Patent Litigation: What About Qualification Standards for Court Appointed Experts?

Abstract

"The descriptions in patents are not addressed to the public generally, to lawyers or to judges, but, as [35 U.S.C.] section 112 states, to those skilled in the art to which the invention pertains." This leads to a tenet of patent law, that the meaning of patents and claim terms must be construed by a person of ordinary skill in the relevant art ("POSA"). However, federal district court docket statistics show that for tasks such as claimconstruction, the "experts" hired by courts to aid the courts themselves may, in fact, not meet the POSA standard In contrast, to perform the very same tasks, the testifying experts hired by the party litigants are now required to be POSAs. This article argues that logic dictates that there should be consistency in the requirement of skills for both court-appointed experts and party-employed experts when they perform the same tasks.