Poof! The New Star Chamber Voids $40 Million Patent Verdict

“The appearance of a trial by peers is maintained. But the outcome is determined by ‘qualified’ experts.”

The Jury Speaks in Vain

The jury found infringement. After hearing testimony about web design patents, user interface objects, and the inner workings of Shopify’s e-commerce platform, the citizen jurors concluded that Shopify had infringed Express Mobile’s patents. They awarded $40 million in damages.

The verdict didn’t survive. Shopify moved for judgment as a matter of law, and the district court granted it. The Federal Circuit affirmed in a nonprecedential opinion issued December 8, 2025. Shopify Inc. v. Express Mobile, Inc., No. 2024-1977 (Fed. Cir. Dec. 8, 2025) (“Shopify, slip op.”).

The basis for overturning the verdict was not that the evidence was insufficient. There was supporting evidence. It was not that the jury’s inferences from the admitted evidence were unreasonable. The court didn’t address the verdict’s reasonableness. It was that Express Mobile’s expert witness “never explicitly” said what the jury apparently concluded to reach its verdict. Shopify, slip op. at 14. Without those magic words from a qualified expert, the jury’s infringement finding could not stand.

Despite admitted evidence supporting the jury’s verdict, the expert’s silence was treated as dispositive. After all, “the patentee cannot satisfy its burden of proof by relying only on testimony from those who are admittedly not expert in the field.” Id. at 14.

That’s not Rule 50’s substantial evidence standard; that’s something else. And there is a further contradiction. In the same opinion, the Federal Circuit affirmed the district court’s summary judgment of no infringement where it disregarded expert testimony as “conclusory” but proceeded to make its own factual determinations on the same issue. The judge could evaluate evidence without “expert” affirmation. The jury could not.

The result is a framework that quietly transforms the patent jury into a vestigial institution. The jury still sits. It still deliberates. It still returns a verdict. But that verdict survives only if an expert has first blessed the conclusion.

Welcome to the new star chamber of patent litigation.

The Technology

Express Mobile owned two families of patents directed to web design technology. The first family—U.S. Patent Nos. 6,546,397 (“the ’397 patent”) and 7,594,168 (“the ’168 patent”)—covered browser-based systems for webpage design. These patents described a “run time generation procedure” that creates compressed, customized files allowing webpages to “load quickly.” ’397 patent col. 2 ll. 5–13. Central to the claims was the concept of “run time files” or a “run time engine” that would be “downloaded or created when a browser is pointed to a web page or website.” Shopify, slip op. at 8.

The second family—U.S. Patent Nos. 9,063,755 (“the ’755 patent”), 9,471,287 (“the ’287 patent”), and 9,928,044 (“the ’044 patent”)—covered systems for generating code to display content on devices. These patents described technology enabling “defined UI objects” such as “buttons, text fields, images, and videos” to be presented across different device types. Id. at 5. The claims required that a “defined UI object” both receive user input and display output values. Id. at 12.

Shopify’s accused system was its Theme Editor, which uses “Liquid template files” to generate webpages for e-commerce sites. Express Mobile alleged that the Liquid template files satisfied the run time file limitations of the first patent family and that Shopify’s product pages satisfied the defined UI object limitations of the second.

The case would turn on whether Express Mobile had adequately proven—or adequately testified about proving—these connections.

The Judge Who Could

The ’397 and ’168 patents never reached the jury. The district court granted summary judgment to Shopify, and the Federal Circuit affirmed.

The dispute centered on whether Shopify’s Liquid template files qualified as “run time files” under the claims. The district court had construed that term to require files “downloaded or created when a browser is pointed to a web page or website.” Id. at 8.

Everyone agreed that the Liquid template files as they existed on Shopify’s servers were not downloaded to users’ browsers. The question was whether something else—some “instantiated copy” of those files—satisfied the limitation.

Express Mobile’s expert, Dr. Almeroth, offered testimony that when a user visits a Shopify website, a “copy” of the Liquid template file is created and downloaded. He opined that the original file and this copy were “the same file.” Id. at 10.

