A good expert witness can make the difference between winning and losing a case. So can a bad one. WIPR looks at how to pick the best possible person.
In patent cases, the idea of an ‘expert’ witness can seem like a contradiction. The court commonly requires the expertise of a ‘person having ordinary skill in the art’, and not necessarily of a genuine leader in the specific field. Not only that, but this ordinary skill must be retrospective. Patents that are subject to litigation may be several years old.
It is no use employing an expert on the current state of the art if the court is concerned with the state of the art of a decade ago. In both jury and bench trials, the decision-makers (the jury or the judge) are unlikely to be experts in the particular technical field, so highly complex product analyses may not have the desired effect.
Yet, for attorneys, in-depth and current expertise may be vital criteria for selecting an expert, not least because the attorneys themselves may not understand the technical make-up of the patent at issue.
Expert witnesses, patent cases, Intervet