by Robert Ambrogi -
Editor
BullsEye Newsletter: June 2005
Patents are often a company's most valuable assets. Loss
of a patent through litigation could severely reduce a company's competitive
standing or even drive it out of business. Worse yet, patent litigation
is highly complex. Cases hinge on detailed scientific or technical evidence.
Because of this, experts play a critical role in determining the outcome of a
patent case. That is why Steven H. Reisberg, a litigator with Willkie Farr & Gallagher
in New York City, has come to believe it is important to take an extra step in
preparing to work with an expert in a patent matter.
Mr. Reisberg, a partner in Willkie Farr's litigation department, specializes
in commercial and patent litigation. He is an accomplished litigator with a significant
track record handling cases involving general commercial litigation, including
patent disputes, before courts as well as before national and international arbitral
tribunals.
His recent patent cases include representing Koninklijke Philips Electronics
NV in patent litigation involving automatic external defibrillators and ultra
high pressure discharge lamps.
In patent litigation, Mr. Reisberg believes, it can prove extremely valuable
for the lawyer to arrange for the retained expert to meet directly with the inventors
or other technical employees of the client, together with counsel. "These
direct discussions between the expert and the inventor can have several benefits," he
says.
Primary among them is that the discussion can provide the expert with information
of a type - both in depth and quality - that would not otherwise be available
from review of the documents or deposition transcripts. In addition, pairing
the expert with the inventors can help to identify important issues that may
arise during the prosecution of the litigation and to develop responses or solutions
to those issues.
There is another, less-obvious benefit to arranging a meeting between the expert
and the inventors, Mr. Reisberg says. It can help the expert become even more
confident in his or her conclusions -- and for the client to develop confidence
in the expert.
No single approach applies in every case, Mr. Reisberg cautions, so the lawyer
must exercise discretion to do what is best for the case at hand. In addition,
the lawyer should bear in mind how such a meeting might implicate issues of discovery.
Still, he says, "I have found that to allow such concerns to dominate
can be a case of the tail wagging the dog."
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