EXPERT'S CONCLUSION / DOES NOT CREATE ISSUE OF / MATERIAL FACT

Intellectual Science and Technology, Inc., v. SONY Electronics, Inc., [2009-1142] (December 15, 2009) [RADER, Archer, Gajarsa] The Federal Circuit affirmed summary judgment of non-infringement.
DISCUSSION: This court concludes that plaintiff expert did not sufficiently identify the structural elements corresponding to the claimed “data transmitting means.” An expert’s unsupported conclusion on the ultimate issue of infringement will not alone create a genuine issue of material fact. When counsel for Intellectual Science was asked at oral argument its expert identified the structural elements in his declaration, counsel conceded that the language is “perhaps not as grammatical as one would wish.” The Federal Circuit said that asking litigants to provide more than a difficult-to-decipher expert declaration does not impose too high a burden at summary judgment, especially where, as here, the structural elements are allegedly common.