- within Intellectual Property topic(s)
- in United States
In Barry v. DePuy Synthes Companies, Nos. 2023-2226, 2023-2234 (Fed. Cir. Jan. 20, 2026), a divided Federal Circuit panel reversed the district court’s exclusion of two experts’ testimony, reversed its judgment as a matter of law (JMOL) for Depuy, and remanded for a new trial.
Dr. Barry sued DePuy for induced infringement of patents covering surgical techniques and tools for treating spinal deformities. At trial, Dr. Barry’s technical expert testified that “everything is a handle means” in the accused product because “everything is linked together.” DePuy moved to exclude this testimony under Daubert, arguing that it conflicted with the court’s claim construction of the term “handle means” as “a part designed especially to be grasped by the hand.” DePuy also sought to exclude testimony of Dr. Barry’s survey expert regarding how surgeons commonly use the accused tools, asserting flaws in the survey methodology. The district court granted both Daubert motions and entered JMOL in favor of DePuy.
The majority of the Federal Circuit panel disagreed, finding that the technical expert’s opinions reflected his application of the court’s claim construction, not an inadmissible contradiction of the claim construction. The perceived inconsistencies were matters for cross-examination and jury evaluation, not exclusion as a matter of law. The majority also held that alleged flaws in Dr. Barry’s survey expert’s methodology went to weight rather than admissibility. The majority thus held that the district court abused its discretion in excluding this testimony and reversed. Judge Prost dissented, arguing that the district court properly performed its gatekeeping role under Daubert by excluding both experts’ testimony.
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