直 Japanese PDF Font
  • Our Professionals
  • Our Work
  • Our Insights
  • Offices
  • Firm
  • Careers
Finnegan
  • Articles & Books
    • Ad Law Buzz Blog
    • At the PTAB Blog
    • European IP Blog
    • Federal Circuit IP Blog
    • INCONTESTABLE® Blog
    • Prosecution First Blog
  • Events & Webinars
  • IP Updates
  • Podcasts
    • AI + Finnegan
    • AI + Copyright
    • AI + Patent
    • AI + Privacy
    • AI + Trade Secrets
    • AI + Trademark
  • Unified Patent Court (UPC) Hub

Federal Circuit IP Blog

Federal Circuit Reverses JMOL and Exclusion of Experts under Daubert

March 10, 2026

Authored and Edited by Sonja W. Sahlsten; Christopher B. Anderson; *Xu Wang

In Barry v. DePuy Synthes Companies, Nos. 2023-2226, 2023-2234 (Fed. Cir. Jan. 20, 2026), a divided Federal Circuit panel reversed the district court’s exclusion of two experts’ testimony, reversed its judgment as a matter of law (JMOL) for Depuy, and remanded for a new trial.

Dr. Barry sued DePuy for induced infringement of patents covering surgical techniques and tools for treating spinal deformities. At trial, Dr. Barry’s technical expert testified that “everything is a handle means” in the accused product because “everything is linked together.” DePuy moved to exclude this testimony under Daubert, arguing that it conflicted with the court’s claim construction of the term “handle means” as “a part designed especially to be grasped by the hand.” DePuy also sought to exclude testimony of Dr. Barry’s survey expert regarding how surgeons commonly use the accused tools, asserting flaws in the survey methodology. The district court granted both Daubert motions and entered JMOL in favor of DePuy.

The majority of the Federal Circuit panel disagreed, finding that the technical expert’s opinions reflected his application of the court’s claim construction, not an inadmissible contradiction of the claim construction. The perceived inconsistencies were matters for cross-examination and jury evaluation, not exclusion as a matter of law. The majority also held that alleged flaws in Dr. Barry’s survey expert’s methodology went to weight rather than admissibility. The majority thus held that the district court abused its discretion in excluding this testimony and reversed. Judge Prost dissented, arguing that the district court properly performed its gatekeeping role under Daubert by excluding both experts’ testimony.

Tags

claim construction, expert testimony

Related Practices

Appeals, Issues, and Legal Strategy

Federal Circuit and Supreme Court Appeals

Related Industries

Life Sciences

Medical Device and Diagnostics

Related Offices

Reston, VA

Washington, DC

Contacts

Sonja W. Sahlsten
Partner
Washington, DC
+1 202 408 4329
Email
Christopher B. Anderson
Associate
Reston, VA
+1 571 203 2765
Email

*Xu Wang is a Law Clerk at Finnegan

Copyright © 2026 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. 

DISCLAIMER: Although we wish to hear from you, information exchanged in this blog cannot and does not create an attorney-client relationship. Please do not post any information that you consider to be personal or confidential. If you wish for Finnegan, Henderson, Farabow, Garrett & Dunner, LLP to consider representing you, in order to establish an attorney-client relationship you must first enter a written representation agreement with Finnegan. Contact us for additional information. One of our lawyers will be happy to discuss the possibility of representation with you. Additional disclaimer information

Related Insights

Webinar

Data and Market Exclusivity: An Update on China’s New Law and Comparisons to the US and Europe

November 19, 2026

Webinar

Conference

NAPABA Convention 2026

November 12-14, 2026

Los Angeles

Charitable

2026 ALYN Hospital Wheels of Love Ride

November 8-12, 2026

Northern District

Seminar

U.S. Patent Litigation 2026: Key Developments, Strategic Trends, and Winning Before Trial

November 6, 2026

Taipei

Seminar

The Augmented Practice 2026: Balancing AI Opportunity, Governance, and Risk

November 5, 2026

San Francisco

Conference

2026 ANA Masters of Advertising Law Conference

November 2-4, 2026

Huntington Beach

Lecture

2026 Donald R. Dunner Endowed Lecture

October 27, 2026

Washington, DC

Federal Circuit IP Blog

Warning Signs Ignored: Federal Circuit Vacates Denial of Rule 11 Sanctions and Attorneys’ Fees

October 23, 2026

Federal Circuit IP Blog

Federal Circuit Dismisses Non-Infringement Appeal of Only Certain Patent Claims, Denies Judge Reassignment

October 23, 2026

Due to international data regulations, we’ve updated our privacy policy. Click here to read our privacy policy in full.

  • Privacy
  • Disclaimer
  • Legal Notices
  • Fraud Alert
  • EEO Statement
  • Cookies
  • Contact Us

© 2026 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP