In larger cases, it is not uncommon to work on a team with other expert witnesses. Our guest, Mr. Stephen Pope, notes that while each expert has a particular part to play, often, not every expert will testify. It is therefore crucial that the testifying experts work with consulting experts to get up-to-speed on the report.
Check out the full episode for our discussion, which includes the two-way vetting process, having sufficient experience, and working on both the plaintiff and defendant side.
Note: Transcript has been lightly edited for clarity.
Host: Noah Bolmer, Round Table Group
Guest: Stephen Pope, Consultant through FASTLab
Noah Bolmer: Welcome to Discussions at the Round Table. I’m your host, Noah Bolmer, and today I’m excited to welcome Stephen Pope to the show. Mr. Pope is a software developer, music composer, and filmmaker. He’s an IP expert and consultant who has over 100 published technical papers. Mr. Pope is a sought-after expert witness with 25 years of experience. He holds a B.S. in Electrical Engineering from Cornell University. Mr. Pope, thank you for joining me here today at the Round Table.
Stephen Pope: I’m happy to be with you, Noah.
Noah Bolmer: You’ve had a multifaceted career with significant accomplishments in media, arts and Information Sciences. How did you wind up as an expert witness?
Stephen Pope: Completely by accident. It turns out that in the late 80s and early 90s, I was working at [the] Xerox Palo Alto Research Center and at Stanford and published several things later in the late 90s and early 2000s. It seemed like every year I got a call from some attorney saying, “Are you the guy who published that paper?” I said, “Yeah, why?” and he said, “It turns out that somebody else patented that” or that “Your paper would be useful to use as prior art.” I got started doing IP work because I published things that at the time I published, I didn’t know what to call it. Later, it was called the World Wide Web, or object-oriented operating systems, or surround sound in headphones. A bunch of things that became big things. About the third time this happened, I grudgingly said, “I better learn how to do this.” I had an attorney working for Apple who was very helpful and taught me about claims, charts and I got the boot camp of IP research. Initially, I was only doing invalidity. Being an academic I love doing the background of what’s the minimum number of publications I can put together to obviate this set of claim elements. Sometimes to also support a particular claim construction. It was later that I realized there [are] all these other things going on in an IP lawsuit. Lately, I’ve worked a lot on non-infringement doing source code databases. I’ve recently spent almost a year looking at all of Oracle for example, for a particular lawsuit. I’ve done both validity and invalidity infringement and non-infringement. I’ve had a little experience with value valuations, but that’s also a good thing to have come up against.
Noah Bolmer: What does it mean to be an expert in a variety of fields? What does it mean to remain an expert?
Stephen Pope: In my case the first thing is just being around for a while. Because patents are always in the past, and so it’s always how aware are you of the state-of-the-art in a particular field eight years ago. Or in some cases maybe 15 to 20 years ago.
Noah Bolmer: Right.
Stephen Pope: The famous MP3 patents were being litigated up until recently even though the patents had all expired. They were being litigated while you were still selling these products in 2017. The lawsuits went on into the 2020s. The first thing is having enough experience in a particular field. It doesn’t matter whether it’s software, pharmaceuticals, or mechanical design. I think it also helps to have an academic mindset of wanting to understand how things work and going back to first principles and good research skills. Many validity and invalidity, infringement and non-infringement cases all require research. It’s more reading compared to the amount of writing.
Noah Bolmer: Let’s talk about the vetting process. When you first take a call, what is it like? What kind of questions do they ask you to make sure that, one, you are an expert in the area they’re looking for and, two, that the specifics of the case [match] your skill set?
Stephen Pope: There are many things going on during vetting calls, The first question is, what do they give you upfront? You hope you get a patent, but I’ve had people say, “We’re looking at litigation in this field.” It’s vague because it’s normally database web applications. One I was working with [involved] surround sound and playing 3D sound in headphones. That was vague. Mainly because they didn’t want to disclose the parties upfront. I guessed who it was because there [are] only a small number of patents in that area, but you hope that they can tell you at least what the patents are. They will always tell you which side you are working for, plaintiff or defendant.
Noah Bolmer: Right
Stephen Pope: You hope you can figure out am I going to be working on the infringement case or the validity case, or either of those opposite cases. The two other things that make you look good to ask, as soon as I saw that question, Noah, I was thinking, the first thing is do you know exactly which claims are being asserted? Many patents have a large number of claims and many groups of claims.
