The Increasing Use of Challenges to Expert Evidence Under Daubert and Rule 702 in Patent Litigation

– Douglas G. Smith

Parties in patent ligation are increasingly challenging the admissibility of expert testimony under Evidence Rule 702 and Daubert. The admissibility of such evidence can be dispositive and can significantly shape the issues for trial. These challenges were initially focused on plaintiffs’ damages cases, gaining support with Federal Circuit decisions in Lucent, ResQNet, Uniloc, and LaserDynamics, and building on the common-law principle that damages may not be speculative. However, challenges to other types of expert testimony are becoming increasingly common, as litigants have now challenged proffered expert testimony on infringement, claim construction, and enablement. Moreover, because Daubert presents another opportunity for a litigant to derail or limit an opponent’s claims, the frequency of such challenges is likely to only increase. In fact, recent decisions in high-profile patent cases have increased the likelihood that litigants will seek to invoke Daubert in future cases. This Article’s discussion of the application of Daubert in patent cases demonstrates the increasing frequency with which parties are filing motions seeking the exclusion of expert opinions under Rule 702 and Daubert in patent cases, as well as the diversity of circumstances in which such challenges arise.

Abstract Written by Joseph P. Sklar & Brian S. Patton, 2018