Expert WitnessIntellectual PropertyLitigationPatent Infringement

The Tech Industry and Litigious NPEs

Patent InfringementIt comes as no surprise that the tech industry is the most litigated of 2012-2013. With companies such as Apple, Samsung, Verizon, LG, and Google vying for major shares of the market, competition can get fierce. For over a year, Samsung and Apple have been slugging it out over the copy and design of the iPhone’s software features. These, however, are operating companies with products and services to sell, both of which are vulnerable to fundamentally important legal counter-assertion defenses. Intellectual property litigation gets even more complicated and egregious when it is engendered by entities with no competitive products and services. The same defenses do not apply to to these entities. Even with new and pending patent reform laws in place, high tech litigation is overwhelming our court system and affecting the bottom lines of many high tech companies in industries such as electronics, communications, semiconductors, and software.

The most notable combatants in the IT litigation arena are the Non-Practicing Entities (NPEs), derogatorily known as “patent trolls.” These companies base their revenue stream solely on collecting, licensing, and enforcing patents, litigating whenever there is a threat to their patent’s market share, whether real or dubious. Although under criticism from some, James Bessen and Michael Meurer from Boston University released a highly publicized study estimating that the direct cost of NPE patent assertions is “substantial, totaling about $29 billion in accrued costs in 2011.” Although this includes patent infringement awards in all industries, high tech makes up fifty percent of NPE suits filed.

Litigation brought on by NPEs, both costly and time consuming, is difficult to defend. According to PatentFreedom, a company dedicated to assessing and addressing specific NPE risks, since NPEs “do not sell products or services (other than the licensing of their patents), NPEs typically do not infringe on the patent rights contained in others’ patent portfolios. As a result, they are essentially invulnerable to the threat of counter-assertion, which is otherwise one of the most important defensive – and stabilizing – measures in patent disputes.”

The America Invents Act (AIA) passed in September of 2011, which was meant to limit the number of defendants an NPE can join in a suit, has not curbed the amount of patent infringement litigation occurring today. The major tenet of AIA is a shift from “first to invent” to “first to file.” As such, NPEs can no longer gather all possible defendants in an effort to maximize awards. With good intentions, Congress set out to decrease the “deep pocket” syndrome, thereby reducing the number of suits filed. Although the AIA changes the economics of litigation, it has not, in the past few years, decreased the number of cases filed by NPEs. In fact, PatentFreedom estimates that, NPE  litigation against operating companies has increased by 170 from 2012 to 2013, and this is only the halfway mark. In 2012, the number of cases filed against operating companies was 4,229. So far this year, that number has increased to 4,400.

In March of 2013, the Shield Act was passed to curb the amount of egregious lawsuits brought on by NPEs. In effect, it makes NPEs responsible for the litigation costs of failed suits. However, the Shield Act requires defendants to take the suit all the way to final judgement. Since much time and resources are required to litigate these suits, most settle well before judgement. This leaves the door wide open for opportunistic NPEs.
Considering they have the right to sue, do NPEs, by their nature, have an unfair advantage over the operating companies they are suing. Considering the state of affairs today, should Congress do more to level the playing field? Only time will tell how this battle plays out.

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Press Release – The Benefits of Distribution

Press Releases are an excellent way to promote Expert Witness and Consulting Services. Aside from publishing press releases to a variety of print, broadcast, and online media, they can also be sent to current and prospective clients. The benefits of issuing a press release are many:

  • Perception Is Key – The idea that an Expert’s services are deserving of media coverage plants the seed that he is successful. In other words, if the New York Times  is taking space to publish a press release announcing an Expert’s or Consultant’s new book , then he must be worthy of consideration for an engagement. A press release, in essence, is mass confirmation of your achievements.
  • Third Party Endorsements – A press release issued on an Expert’s or a Consultant’s behalf by a third party is much more effective than one issued on their own behalf. Most Experts and Consultants are uncomfortable touting their own successes. By letting a third party advocate on their behalf, it takes the negative effect of self-promotion out of the equation.
  • Opportunity to Inform – A Press Release is issued mainly for a specific reason, whether for the publication of a new book, a business milestone, or a litigation success. It does not, however, have to be limited to that success. If written properly, press releases can include a short biography on the Expert or Consultant, communicating their areas of expertise and offering website links for more information on their services.
  • Maintain a Presence –  “Out of sight, out of mind.” It is important for professionals to let their current and prospective clients know that they are consistently relevant in their field of expertise. By issuing a press release, they keep their clients informed of their achievements and remain fresh in their minds for future jobs.

