Federal Rule of Evidence 706(a) governs court‐appointed experts, and provides that:
The court may on its own motion … enter an order to show cause why expert witnesses should not be appointed …. The court … may appoint expert witnesses of its own selection.
In a recent order that has drawn national attention (see the attached article), District Court Judge William A. Alsup of the Northern District of California used this Evidence Code provision to appoint an expert to assist the court in connection with the determination of damages in the hotly litigated Oracle v. Google patent infringement action (Case No. 3:10‐cv‐03561, set for trial to begin on October 31, 2011). This is believed to be one of the first times Rule 706 has been used in this fashion in a patent case. What makes this case unusual is that – in this instance – the court‐appointed expert will be testifying to the jury, rather than simply advising the court in connection with Markman proceedings, as has been done in many other patent cases.
Is Judge Alsup’s order the beginning of a trend, or an aberration? Is this a positive or negative development for patent holders or those who face off against them in court?