The Intellectual Property Appellate Board (IPAB) has made many attempts to examine facts in individual cases using expert evidence to prove technical and complex facts and to set the tone for the future conduct of litigators using expert evidence.
In Fresenius Kabi Oncology Limited v Glaxo Group Limited and Anor (2013), the IPAB observed that, “we might seek the opinion of independent experts appointed by us as neutral witnesses”. This decision was prompted by an earlier critical observation by the IPAB, “We have found that when the parties furnish expert evidence, predictably the opposite side attacks the evidence. We thought this problem would be obviated by the appointment of a court witness.”
In this case, the IPAB could not do so as both the parties proposed different names. While the applicant came up with names of scientists in India, the respondent recommended names of scientists living abroad.
On appointing experts, the IPAB recommends that the expert should be agreeable to both the parties. The fees should be shared by both parties and handed over to the expert by the IPAB. “Each party paying the scientist of their choice will be an exercise in futility,” the IPAB had said.
“In the days to come, the need for such court experts will arise more frequently … [the IPAB] hopes that the members of the bar will assist the IPAB in working out a viable solution for this problem as officers of court instead of as spokespersons for the clients.”
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DPS Parmar is a special counsel with LexOrbis’s IPAB practice group.
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