For more information on how Experts.com can help market your services and promote your achievements through a Press Release, please contact us at press@experts.com.

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Watermarking Your Curriculum Vitae

As disconcerting as it may be, unscrupulous activity does exist in the legal industry. As a leader in the Expert Witness and Consultant field, Experts.com believes in not only promoting our members’ services, but in protecting them as well. As such, we encourage our Experts and Consultants to Watermark their Curriculum Vitae.Watermark CV

Marking the CV with such statements as “UNOFFICIAL,”  “NOT YET RETAINED,”  “DO NOT SUBMIT,” or “UNAUTHORIZED,”  prevents unconscionable practitioners  from downloading  a CV and submitting it as their “Retained” expert witness, or implying such, without the knowledge and consent of the expert.  The watermark makes it clear to other parties what the status of the relationship is between the attorney and the expert.

The benefit of watermarking a CV is twofold. One, it allows an Expert to promote his services and qualifications and still feel secure that they will not be presented without his express consent and, two, it allows the Expert an opportunity to offer the most current version of his CV. Since the attorney must contact the Expert for an “Un-Watermarked” version, the Expert can then update the CV and bring to the attorney’s attention any new work experience or litigation successes.

For more information, or to become an Experts.com Expert Witness or Consultant, please contact us at support@experts.com.

Uncategorized

CURRICULUM VITAE: TO PUBLISH OR NOT TO PUBLISH

Experts.com Curriculum Vitae PhotoIn the Expert Witness and Consultant industry, the Curriculum Vitae is an essential marketing tool that not only highlights the achievements of an Expert or a Consultant, but can do so in the best possible light. Far more comprehensive than a resume, it usually includes terms of employment, academic credentials, publications, and other significant achievements.

There is an ongoing debate as to whether CVs should be posted for public viewing or whether they should be available only on request. There are two schools of thought on the issue:

  1. Promote, Promote, Promote:  The idea is that the more visible and accessible your qualifications are, the more likely you are to be retained. If an attorney is looking for an Expert Witness and comes across his CV, he may make immediate contact or download it and put it in his files for future use.  The point is that the Expert’s experience is being marketed to those in need of his services.  However, where there is a benefit, there is usually a detriment. In this case, the downside to easy accessibility can be fraudulent use without consent. *
  2. Keep It Close To The Vest:  Like a straight flush, some Experts and Consultants prefer not to “show their cards” until they have had a chance to speak to their prospective client. The idea that more experience can be conveyed in a conversation than from the one-sided viewing of a CV does have merit.  However, it is also possible that, in the interest of time, those searching for expertise prefer to know beforehand that the Expert possesses the necessary qualifications before making contact.

The decision of whether or not to publish a Curriculum Vitae is, of course, a personal one. Across 1,300 Expert Witness categories, you will find that most of our members prefer to publish their CVs . If you have pondered this issue yourself and have any thoughts to share, please take a moment to comment below.

*Please see Experts.com’s next blog post on Watermarking CVs.

Uncategorized

Trademark Expert Witness key to Louboutin vs. YSL Red Sole Shoe Case

The beginning of last month, the U.S. Court of Appeals in Manhattan ruled that designer and shoemaker Christian Louboutin Sarl’s Red Shoe Sole is entitled to limited trademark protection. The safeguard extends only to the red lacquered outer sole that contrasts with the color of the rest of the shoe and not to shoes that are monochromatically red.
Trademark Expert and Experts.com Member, Gabriele Goldaper, testified in the case that Louboutin’s Red Sole Mark is “prominent, famous, and there is no competitive need for YSL or any other competitor to make use of the Red Sole Mark on their shoes…” She also testified that, “…its use merely permits YSL to trade upon the reputation and goodwill that Louboutin has built in that mark over two decades.” See Declaration filed in support of Preliminary Injunction.
Considering all of the evidence and expert testimony, the court held that “…the lacquered red outsole, as applied to a shoe with an ‘upper’ of a different color, has ‘come to identify and distinguish’ the Louboutin brand and is therefore a distinctive symbol that qualifies for trademark protection.” Although the case is returning to the lower court for review by a trial court, for now, except if the whole shoe is red, Louboutin has the sole right to the red sole.
Read more about Experts.com Member Gabriele Goldaper.

Psychology

Mistrial Due to Expert Witness Testimony

A Stamford, CT judge declared a mistrial yesterday in the sexual assault case of a minor by police officer, Anthony Santo. Attorney for Santo, Gary Mastronardi, filed a motion for a mistrial after testimony offered by Child Guidance Center ‘s Dr. Larry Rosenberg, was so prejudicial to Santo that, “even striking his testimony would not keep the jurors from considering it in their deliberations.”
Interestingly enough, in a case argued by Mastronardi earlier this year, Connecticut’s Supreme Court upheld an appellate court reversal of the conviction of a Fairfield man on felony risk of injury charges. The Supreme Court agreed that the trial court abused its discretion by allowing an Expert Witness to indirectly testify about the truthfulness of a complaint’s allegations.
In this case, Dr. Rosenberg, a Psychologist, testified that 93 percent to 95 percent of the children who alleged sexual abuse are being truthful. The other five to seven percent were found to be coached by a parent. As there was no divorce or custody dispute in this case,  the inference was too strong that the girl was a victim of sexual abuse. “He went too far,” said Mastronardi. “He improperly and inappropriately commented on the credibility of the witness….” Comerford admitted that an error had been made in allowing Rosenberg’s testimony on the percentages of truthful minor sex-abuse victims. As a result, substantial damage was done to the defendant’s case. “Essentially what he was saying was the woman was telling the truth,” Comerford said. Based on the Supreme Court’s earlier decision regarding the truthfulness of a complaint’s allegations, Comerford granted Mastronardi’s motion.

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Insurance Expert Witness on Litigation and Selection of Experts

Andrew J. Barile, CPCU, CEO, of Andrew Barile Consulting Corporation, Inc., has over 40 years of experience in the Property Casualty Insurance and Reinsurance Industry. He is the co-founder of the first publicly held Bermuda reinsurer and is on the board of both domestic and offshore insurance companies. Mr. Barile has an MBA from Stern’s (NYU) business school, and has won the AngloAmerican Fellowship to study at Lloyd’s of London, with his thesis on the captive insurance company.

In a recent article, he writes,

“The versatile Insurance Industry Expert is being selected by insurance industry litigation law firms throughout the country. Since many cases involve millions of dollars of litigation exposure, it is important to have an experienced insurance industry expert who brings the element of persuasion and accuracy into the mix.

Insurance experts that have been retail insurance brokers, wholesale insurance brokers, excess and surplus lines insurance brokers, managing general agents, reinsurance intermediaries are very helpful in winning cases because they possess practical industry experience…”

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THE BUSINESS OF LAW

Attorneys can be so overwhelmed with the practice of law that they lack time for the practice of business. Between consultations, research, writing, court time, hour-logging, etc., there is little or no time to number-crunch for the highest profit. Many large firms have in-house accountants to mind the books but, even then, the traditional practice of law can hinder a firm’s profitability. The perfect example exists in the Expert Witness arena. The legal industry has a tendency toward the old adage, “If it ain’t broke, don’t fix it.” This is all well and good if, indeed, “it ain’t broke,” but the Expert Witness industry has changed drastically over the last 15 years.

Prior to the computer age, when information was hard to come by, the best way to procure an Expert was through a Broker. Broker’s compiled lists of Expert Witnesses and Curriculum Vitae otherwise unknown to attorneys. The Brokers would then, and still do, charge attorneys a fee to retain those Experts. The cost is usually a 30%-60% mark-up over the Experts’ hourly rates. Though some Brokers offer a brief vetting of Experts, it is not worth the severe mark-up and attorneys are still required to do their own due diligence.

Expert Witnesses No BrokerToday, with information readily available on the internet, there is no need for a Broker’s services. Established and well-respected website Directories have made public and free what was once private and costly. The very same Expert Witnesses are marketing their services with these online Directories and negotiating their own terms with no middle-man. According to Expert Witnesses, the most common dissatisfaction with Broker referral services is their ineffective means of collecting from their law firm clients. With the Experts in control, getting paid is getting easier.