Noah Bolmer: Right
Stephen Pope: If you read patents, you are familiar with blocks of claims that look identical except one is a method, one is an apparatus, and one is the program stored in computer memory. The rest of those blocks are identical, but it does make a difference if you are talking about method claims versus apparatus claims. The second most important thing is there a claim construction? All the background research and the whole thing hinges on them or are they saying they’re not going to have formal claim construction? Or is the first food fight going be we are going to spend a year fighting over the claims? Your first job is going to be spending a year just writing reports on three or four specific terms and doing a large amount of research into the prior art at a given date to say that term meant something different back then. If they used the common term, they never would have gotten the patent. I think to answer the question succinctly, which I’ve failed on the first try, Noah, the first call is just- I always say, “Yeah, I’ll toot my own horn. I’ll say you’ve seen my CV. I know what I’m doing. There is a lot going on, so if it’s something out of my field, I’ll say “I’m not confident there. You [need to] find somebody else.” I have a fairly- multimedia engineering and web technology. Those two alone are huge. In multimedia engineering, there are all sorts of standards and those are all covered by many patents. People come to me and say, “How about file systems?” I say, “Nope. [There] are many guys that are a lot smarter than me on [many] fields of software engineering.”
Noah Bolmer: Do you find that you turn down a significant number of potential engagements due to this [saying, “Is this not my subject area?”
Stephen Pope: Probably half.
Noah Bolmer: Wow. Ok.
Stephen Pope: Attorneys do a search and come up with a bunch of buzzwords, and once I realize what they’re talking about, I say, “The buzzwords match, but I wouldn’t be confident taking that on.” As an expert witness, I don’t want to embarrass myself and I also don’t want to have people giving me bad references because I oversold myself. If anything, I’m more careful to say If it’s not something I’m firm on I’ll say probably not,
Noah Bolmer: One of the things you mentioned is that you hope that you find out, and I imagine you typically do, whether you’re going to be on the plaintiff’s or defendant’s side. Do you have any differences in how you approach those two types of engagements?
Stephen Pope: There [are] parallel validity and invalidity cases, and parallel infringement and non-infringement case [happening.] If you can read a patent and say “This patent is specific, well written, and the claim terms are consistently used, and consistent with the practice, so I would feel great doing the validity case and defending this patent.” You look at other patents and say, “These guys are obfuscating the language-“ because if they use the common terms, it wouldn’t be novel, or the patent is so vague. I’m worried about it getting challenged for disclosing what they’re doing. I would say when you look at a patent, at least in my experience- and sometimes I’ve never turned something down and said, “I don’t want to have to defend this patent” I try to be honest with the attorneys if I’m engaged and say, “Here are the weaknesses.” or “Here’s what we [must] watch out for.” or “Here’s where I want to do prior art research to make sure there isn’t something that does this or has the little flywheel off to the left.”
Noah Bolmer: Do you take that kind of proactive approach with the attorneys-
Stephen Pope: I’ve had this-
Noah Bolmer: I’m sorry– in as much as telling them this isn’t going to work or these strategies for this patent are not the right direction to go, things like that.
Stephen Pope: I would not say those two sentences because both [are] legal opinions. I’m trying to make sure I’m not rendering legal opinions, but I can say, “These claims are the things I’m worried about.” or “Here [are] the things I want to do. Pay me for a week to look at the prior art of Claim Six, Element B because I think that’s going to fall apart.” My being honest [with] them, I hope makes them trust me and respect me and say, “Ok.” I’m not just saying I’m all things to all people. I’ll make a claim chart that Jehovah himself wouldn’t want to argue against. I’d rather say, “Here’s what I’m worried about. “or “Here’s what I think-” I’ve had several cases where it all came down to the claim construction. If we don’t get this narrow construction the invalidity case is going to be won, so it’s- or vice versa. You can say if I don’t get a specific instruction the patent falls apart.
Noah Bolmer: What are the other things that foster a good working relationship between you and an attorney? What makes you a good team with an attorney?
Stephen Pope: I think the personal side shouldn’t be overlooked. If I’m talking to an attorney with a headhunter on the call or not, I always want to say, “Whom am I going to be working with? Are there other experts? Are you the attorney that’s going to be my main interface?” If not, I want to ask, “When will I meet the people that will be the team that I’m part of?”
