I ran across a fascinating article today in the Wall Street Journal: "A New Weapon in Intellectual Property Wars". It is about the Patent Trial and Appeal Board (PTAB). This did not exist when I served my time as an expert witness in a couple of patent lawsuits. (note: I read the physical paper version of the article and not the online version)
One of the big challenges facing an expert witness is trying to explain your argument for validity or invalidity of a patent (as well as infringement) to a jury who has no experience in the technical field. For example, for a patent to be valid, it had to be non-obvious to a "person having ordinary skill in the art" (abbreviated PHOSITA) at the time of the patent. An example of a PHOSITA might be someone with 6 or more years of training and experience in the field, perhaps someone who went through 4 years of college to get a computer science degree and then spent 2 years working in that specific field (e.g., computer security).
How do you explain to a member of the jury who has 0 years of experience in the technical field what a person who has 6 or more years of experience in the field might think? And chances are, everyone in the jury will have no experience in the technical field. For example, I was told about a computer patent case where in the initial jury pool of 40 people, only 1 person had even heard of the word "Linux".
And of course, the "other side" will have their own expert who will say everything you said is wrong.
Here is a quote in the WSJ article describing the PTAB:
"It's fast and has a whole fleet of expert judges that understand the science and know the technology."
One patent lawyer described appearing before the PTAB judges as
"getting CAT-scanned, MRI-ed, and X-rayed, all within a three-hour period"
That sounds like a completely different situation than a jury case. Fascinating. Very fascinating.