The district court found otherwise. It examined the technical evidence and concluded that “the content of the two files is not the same, because the Liquid template file on the server has lines of code that the ‘Liquid Template Downloaded in Browser’ does not have.” Id. at 10 (quoting the district court). The court found Dr. Almeroth’s contrary opinion “conclusory” and insufficient to create a genuine issue of material fact. Id. at 10–11.

Note carefully what happened. The expert offered a technical opinion: the files are “the same.” The court rejected that opinion as conclusory. The court then made its own technical determination by examining the evidence and concluding the files were not the same. The expert said X; the court said not-X; summary judgment affirmed.

This ruling reflects a particular view of the court’s role in technical disputes. When expert testimony is deemed conclusory, the court does not simply note an absence of evidence—it steps into the breach to determine if there is any genuine issue of disputed fact. The judge examined technical evidence. The judge compared file content. The judge determined what was and wasn’t “the same file” for purposes of claim construction and summary judgment. No expert guided that determination. None was needed. There was no genuine dispute that the two files at issue did not share the same content.

The Trial

Express Mobile proceeded to trial on the ’755 patent family alone. Dr. Almeroth testified about how Shopify’s system worked. He identified specific “defined UI objects”—buttons, textboxes, images, videos—and explained how users interacted with them. Id. at 12. He described how entering a quantity in a textbox would cause a UI object in a separateuser interface to display an adjusted output value based “on the number of items that the user entered [in] the ‘quantity’ textbox.” Id. at 12.

In response, Shopify argued that the patent claims required that a single “defined UI object” both receive input and display output. Shopify’s expert, Mr. Schmandt, had testified that Dr. Almeroth never identified “any UI object that both receives an input and displays an output.” Id. at 13. Instead, Dr. Almeroth had identified separate objects for input and output in separate user interfaces.

Express Mobile’s counsel had an answer. During closing argument, counsel connected the dots. Counsel pointed to evidence showing Shopify’s product page itself—the display containing all these elements—could be understood as the “defined UI object.” The product page receives input through its various interactive elements and displays output through its various display elements. The product page as a whole does both. In short, counsel argued the product page is the defined UI object.

The jury heard the evidence from both parties. They saw the accused product pages. They observed how the interface functioned. They heard testimony about inputs and outputs, about buttons and textboxes, about how information flowed through the system. They listened to the lawyers’ arguments about inferences that could be reasonably drawn from that evidence.

They found infringement. $40 million.

The Jury Who Couldn’t

Shopify moved for judgment as a matter of law, and the district court granted the motion.

The problem was not that Express Mobile’s defined UI object theory was legally flawed. The problem was that Express Mobile’s expert, Dr. Almeroth, had never himself said the product page is the defined UI object. He had discussed the individual UI elements. He had explained how they functioned. But he had not uttered the specific conclusion that the product page itself satisfied the defined UI object claim limitation.

And because neither side’s expert concluded that the product page is the defined UI object, the district court ruled “there was no evidence for the jury to conclude ‘that in Shopify’s system the whole display is a defined UI object.’” Id. at 12 (quoting J.A. 138-39). The jury’s verdict could not stand. Judgment was entered in favor of Shopify as a matter of law.

On appeal, Express Mobile argued that “the jury did not need expert testimony to understand the disputed fact that they needed to decide” and could rely on the product pages themselves—which were in evidence. Id. at 14. Express Mobile further argued that counsel properly pointed to evidence showing Shopify’s product page satisfied the defined UI object claim limitation.

The Federal Circuit rejected this, agreeing with the district court that there was “no evidence at trial showing the ‘defined UI object’ was the display for the product page.” Id. at 13. Yet there was evidence proving the function of each element of Shopify’s product page, and Express Mobile’s counsel summarized that evidence in closing.

The evidence and counsel’s summary of the evidence were not the problem. The defect resided in Dr. Almeroth’s failure to identify Shopify’s product page as the defined UI object. The claims are “very technical,” the court observed, quoting Dr. Almeroth’s own characterization that they are “‘not intended to be written to a layperson.’“ Id.

The court reasoned that “‘when the art is complex . . . where the accused infringer offers expert testimony negating infringement, the patentee cannot satisfy its burden of proof by relying only on testimony from those who are admittedly not expert in the field.’” Shopify, slip op. at 14 (quoting Centricut, LLC v. Esab Group, Inc., 390 F.3d 1361, 1370 (Fed. Cir. 2004)).