Noah Bolmer: Do you typically work on teams with other expert witnesses? What’s that interface like?
Stephen Pope: Absolutely, I’ve been involved in several big cases [where] there are a dozen or so working either on the same technology on different platforms or looking at video codec and how’s it handled on Android, iOS, Windows, Mac OS, and Linux. You have people doing all those different platforms or different people or different brands. How does Lenovo handle this versus Samsung on their Android products?
Noah Bolmer: Do you typically work with them on these things, or do you each have your part of the bigger picture doled out?
Stephen Pope: The cases where you get those big teams are non-infringement or infringement cases. We work independently. Here’s the standard, a video codec, the patent, and the claims being asserted. We go through and say, “Where do I find this formula?” It often comes down to a formula that’s in the patent. We say, “Where can I point to 5 lines of source code?” My expertise says that source code is implemented from that claim element. It’s independent because they may be in different languages. You may be dealing with things in C++, and other platforms are written in a low-level language like Verilog, so you can’t share much because my partner is in a completely different forest than I am.
Noah Bolmer: When you are writing a report do you each submit a separate report on each of those topics or is all of that- you do?
Stephen Pope: It all gets merged into some gargantuan tome at some point, but Appendix 3 is my appendix about whatever platform I was working on. Appendix 4 is Fred’s report about whatever platform he was working on.
Noah Bolmer: Let’s talk about when you are brought in [to] the process because I’ve heard from a decent number of experts that they feel time constrained. Sometimes they ask, “Why don’t you bring me on a week or a month earlier? I would have had more time to put this together because there’s a lot to analyze here.” Especially when they inundate you with a lot of paperwork at the beginning of an engagement. Has that been your experience as well?
Stephen Pope: First, I’d like that in writing to send out to some people. I’ve had both extremes. I’ve had people call and say,” Are you available to do this patent?” Once I say, “Yes.” Then they say,” Can you be in Austin, TX next week?” Other times I have felt you are trying to tie me up so that I can’t work for anybody else because you want me to sign up for a trial that’s going to happen [the] middle of next year. I’d love to be involved, but I’m not sure I want to start signing non-disclosure agreements for something you don’t have a complaint [for] yet. You’re trying to tie up experts so they can’t be on the other side. Both extremes happen and everything in-between.
Noah Bolmer: Have you been brought [in] on both as a purely consulting expert witness and a testifying witness and has one ever transformed into the other?
Stephen Pope: Oh, certainly. I don’t think [it’s] unusual. I’ve been on teams where they say, “We have three or four experts working on different components, and when we go to trial only one or two are going to testify.” You may end up testifying about somebody else’s report because they don’t want all four people testifying. I’ve had both types of cases where I handed my work off and did deposition preparation with another guy who was going to testify about my report and vice versa. In my experience, that’s not that unusual. They say let’s get the reports as good as we can and then as a separate thing, start preparing for the trial.
Noah Bolmer: Speaking of trial preparation, what are the techniques that work for you? For example, do you do mock cross-examinations or-
Stephen Pope: If you don’t, you’re stupid. You have mock depositions before deposition and mock cross-examination- Of course, the new inter partes review, your expert report counts as your initial testimony. You go straight from writing the report to being cross-examined about it. My background as a musician is you get better by stinking. When you start practicing it doesn’t sound like much. Having attorneys try to trick you or try to conflate different things that absolutely cannot be conflated. The better the attorneys, the better they want you prepared.
Noah Bolmer: Let’s talk about that because it’s something newer witnesses go through. They must have their first time on the stand with the pressure and the techniques from the other side. Having other attorneys try to impeach their credibility. What are the things that you notice often occur? What are the techniques you use to deal with those situations?
Stephen Pope: Early on, I felt I was well trained by a couple of clients [who] took the time to help me learn, and in those cases, I was valuable to them because I was a fact witness [besides] being an expert. They wanted me on the stand because I could point and say, “That’s my publication.” or “I invented that technique.” that company XYZ [used.] It wasn’t a whole patent, it was a minor claim element, but if one claim element falls apart, the claim falls apart. They were very patient in teaching me. The first thing I remember is you’re on the stand to read as much of your report as possible. Your report has your CV so whenever possible, go back to your own thing. If the attorney says, “Can’t you do it off the top of your head?” You’re allowed to say, “No, I’m under oath here, Mr. Attorney, you’re not. I’ve already opined on this. I’d like to read from my report or at least refer to my report before I answer your question.” Sometimes they get upset in depositions and trials, and you have to say. “It’s a 400-page report.” or “It’s a complex field. The reason you gave me the print-” because they must give you a copy of your report. Then say, “I’ve rendered an opinion carefully edited.” I’m going to repeat that ad nauseam.
