that antidepressant drug causes birth defects. - On June 27, 2014, in In Re: Zoloft, U.S. District Judge Cynthia Rufe of the...more

Western District of Texas: An Expert Must Base a Determination of Bad Faith on the Facts Available to the Insurer When it Acted

Falcon v. State Farm Lloyds, No. 1:12-CV-491-DAE, 2014 WL 2711849 (W.D. Tex. June 16, 2014) - The Western District of Texas finds that a policyholder’s expert witness is not qualified to opine when he does not...more

Expert Testimony Must Be Supported by Evidence

Corning Inc. v. DSMIP Assets B.V. - The Patent Trial and Appeal Board (PTAB) issued final written decisions in 10 inter partes review (IPR) challenges. Although early IPR decisions generally have sustained...more

Cornell Ruling Is Cause for Experts’ Concern

I recently co-authored an article for Law360 entitled “Cornell Ruling Is Cause for Experts’ Concern,” which covered the ruling by the New York Court of Appeals in Cornell v. 360 West 51st St. Realty, LLC (2014 NY Slip Op...more

Inventor Testimony Irrelevant

In International Business Machines Corporation v.Intellectual Ventures II LLC, IPR2014-00180, Paper 22, (July 3, 2014), the Board denied petitioner’s request to file a transcript of the inventor’s testimony as supplemental...more

Evidence – Expert Witness Testimony – Grounds for Exclusion

City of Pomona v. SQM North America Corporation - Court Of Appeals, Ninth Circuit Nos. 12-55147, 12-55193 (May 2, 2014) - Under Federal Rule of Evidence (“FRE”) 702, expert witness testimony must meet certain...more

U.S. Court of Appeals Dismisses Almost All Claims of Ecuadorian Provinces and Individual Plaintiffs Against DynCorp

The U.S. Court of Appeals for the District of Columbia recently affirmed the dismissal of all but three claims brought by individual and government entity plaintiffs against defendant DynCorp based on claims of injury by an...more

Court Denies Motion to Compel Plaintiff's Expert Testimony Prior to Claim Construction

Plaintiff Glas-Weld Systems, Inc., filed a patent infringement and unfair competition action against defendants Michael P. Boyle, dba Surface Dynamix, and Christopher Boyle. Plaintiff moved for partial summary judgment and to...more

Evidence – Expert Witness Testimony – Disclosure Requirements

Patrick Cottini v. Enloe Medical Center - Court of Appeal, Third District (May 21, 2014) - Under the Code of Civil Procedure, parties in a civil case may be asked to provide disclosures of expert witness...more

GAO Director for Healthcare Provides Recommendations for CMS to Combat Fraud, Waste and Abuse in the Medicare Program in Testimony...

On June 25, 2014, Kathleen M. King, Director of Health Care for the Government Accountability Office (GAO) testified before the House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations explaining...more

Sur-Reply Authorized By Board in Response to New Expert Testimony in Petitioner Reply by Patent Owner

The PTAB has, to date, been very strict about the timeline of events in an inter partes review proceeding, as well as ensuring the proceedings are streamlined. That’s what makes the Board’s decision in Zodiac Pool Systems,...more

Declaratory Testimony from File History is “Affidavit Testimony” Which Requires Deposition

Most declaration testimony in an inter partes review proceeding is newly developed as part of the IPR. On occasion, however, parties to an IPR have used previously generated declarations in support their positions. In...more

Expert Declaration Not Allowed as Supplemental Information Related to Claim Constructions

Unhappy with the Board’s claim constructions, Patent Challenger in Rackspace US, Inc. and Rackspace Hosting, Inc. v. PersonalWeb Technologies, LLC and Level 3 Communications, (IPR2014-00057, IPR2014-00058, and IPR2014-00062)...more

Is the PTAB a Death Sentence for Patent Rights?

In September 2012, inter partes review (IPR) and covered business method (CBM) patent review procedures launched at the Patent Trial and Appeal Board (PTAB). Proponents of these processes believed that a PTO-affiliated forum...more

Are Two (or More) Experts Better Than One?

Should you hire multiple experts on the same topic? There are some very good reasons to use this strategy. If the case justifies the expense, retaining multiple consultants in the same field has a variety of advantages....more

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