Infringement Opinions of Inventor-Expert Excluded as Unhelpful Advocacy

The court granted defendant's motion to exclude the infringement opinions of plaintiff's inventor-expert because they were unreliable. "[M]ost of [the expert's] conclusions are simply implicit arguments about what claim construction should be, and are therefore irrelevant advocacy rather than helpful expert testimony. . . . Nearly all of [his] conclusions reads this way: they argue implicitly that the claim should be construed so that [defendant's] Patient Portal infringes. . . . [His] conclusory, self-serving statements were not helpful to the Court in construing the claims, and they are now mooted by the Court’s determined claim construction. To the extent [the inventor-expert] proffers opinions that are something more than disguised claim construction arguments, those opinions too are now irrelevant or unreliable, as they rely on a claim construction other than the Court’s. . . . Similarly, [his] unsupported assertions — made without explanation or elaboration that would allow a fact finder to follow his reasoning and come to the same conclusion — have no impact on the Court’s resolution of this case on summary judgment."

523 IP LLC v. CureMD.Com, 1-11-cv-09697 (NYSD September 24, 2014, Order) (Failla, J.)