Intellectual Property Report
Proposed Amendments to Federal Rules of Evidence Governing Expert Testimony
Lute Yang
Patent litigators commonly utilize experts to explain complex and technical issues of patent invalidity, patent infringement, and damages to the jury. Expert testimony is often critical in swaying a jury, so parties often file motions to disqualify experts from the opposing side. Expert testimony is governed by the Federal Rules of Evidence (FRE) which requires that expert testimony meet certain standards of reliability. In May 2022, the Advisory Committee on Evidence Rules (“Advisory Committee”) unanimously approved proposed amendments to Rule 702 of the FRE. The amendments emphasize “preponderance of evidence” as the proper evidentiary standard and highlight the trial court’s role as gatekeeper for expert testimony. The Supreme Court is expected to review the amendments this fall, and if approved, the changes will take effect in December 2023.
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What Makes an Expert: Limits on Patent Expert Discovery
Nick Palmieri
The use of expert testimony can be critical in supporting or defending a patent infringement lawsuit. Given the complex technical nature of many patent disputes, an expert witness is typically needed to explain the how the patented features and prior art would be understood by a person of ordinary skill in the art, the function and properties of accused techniques, and even the vocabulary used therein.
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New Bill Would Revise Patent Subject Matter Eligibility Framework
Robert Maier, Lance Goodman
The issue of what subject matter should be patentable under 35 U.S.C. §101 is one that over the past decade has been rapidly evolving—and fairly controversial. The issue has been most prevalent, and most hotly contested, in two different areas of technology: biotechnology and software. It is not surprising that even the Supreme Court has struggled to define appropriate boundaries on patent subject matter eligibility—a test that can be somewhat amorphous and difficult to apply in some cases—and that the courts have asked Congress to intervene.
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*This article was previously published in New York Law Journal on September 28, 2022.
Danish DPA, Datatilsynet, Joins Pan-European Approach to Google Analytics
Matthew Baker, Rachel Ehlers, Nick Palmieri
On September 21, 2022, the Danish Data Protection Authority (“DPA”), Datatilsynet, determined that the use of Google Analytics is violative of the European General Data Protection Regulation (“GDPR”) because it enables companies to move individual’s personal information outside of the European Union (“EU”) without appropriate safeguards and protections. This decision follows similar decisions this year by the Austrian, French, and Italian DPAs, which likewise found that the use of Google Analytics generally violated the GDPR. Google did implement various modifications to the tool as a result of the Austrian decision in January 2022 but Datatilsynet found the modifications were insufficient.
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Jose Villarreal Joins Baker Botts
We are pleased to announce that Jose Villarreal has joined the Firm as a partner in our Intellectual Property Department in Austin.
Jose has 25 years of experience litigating primarily in the Western District of Texas, Eastern District of Texas, District of Delaware and California Federal Courts. With his Master’s in Electrical Engineering and prior tech industry work, his litigation experience spans a broad spectrum of technologies. He joins us from Perkins Coie’s Austin office, which he helped open in early 2020 and served as its founding office Managing Partner.
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September 2022 Intellectual Report Recap
In case you missed it, here is a recap of our September 2022 Intellectual Property Report that looked at:
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