Last week, the U.S. Court of Appeals for the Federal Circuit issued an opinion in Osseo Imaging, LLC v. Planmeca USA Inc., No. 2023-1627 (Sept. 4, 2024), affirming a district court’s denial of Planmeca’s motion for judgment as a matter of law (JMOL), which sought to overturn a jury verdict of infringement and nonobviousness.
Osseo sued Planmeca for infringement of patents relating to orthopedic imaging systems. After trial, a jury returned a verdict that Planmeca’s accused product infringed all but one asserted claim and that none of the asserted claims were invalid for obviousness. Planmeca moved for JMOL. Notably, Planmeca argued that the testimony of Osseo’s expert witness regarding infringement should be disregarded in its entirety because he allegedly acquired the status of a person of ordinary skill in the art after the subject matter of the patents was invented. The district court denied the motion, finding that the jury’s verdict was supported by substantial evidence and concluding as a matter of law that there was no requirement that an expert witness must have acquired her or his expertise by a certain date for the expert’s testimony to be reliable. Planmeca appealed.
The Federal Circuit affirmed, agreeing with the district court that substantial evidence supported the jury’s infringement and nonobviousness determinations. Addressing Planmeca’s argument regarding Osseo’s technical expert, the Federal Circuit acknowledged that its precedent required a testifying expert to be at least a person of ordinary skill in the art for the expert’s testimony to be reliable. The Court also found, however, that its precedent did not include a requirement that the expert attained this level of skill by any particular date vis-à-vis the invention of the asserted patents. The Court declined to adopt such a timing requirement, determining that “an expert can acquire the necessary skill level later and develop an understanding of what a person of ordinary skill knew at the time of the invention.” Though an expert’s credibility could be undermined through cross examination relating to the timing of the expert’s development of expertise, the post-invention acquisition of such expertise did not justify disregarding the expert’s testimony in its entirety.
