JUNE 2009
How to win with court-appointed experts
More judges may start appointing independent experts to help juries understand technical issues in patent cases. This is how to turn the trend to your advantage
| One-minute read |
| The Federal Circuit's decision in Monolithic Power Systems, Inc v O2 Micro Int'l, which sanctioned the appointment of independent experts, arguably signalled the start of a new trend in patent cases. In light of the decision, counsel should be prepared to consider the appointment of an independent expert by the court in situations where the technology at issue is complex. Taking proactive steps early on in your case assessment will help ensure that you maintain control over the litigation, since juries tend to rely heavily on testimony that appears to be court-sanctioned. Early evaluation of the merits of a case, the degree of complexity of the technology at issue, identification of potential experts that will be favourable to both sides and placing restrictions on expert testimony can help minimise the potentially negative impact of court-appointed testimony. |
In patent infringement suits, the merits of a case often lie in deciding highly technical and complex issues of science. For a jury, this is an incredible task to undertake. To assist the jury, counsel often call upon technical experts to present the technical issues of their case. The expert will testify not only to explain the technology, but also to offer an opinion on the ultimate issues to be decided. One party's expert, however, is often met with an expert from the other side. As a result, the jury is left to decide highly technical issues based on the competing testimony of experts. The outcome of the case therefore often depends on which expert the jury felt was more credible.
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