Newman on experts in B-K Lighting

In a separate opinion in B-K Lighting, Judge Newman writes:

On cross-motions for summary judgment, the district court granted the motion of
Fresno Valves & Castings (“FVC”), and ruled that United States Patent RE 39,084,
owned by B-K Lighting, is invalid on the ground of obviousness. The panel majority now
holds, solely for the reason that there were opposing expert opinions, that the question
of obviousness could not be resolved on summary judgment. This is an unnecessary
departure from the procedure that this court and the Supreme Court have accepted and
endorsed, in the interest of efficient resolution of patent disputes:

In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 427 (2007), the Court stated that
while a “court can and should take into account expert testimony, which may resolve or
keep open certain questions of fact,” summary judgment should not be withheld
whenever parties present contradictory expert opinions, thereby manufacturing a
“conflict,” however attenuated. My colleagues on this panel hold that since there were
opposing expert opinions, without more, the question of obviousness requires trial. If
this procedure is to be the rule in patent cases let us be clear, to avoid the expensive
redundancy that is today achieved, whereby the parties and the district court pursued
the procedures of summary judgment through depositions, briefs, written opinion, final
judgment, and appeal. It is not a trivial matter to require the parties, the trial judge, and
perhaps ultimately this court, to repeat in the trial context much of what they have
already done.