When a trial judge, after a Daubert hearing, decides to exclude the testimony of an expert witness, the party that proffered the expert can decide whether to challenge that decision on appeal. But if the party decides not to appeal, can the expert, out of concern for the impact of the decision on his professional reputation, appeal the ruling on his own?
The U.S. District Court for the District of Delaware recently addressed a costly expert issue involving damages in a patent infringement case: Whether expert testimony which relies solely on a prior settlement agreement as a basis for proving reasonable royalty damages is reliable and therefore admissible under the established law of Daubert and FRE 702.
Will the USPTO’s Patent and Trial Appeal Board (PTAB) become a major patent reform player, improving administrative efficiencies, streamlining the patent process, and creating cost effective litigation alternatives as it was purposed to do? Will it offer solutions to the overburdened patent process? Or will patent litigation attorneys and their clients shy away from it, fearful of underlying uncertainties in implementation and possible negative precedential effects its rulings may have in other forums?
The Daubert standard requires that expert testimony be reliable in order to be admissible. But reliable is not the same as right, two recent federal circuit opinions remind us. The judge’s role is not to determine whether an expert’s testimony is correct, but only whether it is admissible, these opinions say.