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Following a jury trial, in which the jury found that Rembrandt’s patent had not been infringed by Johnson & Johnson, Rembrandt learned through an investigation of its own that Johnson & Johnson’s expert, Dr. Bielawski, had given false testimony at trial.  Specifically, Dr. Bielawski falsely testified that he had personally conducted tests when in fact he had not.  He further withheld data from tests that he had conducted on third-party products that were previously found to infringe, which, had they been provided would have undermined his testimony at trial.  The district court denied Rembrandt’s motion for a new trial under Rules 60(b)(2) (newly discovered evidence) and (b)(3) (fraud, misrepresentation, or misconduct), rejecting Rembrandt’s argument that the withheld documents prevented it from fully and fairly presenting its case. 

The Federal Circuit disagreed with the district court, finding that the verdict was “irretrievably tainted” by the false testimony and withheld documents and therefore, despite knowing the precise impact of the false testimony, it may have been critical to the non-infringement verdict.  Rembrandt was not required to prove that the withheld documents were of such a nature as to alter the result in the case, just that they would have made a difference in the way counsel approached the case or prepared for trial.  The Federal Circuit further held that the Johnson & Johnson engaged in misconduct and Rembrandt was not required to prove that Johnson & Johnson’s counsel was complicit in the false testimony.  Here, the attorneys claimed to be unaware of the expert’s false testimony, but they should have known that additional testing was performed given that counsel provided samples to the expert for testing.  The Federal Circuit therefore held that the district court abused its discretion by denying Rembrandt’s motion for a new trial and therefore it reversed and remanded for a new trial. 

In his dissent, Judge Dyk argued that the majority erred by holding that a showing that a party lacked a “full and fair opportunity” need not include some showing that the result could have been affected by the false testimony and by holding that an expert’s false testimony can be attributed to the party even without a showing of knowledge or reason to know that the testimony was false. 

Rembrandt Vision Technologies, L.P.  v. Johnson & Johnson Vision Care, Inc., Case No. 2015-1079 (April 7, 2016); Opinion by: Stoll, joined by Moore; dissenting opinion by Dyk; Appealed From: United States District Court for the Middle District of Florida, Corrigan, J. Read the full opinion here.

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