--- title: "Computer Science Expert Not Allowed to Opine on Infringement" meta: "og:description": "The computer science expert is not qualified to opine on infringement because he has not done any work on orthotics or prosthetics" "og:title": "Computer Science Expert Not Allowed to Opine on Infringement" author: "Shuva Guha Thakurta" description: "The computer science expert is not qualified to opine on infringement because he has not done any work on orthotics or prosthetics" --- # Computer Science Expert Not Allowed to Opine on Infringement Posted on August 7, 2026 by Shuva Guha Thakurta This is a patent case filed by Plaintiff Cranial Technologies, Inc. ("Plaintiff") arising from Defendants' alleged use of Plaintiff's patents regarding cranial helmets to treat cranial deformations in infants without authorization. Defendants Ottobock SE & Co. KGAA, Active Life LLC, and Otto Bock Healthcare LP (collectively “Ottobock” or “Defendants”) filed a motion to preclude Cranial Tech's expert [John W. Maly](https://expertwitnessprofiler.com/expert-witness/John-Maly/1569918) from opining on claim construction or infringement or as a patent law expert. Ottobock also filed a motion to exclude the opinion of another one of Plaintiff's experts, Dr. [Christopher A. Vellturo](https://expertwitnessprofiler.com/expert-witness/Christopher-Vellturo/1528224). ![Computer Science Expert Not Allowed to Opine on Infringement](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_07T144644_2281.webp) ## Computer Science Expert Witness [John W. Maly](https://expertwitnessprofiler.com/expert-witness/John-Maly/1569918) has owned and operated a consulting firm for the past 20 years specializing in software and hardware analysis and reverse engineering. Maly is also a registered US Patent Agent with years of experience in intellectual property and computer technology. [Want to know more about the challenges John Maly has faced? Get the full details with our Challenge Study report](https://expertwitnessprofiler.com/order/add?eId=1569918&pId=3). ## Economics Expert Witness Dr. [Christopher Allan Vellturo](https://expertwitnessprofiler.com/expert-witness/Christopher-Vellturo/1528224) has extensive experience in the valuation of intellectual property and in the assessment of economic injury/damages sustained as a result of copyright, trademark, and/or patent infringement. Vellturo received a Doctor of Philosophy degree (Ph.D.) in Economics from the Massachusetts Institute of Technology in Cambridge, Massachusetts in 1989. [Gain a comprehensive understanding of Christopher Vellturo’s qualifications and casework history with his Expert Witness Profile report](https://expertwitnessprofiler.com/order/add?eId=1528224&pId=3). ## **Discussion by the Court** ### John Maly Defendants sought to exclude Maly from opining as a patent law expert. Plaintiff stated that Maly will be called as a technical expert regarding source code, and Plaintiff did not intend to offer Maly as a patent law expert or legal expert. Therefore, the Plaintiff was precluded from offering Maly as a patent law expert at trial. Defendants also argued that Maly claims to have expertise regarding "source code" but does not have the experience required to be a person of ordinary skill in the art ("POSA") as required to opine on infringement and whether claim limitations are met, and therefore any opinions offered by Maly regarding whether source code meets certain patent limitations or how certain patent terms or limitations should be interpreted must be excluded. Maly testified at his deposition that he has not done any work on orthotics or prosthetics, nor worked with orthotics software or prosthetic software before this case. Plaintiff stated that it has offered a different technical expert who satisfies the criteria for a POSA and who is the expert who will be offering opinions on claim construction and infringement. Thus, it is undisputed Maly is not a POSA and is not qualified to opine on infringement and claims construction. Defendants argued that Maly should be limited to explaining what the source code does, and should be precluded from opining that claim terms and limitations are satisfied by the source code or software because Maly is not a POSA. Defendants identify various portions in Maly's report wherein he uses the terms "automatically," "automatic," "identifying," and "identifies." Plaintiff did not dispute that Maly is being offered for his technical expertise of the accused software and source code to explain how the software operates, and states Maly is not being offered to interpret the claims, opine on whether they are met, or comment on invalidity. Maly's use of the claim terms "automatically," "automatic," "identifying," and "identifies" even though Maly is not a POSA would be confusing to the jury and would not assist the trier of fact. Therefore, the Court precluded Maly from using the claim term "automatically," "automatic," "identifying," and "identifies" at trial. Maly, however, was not precluded from describing or explaining the software and source code without using those claim terms. ### Christopher Vellturo Defendants sought to exclude Plaintiff's damages expert Vellturo's opinion in its entirety on the ground that his opinion regarding a reasonably royalty is unreliable under [_Daubert_](https://www.law.cornell.edu/wex/daubert_standard) because he did not satisfy the apportionment requirement by (1) failing to apportion profits attributable to the patents