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Sundance V DeMonte - And Your Experience Is?

Apparently not just any experienced patent attorney can act as an expert witness in a patent suit. In the case of Sundance v DeMonte the United States Court of Appeals for the Federal Circuit came to a decision on December 24, 2008 overturning the ruling of non-obviousness held by the United States District Court for the Eastern District of Michigan. The decision offered a strong opinion as to who can and can not be considered an expert witness.

In a Michigan District Court, Sundance alleged that DeMonte infringed upon claim 1 of his patent. DeMonte argued that claim 1 was obvious given two prior art references. DeMonte also brought forth what he deemed to be an expert to testify to the obviousness of the patent due to prior art. Sundance objected to allowing the witness to testify as an expert, stating that he was only qualified as a patent law expert and not an expert in the prior art for this case. The District Court allowed the expert to testify. The District Court then, against the finding of the jury, found that Sundance's claim was non-obvious therefore DeMonte had infringed upon his Sundance's patent.

The Court of Appeals overruled the District Court's finding that Sundance's claim was non-obvious based on the allowance of testimony which was not expert testimony. The Court of Appeals stated that, "courts are charged with a 'gatekeeping role,' the objective of which is to ensure that expert testimony admitted into evidence is both reliable and relevant." The court then concluded that, "[the witness] is not 'qualified as an expert by knowledge, skill, experience, training, or education' in the pertinent art; we therefore fail to see how he could 'assist the trier of fact to understand the evidence or to determine a fact in issue.'" This case could affect future cases by limiting who can testify as an expert witness by holding courts to a high standard of discretion when considering who is qualified to be an expert witness.

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