Scientists make their observations, create hypotheses, test them and turn them into laws of physics that apply everywhere. Courts, on the other hand, seem to be doing things in reverse. Based on a set of laws, they hear the hypothesis, test them and then draw conclusions based on what has happened. The courts and scientists have something in common, however, they all aim to get to the truth. Due to this common goal, there are many cases where attorneys make use of experts in court following the motto: “if an average person doesn’t know, you need an expert to show them.”

As in all other law practices, expert witness testimonies are an essential part of IP litigation, especially in patent infringement cases where expert testimony can either make or break a case. Experts in patent cases can provide their technical expertise to explain complex arguments and topics being discussed in court, such as high-tech, life sciences, chemistry, electronics, etc. In this way, the expert educates the jury or the judge in case of a bench trial in matters beyond their regular practice and experience. Consequently, having the right expert and testimony can make the difference between winning and losing the case. Due to the importance of expert witness testimony in court, the topic of determining if an expert is qualified to give the testimony has quite often been discussed.

The Frye Standard has been used as a test to determine the admissibility of a testimony, especially when it came to novel scientific evidence. Basically, the court can only accept expert opinions that are formed on techniques that are generally accepted by the relevant scientific community. Rule 702 of Federal Rules of Evidence covers the admission of expert testimony in court and it was amended after the Daubert v. Merrell Dow Pharmaceuticals, Inc. case. The Supreme Court held that the Federal Rules of Evidence superseded Frye as the standard for the admissibility of expert evidence in federal courts. This decision charged the trial judges as gatekeepers to exclude the unreliable testimonies and ensure that the scientific expert testimony derives from scientific knowledge. So, how can an expert testimony be challenged by a Daubert Motion? Under the Daubert Standard, there are five Daubert factors or criteria, determining that the methodology used by the expert witness is valid: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. Once a Daubert motion in limine (at the start of the trial) is filed, the other party seeking to admit the testimony must prove that the expert possesses the required level of expertise and that the testimony provided is based on reliable methodologies.

Understanding the importance of the Daubert motions and whether they are successful or not, we at Patexia are working on their detection in patent infringement cases. This is not only because it’s considered an important milestone in a patent litigation case, but also because these motions are important flags in an expert witness history, which are very useful for attorneys and companies trying to find the right person to provide expert testimony.