The intellectual property lawyers have all the fun. They are the modern day gladiators of the fortress, drawing lines and shouting “infringement!” while pushing back the encroacher in the name of concepts like dilution, unfair competition, and doctrines of equivalents.
But once we’re past the glitzy headline, intellectual property attorneys need expert witnesses galore and from the get-go in these complex, often-appealed cases. These cases often involve the fine details of patents, word sequences and page layouts, and shades of colors. In these types of cases, one looks to a combination of fact witnesses and outside expert witnesses to present that blend of research and development testimony, along with the deconstruction of the opposing arguments.
A recent jury verdict against a major snack food manufacturer which is now on appeal is a case in point. Claims were raised for patent infringement and trade dress by the major manufacturer against two, smaller companies. The factual allegations relating to these claims went to the fluted design of the snack food and to packaging so familiar that even the mention of the color scheme would result in product identification in any household with a teenager. The subject matter for expert witnesses in this fairly standard intellectual property case gets into the smallest of details from product development to packaging, while asserting the mind of the consumer and the potential for confusion in the marketplace.
Even more recent is the United States Supreme Court ruling that a farmer violated a company’s patent on a genetically modified food when he culled some of the soybeans and used them to replant crops in future years. This case pushed the field into a new direction on questions of inventions that can self-replicate. Expert witness testimony in this category of cases covers not only the initial research and development, but also questions of self-replication that can circumvent reorders, blending of original and subsequent generations of the product, and dilution through hybridization.
Among the anticipated future rulings in the field of intellectual property is the question of whether human genes can be patented. A case is currently pending on the validity of a company’s patent on genes that can identify an increased patient risk for breast and ovarian cancer. It’s a whole new field for lawyers and that means also for expert witnesses, as scientists map several million human genes.
Of course, there is always the simple copyright case about which many a lawyer would be guilty for wholesale importation of good-looking clauses and provisions into contracts, settlement agreements, and judgments…
By: Paloma A. Capanna, Attorney at Law