Litigation partners Catherine Nyarady and Crystal Parker’s latest intellectual property litigation column, “En Banc Federal Circuit To Review Application of Rule 702 and Daubert,” appeared in the May 6 issue of the New York Law Journal. The authors discuss the Federal Circuit’s impending first en banc decision in a utility patent case since 2018, EcoFactor v. Google, in which the court granted en banc review specifically to address the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. Rule 702 requires judges to ensure admitted expert testimony is “not only relevant, but reliable,” according to the standard established in Daubert.
During EcoFactor oral arguments on March 13, the Federal Circuit judges probed the boundaries of what constitutes sufficient facts and data to be the basis of an opinion. They also attempted to discern the line between issues of admissibility under Rule 702 and those of the weight of the evidence. The upcoming en banc decision may provide further guidance on the admissibility of expert testimony regarding patent damages.
Litigation counsel Mandy Branch and associate Gregg Stephenson assisted in the preparation of this column.
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