Finesse Wireless’s framing of Datascope an ‘infamous’ example of Federal Circuit overreach?

Finesse Wireless’s framing of Datascope an ‘infamous’ example of Federal Circuit overreach?

On February 6, 2026, Finesse Wireless filed a cert. petition presenting this question: “Whether a purported inconsistency in the testimony of an expert witness is an issue of credibility for the jury to resolve, as every regional circuit holds, or whether it instead supplies a basis for judgment as a matter of law, as the Federal Circuit held below and routinely holds in other cases.”

In February 2026, Finesse Wireless filed a petition for certiorari at the United States Supreme Court in which it alleged that precedential Datascope Federal Circuit decision (which had been cited against it at the Federal Circuit) is an “infamous” example of the Federal Circuit’s purported willingness to review factual determinations made by juries, in violation of the Seventh Amendment of the Constitution. It also characterized the Datascope opinion as the “ne plus ultra of appellate re-examination”. And it accused Datascope of having spawned “progeny” which have made the situation even worse. Finesse Wireless, had won a jury verdict of $16 million at the district court and had successfully fended off a motion for judgment as a matter of law. But then, as in Datascope, at the Federal Circuit, defeat was snatched from the jaws of victory. On February 6, 2026, Finesse Wireless filed a cert. petition presenting this question: “Whether a purported inconsistency in the testimony of an expert witness is an issue of credibility for the jury to resolve, as every regional circuit holds, or whether it instead supplies a basis for judgment as a matter of law, as the Federal Circuit held below and routinely holds in other cases.”

The petition spent over 30 pages trying to paint the Federal Circuit as an outlier, in an effort to demonstrate a conflict between the Federal Circuit and (supposedly) every regional circuit. To do so, the petition seized upon the Datascope decision, which had been cited by the Federal Circuit in Finesse Wireless, for the proposition that when a patentee “rests its case on an expert’s self-contradictory testimony, we may conclude the evidence is insufficient” to support a jury verdict. The Datascope case involved “fragmentation catheters,” which might be thought of as ROTO-ROOTER for blood vessels. The patents at issue purported to solve the problem of blood clots in, e.g., dialysis grafts. Their solution involved introducing a mechanical member which expands within an inner “lumen” and is then rotated to “fragment” the clot.

The Federal Circuit’s Datascope opinion quoted much of our cross-examination, which essentially boiled down to this. The claim construction, which plaintiffs did not challenge, required that, in order to infringe, a so-called “fragmentation member” had to make contact with the inner “lumen” (i.e., duct) of a “vascular conduit” (e.g., dialysis graft) in three dimensions. The plaintiffs’ expert testified on direct (consistent with his rewritten report) that Datascope’s accused device expanded to make contact in three dimensions—and thus literally infringed. But when pressed on cross, he acknowledged—repeatedly—that Datascope’s device makes contact at only two points and thus only in a two-dimensional plane.

As the Federal Circuit explained: “[A]ccepting as true [the expert’s] factual testimony, that the [accused Datascope device at all times after deployment only contacts the inner lumen at two points, his opinion that it remains in contact with the inner lumen in three dimensions along its length and width is incredible because it is impossible for use of this device to meet this limitation. As a matter of geometry, the two points of contact of the [accused element] can describe a two-dimensional plane along the length of the lumen, but cannot contact the inner lumen in three dimensions as required by the district court’s claim construction.”