In the high-stakes environment of patent litigation, an expert witness is not just a supplementary voice but a central figure in articulating the crux of patent claims and shaping the outcome of disputes. At the intersection of innovation and law, patent disputes are a battleground where the stakes are often high and the nuances are many. For lawyers, navigating this complex domain requires deep knowledge of patent laws that vary dramatically across jurisdictions. Engaging with experts who can provide clarity, support legal strategies, and ensure that the innovative essence of the patent is fully understood in its legal context will decisively influence the trajectory and outcome of the case.

It’s clear that technical experts play a critical role at trial. But are jurors more or less receptive to certain expert traits?

In a study by DOAR that surveyed residents of three popular venues for high tech patent litigation—the Waco Division of the Western District of Texas, the District of Delaware, and the Northern District of California—respondents were asked about two characteristics of experts: 1) the source of their expertise, industry or academia, and 2) their pay rate working on the matter. The results showed similar views across all three venues:

  1. Most respondents across all venues preferred industry experts rather than academic experts.
  2. Sizable majorities in all venues were not suspicious of highly paid experts.

Regardless of where respondents lived among the three venues, the majority preferred to learn about technology from an industry expert, suggesting that people greatly value industry experience in determining an expert’s authority on an issue. This finding does not imply an “either-or” scenario where an industry expert should replace one from academia, as no one would refute the important role that highly credentialed academics play in clarifying specific technical aspects at issue in a case. But considering the weight an expert’s industry experience carries with potential jurors, building a diverse team of expert witnesses that includes both industry experts and academics can give attorneys a strong line of defense.

Additionally, when presented with a scenario that asked respondents to choose an option that best reflected their opinion about expert witness compensation, most respondents in each venue either thought that pay was irrelevant or that high pay was a positive, suggesting that people believe that higher pay demonstrates exceptional qualifications. So, while controlling litigation expenses is a top concern for general counsel, clients should not immediately rule out highly qualified experts due to cost by overlooking the optics of a highly paid expert in jurors’ eyes.

Understanding these juror attitudes regarding an expert witness’ authority on a matter coupled with the forthcoming amendment to Federal Rule of Evidence 702 (that advocates for judicial scrutiny concerning the qualification of expert witnesses), attorneys have an opportunity to proactively build a next-level expert witness team for emerging technical and business disputes.

What types of experts involving emerging technologies are best-suited to support counsel in patent litigation?

Key issues driving patent litigation today involve wireless communications, electric vehicles, financial trading platforms, and gaming. Choosing the right experts for each high tech litigation trend can enhance the case strategy. While each expert team should be tailored to the exact needs of the case, attorneys should generally have the following types of experts in their defense arsenal:

  • Industry insiders with experience in industry operations and best practices to address industry landscapes, regulations, and standards, and provide competitive intelligence
  • Highly-credentialed academics who study industry-specific technology and have a deep understanding of the technology underlying the patent
  • Technologists and specialized engineers who can explain specific software, source code, apps and device technology, patent processing, and details of the invention in analyzing claim construction
  • Economists or valuation experts to assess the financial impact of alleged infringement and the economic value of the patent

To sum up, an expert’s insights are crucial, as they provide the necessary technical backdrop against which legal arguments are made, particularly when explaining the patent’s validity and its standing in the context of prior art. Furthermore, the rapid pace of technological advancement adds a layer of difficulty, as attorneys must often rely on experts to forecast how emerging technologies fit within the framework of existing patent law. This reliance on expert insights is compounded in transnational disputes, where differing standards across jurisdictions necessitate a nuanced understanding of the global technological landscape.

To gain a competitive advantage, attorneys should proactively engage with experts and partner with an expert witness company with skilled professionals who understand the nature of litigation and are focused on emerging technology trends driving disputes.

At WIT, intellectual property litigation is a prominent part of our business. We have built multidisciplinary teams of experts comprised of prominent academics, engineers, scientists, industry veterans, and former regulators with years of consulting and testifying experience. Contact us to learn more about WIT’s leading experts across high-tech industries, including automotive, financial technology, gaming, and wireless communications.

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