Are Neutral Experts the Key to Complicated Patent Litigation?

Judge Richard Posner suggested a novel approach in the patent litigation between Apple and Motorola—using court-appointed witnesses to explain complicated subject matter.

In a keynote speech at the annual dinner of the 7th Circuit Bar Association, Posner discussed the value of neutral experts. “The idea of expert witness who are not beholden to the parties who can provide information to judges and juries on technical issues, I think is a terrific opportunity worth exploring,” Posner said.

Posner has also stressed that claim constructions must be written in terms that jurors will be able to understand. He specifically told lawyers for Apple and Motorola that claim constructions should be “in ordinary English intelligible to persons having no scientific or technical background.”

“There is no point in giving jurors stuff they won’t understand,” he added. “The jury (actual juries) will not consist of patent lawyers and computer scientists or engineers unless the parties stipulate to a ‘blue ribbon’ jury; I would welcome their doing so but am not optimistic.”

Posner’s idea of so-called “blue ribbon” juries has also gained the attention of the intellectual property (IP) community. The argument is that juries comprised of computer scientists, engineers, and similar professionals would be better equipped to decide highly technical IP cases. So far, Posner has not experimented with this idea in the courtroom.

While the merits of Posner’s approaches can be debated, they do highlight a growing problem—judges and juries with no scientific or technical experience are being asked to decide highly complicated patent litigation.

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