Federal Circuit Drills Down on Ordinary Skill Requirement in Vacating ITC Infringement Determination

In Kyocera Senco Indus. Tools Inc. v. ITC, No. 20-1046 (Fed. Cir. Jan. 21, 2022), the Federal Circuit vacated and remanded an International Trade Commission decision finding that Koki Holdings America Ltd. infringed Kyocera’s drilling tool patent.

The Federal Circuit’s decision was based in part on its finding that the Administrative Law Judge (“ALJ”) abused his discretion by admitting any testimony from Kyocera’s expert.  The parties agreed that a person of ordinary skill in the art (“POSA”) that required at least two years’ experience designing power nailers. Because Kyocera’s expert had no experience in power-nailer design, the ALJ excluded his testimony on infringement under the doctrine of equivalents, but nevertheless allowed him to testify regarding literal infringement. The Federal Circuit explained that an expert must possess at least ordinary skill in the art to testify from the perspective of a POSA. Kyocera’s expert did not have the requisite skill, and, as a result, his testimony regarding any issue (including literal infringement) analyzed through the lens of a POSA was neither relevant, nor reliable. Therefore, the Court found that the ALJ abused its discretion in admitting the expert’s testimony regarding literal infringement.