One Year of Amended FRE 702 in Patent Cases

The December 1, 2023 amendment to Federal Rule of Evidence 702 closed a gap that, by the Advisory Committee's own diagnosis, most trial courts had not been applying for two decades. The Lawyers for Civil Justice review of 1,059 trial-court opinions decided in 2020 found that 65% of them had not been treating admissibility under Rule 702 as a preponderance-of-the-evidence determination, instead defaulting to a "goes to weight" formulation that effectively let the jury sort it out. The amended rule made the burden explicit, and patent Daubert orders since December 2023 are starting to read like a different document.

This is a read of what the amendment did, what it did not do, and where the patent docket has tightened in the fourteen months since.

What the amendment changed

The operative addition to Rule 702 is the requirement that the proponent of expert testimony "demonstrate to the court that it is more likely than not" that each admissibility requirement is met. The Advisory Committee Note is unusually direct about the reason. The Committee found that "many courts have held that the critical questions of the sufficiency of an expert's basis, and the application of the expert's methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a)."

The amendment did not change the four substantive prongs of Rule 702. The expert still must be qualified, the testimony still must be based on sufficient facts or data, it still must be the product of reliable principles and methods, and the expert still must have reliably applied those principles and methods to the facts of the case. What changed is who has to prove what, and to what standard, before the testimony reaches the jury.

The amendment also clarified the fourth prong by replacing "has reliably applied" with "reflects a reliable application," which targets the specific failure mode of an expert whose general methodology is sound but whose case-specific application is not. That edit, small as it reads, is the one that has done the most work in patent damages orders.

What has changed in practice

Patent Daubert orders in 2024 and early 2025 are citing the amended rule by its preponderance language. The orders read as more rigorous about three things.

The first is the methodology disclosure itself. Courts are asking damages experts to articulate the analytical steps from the licensing or sales evidence to the royalty rate or lump-sum, rather than accepting a general reference to "the Georgia-Pacific factors" or "comparable licenses." A report that lists comparables without explaining how each one bears on the rate is now drawing more granted-in-part orders.

The second is the case-specific application. The "reflects a reliable application" edit is showing up in apportionment rulings, where courts are scrutinizing whether the expert's apportionment step actually engages the patented feature, rather than relying on a vendor royalty schedule or a portfolio license that bundles many patents.

The third is the qualifications-to-opinion fit. Courts are more willing to admit a qualified expert on infringement but exclude that same expert on damages where the report extends beyond the witness's actual experience. Two-hat retentions, where a technical expert opines on both infringement and royalty rate, are drawing tighter scrutiny than they did before the amendment.

What has not changed

The amendment did not change PTAB practice in any procedural sense. The Board's evidentiary rules are not the Federal Rules of Evidence. The Board has long applied its own framework for weighing expert testimony, and the practical filter is the credit-or-discount decision in the final written decision, not an admissibility ruling at the front end.

The amendment also did not change the operative Federal Circuit damages doctrine. EcoFactor at the panel level was decided under pre-amendment principles, and the en banc decision that followed in May 2025 is grounded in Federal Circuit comparable-license law rather than a new reading of Rule 702. The amendment is a procedural gatekeeping rule. The substantive doctrine is what it was.

What the amendment has done is give the trial court a cleaner basis to exclude on the front end, which means the strike that previously came at the JMOL stage is now coming at the Daubert stage. That changes the timing of when a case theory has to hold together, not the substance of what holds it together.

Implications

For patent litigators, the operative shift is at the drafting stage. The report has to satisfy the preponderance burden on each prong of Rule 702, and the burden is the proponent's. That means the report's methodology section should not assume the court will fill in inferences. The fact base, the analytical steps, and the case-specific application all need to appear on the face of the document.

For retention diligence, the post-amendment Daubert record on a candidate witness is more informative than the pre-amendment record. An expert who was admitted in 2022 under a "goes to weight" rationale is not necessarily an expert who survives the amended standard. The relevant question is how the witness has fared on motions decided since December 1, 2023.

A note on the data

The trial-court coverage figure of 65% non-application of the preponderance standard is from the Lawyers for Civil Justice empirical review of 2020 Rule 702 decisions cited in the Advisory Committee materials. The qualitative direction of post-amendment patent Daubert outcomes is drawn from Daubert orders on WitnessLens entered between December 2023 and the date of this post. The cohort definitions and order classifications are described on the methodology page.