There's nothing unusual about a federal judge appointing a technical expert to help unravel convoluted claims during a patent trial. But Judge William Alsup of the U.S. District Court for the Northern District of California has done something prominent litigators in the San Francisco Bay Area say they've never before seen a judge do.
On Aug. 30, Alsup appointed an expert to testify specifically on damages in Oracle America's closely watched suit against Google, which claims the Android mobile operating system violates Java-related patents and copyrights that Oracle acquired when it bought Sun Microsystems in 2009.
"He wants an impartial expert who is beholden solely to the court," said Stanley Young, an IP litigator at Covington & Burling in Silicon Valley.
Litigators say it's a bold move by Alsup to deal with the controversial task of determining damages in contentious patent hearings, an issue Congress punted in its latest effort at patent reform. But they also worry that court-appointed experts who testify can wield too much influence over juries and undermine lawyers' ability to advocate for clients.
"The risk is, it turns into a one-witness trial," said Henry Bunsow, an IP litigator at Dewey & LeBoeuf in San Francisco. "The individual party's position becomes lost in the trial, and whatever the independent expert says is taken as gospel."
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Source: Law.com
By: Amy Miller
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