By and large, the view from the bench is that expert testimony provides little value in the claim construction process. It's litigation-driven extrinsic evidence, and it often plays no role in the court's final analysis. But if you choose to rely on an expert during claim construction, will you have to make them available for deposition?
Judge Stark answered this question on Friday with a resounding yes. After reiterating the general view that "[e]xpert opinions and declarations constitute extrinsic evidence . . . and are at times unhelpful," he confirmed that:
a party asking the Court to rely on such extrinsic evidence should expect to make its expert(s) available for deposition prior to a claim construction hearing, should the opposing party seek such a deposition within a reasonable timeframe.
He limited the deposition in this case to four hours, but ordered that it take place in less than a week.
So lesson learned: if you're going to rely on expert testimony during claim construction, you should expect your expert to be deposed.
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