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The U.S. Court of Appeals for the Federal Circuit has taken the unusual step of granting en banc review to address the question of whether a federal district court properly exercised its gatekeeping role under Federal Rule of Evidence 702 in a patent infringement case.
More specifically, the en banc Federal Circuit in EcoFactor, Inc. v. Google LLC, No. 2023-1101, will decide whether a Texas federal district court erred by allowing a jury, which had held Google liable for infringing a patent, to hear the testimony of the plaintiff’s economic damages expert concerning a reasonable royalty rate.
The case is significant since the Federal Circuit hears appeals from patent infringement cases adjudicated by district courts throughout the United States.
ALF has filed an amicus brief supporting Defendant-Appellant Google LLC. The brief was authored by Eric G. Lasker and Katherine E. Nolan of Hollingsworth LLP and ALF Executive Vice President & General Counsel, Lawrence S. Ebner.
ALF's Amicus Brief
ALF long has been one of the nation’s foremost advocates for ensuring that federal district courts fulfill their expert testimony gatekeeping role under Federal Rule of Evidence 702 by admitting into evidence only expert testimony that is reliable as well as relevant.
As it has in other recent cases, ALF’s amicus brief endeavors to enhance the court’s perspective on Rule 702 by providing additional background on the genesis, purpose, and adoption of the Rule 702 amendments that took effect on December 1, 2023, and by discussing the relationship between unreliable expert testimony and due process.
The amicus brief explains that the 2023 amendments clarify and strengthen district courts’ expert testimony gatekeeping role. The amendments address concerns expressed by the U.S. Judicial Conference’s Advisory Committee on Evidence Rules that many district judges were not fulfilling their gatekeeping role, and instead, were allowing juries to decide whether an expert’s testimony is reliable. The amicus brief explains that where a district court fails to act as gatekeeper by allowing a jury to “weigh” the reliability of expert testimony, the defendant can be deprived of a fair trial and due process of law.
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