Reassessing Finesse Wireless‘s characterization of Datascope as Federal Circuit overreach
Reassessing Finesse Wireless‘s characterization of Datascope as Federal Circuit overreach
It was a case where, on cross, the expert admitted to hard facts which indisputably rendered his opinions impossible and therefore incredible
In 2008, Datascope Corporation, a medical device company I represented, secured a hard-fought victory at the U.S. Court of Appeals for the Federal Circuit.
The court reversed a patent-infringement verdict returned by a federal jury in Baltimore in a suit brought by Johns Hopkins University and its licensee against my client. Johns Hopkins Univ. v. Datascope Corp., 543 F.3d 1342 (Fed. Cir. 2008).
In February 2026, Finesse Wireless filed a petition for certiorari in the U.S. Supreme Court. It characterized the precedential Datascope decision cited against it at the Federal Circuit as an “infamous” example of the court’s purported willingness to revisit jury fact-finding in violation of the Seventh Amendment. It further described Datascope as the ne plus ultra of appellate re-examination and asserted that it spawned problematic “progeny.”
That framing invites a question, which I missed for 18 years: how did a ‘come-from-behind’ vindication of my client’s position come to be portrayed as a symbol of everything allegedly wrong with the Federal Circuit?
The Finesse Wireless v. AT&T Mobility Certiorari Petition
Finesse Wireless found itself in a position similar to that of my adversary in Datascope. It obtained a $16 million jury verdict at the district court and successfully resisted a motion for judgment as a matter of law. But, as in Datascope, the Federal Circuit reversed the decision.
On 6 February 2026, Finesse Wireless filed a certiorari petition posing the question: Whether a purported inconsistency in an expert’s testimony is a matter of credibility for the jury, as every regional circuit holds, or whether it can support judgment as a matter of law, as the Federal Circuit held below and routinely holds in other cases.
The petition devotes over 30 pages to portraying the Federal Circuit as an outlier, seeking to establish a conflict with what it describes as every regional circuit. Central to that effort is Datascope, cited for the proposition that when a patentee “rests its case on an expert’s self-contradictory testimony,” the evidence may be deemed insufficient to sustain a jury verdict.
The petition (at 18) emphasizes that the Federal Circuit relied solely on Datascope in overturning the jury verdict. It labelled the decision “infamous,” and invoked commentary suggesting it exemplified judicial intrusion into jury fact-finding. It also relied on the Datascope dissent’s criticism of the majority for “reweighing” evidence, asserting that the panel “followed Datascope down that same forbidden road.”
More broadly, the petition extols the precedent limiting judicial interference with jury verdicts that have different views. It contends that such principles have “fallen into desuetude” at the Federal Circuit, where Datascope, the ne plus ultra of appellate re-examination, and its progeny are said to reflect a pattern of appellate overreach.
It further argues (at 34) that, even without excluding expert testimony as inadmissible, the Federal Circuit can “simply deem it contradictory, select the portion it finds more credible, cite Datascope, and call it a day.”
The Narrative
It was such a roller-coaster case, and I recall the Datascope case involved “fragmentation catheters” known as Roto-Rooter devices designed to break up blood clots in vascular conduits such as dialysis grafts. The asserted patents claimed a solution involving a mechanical member that expands within a “lumen” and rotates to “fragment” the clot.
The patentees’ (plaintiff’s) expert report, however, was largely conclusory, effectively checking boxes for each claim element (i.e., claim element A, “Yes”; claim element B, “Yes”; etc). Although we moved in limine to exclude the expert, the trial court allowed the plaintiff’s supplementation on the eve of trial, and the expert testified the following day.
The Federal Circuit’s Datascope opinion quoted much of our cross-examination, which essentially boiled down to this:
The claim construction, which the 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.
On direct examination, the expert testified, consistent with his revised report, that Datascope’s device met this requirement. On cross-examination, however, he repeatedly conceded that the device made contact at only two points, and thus only on a two-dimensional plane.
The Federal Circuit’s analysis followed directly from those admissions:
“[A]ccepting as true (the expert’s) factual testimony, his opinion that (the device) remains in contact in three dimensions is incredible because it is impossible. As a matter of geometry, two points of contact can describe a two-dimensional plane, but cannot satisfy a three-dimensional contact requirement as required by the district court’s claim construction.”
Datascope, 543 F. 3d at 1369-70
This was not a routine inconsistency or a matter of competing interpretations. It was a case in which the expert’s own factual admissions rendered his ultimate opinion geometrically impossible. For instance, an expert testifies that his experiments were done on Tuesday, and on cross-examination says he did them on Friday. His testimony on cross did not merely undermine his credibility; it negated the factual premise of his opinion.
Legal Context
Contrary to Finesse Wireless’s assertion, Datascope did not depart from regional circuit law. The Federal Circuit expressly relied on Fourth Circuit precedent, consistent with its established practice of applying regional circuit law to issues outside its exclusive jurisdiction.
Specifically, it cited the Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) case, for the principle that testimony must be assumed in favor of the party offering the testimony (viz., Johns Hopkins and its licensee). It must be credited unless it is “totally incredible.”
The Federal Circuit concluded faithfully applying the Fourth Circuit’s standard precedent that the expert’s testimony became incredible by proving that it would be impossible for Datascope’s accused two-dimensional element to meet the claim’s requirement of three-dimensional contact.
Finesse Wireless’s contention at the Supreme Court that judges should not decide what expert testimony is more credible would have resonance if we were talking about, for example, two competing experts opining on whether an invention would have been obvious to one of ordinary skill in the art. But the situation in Datascope involved one witness, first on direct, then on cross.
Herein, an expert’s testimony on cross negates his own testimony. The expert is acknowledging that the testimony given on direct examination was necessarily mistaken and/or untruthful.
In such circumstances, the issue is not weighing evidence but recognizing that a party cannot meet its burden of proof through testimony that is factually irreconcilable.
As the Supreme Court observed, citing the Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). “A party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement without explaining the contradiction or at least attempting to resolve the disparity.”
Finesse Wireless cited the dissenting opinion in Datascope, characterizing the majority as reweighing evidence. The Federal Circuit effectively held that the expert’s direct testimony had no weight because it was impossible and thus incredible as per his own testimony.
Epilogue
In response to Finesse Wireless’s petition for certiorari, the respondents AT&T Mobility and Nokia of America declined to file a brief opposing the grant of certiorari. The Court has since requested a response, due by 10 April 2026.
Whether the Court grants review and, if so, how it rules on Finesse Wireless’s case remains to be seen. But whatever the outcome, Datascope should not be recast as an aberration. I certainly offer no apologies for the decision.
