In this patent infringement action, DUSA Pharmaceuticals, Inc. (“DUSA”) sought to strike the testimony of Biofrontera’s expert witness, Professor Harry Moseley, for his reliance on a non-infringing alternative, the Paterson lamp. DUSA asserted that the testimony should be stricken because the Paterson lamp had never been available in the United States.
The district court explained that the Paterson lamp was designed and built by the Paterson Institute in the United Kingdom in the early to mid-1990’s and that five articles describing the Paterson lamp were published in the United States, but there was no evidence that the lamp was ever sold, used, or exhibited in the United States. “Based on his personal involvement in the creation of the Paterson lamp, Professor Moseley testified to its composition and functionality. In particular, Professor Moseley identified the lamp’s desired treatment distance as 4 inches, a parameter not explicitly disclosed in the published references.”
DUSA challenges the testimony as impermissible (attempting to back-fill gaps in the Paterson lamp references) and as untimely. Biofrontera responded that Professor Mosleys’ testimony was admissible evidence of prior art and that the parties had agreed to modify the expert discovery schedule to give DUSAs expert witness, Dr. Zamenhof, an opportunity to submit a supplemental declaration. Continue reading