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The Use of Demonstratives in Patent Litigation
A picture is worth a thousand words ' or perhaps more ' when the concept being described is complicated, abstract or unfamiliar. By its very nature, the technology associated with a patent demands the use of visual and other aids in order to be understandable by a juror, judge, or other trier of fact. Not surprisingly then, demonstratives are essential tools in patent litigation to illustrate or contradict fact and expert witness testimony, as teaching aids in Markman hearings, and in opening and closing arguments. A number of legal and practical considerations should be kept in mind when preparing and using demonstrative aids.
Legal Requirements
A patent litigator must be prepared to defend the use of any particular demonstratives because, absent stipulation, opposing counsel may always seek to preclude the use of the material in court. They are subject to the credibility of the underlying evidence, such as witness testimony. For example, opposing counsel can cross-examine as to the fairness and accuracy of demonstratives used by the witness. The courts are split as to whether demonstrative exhibits should be considered substantive evidence, and thus admissible in evidence. Compare United States v. Janatti, 374 F.3d 263, 273 (4th Cir. 2004) (“These 'pedagogical' devices are not evidence themselves, but are used merely to aid the jury in its understanding of the evidence that has already been admitted.”); with Verizon Directories Corp. v. Yellow Book USA, Inc., 331 F. Supp. 2d 136, 142 (E.D.N.Y. 2004) (“Subject to Rule 403, with somewhat more stringent control in jury trials, pedagogical aids should generally be admitted as evidence.”). Their introduction or admissibility in court is, pursuant to Fed. R. Evid. 611(a), at the sole discretion of the trial judge whose decision on such matters, reviewed for abuse of discretion, is only disturbed in exceptional circumstances. See, e.g., United States v. Crockett, 49 F.3d 1357, 1362 (8th Cir. 1995) (“We emphasize that the district courts have virtually unfettered discretion to regulate the use of such non-evidentiary devices.”). With this in mind, the litigator must take care in preparing demonstratives to maximize the odds that the fact-finder will consider them.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.