Tag Archives: Expert Testimony

Hindsight 20/20: Federal Circuit Okays Retroactive Expertise

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by Dennis Crouch

In patent litigation, we continue to see enhanced focus on qualifying (i.e., disqualifying) expert witnesses. Skilled expert testimony can be so convincing for a jury while also laying the foundation to win on appeal.  And, expert testimony is a legal necessity in most patent cases both for damages calculations (damages expert) as well as for validity and infringement (technical expert).  Having your expert knocked-out just before or in the midst of trial is a nightmare situation.

In its 2022 Kyocera decision, the Federal Circuit explained that a technical expert must - at minimum - be a person of skill in the art to which the invention pertains.  Someone who purports to be an expert but lacks that 'ordinary' knowledge will be disqualified under patent law's Daubert nuance.  In patent law, PHOSITA's knowledge is temporally tied to the patent application filing date (or invention date pre-AIA).  What we're typically looking for is the level of skill at the time that the application was filed (or perhaps when issued / amended).

This temporal frame is the focus of the Federal Circuit's recent decision in Osseo Imaging v. Planmeca, where the court was asked to disqualify the patentee's expert witness because he was not skilled in the art back when the invention was made -- rather, became skilled almost a decade later.

The case has some parallels to EcoFactor v. Google, that is currently pending before the Federal Circuit on an en banc petition regarding admissibility of damages expert testimony.

Defense Side Amici Support for Tighter Reins on Damages Expert Testimony

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EcoFactor Responds: Defending the Federal Circuit’s Damages Ruling Allowing Qualitative Apportionment

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by Dennis Crouch

This is my third post focusing on Google's en banc challenge to 'loose' damages testimony. The patentee, EcoFactor, has now filed a responsive brief in the ongoing smart thermostat patent dispute which resulted in a $20 million jury verdict against Google.  A 2-1 Federal Circuit panel affirmed the verdict and, as you might expect, EcoFactor's en banc response defends the decision, arguing that the case presents a straightforward application of established precedent.  At core, EcoFactor argues that Google and amici are seeking to impose new, rigid rules that go beyond existing Federal Circuit precedent.  Although some say that hindsight is 20/20, anyone who has undergone a hypothetical damages analysis will understand that the process always involves some degree of guestimation and uncertainty -- adding additional precision and calculation is unlikely to provide any true certainty or predictability.

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Defense Side Amici Support for Tighter Reins on Damages Expert Testimony

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by Dennis Crouch

Google's pending en banc petition in EcoFactor v. Google has drawn significant  support from some tech giants, focusing on the application of Daubert standards to patent damages expert testimony. Five amicus briefs supporting Google's position have been filed with the Federal Circuit, each arguing for stricter scrutiny of damages calculations and expert reliability in patent cases.  This post discusses the case and the issues presented by the amici army.

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Degrees of Disagreement: Google Petitions En Banc on Smart Thermostat Patent Damages

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by Dennis Crouch

Google recently petitioned for en banc review a Federal Circuit split decision in EcoFactor v. Google. The case focuses on when a damages expert testimony satisfies Daubert.  The original opinion also highlights an interesting debate regarding the appeal of pre-trial eligibility rulings.

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