in suit; (2) failing to take into account other factors that drive customer demand for the helmet such as Defendants' marketing, referral network, or customer support; (3) failing to take into account the adjustable closure system; (4) failing to take into account the washable fabric inner liner; and (5) improperly including profits generated from treatment services not attributable to the patented inventions. However, Vellturo opined regarding the benefits of the patents in suit and testified at his deposition: "I've limited my assessment of the competitive implications of the license to the effect that's specific to the Patents-in-Suit, and so that inherently has apportionment included in it." Vellturo also considered other factors that drive customer demand for the helmet such as Defendants' marketing, referral network, or customer support and testified at his deposition that he considered Defendants' "manufacturing acumen," "marketing," "patient support," and "customer support" but found they did not offer a "differentiating characteristic" in comparison to a competitor. Vellturo also considered the adjustable closure system. Vellturo also considered the washable fabric inner liner. As to Defendants' contention that Vellturo's reasonable royalty opinion improperly included profits generated from treatment services not attributable to the patented inventions, a reasonable royalty calculation may consider lost sales of related products. Thus, to the extent Defendants disagreed regarding the relationship between sales of patented helmets and revenues associated with treatment services in connection with those helmets, this is a factual dispute which goes to weight, not admissibility. Alternatively, Defendants sought to exclude Vellturo's opinion regarding the reasonable royalty for sales to third-party clinics on the ground he did not analyze price elasticity. However, Vellturo opined that an increase in price of a helmet would not have impacted the outcome of the hypothetical negotiation. Alternatively, Defendants also sought to exclude Vellturo's opinion on Defendants' patent clearance Freedom to Operate process ("FTO Process") and his "revealed preference" theory which Defendants contended is a speculative conclusion regarding Defendants' state of mind or knowledge couched as an economic theory. However, Vellturo did not offer his own opinion regarding Defendants' state of mind. Rather, Vellturo applied his economic expertise based on Defendants' FTO Process documents and opined regarding the availability and acceptability of alleged alternatives. ## **Held** - The Court granted Defendants' motion to preclude John Maly from opining on claim construction or infringement or as a patent law expert. Maly, however, was not precluded from describing or explaining the software and source code based on his technical expertise without using the claim terms "automatically," "automatic," "identifying," and "identifies." - The Court denied Defendants' motion to exclude the opinion of Plaintiff's expert Dr. Christopher Vellturo. ## Key Takeaway: The patentee must in every case give evidence tending to separate or apportion the patentee's damages between the patented feature and the unpatented features. Consequently, to be admissible, all expert damages opinions must separate the value of the allegedly infringing features from the value of all other features. ## Case Details: | Case Caption | Cranial Techs., Inc. v. Ottobock SE & Co. KGAA | | --- | --- | | Docket Number: | 2:23cv2320 | | Court Name: | United States District Court, California Central | | Order Date: | June 11, 2026 | --- ## **You Might Also Like** ![Accounting Expert Allowed to Opine on Monetary Damages](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_07T173048_9091.webp) [**Accounting Expert Allowed to Opine on Monetary Damages**](https://expertwitnessprofiler.com/computer-science-expert-not-allowed-to-opine-on-infringement/accounting-expert-allowed-to-opine-on-monetary-damages)![Computer Science Expert Not Allowed to Opine on Infringement](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_07T144644_2281.webp) [**Computer Science Expert Not Allowed to Opine on Infringement**](https://expertwitnessprofiler.com/computer-science-expert-not-allowed-to-opine-on-infringement/computer-science-expert-not-allowed-to-opine-on-infringement)![Transportation Expert Allowed to Opine on Contracts and Policies](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_06T195710_261.webp) [**Transportation Expert Allowed to Opine on Contracts and Policies**](https://expertwitnessprofiler.com/computer-science-expert-not-allowed-to-opine-on-infringement/transportation-expert-allowed-to-opine-on-contracts-and-policies)![Emergency Medicine Expert Allowed to Opine on Foot Injuries](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_06T183545_570.webp) [**Emergency Medicine Expert Allowed to Opine on Foot Injuries**](https://expertwitnessprofiler.com/computer-science-expert-not-allowed-to-opine-on-infringement/emergency-medicine-expert-allowed-to-opine-on-foot-injuries)![Law and Legal Expert Not Allowed to Opine on Chinese Commercial Litigation](https://media.jurimatic.com/images/blog_pic_640X480_2026_08_05T200027_672.webp) [**Law and Legal Expert Not Allowed to Opine on Chinese Commercial Litigation**](https://expertwitnessprofiler.com/computer-science-expert-not-allowed-to-opine-on-infringement/law-and-legal-expert-not-allowed-to-opine-on-chinese-commercial-litigation)