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HVLPO2, LLC v. Oxygen Frog, LLC

New Trial Required After Fact Witness Advances Obviousness Opinion

HVLPO2, LLC v. Oxygen Frog, LLC, __ F.3d __, 2020 WL 559108 (Fed. Cir. Feb. 5, 2020) (Newman, MOORE, Chen) (N.D. Fla.: Walker) (3 of 5 stars)

Fed Cir reverses denial of motion for a new trial. HVO’s patents relate to controlling an oxygen-generating system for use by torch glass artists. The district court abused its discretion by deciding not to grant a new trial after the jury heard testimony from a fact witness, Tyler Piebes (whose online video was one of the obviousness references) that he viewed a certain modification to prior art to be obvious. Per Sundance, 550 F.3d 1356 (Fed. Cir. 2008), and FRE 702, such testimony was “in the clear purview of experts and lay witness testimony on such issues [i.e., obviousness] does not comply with the [FRE or FRCP].” Op. at 7. The error was not harmless; “[t]here is no way to know whether the district court’s admission of Mr. Piebes’ improper testimony provided some or all of the basis for the jury’s decision” and prejudiced HVO. Id. at 8. The district court’s limiting instruction did not cure the issue because it failed to clarify that the jury could not rely on Mr. Piebes’ opinion in forming its verdict.

KEYWORDS: EVIDENCE; EXPERT OPINION; NEW TRIAL; ABUSE OF DISCRETION