A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Expert Testimony

No, You Can't Do That—Court Rejects Attempt to Offer Expert Testimony Regarding Strength of Own Prior Defenses

Andrew E. Russell, Jan. 17, 2024
Expert Witness Expert Testimony

"What do you mean, attorney argument! This is unbiased expert testimony about how awesome our positions are." Braydon Anderson, Unsplash

Well, this is a new one for me. In Wirtgen America, Inc. v. Caterpillar, Inc., C.A. No. 17-770-JDW-MPT (D. Del. Jan. 16, 2024), the plaintiff had previously brought an action in the ITC against the defendant, and won—achieving an exclusion order that stood up (in part) on appeal.

Now, in a District of Delaware action on the same patents, plaintiff argues willfulness based in part on the previous ITC ruling. Defendant tried to offer an expert who would testify about how great its defenses were at the ITC:

Caterpillar offers Mr. Bartkowski to opine on how …
View

Court Clarifies That an Expert Declaration Submitted After Reply Reports Can Serve as a Basis to Expand Expert's Trial Testimony (If You Have the Right Scheduling Order)

Andrew E. Russell, Jan. 5, 2024
Expert Witness Expert Reports

I have no idea what picture would go with this post. Enjoy some nice, royalty-free antelope.
I have no idea what picture would go with this post. Enjoy some nice, royalty-free antelope. NEOM, Unsplash

Years ago, Judge Stark added language to his form scheduling order to resolve a common dispute: can an expert submit a declaration in support of summary judgment?

The language requires the parties to agree in advance, at the start of the case, whether they will permit this:

Expert Report Supplementation. The parties agree they [will] [will not] [CHOOSE ONE] permit expert declarations to be filed in connection with motions briefing (including case-dispositive motions).

Judge Stark has since moved up, but several D. Del. judges still use this language in their scheduling orders, including Judges Noreika, Hall, Burke, and …

View

Court Grants Opposed Request to Present Live Expert Testimony During Markman Hearing

Andrew E. Russell, Dec. 1, 2023
Markman Hearing Expert Testimony

Is 3.5 hours enough time for a battle of the experts?
Is 3.5 hours enough time for a battle of the experts? AI-Generated

Parties often offer expert declarations during the claim construction process.

These declarations can be of varying utility. Sometimes, parties offer a detailed and helpful explanation of how the technology works. Other times, parties offer a useless, conclusory expert declaration that says little more than "a person of ordinary skill in the art would understand the term to mean [whatever construction the attorneys who hired me proposed]."

But, while declarations are common, in my experience live testimony from experts during a Markman hearing is pretty rare in D. Del. That's why I thought it was worth noting that, this week, Judge Burke granted an opposed request to permit …

View

Judge Andrews Puts Accused Infringer on Notice that "If It Causes a Mistrial by Poor Preparation or Poor Judgment in Questioning [Certain Witnesses], It Will, at a Minimum, Have to Pay [the Patentee's] Attorney Fees"

Andrew E. Russell, Aug. 22, 2022
Expert Witness Trial

Be Careful
Josh Frenette, Unsplash

In a pair of orders last week in Shopify Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA (D. Del.), Judge Andrews set out guidelines for the trial testimony of two fact witnesses, who will offer testimony at trial regarding some prior art references (among other things).

The procedural background here is surprising. The patentee moved in limine to exclude the testimony of these witnesses, and the Court addressed the motion at a pre-trial status conference. There, the Court directed that the parties depose the witnesses and that the accused infringer submit proffers of the testimony that will be offered at trial.

That a Lot of Briefing

The parties then filed a stipulation setting …

View

Archive