By David Hricik, Mercer Law School
I serve every so often as an professional witness in patent-related trials, on inequitable conduct and the usual of care in malpractice. Of interest to me for that purpose and since I nonetheless do lawyering work is UGI Sunbury LLC v. A Permanent Easement for 1.757 Acres (here) a 2019 Third Circuit choice holding that the identical normal under Daubert/Kumho Tire governing admissibility of professional testament in jury trials applies to bench trials what place the trial courtroom is the fact-finder. Specifically, whereas the courtroom acknowledged trial courts have discretion as to the way to admit professional testament and use it, the courtroom can not admit unreliable professional testament within the first occasion, even when it’s a bench trial. This presents a circuit break up (be aware four of the opinion collects among the opposite opinions).
Of course, the case must be of interest to patent litigators, since for instance inequitable conduct could current solely points for the courtroom. In that context, i’ve seen opposing specialists use “methodologies” that they might by no means apply apply or defend in public, and use “methodologies” that — a minimum of in my experience, schooling, and coaching — are unverifiable and unreliable.
A extra rigorous approach to professional witness testament could assist to keep away from unnecessary confusion and wasted time — even in bench trials.