K&L Gates
IP Litigation Alert
March 18, 2009
This Alert reviews the Federal Circuit’s approval (in Monolithic Power Systems, Inc. v. O2 Micro Int’l Ltd.) of a district court’s use of Federal Rule of Evidence 706 (FRE 706) which allows a court to appoint an expert witness either "on its own motion or on the motion of any party.” The Alert notes that the approval of this rarely used evidence rule “opens the door to having non-partisan technical specialists advise the jury and potentially sway decisions on key issues in complex patent cases.”

In Monolithic, a district court judge expressed to the litigants her frustration as to the technical complexities of a patent case and suggested the use of a court-appointed independent expert to help explain things. The defendant (and eventual loser in a jury trial) O2 Micro objected to the idea which was otherwise supported by the plaintiff. The expert was ultimately appointed, subject to procedures required by FRE 706, and presented evidence favorable to plaintiff Monolithic. Following its district court defeat, O2 Micro appealed on grounds that (i) the appointment of an independent expert witness unduly burdened its Seventh Amendment right to trial by jury and (ii) the expert’s testimony relieved the jury of its tasks.

The Federal Circuit, applying Ninth Circuit law - including the “wide latitude” accorded to judges in their application of FRE 706, disagreed on both grounds. First it rejected the defendant’s contention that the expert had been appointed by the district court judge because the technical issues were too complex for a jury; this in violation of precedent rejecting a “complexity exception” to a litigant’s Seventh Amendment rights. In doing so, it provided a useful checklist for judges (and future litigants) of actions that demonstrate that a ...

Paul Hastings
March 10, 2009

Please see our Hot Topics for more on this subject.

Orrick
March 9, 2009

Please see our Hot Topics for more on this subject.