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Scientific Evidence and Expert Testimony: Patent Litigation LAW 343 Prof. Roberta J Morris Room Scientific Evidence and Expert Testimony: Patent Litigation LAW 343 Prof. Roberta J Morris Room 208 Crown Quad 723 -9505 [email protected] edu Course Materials on the Web: http: //www. stanford. edu/~rjmorris/sciev. 08/ and https: //coursework. stanford. edu/portal/site/F 08 -LAW-343 -01 Email Group scievseminar [email protected] stanford. edu (maybe) 2008 - Sci. Ev. - rjm Week 01 1

Today’s Agenda • Who We Are What We Will Do in this Seminar • Today’s Agenda • Who We Are What We Will Do in this Seminar • Review of Patent Law • Your answers to - law students questionnaire - the object-or-case patent assignment Next Week: Claim charts, File history and transcript, and some recent hot case you may have missed 2008 - Sci. Ev. - rjm Week 01 2

Who Are You? Handout - Student and Auditor List Introduce Yourselves • What should Who Are You? Handout - Student and Auditor List Introduce Yourselves • What should we know about you that is on your resume? • What should we know that is not on your resume? • Whose side are you on: PO or AI? Other Questions You May Answer - Why are you here? - Did you take calculus in high school? - How did you choose that unassigned book you last read? 2008 - Sci. Ev. - rjm Week 01 3

What You Will Do in this Seminar • Grading by Contract • Weekly Comments: What You Will Do in this Seminar • Grading by Contract • Weekly Comments: Better Late than Never? • Schedule/Syllabus – short form of assignments (also next to last tool, lefthand side, on coursework) • Attending real live examination and cross-examination of an expert. Looking less good than I hoped… • Simulations • 8: 15: Looking at another students work; Snack (healthy or not or both? ) 2008 - Sci. Ev. - rjm Week 01 4

What You Will Do in this Seminar required. Better Late than Never? 2008 - What You Will Do in this Seminar required. Better Late than Never? 2008 - Sci. Ev. - rjm NO Week 01 Never Late. That’s Better 5

What You Will Do in this Seminar • Grading by Contract • Weekly Comments: What You Will Do in this Seminar • Grading by Contract • Weekly Comments: Never late. That’s required. • Schedule/Syllabus – short form of assignments (also next to last tool, lefthand side, on coursework) • Attending real live examination and cross-examination of an expert. Looking less good than I hoped… • Simulations • 8: 15: Looking at another students work; Snack (healthy or not or both? ) 2008 - Sci. Ev. - rjm Week 01 6

Introduction/Review of patent law Most recent version: Genetics Department Retreat 9/18/08 Original: early 1990 Introduction/Review of patent law Most recent version: Genetics Department Retreat 9/18/08 Original: early 1990 s. On transparencies. Other interesting information: The next patent the PTO will issue will be 7, 426, 753. Last week the PTO issued 1989 utility patents, 12 Reissues (35 USC 251+), 35 Plant Patents (35 USC 161+) and 400 Design Patents (35 USC 171+) (2435 total) Last year for the same week (9/18/2007) the PTO issued 2992 utility patents, 12 Reissues, 35 Plant Patents, and 499 Design patents (3540 total). In the year ending 9/16/2008, the PTO issued 154, 893 utility patents. 2008 - Sci. Ev. - rjm Week 01 7

Introduction/Review of patent law Our Law Students’ Knowledge (admittedly on short notice and without Introduction/Review of patent law Our Law Students’ Knowledge (admittedly on short notice and without adequate time to do much research) During the break, look over one law student’s answers, even if you’re a grad student. Come up with one question to ask your lawyers. 2008 - Sci. Ev. - rjm Week 01 8

How does this affect you, the litigator, as you work with a scientific expert? How does this affect you, the litigator, as you work with a scientific expert? WHO HAS THE BOP? WHAT IS THE QOP? Validity AI C&C Infringement PO Preponderance 2008 - Sci. Ev. - rjm Week 01 9

Your Patented Objects/Cases Our findings, questions and assumptions. During the break, look over someone Your Patented Objects/Cases Our findings, questions and assumptions. During the break, look over someone else’s answer to the find-a-patent assignment. 2008 - Sci. Ev. - rjm Week 01 10

Reading a Patent Why choose a patent whose number appears on something you can Reading a Patent Why choose a patent whose number appears on something you can buy? How do you read a patent? Always ask: who wants to know? PO, PAppl, AI, VC their commonalities, differences and priorities 2008 - Sci. Ev. - rjm Week 01 11

Reading a Patent • AI – to design around – to challenge validity or Reading a Patent • AI – to design around – to challenge validity or enforceability • PAppl – – to disclose and claim around – to see if you should buy/license it • M&A – to evaluate an asset • PO – to evaluate whether you can sue within the bounds of Rule 11 2008 - Sci. Ev. - rjm Week 01 12

P-I-S v P. A. Situation A Patent-in-suit = NEW Prior Art Patent = OLD P-I-S v P. A. Situation A Patent-in-suit = NEW Prior Art Patent = OLD Situation B Patent-in-suit = OLD Patent on accused device = NEW Is the New patent valid Is the Old patent infringed by over the Old patent? someone practicing the New patent? New Patent Look at New's CLAIMS Look at New's SPECIFICATION Old Patent Look at Old's SPECIFICATION (what it "teaches") Look at Old's CLAIMS 2008 - Sci. Ev. - rjm Week 01 13

Later This Week? The Rambus v. Hynix and 100 s of others trial started Later This Week? The Rambus v. Hynix and 100 s of others trial started today in San Jose. If a scientific expert is testifying Thursday or Friday, would you come? I’ll try to find out tomorrow morning. This COULD be the only trial between now and December in San Francisco or San Jose. Applera v. Illumina, scheduled to start next Monday, has been continued by the judge until the end of October or November. Medtronic v. WLGore is also scheduled for mid November. There are claim construction hearings that might include expert testimony, but no other full trials. 2008 - Sci. Ev. - rjm Week 01 14

Next Week Making Claim Charts Reading File Histories for - ideas for design arounds/noninfringement Next Week Making Claim Charts Reading File Histories for - ideas for design arounds/noninfringement arguments - ideas for invalidity arguments - questions for which experts would be needed Testimony – Reading Transcripts 2008 - Sci. Ev. - rjm Week 01 15