An International Guide to
Patent Case Management for Judges

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2.6.8 Case-specific education of decision-makers

In patent cases, there are a number of tools used by the court to familiarize the judges with the technology of the patent(s) in issue. These tools have been outlined earlier in this section and include the use of expert affidavits, product and process descriptions, agreed primers, joint expert reports and concurrent evidence.

In complex matters, the court may direct opposing experts to commence their oral evidence by each presenting a short tutorial addressing the background technology to the dispute. This may be accompanied by such PowerPoint or other presentation material as the expert thinks fit. To the extent necessary, the opposing expert may point out areas of disagreement or expand on the subjects addressed by the other expert. The purpose of doing so is to allow for the court to be educated in the relevant background material to the dispute in a way that permits the judge to engage with the presentation and develop an introductory understanding of the subject matter. The transcript of the tutorial and any supporting material stands as evidence, and the legal representatives are permitted to cross-examine on its contents.

The Federal Court employs a number of processes which facilitate the case specific education of decision-makers.

Once the case has proceeded to trial, the Court regularly employs a number of innovative processes aimed toward educating trial judges in the specifics of the case. Most notably, in patent cases involving several expert witnesses it is common for the Court to order the preparation of a joint expert report following the filing of expert affidavits. This will involve a meeting being convened between the experts, often facilitated by a registrar of the Court, aimed at synthesizing the issues in respect of which the experts agree and disagree. During this meeting, the experts are encouraged to reach agreement on the issues relevant to the case and, where that is not possible, provide a brief explanation of the reasons for their disagreement. This meeting will culminate in the production of a joint expert report to be tendered in evidence. At the hearing, it is likely that the evidence of the experts who contributed to the preparation of the joint expert report will be given concurrently. This means that the experts will be questioned together, promoting a frank dialogue between the experts and enabling the further clarification of any differences of opinion.