En Banc Activity / Featured / Petitions
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Here is an update on recent en banc activity at the Federal Circuit in patent cases. Since our last update, four new amicus briefs have been filed in a case raising a question concerning a judge’s role in determining admissibility of expert testimony under Federal Rule of Evidence 702. The court also denied a petition for en banc rehearing in a case raising questions related to eligibility. Here are the details.

En Banc Petitions

Amicus Briefs

Since our last update, four new amici curiae briefs were filed in Barry v. DePuy Synthes Companies. All of the briefs support rehearing. In its petition for rehearing en banc, DePuy Synthes asked the court to consider the following question:

  • “[W]hether, after the 2023 amendments to Federal Rule of Evidence 702 and this Court’s en banc decision in EcoFactor, a panel may treat as issues of ‘weight’ matters that go to the questions of (i) sufficiency of an expert’s basis for his opinions, and (ii) reliable application of methodology, including where trial testimony departs from the governing claim construction and where a survey expert fails to demonstrate representativeness of the survey population and employs flawed survey question design.”

Washington Legal Foundation

  • Washington Legal Foundation restates the central question in this case as “whether trial judges must faithfully enforce Federal Rule of Evidence 702 as a bulwark against unreliable expert testimony, or whether they must sidestep that duty and pass the buck to juries.” It contends that, “by holding that challenges to the factual and methodological foundations of an expert’s opinion go only to weight, not to admissibility, the panel majority has chosen the latter approach.” It advances two main arguments in support of en banc review. First, it argues, “Rule 702 demands that judges, not juries, decide whether expert testimony is grounded in sufficient facts or data before that testimony may reach the jury.” It says that, “[b]ecause jurors lack the tools to dissect and resolve scientific flaws in evidence, [the Panel’s] anachronistic approach to admissibility not only ignores the . . . demand for vigilant gatekeeping, but also the Advisory Committee’s explicit warning that the weight-not-admissibility standard is ‘an incorrect application.'” For its second argument, it contends “the panel majority relies on irrelevant, outdated precedent . . . which treat factual gaps and methodological defects as jury questions.” It argues that “Rule 702’s 2023 amendments squarely forbid that approach, insisting that judges, not juries, decide reliability.” It urges the Court to grant the petition for en banc review “to safeguard the integrity of Rule 702 in patent litigation, where unreliable testimony can distort verdicts and stifle the very innovation [the Federal Circuit] is charged to protect.”

The Chamber of Commerce of the United States of America and the National Association of Manufacturers

  • The Chamber of Commerce of the United States of America and the National Association of Manufacturers argue that the panel majority in this case defied last year’s en banc decision in Ecofactor, Inc. v. Google LLC, which they say “established beyond question that the reliability of an expert’s methodology and the reliability of its application are both matters for the district court to resolve under its gatekeeping responsibility–not matters of weight for the jury.” Thus, they “ask the court to take this appeal en banc to reinforce–expressly and forcefully–the holding of EcoFactor and the requirements of Rule 702.” In addition, they ask the court to consider a second point, explaining that “[t]he panel looked askance at the district court’s decision to deny in limine exclusion motions and, after hearing testimony and cross-examination, later conclude that experts’ testimony fell short of the standards of Rule 702.” They argue “[t]here is nothing improper about a district court’s revisiting a pretrial Rule-702 determination,” because a “district judge’s duty under Rule 702 is not to make a single, inflexible ruling on a pretrial record and adhere to it stubbornly.”

High Tech Investors Alliance and The Software & Information Industry Association

  • High Tech Investors Alliance and The Software & Information Industry Association focus on the statistical projections given by an expert witness, which the district court excluded “because they were not based on a randomly-selected, representative sample and because the response rate to his questions fell far below acceptable answers.” They argue “the principles that the district applied have been understood to be fundamental to a reliable statistical analysis since the middle of the twentieth century,” and the “panel decision, by prohibiting courts from enforcing these rules, would allow expert witnesses to use arbitrarily assembled, non-representative samples with unreliably low response rates.” They argue the “panel decision would make statistical projection in patent cases into a Daubert-free zone in which even the most fantastical numbers can be presented to a jury under the guise of ‘expert analysis.'” Because, they say, the “decision breaches a wide gap in the protections against meretricious expert testimony created by the Federal Rule of Evidence 702 and [the] Court’s decision in EcoFactor v. Google,” they urge the court to grant the petition for en banc rehearing.

Lawyers for Civil Justice

  • Lawyers for Civil Justice argues that, in this case, the “panel majority applied an incorrect legal standard when it reversed the district court’s exclusion of Plaintiff’s expert witnesses.” It argues that, “[b]y changing Rule 702, the [2023 amendment] clarified that ‘expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.'” Lawyers for Civil Justice argues that the panel majority’s approach in this case is incompatible with this amendment because, “[a]s the Advisory Committee puts it, ‘any step that renders the analysis unreliable . . . renders the expert’s testimony inadmissible.” It believes “the panel decision creates a distinct risk that the panel majority’s improper application of Rule 702 will be perpetuated by district courts and other panels.” Furthermore, it contends, “if the panel majority’s holding is allowed to stand, the Federal Circuit will fall out of alignment with other Circuits that have confirmed expert admissibility assessments must conform to the text of Rule 702.” Thus, “[g]ranting the Petition will allow the Court to affirm with a clear voice that Rule 702, and not outdated caselaw, establishes the expert admissibility analysis judges must employ as gatekeepers.”

Denials

Since our last update, the Federal Circuit denied a petition for en banc rehearing in the following case: