How to Determine if an Expert Witness is a "Person of Ordinary Skill in the Art" (POSA)

Selecting an expert witness who qualifies as a "Person of Ordinary Skill in the Art" (POSA) is crucial for patent litigation. This designation ensures that the expert can provide reliable testimony from the perspective of someone with relevant expertise in the field. The landmark Kyocera decision has significantly impacted the criteria for determining if an expert meets this standard. To cover this important topic we will outline the steps to determine if an expert witness qualifies as a POSA, explain the significance of the Kyocera case, and provide strategies for lawyers to select and showcase their expert witnesses as POSA.

Understanding the Kyocera Case

The Kyocera case involved a patent infringement lawsuit between Kyocera Senco Industrial Tools Inc. and Koki Holdings America Ltd. The Federal Circuit's decision in this case introduced a new threshold for expert witness qualification, emphasizing that an expert must at least have ordinary skill in the art to offer testimony from that perspective. This means that experts must possess specific experience and qualifications that align with the required skill level for the case, rather than just general knowledge or expertise in the relevant field.

Key points from the Kyocera decision include:

• POSA Threshold: The decision sets a new threshold for expert qualification, requiring professionals to have ordinary skill in the art (POSA) to offer their testimony.
• Specific Experience: Experts must have specific experience and qualifications that match the level of skill required for the case, beyond general knowledge or expertise.
• Admissibility: The admissibility of expert testimony is now stricter, as courts must evaluate whether the expert meets the POSA qualification before allowing their testimony.

Steps to Determine if an Expert Witness is a POSA 

To determine if an expert witness qualifies as a POSA:

1. Level of Skill: Identify the specific level of skill required for the case, considering factors such as education, experience, and relevant knowledge in the field.
2. Qualifications: Evaluate the expert's qualifications based on their education, training, and experience in the relevant field. Ensure they have the necessary background and expertise to provide reliable opinions.
3. Experience and Familiarity with the Prior Art: Assess the expert's hands-on experience in the specific area of the case, including any relevant projects or tasks they have performed.
4. Communicate Complex Concepts: Assess the expert's ability to explain complex technical concepts clearly and effectively to a large audience.
5. Expert's Objectivity: Evaluate the expert's objectivity and ability to provide unbiased opinions, ensuring they are not influenced by personal biases or interests.
6. Familiarity with Relevant Patent Law: Ensure the expert has a good understanding of relevant patent law and regulations, including the legal principles and procedures involved in the case.

Strategies for Lawyers to Qualify Experts as POSA

To effectively qualify experts as POSA in patent litigation, attorneys can use the following strategies:

• Expert Selection and Qualification: Carefully select experts with relevant experience and qualifications in the specific field or technology at issue.
• Defining the POSA: Clearly define the POSA level required for the case, considering factors such as technology, prior art, and the expected skill level.
• Expert Testimony: Ensure that expert testimony is based on the expert's personal knowledge and experience, rather than relying on secondary sources or general knowledge.
• Disclosure: Provide early disclosure of expert testimony and qualifications to ensure that the opposing party has sufficient time to review and challenge the expert's qualifications.
• Challenging Opposing Experts: Challenge the qualifications of opposing experts if they do not meet the POSA standard, to exclude their testimony and limit the opposing party's ability to present their case.
• Court-Appointed Experts: Request court-appointed experts who meet the POSA standard to provide neutral and objective opinions, especially in cases where the parties cannot agree on the qualifications of their experts.
• Expert Witness Training: Provide training and guidance to expert witnesses on the importance of meeting the POSA standard and the potential consequences of failing to do so.

Understanding the criteria for evaluating experts helps lawyers select and instruct their experts effectively. The Kyocera decision highlighted the importance of aligning expert qualifications with the requisite skill level for the case. Other notable cases, such as Bial-Portela & CA SA v. Alkem Laboratories Limited and Rembrandt Vision Techs. v. Johnson & Johnson Vision Care, saw experts excluded due to PROSA requirements. This emphasizes the necessity of ensuring that only qualified experts provide testimony from the perspective of a skilled artisan.

Patexia Connect is an AI-powered platform that connects you with over 20,000 top experts, drawing from a comprehensive database of over 100,000 patent lawsuits and 10 million patents. Click here to learn more about Patexia Connect.