Expert Witness Excluded for Insufficient Experience

An industrial design consultant, with four decades of design experience, and 15 years experience as an expert witness in intellectual property cases, was excluded from a patent infringement case for insufficient experience in the specific product at issue, a personal flotation device, and his exclusion was upheld on appeal.

In Sport Dimension, Inc. v. Coleman Co., Inc., No. 15-1553 (Fed. Cir. 2016), Sport Dimension sought a declaratory judgment that it did not infringe Coleman's patent of a floation device. Both Sport Dimension and Coleman sold personal flotation devices with two armbands connected to a torso piece. However, in Sport Dimension's design, the torso section extended upwards to form a vest that goes over a person's shoulders.

Sport Dimension argued that Coleman's industrial design expert witness, Peter Bressler, was unqualified to testify on the functionality of Coleman's flotation device. During his deposition, Bressler was asked to evaluate Sport Dimension's expert's testimony on one aspect of the device's function, to which he responded "I'm not an expert on personal flotation devices." While he proposed alternative armband designs, he admitted they were based on his "imagination." He testified that he had no prior work experience with wearable buoyancy devices.

The district court excluded Bressler because he had "no experience whatsoever in the field of [personal flotation devices]" and found that the armbands and tapered torso of Coleman's design "serve a functional rather than ornamental purpose," excluding them from the claim scope. The district court then entered a stipulated judgment of noninfringement. Coleman appealed.

The Federal Circuit found that the district court did not abuse its discretion in excluding Bressler, but did find that the court's construction conflicted with the principle of design patent claim construction which, while distinguishing between functional and ornamental features, does not entirely eliminate a structural element from the claimed ornamental design, even though that element also serves a functional purpose.

The Federal Circuit vacated the district court's judgment and remanded.