Rembrandt Vision Technologies, L.P. v. Johnson And Johnson Vision Care, Inc.

818 F.3d 1320 (Fed. Cir. 2016)


P sued Johnson & Johnson (D) alleging that D's Acuvue Advance ® and Oasys ® contact lenses infringed the asserted claim of U.S. Patent No. 5,712,327. The parties disputed whether D's accused lenses met the 'surface layer' and 'soft' limitations of the asserted claim. 

At trial, P relied on expert testimony from Dr. Thomas Beebe to prove that the accused lenses met both the 'surface layer' and 'soft' claim limitations. Dr. Beebe presented test results to show that the accused lenses met this limitation. During cross-examination, Dr. Beebe drastically changed his testimony regarding the testing methodology he used. Because his testimony on cross-examination significantly conflicted with both his testimony during his direct examination and the testing methodology disclosed in his expert report, the district court ultimately struck Dr. Beebe's trial testimony regarding this testing. Dr. Beebe's stricken testimony was the only evidence that P advanced to prove the accused lenses were 'soft.' The district court granted JMOL that D did not infringe. D relied on expert testimony from Dr. Christopher Bielawski to support its position that its accused lenses did not meet the 'surface layer' limitation, but did not present expert testimony with respect to the 'soft' limitation. Dr. Bielawski took advantage of several opportunities to impugn Dr. Beebe's credibility. D also capitalized on Dr. Beebe's changing testimony. D's counsel urged in closing argument that 'you should not trust Dr. Beebe, and you should throw out his testimony, not in part, but in whole. You should not trust Dr. Beebe.' After trial, P received information suggesting that Dr. Bielawski testified falsely.  The parties do not dispute that Dr. Bielawski testified falsely during trial. The post-trial discovery suggests that Dr. Bielawski was not even in the country when some of the testing was done. Dr. Bielawski was presented to the jury as an expert in TOF-SIMS testing, but in reality, he 'had no TOF-SIMS experience whatseover.' Dr. Bielawski also withheld test results and data analysis that would have undermined his opinions and trial testimony. P moved for a new trial under Rules 60(b)(2) and (3). The district court denied the motions. P was not entitled to a new trial under Rule 60(b)(2) because it had not satisfied the requirement in the Eleventh Circuit that a new trial would probably produce a new result. P was not entitled to a new trial under Rule 60(b)(3) because D's counsel was not complicit in the false testimony and because P was not prevented from fully and fairly presenting its case. P appealed.