Split CAFC Says Disputed Aspects of Testimony by Doctor's Experts are for Jury to Parse

"The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision on Tuesday, January 20, concluding that a district court abused its discretion in granting motions to exclude two of Dr. Mark A. Barry's experts and granting judgment as a matter of law (JMOL) to DePuy Synthes Companies. The panel included Judges Stark, Taranto and Prost and Judge Stark dissented."

"He alleged that certain products manufactured by DePuy, specifically "derotation devices", infringed the patents when used by surgeons in certain ways. Barry produced an expert report on infringement from Dr. Yassir, which showed how the accused products could be used to infringe the patents and meet every limitation of the claims, and Dr. Neal, a survey expert who developed a survey in conjunction with Dr. Yassir to determine how often surgeons used the accused tools in the infringing configurations."

The CAFC concluded that the district court abused its discretion by excluding two expert reports and granting judgment as a matter of law to DePuy. Barry's patents cover surgical techniques and tools for treating spinal deformities, including derotation devices accused of infringing when used by surgeons in specific ways. Dr. Yassir provided an infringement report showing how accused products could meet every claim limitation. Dr. Neal conducted a survey to quantify surgeon use of the accused configurations. The district court excluded Dr. Yassir for allegedly contradicting the "handle means" construction and excluded Dr. Neal's survey as unreliable, and the CAFC held those issues should have been for the factfinder.

Read at IPWatchdog.com | Patents & Intellectual Property Law