Eccentric inventors can be their own worst enemies at depositions and on the witness stand at trial.  General Electric Co. v. Wilkins  (Fed. Cir., May 8, 2014) is a recent case on point.  The General Electric case involved a single issue: whether Thomas Wilkins was an omitted co-inventor of certain patented wind turbine technology.

The judge presiding over the omitted inventorship trial described Wilkins as “one of the worst witnesses I have ever seen.”  Since judges are acute observers of human behavior, this statement is extraordinarily powerful. What prompted it?

Wilkins is a classic eccentric inventor.  He refused to take a deposition oath without imposing arcane qualifications that made sense only to himself.  He also concocted an artificial, schizophrenic distinction between his persona as a litigant—in which case he had to be addressed as “Thomas Alexander Wilkins”—versus his everyday identity as simply Thomas Wilkins.  Insisting on a dual witness identity is a sure sign of a deponent about to go off the rails and a witness you’d never want on your side at trial.

If the stakes in this case were not so significant—a very valuable patent being fought over by the likes of General Electric and Mitsubishi Heavy Industries—the resulting court decisions in the Wilkins case would be the stuff of legal comedy.

But Wilkins is neither the first nor last inventor to exhibit odd behavior.  Caricatures of inventors as mad scientists about in literature and real life.  For example, the foibles of the famed inventor Nikola Tesla are legendary; he preferred to do everything in sets of three and spent much of his time feeding pigeons.[1]  Such eccentricities, however, can turn otherwise competent inventors into laughingstocks on a witness stand, post-trial.

How to Lose a Case With Your Eccentricities

Imagine a deposition that begins as follows:

Reporter: Please raise your right hand.  Do you solemnly affirm to tell the truth, the whole truth and nothing but the truth?

Defendant [Mr. Wilkins]:  Without prejudice and a full reservation of rights, I will hold all parties here, all agents and groups of agents, in their full commercial liability, including you.  What is your name and who do you work for?

Reporter:  I’m not here to answer questions.  I’m just swearing you in, doing my job.[2]

The interchange becomes even stranger when Wilkins responds to opposing counsel’s attempt to ascertain his reservation of rights in answering deposition questions:

Mr. Hanlon [opposing counsel]:  Mr. Wilkins, you’re here to give a deposition pursuant to court orders.  I don’t have to make any agreements [with] you to proceed with [this] deposition, and I decline to do so.

Defendant [Mr. Wilkins]:  Are you referring to me?

Mr. Hanlon:  I am referring to you sir.  How would you like me to refer to you.

Defendant:  Thomas Alexander Wilkins.[3]

After a second attempt to administer the oath at the deposition, Wilkins continues with his out-of-left-field answers that appear to be the childhood equivalent of “crossing your fingers behind your back”:

Mr. Hanlon:  Mr. Wilkins, do you understand that you’re under oath?

Defendant:  Please define your term “understand.”

Mr. Hanlon:  Are you under oath to tell the truth, the whole truth, and nothing but the truth in this deposition?

Defendant:  Okay.  I am not Mr. Wilkins.  I’m Thomas Alexander Wilkins.  Offer right back to you.  As far as truth, the whole truth, and nothing but the truth, I’m stating, without prejudice and a full reservation of rights, I do.[4]

Wilkins’ squirrelly deposition answers had an immediate impact.  The court ruled that he could not offer testimony in opposition to the plaintiffs’ motion for a preliminary injunction.  Suffice to say, Wilkins lost that motion handily.

In a motion for reconsideration, Wilkins buried himself into an even deeper hole with the court.  In a supporting declaration, Wilkins criticized the presiding judge for making “an obtuse and overly assumptive statement about my intentions in reserving my rights” and the court’s “bizarre granting of [General Electric’s] request” for a preliminary injunction. Wilkins Decl.,§§ 5, 88.

Instead of supporting Wilkins’ criticisms, in fact the transcript of oral argument shows that the presiding judge evaluated Wilkins’ qualified oath and compared it to other cases involving similar issues.   Wilkins objected to being compared to other eccentric individuals who refused to take unqualified testimonial oaths, but he directly invited such comparisons.  The court granted Wilkins an opportunity to provide legal support for his position.  He couldn’t provide any justifying his peculiar spin on the normal deposition oath.

Wilkins’ credibility fared even worse during a six-day bench trial:

Mr. Wilkins further undermined his own credibility while testifying at trial.  First, the Court found many of Mr. Wilkins’ responses to basic questions purposefully evasive.  [Citations omitted.]  Second, Mr. Wilkins was repeatedly impeached during cross-examination, to the point where the veracity of even simple answers were called into question.  [Citations omitted.]  Third, having observed Mr. Wilkins’ demeanor during examination, the Court is left with the firm impression that Mr. Wilkins is a game player who was more concerned about gaining personal advantage than testifying truthfully.[5]

The court concluded that “Mr.Wilkins leaves this case with no credibility. He was a purchased witness/party, and whether or not that was the intent of Mitsubishi, clearly that was the result.  His bias is only paralleled by his attitude that this is all a game.  His definition of the truth seems to be that which personally will benefit him the most.”[6]

Wilkins could not “reinvent” himself as a credible witness, and his co-inventorship claim cratered as a result.

Eccentric Inventors Historically

A closer reading of Wilkins’ reconsideration declaration is illuminating.  He felt his arcane oath qualifications were necessary because of his belief that General Electric and its counsel were dishonorable characters.  The irony of Wilkins’ position is that his meaningless revised oath is what actually undermined his claim.  A stipulated protective order—as was later entered in the case—would have served his intellectual property protection purposes much better than a testimonial oath nobody really understood, but which served as a bulls-eye for undermining credibility.

Wilkins’ paranoia that others (especially corporations) would covet and steal his inventive work given any opportunity to do so is not an uncommon reaction to our complex legal system.  Indeed, it could be a common personality quirk of inventors, sociologically speaking.  Such beliefs find deep roots historically.  A Scientific American article—entitled “Eccentric Inventors”—echoes this same theme of inventor exploitation.  First published over 140 years ago (in 1873), the Scientific American article still rings true today:

As a class, they are looked upon as enthusiasts, fanatics, seekers after will-of-the-wisp theories, until some day the public wakes up to the fact that one out of a million has immortalized himself and conferred incalculable benefits on the human race.  Then, if it cannot crush him or deprive him of the results of his labors, it bows down to him, pours gold in his pocket and complacently absorbs his glory under the grand title of our national genius.  Meanwhile, the other nine hundred and odd thousand continue to be “visionary monomaniacs.”[7]

Wilkins justified his idiosyncratic testimonial oath as a means to preserve his inventor rights: “the truth is that I am an inventor of particular technologies.  *  *  * That is who I am.  It is who I was before this litigation.  To expect me to change now is unreasonable.”[8]

The moral of this short cautionary tale: just as a leopard cannot change its spots, it may be unreasonable to expect an eccentric inventor witness to change his or her personality in order to provide more suitable, credible deposition or trial testimony.