Experts Still Testifying after Phillips Decision
Did the Federal Circuit's decision in Phillips v. AWH Corporation sound the death knell for expert testimony in Markman hearings? Not likely, sources tell Robert Ambrogi writing for the "Bullseye" bulletin from IMS ExpertServices:
"While lawyers agree Phillips is unlikely to have much impact on the use of expert testimony in claims construction, they also agree that both the trial and appellate courts have broad discretion in this regard. Perhaps the Federal Circuit in Phillips said it best: '[T]here is no magic formula or catechism for
conducting claim construction. Nor is the court barred from considering any
particular sources or required to analyze sources in any specific sequence, as
long as those sources are not used to contradict claim meaning that is
unambiguous in light of the intrinsic evidence.'"