What Have We Learned From the First Six Months Under the New Federal Rule of Evidence 702?
As patent practitioners know, Daubert motions can be some of the most hotly contested and pivotal motions in the life of a patent case. These motions are used to exclude testimony from an opponent's expert witness, usually on the grounds that the expert's opinion is unreliable or methodologically defective. A successful (or even partially successful) Daubert motion can drive settlement and significantly affect the course of trial.
In late 2023, the evidentiary rule governing expert testimony — Federal Rule of Evidence 702 — was revised for the first time in nearly 25 years. The new Rule 702 has now been in effect for just over six months. We reviewed how courts have been applying the new Rule 702 in this six-month period, particularly in busy patent-litigation venues including the District of Delaware, the Eastern District of Texas, and the Western District of Texas. Let's take a look at what we've learned in these first six months and what practical take-aways there are for patent litigators.
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