Expert Testimony Based on Erroneous Claim Construction Excluded

The court granted plaintiffs' motion to preclude the noninfringement opinions of defendant's testing expert because they were inconsistent with the court's claim construction. "[T]he Court’s construction of the term 'contiguous amount'—i.e., 'a quantity, the entirety of which is touching'—does not explicitly state that all of the material applied in one application must be touching. . . . The definition of 'contiguous amount' relied upon by [defendant's expert] is inconsistent with the Court’s construction of that term and, therefore, his opinions based on that definition would be unhelpful to the jury. Accordingly, while [the expert] may testify at trial about his testing of the [accused] Sprayer and the results he obtained, he is precluded from offering testimony regarding his conclusions or opinions that are based on his erroneous interpretation of the term 'contiguous amount.'”

Ecolab USA, Inc., et al v. Diversey, Inc., 0-12-cv-01984 (MND May 14, 2015, Order) (Nelson, J.)