Patent Litigation: Should the U.S. Let Experts Go “Hot Tubbing?”

The ongoing patent litigation between Apple and Samsung is not confined to the United States. Similar legal battles are simultaneously taking place all over the world in Germany, Japan, the United Kingdom, and Australia, just to name a few.

These lawsuits provide a unique glimpse into the legal systems of other countries, particularly how they deal with complex intellectual property disputes. For instance, Australia’s expert process has caught the attention of many here in the United States.

The popular term for Australia’s method of expert testimony—the hot tub approach—may have a lot to do with the buzz surrounding it. But it is also credited with saving both time and expense and, most importantly, making complicated cases easier to understand for judges and juries.

The hot tub method, formally called concurrent evidence, allows expert witnesses to offer their opinions in the form of a discussion, as opposed to taking the stand one by one. It is also employed by courts in Europe and Asia.

Proponents of the hot tub approach not only tout its efficiency, but also argue that it leads to better evidence because experts can be questioned by their peers rather than exclusively by attorneys. Advocates also maintain that the approach often leads to more open and frank discussions between experts for both sides during which they can often find common ground and/or focus their attention on the most contentious issues.

At this point, there is no great movement to adopt “hot tubbing” here in the U.S., where the process of cross-examination is used almost exclusively to examine expert witness. However, it may warrant consideration given the increasing complexity of IP disputes.


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