It isn’t infringement until an expert says so.

The Federal Circuit underscored this necessity for expert testimony by rejecting counsel’s closing argument that the trial record shows Shopify’s product page itself satisfies the defined UI object. The court was blunt. “‘[A]ttorney argument is not evidence.” Id. at 14–15 (quoting Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017)).

According to the Federal Circuit, “[t]he verdict cannot rest on a new infringement theory—not supported by testimony—that was raised for the first time in closing argument.” Id. at 15 (emphasis added). Formally, the panel characterized the problem as a failure of proof, not a failure of phrasing. The difficulty is that the only missing “proof” was an inference the jury was fully capable of drawing from admitted evidence.

And just like that, the $40 million verdict was gone—not because there was no evidence that Shopify’s product page functioned as the defined UI object but because there was no conclusory testimony saying so.

Double Standards

Read the summary judgment and JMOL analyses of the Shopify opinion side by side, and a contradiction emerges.

For summary judgment, Express Mobile had expert testimony—Dr. Almeroth opined that the files were “the same”—but that testimony was deemed “conclusory” and insufficient to create a fact issue. The court itself then examined the evidence to determine that the two files at issue did not share the same content. Summary judgment affirmed.

For JMOL, Express Mobile lacked explicit expert testimony on one point—that Shopify’s product page was the defined UI object—and the absence of that conclusory testimony was fatal. But unlike the court considering summary judgment, the jury was not trusted to draw inferences from the evidence to reach that penultimate conclusion on its own because the technology was apparently too complex. JMOL affirmed.

The contradiction is striking. For summary judgment, conclusory testimony could not substitute for a lack of evidence. For JMOL, evidence could not substitute for a lack of conclusory testimony.

This framework reveals an uncomfortable assumption about institutional competence. Juries, it seems, are adequate factfinders only when properly guided—by the court on matters of law, by experts on matters of technology. Without that guidance, the jury’s conclusions cannot be trusted, no matter what evidence sits before them.

The courtroom thus becomes a kind of star chamber for complex cases, where elite instruction is prerequisite to legitimate fact-finding. The judge instructs on law. The expert instructs on technology. The jury follows. Deviation from the script—drawing an inference the expert did not articulate—invalidates the result.

The appearance of a trial by peers is maintained. But the outcome is determined by “qualified” experts.

What Experts Are Really For

Federal Rule of Evidence 702 permits expert testimony when it will “help the trier of fact to understand the evidence or to determine a fact in issue.” The operative word is “help.” Experts assist. They illuminate. They provide context and specialized knowledge that might otherwise be inaccessible. But they do not—or at least, they are not supposed to—dictate outcomes.

The Supreme Court has been explicit on this point. “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The court reviewing a JMOL motion “must draw all reasonable inferences in favor of the nonmoving party” and “may not make credibility determinations or weigh the evidence.” Reeves, 530 U.S. at 150.

Standard jury instructions reflect this understanding. The Ninth Circuit Model Civil Jury Instructions tell jurors that expert “[o]pinion testimony should be judged like any other testimony. You may accept all of it, part of it, or none of it.” Manual of Model Civil Jury Instructions for the District Courts of the Ninth Circuit § 2.13 (2017) (updated 2021). The First Circuit’s pattern instruction is equally clear: “You may accept or reject such testimony.” Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 2.07 (2015).

Jurors may credit expert opinions in whole, in part, or not at all. Jurors may weigh competing expert testimony. Jurors may reject expert conclusions if they find the reasoning unpersuasive. The jury remains the ultimate finder of fact.

The JMOL ruling in Shopify inverts this framework. Under the court’s analysis, the jury cannot reach a conclusion—even a conclusion supported by evidence—unless an expert first articulates that conclusion for them. The expert is no longer helping the jury understand; the expert is authorizing the jury to decide.

Consider what the jury had before it. They saw the product pages. They heard testimony about how the UI objects functioned. They understood that users could enter quantities, click buttons, and receive displayed outputs. They concluded that the system infringed. The court does not say this inference was unreasonable or in any way flawed. It says the expert didn’t articulate it—and therefore the jury was not permitted to draw it.

