Expert Testimony About New Testing Methodologies Inadmissible When Not Disclosed In Expert Report

Addressing the issue of whether a technical expert's failure to disclose specific testing methodology was merely a "typo" or a previously non-disclosed opinion, the U.S. Court of Appeals for the Federal Circuit affirmed the district court's judgment of non-infringement because the expert failed to support evidence of infringement. Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc., Case No. 12-1510 (Fed. Cir., Aug. 7, 2013) (Moore, J.)

Plaintiff Rembrandt Vision Technologies sued Johnson & Johnson Vision Care (JJVC) for patent infringement by JJVC's Advance and Oasys contact lenses. At issue was whether JJVC's lenses were "soft gas permeable lenses." The parties agreed to a claim construction of this term as "a contact lens having a Hardness (Shore D) less than five."