Does the Dalvik program that runs on Google’s Android phones use the same technology as that described in Oracle’s Java patents? I don’t know – ask an expert.
Therein lies the problem courts are facing when they preside over cases with highly complex technical or scientific facts. Expert witnesses, hired by the parties to explain the science or technology to the judge or jury, are a necessary component of such cases. But two high-profile patent cases this spring demonstrate that the use of experts is not always straightforward.
The problem with experts hired by the parties is illustrated by Oracle America, Inc. v. Google Inc., now pending in the Northern District of California. As reported in Wired, the experts hired by both sides have raised the ire of the court:
With its case, Oracle claims that Android steps on two Java-related patents — U.S. Patents 6,061,520 and RE38,104 — and, yes, [Dr. John] Mitchell agrees. The Stanford academic took the stand on Wednesday during the patent phase of the trial that pits Oracle against Google, and he was paid by Oracle.
During the trial — which is now into its fourth week — Judge William Alsup has chided both Google and Oracle for calling paid witnesses who seem predisposed to completely agree with their arguments.
The testimony of expert witnesses is unique. In this case, the jury has been instructed to treat Mitchell’s testimony as fact. And Mitchell’s credentials (he is a professor of computer science and electrical engineering at Stanford, and the author of several books on computer programming language theory) give his statements authority. Of course, Google has called its own expert to the stand – Dr. David August, associate professor of computer science at Princeton. Naturally, August’s testimony aligned with Google’s position. So whom to trust?
Judge Richard Posner, of the Seventh Circuit Court of Appeals, believes he may have the answer. Posner is presiding over Apple Inc. v. Motorola Inc., now pending in the Northern District of Illinois (though an appellate judge, he has volunteered for trial duty). According to the Chicago Tribune:
Posner is experimenting with court-appointed witnesses … Lawyers generally hate court-appointed experts because they can’t control what they will say. Posner told the companies that the witnesses could explain, among other things, opaque scientific terms in patent claims to jurors. The case is scheduled to go to trial next month.
Lawyers and judges don’t agree on how best to bridge the knowledge gap but at least Posner isn’t afraid to address the issue, [IIT Chicago-Kent College of Law professor, and former Posner law clerk, Carolyn] Shapiro said. “We’re in this world of great technical complexity,” Shapiro said. “What do we do?”
There is no clear answer to Shapiro’s question, and it’s clear the issue isn’t going away any time soon.
Posted by Emily Fisher