August 2014 Bar Bulletin
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August 2014 Bar Bulletin

Apple v. Samsung

Walking the Line: Don't Coach Your Experts

By Ryan H. Flax


Expert witnesses are a key component of almost every big litigation. As litigators, we rely on the evidence developed by our expert witnesses, presented as their testimony opinions based on the facts, to show jurors or the court why our client should prevail. Well, it's not as easy to do this as you think, because you can't control your experts and you also can't leave it up to them.

In federal court, experts are bound by Rule of Civil Procedure 26 to disclose the subject matter upon which they'll testify in court. As litigators, it's our job to make sure: (1) the expert report is accurate and comprehensive to the needed expert testimony that serves the client's litigation needs; and (2) that the expert is well prepared to be deposed and then testify on the subject matter of that report. Even very experienced expert witnesses need intense help preparing for depositions and trial testimony. Inexperienced expert witnesses require a ground-up education.

So what happens if that report, as it was served to opposing counsel when it was scheduled to be, doesn't jibe with what you need that expert to say in court? We have just received a free lesson in what not to do from Judge Lucy Koh in the current edition of the Apple v. Samsung patent litigation currently under way in the Northern District of California.

Just to lay a bit of foundation for this lesson, the case involves several patents of each company, which accused each other of infringement relating to smartphone technology. One of the Apple patents (the "647 patent") covers the swipe-to-unlock feature of the iPhone; another covers a feature called "quick links" found in Apple's devices.

This later patent has just been returned to the Samsung litigation based upon an order by the U.S. Court of Appeals for the Federal Circuit, which in an opinion on April 25 revived the patent by affirming a claim construction by Judge Richard A. Posner from a different case by Apple against Motorola. Judge Posner's claim construction contrasted with that of Judge Koh in the Samsung litigation.

Confused? So was the judge and so were the parties and so were their experts.

"Quick links" refers to a software function that recognizes text and other things viewable on a smartphone, e.g., a phone number, an email address, a date or a name, and provides an automatic link to other relevant functions in the phone, such as dialing that phone number, drafting an email, adding a calendar event or adding a contact.

Earlier in the Samsung trial, Apple argued that Motorola-related case information be excluded. Judge Koh agreed and, so, neither Apple nor Samsung presented evidence relating to Judge Posner's claim construction of the 647 patent (a key to the divergent construction seems to be that a separate tool, called an "analyzer server," is required as a go-between for the recognizable link and the related functionality).

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