Monday, 30 March 2009

Expert witnesses: is there a better way?

Scinopharm Taiwan Ltd v Eli Lily & Co [2009] EWHC 631 (Pat) was a ruling last Friday from Mr Justice Kitchin in the Patents Court, England and Wales. It's the sort of patent cases that law bloggers dread: lots of discussion of the technology and the patents themselves, but not much in the way of law. Reading the judgment one receives the impression that most of the six days spent in court must have been given over to a careful weighing up of the testimony of two extremely erudite, credible expert witnesses whose erudition and credibility was unable to overcome the differences between their -- or one might say their sides' -- respective positions. There was a further problem, it seems. One side's expert was not familiar with some of the practical problems that those working in the field had experienced. The other side's expert gave answers that "... tended to be full ... because he did not properly understand the questions being put to him". 

It is significant that proposals for reform of patent litigation tend to assume that the appointment of partisan experts is a good thing. Certainly the fact that a party has a 'tame' expert who views its position sympathetically is a comfort -- but where the other party has the same comfort the gain is arguably illusory. If each side were to nominate an expert, and the two experts were between them to nominate a single, neutral expert, much time, effort, cost and indeed potential damage to the credibility of the experts might be saved. It is time for those who advocate the maintenance of the present system of witnesses taking sides to offer some firm justification, in theory or in practice, if they wish to convince others that there is a case for retaining what looks to some like a wasteful duplication of efforts and resources.


Anonymous said...

Provocative theme. Good question. Now I have one for you. Are there enough experts available to do the job you envisage? In these days of industry sponsoring research, where will you find an expert who is not already in the pocket of the Claimant, the Defendant or one of their competitors? I had supposed that there are at least as many technical experts available to assist the German patents judges as the English, yet those German judges are experiencing increasing practical difficulty in finding one who is really an expert, but also available to assist the court.

Anonymous said...

What if one of the parties does not appoint his own expert? Would this then mean that the other party's expert would be the court appointed expert (since he would agree with himself that he should take on this rôle). This could disadvantage parties with less money to hire their own "tame" expert just as much as the current system. I agree with the sentiment behind this idea, which is to limit unnecessary expenditure for the parties to litigation and to avoid confusing contradictory technical testimony (I believe it is a part of the Burdon plan), however the issue of how the neutral expert is appointed and remunerated is a question which would need to be addressed in a way which would not disadvantage a less wealthy party.