"Judge Stark's majority treated the challenged testimony as a permissible application of the court's claim construction and treated the survey expert's methodological problems as questions of weight for the jury."
"DePuy has now petitioned for en banc rehearing, and the petition has drawn amicus support from the Chamber of Commerce and National Association of Manufacturers."
"The petition frames the panel disagreement as a structural conflict with the en banc decision in EcoFactor, Inc. v. Google LLC, arguing that the panel has quietly reintroduced the 'weight-not-admissibility' framework."
The Federal Circuit reversed a district court's exclusion of expert witnesses in Barry v. DePuy Synthes Cos., ordering a new trial. The majority viewed the testimony as permissible under claim construction, while dissenting Judge Prost warned of conflicts with prior rulings and amendments to Federal Rule of Evidence 702. DePuy has petitioned for en banc rehearing, supported by various organizations seeking to limit expert testimony. The petition highlights a structural conflict with EcoFactor, arguing that the panel reintroduced a framework meant to be eliminated by recent amendments.
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