The author of the prior art witness was neither offered, previously identified, nor qualified as an expert in accordance with court rules and procedures for such qualification. Further, Oxygen Frog introduced testimony of a lay witness, the author of one of the references, on the ultimate question of obviousness to be answered by the jury. At trial, Oxygen Frog argued that the claims were obvious in view of a combination of two prior art references. The patented oxygen-generating system is used to sustain and manage airflow for torch glass artists who use surface mix glass torches. District Court for the Northern District of Florida for infringement of U.S. HVLPO2, LLC (“HVO”) sued Oxygen Frog and its CEO, Scott Fleischman (collectively, Oxygen Frog) in the U.S.
Such lay witness opinion testimony is unduly prejudicial and circumvents extensive discovery rules and procedures designed to ensure that such opinions are relevant, reliable, and offered by persons qualified to offer them. Court of Appeals for the Federal Circuit (“CAFC”) held that a trial court abused its discretion by admitting lay (i.e., non-expert) witness opinion testimony regarding the ultimate question of obviousness during a jury trial.
