Even Unrebutted Experts Need To Do More Than Make Conclusory Assertions

In Diebold Nixdorf, Inc. v. ITC, the Federal Circuit reversed the ITC's finding of a Section 337 violation based on the ITC's reliance on unrebutted expert testimony. Diebold, No. 17-2553 (Fed. Cir. Aug. 15, 2018). The case is an important reminder that an ALJ may find that an expert's conclusory testimony, even if unrebutted, carries little weight.

Hyosung TNS Inc. and Nautilus Hyosung America Inc. ("Complainants") own a patent directed to ATMs that can receive and process a bundle of checks and cash at the same time. The patent claims all require a "cheque standby unit." Complainants filed a complaint with the ITC asserting that Diebold ("Respondent") infringed its patent. In its defense, Respondent argued that the phrase "cheque standby unit" rendered the claims indefinite. ALJ Shaw rejected Respondent's argument, and the Commission concluded that Respondent violated Section 337. Last week, the Federal Circuit reversed.