Thoughts on Finesse Wireless‘s Framing of Datascope as an ‘Infamous’ Example of Federal Circuit Overreach

Disclosure: The author represented Datascope in Johns Hopkins Univ. v. Datascope Corp., discussed below.

In 2008, a medical device company I represented, Datascope Corporation, won a hard-fought victory at the U.S. Court of Appeals for the Federal Circuit. That court reversed a verdict of patent infringement rendered 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, a company called Finesse Wireless filed a petition for certiorari at the United States Supreme Court. In it, Finesse Wireless accused that precedential Datascope Federal Circuit decision (which had been cited against it at the Federal Circuit) of being an “infamous” example of the Federal Circuit’s purported willingness to review factual determinations made by juries, in violation of the Seventh Amendment of the Constitution. It also characterized the Datascope opinion as the “ne plus ultra of appellate re-examination.” And it accused Datascope of having spawned “progeny” which have made the situation even worse.

What did I not understand for those intervening 18 years? How did a come-from-behind vindication of my client’s position evolve into a poster child for all that supposedly is wrong with the Federal Circuit?

The Finesse Wireless v. AT&T Mobility Certiorari Petition

The company that filed the cert. petition, Finesse Wireless, had found itself in the same position as my adversary in the Datascope case. Finesse Wireless had won a jury verdict of $16 million at the district court and had successfully fended off a motion for judgment as a matter of law.  But then, as in Datascope, at the Federal Circuit, defeat was snatched from the jaws of victory.

On February 6, 2026, Finesse Wireless filed a cert. petition presenting this question:

“Whether a purported inconsistency in the testimony of an expert witness is an issue of credibility for the jury to resolve, as every regional circuit holds, or whether it instead supplies a basis for judgment as a matter of law, as the Federal Circuit held below and routinely holds in other cases.”

The petition then spends over 30 pages trying paint the Federal Circuit as an outlier, in an effort to demonstrate a conflict between the Federal Circuit and (supposedly) every regional circuit. To do so, the petition seizes upon the Datascope decision, which had been cited by the Federal Circuit in Finesse Wireless, for the proposition that when a patentee “rests its case on an expert’s self-contradictory testimony, we may conclude the evidence is insufficient” to support a jury verdict.

The cert. petition (at 18) emphasizes the Federal Circuit’s having cited only Datascope to support the overturning of the jury verdict, characterizing the case as “infamous” because an article in the Sedona Conference Journal said it exemplifies “the Federal Circuit’s willingness to review factual determinations made by juries.” The petition cites the dissenting opinion in Datascope as “chiding the majority for choosing to reweigh the evidence,” and claims that the Federal Circuit panel “followed Datascope down that same forbidden road.”

The petition extols precedent that supposedly prevents judges from setting aside jury verdicts where they have a different view of the expert evidence. Then it asserts (at 24) that while such precedent has “fallen into desuetude in the Federal Circuit, Datascope, the ne plus ultra of appellate re-examination, has been cited a dozen times since it was decided, and its progeny have been cited several times more.”

The Finesse Wireless petition later notes (at 34) that its expert testimony was not found inadmissible. Then it further denigrates the Federal Circuit by saying there was no need to find the testimony inadmissible, since “the court could simply deem [the expert’s] testimony contradictory, pick the portion of the testimony it found more credible, cite Datascope and call it a day.”

The Rest of the Story

Perhaps because it was such a roller coaster, I remember quite a bit about the Datascope case. It involved “fragmentation catheters,” which might be thought of as ROTO-ROOTER for blood vessels. The patents at issue purport to solve the problem of blood clots in, e.g., dialysis grafts. Their solution involved introducing a mechanical member which expands within an inner “lumen” and is then rotated to “fragment” the clot.

I vividly recall that the report provided by the patentees’ expert did little more than check the boxes for each claim element (i.e., claim element A, “Yes”; claim element B, “Yes”; etc.). We had filed a motion in limine to exclude the expert altogether, but the presiding judge did not hear the motion until the morning the trial was to start. The court allowed plaintiffs to supplement their deficient report that night, and he testified the next day.

The Federal Circuit’s Datascope opinion quotes much of our cross-examination, which essentially boiled down to this. The claim construction, which 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. The plaintiffs’ expert testified on direct (consistent with his rewritten report) that Datascope’s accused device expanded to make contact in three dimensions—and thus literally infringed. But when pressed on cross, he acknowledged—repeatedly—that Datascope’s device makes contact at only two points and thus only in a two-dimensional plane.

As the Federal Circuit explained:

“[A]ccepting as true [the expert’s] factual testimony, that the [accused Datascope device at all times after deployment only contacts the inner lumen at two points, his opinion that it remains in contact with the inner lumen in three dimensions along its length and width is incredible because it is impossible for use of this device to meet this limitation. As a matter of geometry, the two points of contact of the [accused element] can describe a two-dimensional plane along the length of the lumen, but cannot contact the inner lumen in three dimensions as required by the district court’s claim construction.”

Datascope, 543 F. 3d at 1369-70

Accordingly, this was not a case where, for example, an expert testifies on direct that his experiments were done on Tuesday, and on cross he says he did them on Friday. Datascope was a case where, on cross, the expert admitted to hard facts which indisputably rendered his opinions impossible and therefore incredible.

Contrary to Finesse Wireless’s assertion that not one of the regional circuits would abide what the Federal Circuit supposedly does on a routine basis, the Federal Circuit in Datascope itself properly relied on relevant Fourth Circuit precedent. It presumably did so pursuant to the Federal Circuit’s longstanding policy of deferring to regional circuit law on issues not unique to the Federal Circuit’s exclusive jurisdiction.

Specifically, the Federal Circuit in Datascope cited Cline v. Wal-Mart Stores, Inc. 144 F. 3d 294, 301 (4^th Cir. 1998), for the proposition that a court must assume testimony in favor of the party offering the testimony (viz., Johns Hopkins and its licensee) is credible “unless totally incredible on its face.” The Federal Circuit faithfully followed Fourth Circuit precedent when it concluded that the expert’s testimony on direct was rendered incredible on cross 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 that judges should not decide what expert testimony is more credible would have resonance if we were talking, for example,  about 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. Where an expert’s testimony on cross factually negates his own testimony on direct, the expert is essentially acknowledging that the testimony given on direct necessarily was mistaken and/or untruthful.

In full effect, this is but one aspect of the broader notion that one cannot carry a burden of proof by relying on a witness who provides diametrically opposite testimony. See, e.g., 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”).

As noted above, Finesse Wireless cited the dissenting opinion in Datascope for having chided the majority for choosing to “reweigh the testimony.” But there was certainly no reweighing in Datascope. The Federal Circuit effectively held that the expert’s direct testimony was entitled to no weight at all because it was impossible and thus incredible, and it was at war with his own direct 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. Thereafter, the court directed them to file a response, which is due on April 10, 2026.

No one can say whether the Court will agree to hear the case; and if it does, how it will rule. But, however it disposes of Finesse Wireless’s case, I for one offer no apologies for the Datascope decision.

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