Federal Circuit Grants New Trial in Light of False Expert Testimony

federal-circuit-spring-b-335Rembrandt Vision Techs., L.P. v. Johnson & Johnson Vision Care, Inc. (Fed. Cir. Apr. 7, 2016) (Before Dyk, Moore, and Stoll, J.) (Opinion for the court, Stoll, J.)(False expert testimony raises a substantial question undermining the judgment of noninfringement and warrants a new trial). Click Here for a copy of the opinion.

The Federal Circuit ordered a new trial following revelations that expert testimony presented at trial was false.  Rembrandt sued Johnson & Johnson Vision Care, Inc. (“J&J”), in the Middle District of Florida alleging that J&J’s Acuvue Advance ® and Oasys® contact lenses infringed Rembrandt’s patent.  At trial, the parties disputed whether the accused lenses met “surface layer” and “soft” limitations of the asserted claims. Following trial, the jury returned a verdict of noninfringement.

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J&J relied on expert testimony from Dr. Christopher Bielawski to support its position that the accused lenses did not meet the “surface layer” limitation.  After trial, Rembrandt received information suggesting that Dr. Bielawski testified falsely at trial.  Although the district court denied Rembrandt’s request for post-trial discovery, Rembrandt received documentation from Dr. Bielawski’s employer, the University of Texas, through an open records request and state court litigation.  The records revealed that Dr. Bielawski repeatedly testified that he personally conducted laboratory testing on J&J’s accused lenses when, in fact, the testing was conducted by Dr. Bielawski’s graduate students and various lab supervisors.  Further, evidence suggested that Dr. Bielawski overstated his qualifications and experience with the relevant testing methods, and in fact had no experience whatsoever.  There was also evidence that Dr. Bielawski withheld test results and data analysis that would have undermined his opinions and trial testimony.

Following a lengthy hearing on the issue, the district court denied Rembrandt’s motion for a new trial and dismissed the argument that documents withheld from Rembrandt prevented it from fully and fairly presenting its case.  On appeal, because the parties did not dispute that the testimony was false, the Federal Circuit considered only whether Rembrandt was indeed entitled to a new trial.  Noting that the Court “would not speculate about the profound effects knowledge of the withheld documents and falsified testimony of [J&J’s] primary witness would have had on the proceedings,” the Court ordered a new trial, confirming that the false testimony “raises a substantial question undermining the judgment of noninfringement.”

Also contributing to this summary were Lindsay Henner, Parker Hancock, and Puja Dave.

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The Author

Robert Schaffer

Robert Schaffer is an intellectual property partner at Troutman Sanders. Bob applies more than 30 years of experience to IP counseling and litigation. His work includes patent procurement, strategic planning and transactional advice, due diligence investigations, district court patent cases, and Federal Circuit appeals. He regularly handles complex and high-profile domestic and international patent portfolios, intellectual property agreements and licensing, IP evaluations for collaborations, mergers, and acquisitions. In disputed court cases Bob’s work includes representing and counseling client in ANDA litigations, complex patent infringement cases and appeals, and multidistrict and international cases. In disputed Patent Office matters his work includes representing and counseling clients in interferences, reexaminations, reissues, post-grant proceedings, and in European Oppositions. For more information and to contact Bob please visit his profile page at the Troutman Sanders website.

Robert Schaffer

Joseph Robinson has over 20 years of experience in all aspects of intellectual property law. He focuses his practice in the pharmaceutical, life sciences, biotechnology, and medical device fields. His practice encompasses litigation, including Hatch-Waxman litigation; licensing; counseling; due diligence; and patent and trademark prosecution. He has served as litigation counsel in a variety of patent and trademark disputes in many different jurisdictions, and has also served as appellate counsel before the Court of Appeals for the Federal Circuit. Joe also focuses on complex inter partes matters before the U.S Patent and Trademark Office, inventorship disputes, reexaminations and reissues. His experience includes numerous interferences, a particular advantage in new U.S. Patent and Trademark Office post-grant proceedings. He also counsels on patent–related U.S. Food and Drug Administration issues, including citizen petitions, Orange Book listing, and trademark issues. For more information and to contact Joe please visit his profile page at the Troutman Sanders website.

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