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Chicago IP Litigation Tracking Northern District of Illinois IP Cases

Expert May Not Opine on Claim Construction at Trial

Posted in Trial

CBOE v. ISE, No. 07 C 623, Slip Op. (N.D. Ill. Mar. 6, 2013) (Lefkow, J.).

Judge Lefkow granted defendant ISE’s motion to exclude plaintiff CBOE’s evidence of non-infringing alternatives from the lost profits analysis in this patent case.  The identified alternative was never in use during the alleged infringement.  And CBOE offered only conclusory evidence that the alternative was available at the relevant time.  The Court denied ISE’s motion to exclude CBOE’s expert.  The expert’s experience with SEC regulations and rulemaking were sufficient to allow him to opine that CBOEdirect was not an “automated exchange.”  The expert was not, however, allowed to opine on claim construction issues because that was not the proper subject matter of expert testimony.