![]() ![]() Thus, the district court was held to have abused its discretion by denying a motion for a new trial. As is sometimes said, it was not possible to “un-ring the bell” – in other words, there was no way that jurors could reasonably separate the improper testimony from the other properly admitted evidence when deliberating and reaching their verdict. While recognizing that it may be possible for a district court to cure inadmissible testimony by instructing the jury to disregard it, the CAFC held that the district court improperly permitted the jury to consider lay witness testimony as evidence of obviousness in this case. The court explained that such admission of the testimony into evidence deprived HVO of its right to have the obviousness question decided on the basis of admissible, qualified expert testimony, and further prejudiced HVO by circumventing the expert discovery rules that ensure the reliability and relevance of such testimony. ![]() In addition, the CAFC found that, under the circumstances, the district court’s limiting instruction was insufficient to cure the substantial prejudice caused by the jury listening to and watching the videotaped testimony of the witness. ![]() Generally speaking, FRE 702 is applied much more rigorously in cases tried to juries than in “bench trials” conducted before district judges without juries. ” Oxygen Frog had made no attempt to demonstrate that the lay witness was “qualified as an expert” in accordance with FRE 702 or the case law regarding its application. The court noted that Federal Rule of Evidence (“FRE”) 702 provides that “ witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. ![]() The CAFC rejected Oxygen Frog’s argument that allowing the jury to hear the prior art author’s testimony was harmless. The district court denied HVO’s motion, and HVO appealed. After the jury verdict, HVO moved for judgment as a matter of law that Oxygen Frog had failed to establish obviousness, or in the alternative, for a new trial based on the improper and prejudicial admission of lay opinion testimony on the ultimate issue of obviousness. The jury concluded that claims 1 and 7 of both the ’941 and ’488 patents, the only claims at issue in the trial, would have been obvious under 35 U.S.C. The district court also instructed the jury that it was ultimately up to them to decide the issue of obviousness. The district court overruled HVO’s objection and instead gave the jury a limiting instruction prior to playing the videotaped deposition testimony of the witness. Specifically, the lay witness was asked, “Did you think that modifying the system to support two circuits to be obvious?” The witness answered, “Yes.” HVO objected to the testimony regarding obviousness as improper expert opinion testimony. The author did, however, provide deposition testimony as a fact witness during the discovery period of the litigation. The author of the prior art witness was neither offered, previously identified, nor qualified as an expert in accordance with court rules and procedures for such qualification. Further, Oxygen Frog introduced testimony of a lay witness, the author of one of the references, on the ultimate question of obviousness to be answered by the jury. At trial, Oxygen Frog argued that the claims were obvious in view of a combination of two prior art references. The patented oxygen-generating system is used to sustain and manage airflow for torch glass artists who use surface mix glass torches. District Court for the Northern District of Florida for infringement of U.S. HVLPO2, LLC (“HVO”) sued Oxygen Frog and its CEO, Scott Fleischman (collectively, Oxygen Frog) in the U.S. Such lay witness opinion testimony is unduly prejudicial and circumvents extensive discovery rules and procedures designed to ensure that such opinions are relevant, reliable, and offered by persons qualified to offer them. Court of Appeals for the Federal Circuit (“CAFC”) held that a trial court abused its discretion by admitting lay (i.e., non-expert) witness opinion testimony regarding the ultimate question of obviousness during a jury trial. ![]()
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