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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Ah, no | 398 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Ah, no
Authored by: Anonymous on Monday, December 24 2012 @ 12:37 AM EST
The point being, that if the expert avers that the patent is strong and
defendable but the patent is then later, under re-exam, declared invalid, it
means that the expert has been shown to be wrong.

This wrongness could be the result of a misteak (we all make them from time two
time), but it does also possibly call into question how much of an expert they
really are, especially if they repeatedly make such "mistakes" - which
leads into the second question:

The second question is checking how biased they may be - if paid a lot they may
be inclined to forget the research they did which disproved the point the were
asked to prove and only remember the stuff that did. If you do 1000 random
samplings, it is quite possible, that one of them may fit your criteria; in
which case you'll ignore the 999 trials which do not fit and shout loudly the 1
that does [see "How to lie with statistics" by Daryl Huff - a very
easy read].

If they answer the first with "No", or refuse to answer, they have
undermined their own evidence as they don't believe their report which would
(presumably?) have been based on the patent being strong and defendable - what
they were being paid to show.

[ Reply to This | Parent | # ]

Ah, no
Authored by: Anonymous on Monday, December 24 2012 @ 04:37 AM EST
A defense lawyer would not ask an opposing expert the question about the
strength of a patent because it does invite a speech by the expert telling the
jury in detail why he or she believes it is a strong patent. Most experts do
not stop with a just yes or no answer on cross-examination and wait for the next
question. Instead, an expert is more likely to answer by saying: "Yes, I
do believe this is a very strong patent because [insert here long explanation
with the expert talking directly to the jury]." Lawyers on
cross-examination look to control the witness so as to elicit favorable answers,
but with a question like this, an examining attorney would be powerless to stop
the full explanation. As to the second question, lawyers ask experts what
they've been paid all the time, including their own experts so as to deny the
other side the ability to ask it.

[ Reply to This | Parent | # ]

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