As intellectual property disputes continue to evolve in 2024, one question looms large: How can companies effectively navigate the increasing complexity of these cases? To answer this, we asked WIT President Michael Connelly, whose 25+ years of experience in IP litigation have positioned him as a leading authority. Connelly, a seasoned attorney who has litigated patent and trade secret cases and has extensive experience presenting in front of the International Trade Commission (ITC), oversees WIT’s expert witness operations and research.
In this Q&A, Connelly shares his expertise on the critical trends shaping IP litigation today, including the rising complexities of expert witness selection, the evolving role of the ITC, and the strategies needed to address these challenges head-on.
WIT: What observations can you make about the current environment for IP litigation regarding retaining experts?
Connelly: The current IP litigation environment is increasingly complex, with cases often hinging on advanced technologies and nuanced legal interpretations. Courts demand precise, credible expert testimony to clarify intricate technical matters. A key observation is that recent changes to Rule 702 have resulted in a rise in scrutiny from judges on the admissibility and qualifications of expert witnesses; this heightens the need for rigorously vetted, highly specialized experts. The proliferation of global IP disputes further necessitates experts with international insights. This complexity means that selecting an expert is no longer a straightforward process; it requires a trusted advisor with keen judgment to match case specifics with an expert’s credentials, ensuring that they can withstand both legal challenges and present persuasively in court.
WIT: How have modern technologies such as AI and blockchain influenced patent litigation? Have you seen or foresee any significant shifts in litigation practices as these technologies continue to evolve and integrate within industries?
Connelly: Modern technologies like AI and blockchain have increasingly become central to patent litigation, both as subjects of dispute and as part of the broader technology landscape. These fields introduce complex technical issues that demand experts with deep knowledge to effectively decode and explain them in court. What makes these technologies unique is their rapid and widespread adoption, creating a landscape where many have rushed to position themselves as experts. However, finding individuals with genuine, in-depth experience in these fast-evolving areas remains a significant challenge.
WIT: You have experience presenting in front of the ITC. How has the ITC’s role in patent disputes changed over the years, and what trends do you anticipate regarding its influence on global patent enforcement in the future?
Connelly: The volume of cases at the ITC, particularly Section 337 investigations, has fluctuated over the years, influenced by factors ranging from economic conditions to rule changes. Despite these variations, the ITC remains an attractive venue for patent disputes due to its unique ability to issue exclusion orders. Looking ahead, the ITC’s influence will likely grow as domestic research and manufacturing increase. This makes it crucial to select experts with both technical depth and specific ITC experience. My years of practice before the ITC equips us to adopt a highly effective approach to choosing the right expert for these complex matters.
WIT: How has the issue of non-practicing entities (NPEs or “patent trolls”) evolved, and what do you think are the best ways to handle such cases in today’s litigation environment?
Connelly: The definition of NPEs has become increasingly blurred as more companies look to monetize their patents or outsource enforcement to generate licensing revenue. This evolution requires a strategic approach to expert witness selection. Experts in these cases must be chosen not just for their technical skills but also with a keen understanding of the economic implications of NPE strategies. Effective expert cost-sharing among defendants can make a significant impact, but this only works when the expert is selected with the broader, long-term issues in mind.
WIT: What are the essential qualities you look for in selecting experts to recommend to clients for IP cases?
Connelly: The primary qualities include technical expertise relevant to the patent in dispute, experience with litigation, and the ability to clearly and credibly explain complex concepts to a non-technical audience, such as a judge or jury. An expert must possess not just academic knowledge but also real-world application experience. Additionally, credibility under cross-examination is crucial; the expert needs to be resilient and composed under pressure. At WIT, we view our role as vital to this vetting process. We apply our litigation experience to assess an expert’s past performance, ability to adapt to the case dynamics, and overall fit with the client’s needs.
WIT: Given your experience in patent litigation and in managing licensing campaigns, what strategies have you found most effective concerning the usage of experts throughout the litigation process, particularly in long-running cases?
Connelly: For long-running cases, the strategic use of experts involves early engagement, careful preparation, and ongoing collaboration. Early involvement allows for developing a cohesive technical narrative and identifying potential challenges. It’s crucial to have an expert who can provide support through various stages, from initial analysis to trial testimony. Continuous engagement ensures the expert remains updated on developments and can adapt their opinions as necessary. WIT brings to bear actual experience in litigation to manage this process, selecting experts who can commit to the long-term needs of the case and who possess the versatility to address evolving litigation strategies.
WIT: How do you ensure that experts are not only technically proficient but can also communicate their insights effectively in front of judges, juries, and other non-technical audiences?
Connelly: Communication skills are as important as technical proficiency. An expert must break down complex ideas into comprehensible terms without losing accuracy. To ensure this, we rigorously vet potential experts through interviews, presentations, and references. The goal is to observe not just their knowledge but their demeanor, clarity, and ability to withstand pressure. We leverage our courtroom experience to assess whether an expert’s communication style will resonate with diverse audiences and the litigation team itself.
At WIT, we represent leading independent experts from academia, industry, and government. We focus on industries dealing with complex matters involving advanced technologies and life sciences. Contact us to learn more about our expert teams.