Since when does a jury need permission from an expert to draw an inference from admitted evidence?

The Argument That Wasn’t Evidence

Express Mobile’s counsel argued in closing that the product page could be understood as the “defined UI object.” The Federal Circuit dismissed this as “attorney argument,” which “is not evidence.” Shopify, slip op. at 14–15.

The statement is technically correct. Closing argument has never been evidence. But closing argument has always been the moment when counsel synthesizes admitted evidence and urges reasonable inferences from that evidence. That is the entire purpose of summation. Attorneys are not merely permitted but professionally obligated to argue reasonable inferences from the record. See Model Rules of Prof’l Conduct R. 3.4(e) (prohibiting counsel from “allude[ing] to any matter . . . that will not be supported by admissible evidence”).

The court never said that counsel’s inference was unreasonable. It never said the inference lacked foundation in the admitted evidence. It said only that counsel made the argument—and that attorney argument is not evidence.

But if reasonable inferences from admitted evidence can only be drawn after an expert first articulates them, then closing argument serves no purpose in complex cases. The attorney cannot argue what the expert did not say. The jury cannot conclude what the expert did not conclude. The verdict is bounded not by the evidence but by an expert’s words.

To be clear, the Federal Circuit did not hold that Express Mobile advanced a new or undisclosed infringement theory in closing argument. It could have. Federal Circuit precedent supplies ample doctrinal tools for policing late-arising theories that were not disclosed in infringement contentions or expert reports. But the court did not invoke waiver, forfeiture, or Rule 26. It did not say Express Mobile was procedurally barred from arguing that Shopify’s product page satisfied the “defined UI object” limitation.

Instead, the panel framed the problem as evidentiary. The defect, in the court’s view, was not that Express Mobile advanced a forbidden theory, but that “there was no evidence at trial showing the ‘defined UI object’ was the display for the product page.” Shopify, slip op. at 13. Counsel’s summation—though grounded in admitted evidence—was dismissed as “attorney argument,” which “is not evidence.” Id. at 14–15.

That framing is significant. The argument that the product page itself functioned as the defined UI object did not rest on new facts, new accused instrumentalities, or a different claim construction. It rested on an inference drawn from the same evidence the jury had already heard—how Shopify’s product pages receive user inputs and display outputs. The only missing piece was an expert’s explicit articulation of that inference.

By treating the absence of that articulation as an absence of evidence, the court effectively recast inferential reasoning as a task that juries may not perform in complex cases unless an expert first performs it for them. That move avoids the vocabulary of waiver or late disclosure, but it does so at a cost. It shifts the locus of fact-finding authority away from the jury and toward the expert, not as an aid to understanding, but as a necessary precondition to decision.

The Constitutional Question

The Seventh Amendment provides that “[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” U.S. Const. amend. VII.

The Amendment contains two distinct guarantees. The Preservation Clause ensures the right to jury trial in civil cases. The Re-examination Clause—”no fact tried by a jury, shall be otherwise re-examined”—prevents federal judges from overturning jury verdicts except through procedures recognized at common law. See generally Renée Lettow Lerner, The Re-examination Clause of the Seventh Amendment, GWU Law School Public Law Research Paper 2025-54 (October 7, 2025). Patent infringement is a question of fact. The jury’s role in finding it has deep historical roots. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 377 (1996) (recognizing “the long history of jury trial” in patent cases while holding claim construction is for the court).

Judgment as a matter of law exists to ensure that verdicts rest on substantial evidence. Rule 50 provides that a court may grant JMOL only when “a reasonable jury would not have a legally sufficient evidentiary basis” to find for a party. Fed. R. Civ. P. 50(a)(1). The standard is deferential, reflecting the constitutional primacy of the jury as factfinder. The court must view all evidence in the light most favorable to the verdict winner and draw all reasonable inferences in that party’s favor. Reeves, 530 U.S. at 150.

The Advisory Committee Notes to Rule 50 make the constitutional stakes explicit: “The expressed standard makes clear that action taken under the rule is a performance of the court’s duty to assure enforcement of the controlling law and is not an intrusion on any responsibility for factual determinations conferred on the jury by the Seventh Amendment.” Fed. R. Civ. P. 50 advisory committee’s note to 1991 amendment.

