Prior Art before Patent: The Only Way to Instruct Expert Witnesses in Patent Cases?

摘要

Expert witnesses can make or break patent cases. Choosing the right expert, and ensuring that their evidence is persuasive, is key. Patent lawyers know that a finding by the court that an expert has exercised hindsight in coming to a view on obviousness is potentially fatal to a claim's success. But experts must understand both the patent in suit and the prior art. So which should they be shown first? This article considers recent conflicting decisions from the English High Court patent judges which have made the task of ensuring that the expert's evidence stands up at trial harder than ever.