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The Federal Circuit Clarifies Who Can Be an Expert In Patent Cases
In September 2024, the Federal Circuit clarified the necessary qualifications for a technical expert to testify in a patent lawsuit, holding that while an expert must possess ordinary skill in the art, they need not have possessed such skill "at the time of the alleged invention." Osseo Imaging, LLC v. Planmeca USA Inc. 2024 WL 4031140, at *3 (Fed. Cir. Sept. 4, 2024).
Expert witnesses play a critical role in patent litigation, where judges and juries without technical training are expected to adjudicate often highly technical issues related to the patented invention, the accused products, and the state of the art in the relevant industry at the time of the invention. But without the right specialized knowledge, training, or experience, a witness may not qualify as an expert and his/her opinions will not be helpful. Many issues in a patent lawsuit — including claim construction, infringement, and validity — require assessing evidence from the perspective of a hypothetical "person of ordinary skill in the art." Thus, to be qualified to offer technical expert testimony in a patent case, "an expert must at a minimum possess ordinary skill in the art." Kyocera Senco Industrial Tools Inc. v. International Trade Commission, 22 F. 4th 1369, 1377 (Fed. Cir. 2022).
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