Precision Fabrics Group, Inc. v. Tietex International, Ltd., 7-17-cv-03037 (SCD March 5, 2018, Order) (Schroeder, USDJ)
Thursday, March 8, 2018
Expert Testimony Based on Modified Claim Construction Precluded
The court granted in part plaintiff's motion in limine to preclude expert testimony premised on a revised construction of the claim term in question. "[T]he court [previously] construed the claim term 'intumescent' to describe 'a substance that swells and chars upon exposure to heat or flame.' . . . [O]ver three years after the claim construction . . . [defendant] seeks to offer evidence from one of ordinary skill in the art that infringement of the claim term 'intumescent' requires proof that the coating 'swells to a sufficient degree to act as a thermal barrier to lessen the effects of heat or flame on the underlying fabric.' . . . [T]he court declines to further define the term 'swell.' . . . [Defendant] should be permitted to present evidence by an expert as to whether he observes any swelling . . . and criticisms of [plaintiff's] expert’s findings. . . . [H]e may not testify as to any opinion that the results reportedly observed by [plaintiff's expert] fail to indicate swelling 'to a sufficient degree to act as a thermal barrier to lessen the effects of heat or flame on the underlying fabric' because he has conducted no testing to support such a statement."