The Shopify framework transforms this inquiry. The question is no longer whether any reasonable jury could draw the inference—it is whether an expert told the jury it could draw the inference. That is a different question entirely.

The American jury system rests on a foundational premise: ordinary citizens, drawn from the community, can collectively evaluate evidence and reach sound conclusions. We deliberately exclude specialists from jury service. We trust the collective wisdom of laypeople precisely because we believe their combined judgment—informed by their varied experiences and common sense—produces just results.

As individuals, jurors may lack particular competencies. An accountant may not understand pharmacology. An engineer may not understand contract interpretation. But as a deliberating body, we trust them to work through complexity, to ask questions, to reason together, and to reach conclusions that deserve respect. That is the whole point of the institution.

The Shopify framework assumes the opposite. In “complex” cases, jurors cannot be trusted to connect A to B without expert permission. They can look at a product page. They can hear about inputs and outputs. They can understand that a user enters a quantity and the display updates. But they cannot conclude that the page is a “defined UI object” unless an expert says those words.

Shopify thus represents a doctrinal drift that risks eroding the jury’s constitutional role if left unchecked. The jury still sits. The jury still deliberates. The jury still returns a verdict. But the verdict can be overturned—not because the inference was unreasonable, but because the jury was not authorized to draw it all.

Daubert Motions Are Now Dispositive

This tension carries a practical implication that should alarm patent litigators on both sides: Daubert motions to exclude expert testimony may now function as dispositive motions.

At trial, the absence of explicit expert testimony on a claim limitation means the jury cannot find infringement, regardless of what other evidence is in the record. The result is stark: if your expert is excluded or limited under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), you may lose the case as a matter of law.

The Daubert motion has always been significant. But under the Shopify framework, it becomes existential. Excluding an expert on a key claim limitation is no longer just an evidentiary leg up—it is a pathway to judgment as a matter of law. The patentee cannot sustain a verdict without explicit expert articulation of the required conclusions.

The Federal Circuit rationalized its decision by pointing to the “complexity” of the technical issues at play in patent litigation. See Shopify, slip op. at 14 (“when the art is complex . . .”). But the Shopify case sets the bar of “complexity” extremely low. Shopify did not involve complex issues of gene editing or quantum computing. The case concerned interactive objects on a webpage, functionality familiar to billions of people who use the Internet every day.

For defendants, the strategic implications are obvious. Challenge the patentee’s expert early and often. Seek exclusion on every limitation where the expert’s qualifications and opinions fall short of Daubert’s requirements or where the expert fails to articulate the precise conclusion needed to satisfy a claim limitation. If the expert is excluded—or even limited—the case may be over before it reaches the jury, or the verdict may be undone afterward.

For patentees, the message is equally clear: expert preparation is no longer just about persuasion. It is about survival. The expert must testify explicitly on every element of the infringement theory, using exact claim language applied to specific accused functionality. Every inferential step must be articulated. Every conclusion must be stated. Leaving any gap—any inference for the jury to draw on its own—creates a vulnerability that may prove fatal.

The expert witness has become the gatekeeper to the jury’s authority to find facts.

Conclusion

Express Mobile’s next step is a petition for rehearing en banc. The grounds are substantial: the panel’s framework conflicts with Reeves and the Supreme Court’s settled understanding of the substantial evidence standard; the internal contradiction between the summary judgment and JMOL analyses demands resolution; and the Seventh Amendment implications warrant full court consideration. The panel’s decision to make this opinion nonprecedential may itself be telling—an acknowledgment, perhaps, that the framework cannot bear scrutiny, or an attempt to reshape the law without inviting it. Either way, the Federal Circuit should not let this quiet transformation stand unexamined.

For everyone else, the message is clear. Expert preparation in patent cases is no longer about persuasion—it is about survival. Daubert motions are now potentially case-dispositive. And the jury’s constitutional role as factfinder, at least in “complex” cases, hangs by the thread of an expert’s words. If Shopify’s framework spreads, the star chamber will have a permanent seat in patent litigation. The jury will sit, deliberate, and return its verdict—and then wait to learn whether an expert has granted permission for that verdict to stand.