The Expert Witnesses have it figured out. Why attorneys would pay exorbitant amounts for what they could get free of charge is baffling. It’s time for law firms to focus on the bottom line, fix what’s broken, and save thousands of dollars annually. Nothing else makes good business sense.

Consultants

When To Hire A Professional Consultant

A professional Consultant is one who gives expert advice in specialized fields. A good number of consultants are top-level managers who have been with organizations for years and are able to trouble shoot issues that they have seen numerous times throughout their careers. Though the players are different, the contentions are mostly the same. It is just a matter of manipulating the knowledge that they already possess to benefit all of the parties. Though dispute resolution is the most common reason organizations hire outside assistance from Consultants, there are other situations when their services can be advantageous.

1.    Specialized Knowledge – The most successful organizations understand that they must hire in good advice when necessary. If an organization has a special circumstance outside the scope of it’s normal business, it may be necessary to “borrow the brains” of a Consultant. It is not rational to think that a decision maker has all of the answers. It is neither cost-effective nor efficient for members of an organization to learn a subject that a Consultant has already mastered.

2.    Disinterested Perspective – Consultants can serve as mediators or facilitators in outside and in-house disputes where bias would only divide the interested parties. Whether it be internal personnel issues or outside distrust, Consultants can concentrate the factions away from any encumberances that impede resolution.

3.    Fresh Perspective – Over time, some companies get caught up in the same line of thinking. Employee initiative gets stagnant and original solutions can be few and far between. Consultants have the benefit of visiting the same issues from many different organizational perspectives. Since they are continually solving the same general problems, Consultants have a vast arsenal of information with which to attack. For a short time, organizations can utilize this perspective to galvanize their work forces.

4.    Bad Guy – Businesses are often called upon to make difficult decisions. For some organizations, it is better that the delivery not come from within. For instance, a resistant board of directors may determine that an outside Consultant’s opinion to increase expenditures is more valuable than an employee’s opinion. At the end of the day, or assignment, the Consultant not only has the advantage of higher, more specialized knowledge, but can leave the organization with no lasting repercussions.

Professional Consultants can be an extremely effective tool for businesses in need of expertise. Whether for brain power, a new angle, as an impartial facilitator, or scapegoat, they can be thought of as a temporary means to a lasting solution.

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Marketing Platforms for Expert Witnesses and Consultants

Professional services firms may have all of the pieces of the puzzle, but if they are not in the right place, they are ineffective at best. For Experts and Consultants, sometimes websites rich in content and social media connections are simply not enough to build reputations and establish a market presence. This post is dedicated to professionals with all of the pieces but no real results to finish the puzzle. expert witness handshake

The fact is that expert witnesses and consultants may have a wealth of knowledge to share, but it won’t do much good if it can’t be heard above all of the social media noise out there. Increasing visibility and driving growth depends, more than anything else, on having a platform to promote your expertise. This platform must be uniquely positioned to enable the higher knowledge that experts and consultants possess to reach those to whom it can benefit most.

Fortunately, there is a solution. Experts.com is an established marketing platform specifically designed to assist professionals in building their reputation and getting results. Experts.com specializes in increasing visibility and exposure, which are paramount to survival in today’s ultra-competitive marketplace. Expert witnesses and consultants are encouraged to become members at Experts.com and market their services and expertise to thousands of users worldwide. The potential viewers are considerable, including attorneys, judges, businesses, insurance companies, the media, etc. Through Biographical Profiles, Members are encouraged to promote publications (articles, case studies, books, and more), place unlimited links to specialized website pages, and incorporate social media, thereby providing exposure to Experts.com’s followers on sites such as Facebook, Twitter, and LinkedIn.

To better target a professional’s market, Experts.com allows its Members to highlight separate profiles under the Expert Consultant Directory and /or the Expert Witness Directory, as not all Consultants act as Expert Witnesses.  Furthermore, the performance statistics for each profile, which can be viewed in real time 24/7, are tracked separately so that Members can see which profile is getting more exposure. Again, Experts.com’s goal in introducing these features is not just to increase their Members’ visibility and exposure but to do so in an effective, efficient, and economical manner.