After presiding over a recent case involving a dispute between Motorola and Apple, Judge Richard Posner of the 7th U.S. Circuit Court of Appeals spoke to a group of lawyers and judges about the ever increasing disconnect between the level of technology employed in patent cases and the ability for judges and juries to understand the technology. One possible solution, argued by Posner, is the appointment of neutral expert witnesses to explain the technology to judges and juries.
This would be a truly beneficial, and long overdue, addition to patent cases. As the outcry over the Prometheus ruling showed, patent attorneys are becoming increasingly frustrated when judges, lacking the required scientific background to understand the technology at hand, make a decision that employs flawed scientific reasoning. While judges make a great effort to do their own research and increase their understanding of the technology of the case, that research itself could lead to misguided judgments. Even Posner, during his speech, spoke highly of Wikipedia – a source not even a law student would be allowed to use – as a good learning tool.
Many of the reasons the validity of an expert witness’s testimony is questioned is that they are hired by one of the parties, so they may not be completely impartial. However, if the expert witness is court appointed and neutral, they will not be invested in either party, and can be objective. They will simply be able to provide objective, accurate knowledge of the basic scientific principles used in the case, and this knowledge would be ascertained from year of schooling and experience, not from a judge’s Google search.
Furthermore, Posner even argued that juries to patent litigation should consist of “blue-ribbon” jurors that understand the technology of the case. He argued that even if the Court appoints an expert to explain the claim construction to jurors with no scientific background, this would take a lot of trial time. Posner seems to suggest that either having the parties agree to appoint “blue-ribbon” juries, or have the patent claims re-written in language understandable by people without a technical background, would greatly increase the efficiency and accuracy of the result.
Few, presumably, would disagree.