In a recent Daubert ruling, Judge Burke offered some helpful reminders regarding the threshold for expert testimony under Fed. R. Evid. 702. In particular, Judge Burke's ruling highlights the principle that an expert's qualifications need not be supported by advanced degrees or decades of experience, if the other requirements of Rule 702 are met.
In 360Heroes, Inc. v. GoPro, Inc., 17-1302-LPS-CJB, a case in which Judge Burke has been assigned all pretrial matters, the plaintiff moved to exclude the defendant's expert Ryan Thomas, an Emmy-nominated video content creator. Mr. Thomas was retained by the defendant to offer opinions on products available to 360 video content creators from 2015 to the present, including commercially acceptable alternatives to the plaintiff's patented products.
The plaintiff sought to exclude Mr. Thomas' entire opinion, on two grounds - his qualifications and the reliability of his opinions - neither of which Judge Burke found persuasive.
First, the plaintiff asserted that Mr. Thomas was not qualified to serve as an expert under Rule 702 because "(1) he only has an Associate Degree in Electronic Media Technology (that he obtained in 2015), and did not complete any classwork in mechanical or electrical engineering; and (2) relatedly, that he is not a person of ordinary skill in the art ('POSITA') with regard to the claimed technology."
Judge Burke noted that Mr. Thomas was not retained to analyze the claims or provide a non-infringement analysis of alternatives to the claimed invention. In order to provide an opinion regarding "whether certain third-party rigs [] would have been commercially acceptable alternatives[,]” it was "not necessary that Mr. Thomas have obtained a college degree in an engineering discipline that is related to the technology at issue" in the patent-in-suit.
Instead, consistent with applicable Third Circuit law, Mr. Thomas merely needed to have "more knowledge than an average layperson would about what types of 360 video camera rigs were available to and desirable to purchasers in the relevant time period."
Judge Burke concluded that Mr. Thomas was "well-qualified" to provide this kind of testimony because, among other things, Mr. Thomas:
(1) worked as a freelance producer and director of photography during his college years (i.e., prior to 2015); (2) in 2015, co-founded an innovation studio, via which he creates “360 and 180 video” and “a variety of video and images, including 360 video and images”; (3) has been nominated for an Emmy Award and has been recognized by media publications for his work in “360 VR and other immersive content”; (4) has shot 360 video content for numerous large clients such as Walmart, Procter & Gamble, Ford, Showtime and Google; . . . .
In addition, the fact that Mr. Thomas was in college when the patent-in-suit issued in 2012 was not a concern because the damages window did not begin until 2015, the year he obtained his degree.
Second, regarding the plaintiff's challenge to the reliability of Mr. Thomas' opinions, Judge Burke concluded that while Mr. Thomas had reportedly only "skimmed" the patent-in-suit, and while "[i]t would have been preferable for Mr. Thomas to be more familiar with the patent’s claims" given that his opinion centered on alternatives to products covered by the claims, "in the end, what is important here is that Mr. Thomas has an understanding of what Plaintiff’s relevant 360 camera rig products are, and what other products in the market might be acceptable alternatives to those products." The fact that Mr. Thomas was not offering non-infringement opinions lessened the impact of his unfamiliarity with the claims.
Judge Burke rejected two additional challenges to the reliability of Mr. Thomas' proposed expert testimony, and denied the plaintiff's motion in its entirety.
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