Performing a musical composition superbly requires a maestro who knows the subtleties of playing an instrument with grace, and has intimate familiarity with the score to give life to the musical work. Similarly, an expert witness must exhibit a deep knowledge of a technical field, and show reliable mastery and expertise in analyzing a subject topic.
In an intellectual-property case, one may require the services of an expert for discerning the relevance or degree of similarity of related technologies, complex patent analysis, establishing a rational valuation assessment in the context of an IP strategy, or ascertaining a logical framework for calculating damages in a litigation proceeding. Intellectual property firms specialize in such activities. The expert might be asked during IP due diligence or in litigation involving patent infringement, trade-secret misappropriation, patent valuation, opposition proceedings, and unfair competition to:
- provide a written “expert opinion” for evaluating a case for an interested party,
- testify in court as an “expert witness” for evaluating certain facts, or
- assist a party in litigation without actually testifying in court.
An expert witness is one who is believed to have specialized knowledge or expertise in a certain field (such as science or technology), based on education, training, skill, or experience, to the extent that one can rely upon the expert’s opinion about a fact at issue within the expert’s scope of expertise in order to assist in determining facts in a court of law. Usually, an opposing party will introduce its own comparative expert witness for assessing and/or questioning the validity and integrity of the provided expert opinion.
It is worth noting that in the US, the opinion of a hired expert in evaluating a case is protected from discovery. A non-testifying expert may be asked to participate at a trial or hearing by assisting a litigation attorney in asking questions of other expert witnesses. If the expert provides damaging information to the client, the opposing party does not have to be informed of such data, as the information is privileged (similar to the attorney-client privilege). However, the above-mentioned privilege is revoked if the expert is called to testify, making all relevant communication and document annotation open to discovery.
The testimony of a qualified expert must be based upon sufficient facts or data, the product of reliable principles and methods, and the expert must apply the principles and methods reliably to the facts of the case. In summary, an expert must have mastery in evaluating a scientific or technical art, as well as have a proper framework for ascertaining the required data – using formalized approaches to patent analysis, for example. Ultimately, such an expert can assist a client in formulating a sound business decision for an IP strategy, or advancing the execution of a desired transaction – creating a concerted harmony for capitalization on the legal and corporate stage alike, and conducting a winning performance at trial.
FlashPoint IP, a leader among intellectual property firms, has professionals that can provide written expert opinions and litigation support, and serve as expert witnesses in a host of IP litigations and transactions in a variety of scientific and technical fields. FPIP engagement managers are adept at synthesizing the many facets needed to create a winning formula for your IP with the assurance of being well-informed, using patent analysis in a business context. Contact us to discuss your options regarding IP strategy and positioning, and how best to move forward with your business ventures.