Friday, August 04, 2006

More on Finisar v. DirecTV

Further to an earlier post on IPBiz, the Finisar case is a post-eBay case in which the patentee did NOT get a permanent injunction.

Some text from FINISAR CORP. v. DIRECTV, 2006 U.S. Dist. LEXIS 25268 (filed May 2, 2006) on an expert witness issue in the case:

Assuming arguendo that what Leibrock will talk about at trial
qualifies as expert opinion testimony, the report does not show how reliable
principles and methods have been applied reliably to the facts of the case. See
Fed. R. Evid. 702(2). In addition, absent a conclusory statement (paragraph 4),
the report fails to give the basis and reasons which support the proposed


IT IS THEREFORE ORDERED that DirecTV's Objection to the Expert
Report of Larry R. Leibrock, Ph.D. is SUSTAINED. He will not be
allowed to testify as an expert.

***There is a cite to Daubert -->

In addition to allowing evaluation of potential testimony at trial,
without a deposition, an expert's report prepared in accordance with the
requirements of Rule 26(a)(2), should also serve a purpose which [*5] may not have
been contemplated when the rule was adopted, namely, permitting the court to
evaluate the expert's testimony under Fed. R. Evid. 702 and the Daubert-Kumho
Tire line of cases. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526
U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). The format required by Fed.
R. Civ. P. 26(a)(2) is not complicated, but it would normally result in a
report that addresses the factors a court must consider in determining the
admissibility of the opinions.


Post a Comment

<< Home