Asetek Danmark A/S v. CMI USA, Inc, Case No. 13-457 (Judge Jon Tigar)
Judge Tigar's recent refusal to exclude expert testimony reinforces the Northern District's liberal approach (based on Ninth Circuit precedent) to admissibility under FRE 702. Before the Court was Asetek's motion to exclude the expert testimony of Dr. Gregory Carman because he did not have experience specific to computer liquid cooling, the technology of the patents. Judge Tigar quickly disposed of the motion, finding that Dr. Carman has "sufficient relevant technical expertise" to satisfy the Ninth Circuit's "broad conception of expert qualifications" (emphasis in original).
In reaching his decision, Judge Tigar reminds us that "an expert is permitted wide latitude to offer opinions," citing cases holding that "shaky but admissible evidence is to be attacked... not exclu[ded]" and "[t]o testify as an expert in a patent case, and individual 'need not be officially credentialed in the specific matter under dispute.'" Next, Judge Tigar compared the subject matter of the two patents-in-suit to Dr. Carman's technical background. Here, the asserted patents relate to devices that use liquid to cool computer components. Although Dr. Carman had never worked specifically on liquid-based computer cooling, as Judge Tigar noted, he possesses a Ph.D. in Engineering Mechanics, is versed in the field of thermodynamics, has long worked in UCLA's Mechanical Aerospace Engineering Department, and even holds a pair of patents on thermal exchange systems.
Judge Tigar thus "easily distinguished" Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356, 1358 (Fed. Cir. 2008), in which the court found it inappropriate to admit attorney opinion in the "absence of any suggestion of relevant technical expertise." While a stronger affirmation of Dr. Carman's qualifications may have been warranted under the circumstances, Judge Tigar kept the bar low by asserting that Dr. Carman "has far more than a 'suggestion' of relevant technical expertise" to qualify as an expert, and that his qualifications merely go to the weight of his testimony.
In the end, while applying a "broad conception" of expert qualifications, the Court provided a clear reminder that satisfaction of FRE 702 does not automatically provide carte blanche for an expert to opine on any and all patent issues. Indeed, because the Court found that CMI's summary judgment motion fails regardless of the admissibility of Dr. Carman's testimony, it was able to stop short of qualifying Dr. Carman as a person of ordinary skill in the art and reserved that requisite determination for a later time should Dr. Carman offer testimony on what a person of ordinary skill would know or find obvious.
Judge Tigar's Order thus provides a useful reminder that disqualification of experts under FRE 702 is no easy task, but also that experts are not out of the woods in having to defend their credentials when additional patent-specific issues are considered later in the case.
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