Noah Bolmer: They can’t fault you for it. It is your right to read from the report during a deposition.
Stephen Pope: I think it’s- obviously they get hot under the collar- not hotter- they get excited if they feel you’re going [to] start improvising. Don’t improvise on the stand. Don’t improvise in a deposition. You’ve got the patent. You’ve got your report. If they ask you stuff that’s outside, you say, “I haven’t been asked to opine. Do you want me to read the patent and analyze it here? I don’t have an opinion on that.”
Noah Bolmer: Having written over 100 technical papers over decades, do you have to refamiliarize yourself with your work because, due to the eventuality that the opposing counsel may come to you and say, “Twenty-seven years ago, you said this sentence on the subject.” Is that something that you’ve been confronted with?
Stephen Pope: Absolutely. You must go back, especially if you’re a fact witness and an expert witness. If you’re providing prior art, that is your work, and then being deposed or cross-examined on it, you better know exactly what you said. It sometimes comes down to claims construction. “You said the little pulley is hanging off to the left, but you just said it’s off to the north. What does that mean?” You had better make sure you know any subtle details. A good team will think of that for you. You hope you’re not surprised, but you can say, “Yeah, that’s different, in my old office, my desk was facing east, so left was facing north-“ or facing west, sorry, I got that wrong.
Noah Bolmer: Do you have a couple of stories that you can share that have engagements that have either changed the way you look at being an expert witness or have in some way formed how you approach being an expert witness?
Stephen Pope: What came to mind is a couple of cases where I made the mistake- I was just talking about improvising on the stand. The problem is I’ve been an academic. I taught for a long time and when you are asked a question, as a professor or lecturer- you are always trying to think- it’s just like working with kids – wait, I’m not going to answer that question. Let me try to figure out what misunderstanding on their part makes that question even reasonable. As an expert witness, you’re supposed to be obstinate and say, “I’m going to answer the question you asked and not give you help and not answer a different question, that I think you’re trying to [get me to do].” Early on, I had to be taught this is not teaching. This is a deposition. It’s different, and luckily most of that stuff got caught in mock-depositions and preparation.
The other thing that comes to mind is an anecdote. At one trial I was on, the opposing side brought in somebody who was supposedly a guy to cross-examine me at the International Trade Commission. A couple of days before my colleagues said, “Oh my God, they’re bringing in Mr. X from Chicago. He’s the best.” It made me nervous and worried. Boy, if they’re worried about this guy cross-examining me- the funny thing was that guy ended up making every mistake in the book. He let me spend the whole time tooting my own horn. What the opposing side had done was go through my resume and as an academic, you’re often doing two things overlapping. You might be a consultant to a company. You might be teaching summer courses somewhere. You might be an editor of an academic journal. If you look at my resume, it does look as if I’m juggling at three parties at once. They made this big spreadsheet to try and make me look like a liar. They had this lovely thing they projected, and then [the attorney] starts and says, “Mr. Pope in 1992, you were living in Cambridge, MA. Is that true?” I said, “No.” He says, “Well, your resume says you were the editor of [the] Computer Music Journal for MIT Press.” I got the chance to say, “Academic journals have a commission or committee that picks the editor. The editor doesn’t have to be in the same town as the publisher. I was on the West Coast editing a journal published at MIT. That doesn’t mean I lived in Cambridge, MA.” He continued and didn’t give up. “At the same time, you said you were living in Stockholm, Sweden.” I said, “I was invited by the Swedish Institute of Computer Science to do a project there. I was on sabbatical.” This attorney let me brag about my resume, and his intention to make me cry and fall apart. At the end- this was my funniest cross-examination experience ever. At the end, he said, “That doesn’t seem believable, Mr. Pope.” I turned to the judge for some reason and said, “Your Honor, I was not married at that time.” Exactly one-half of the courtroom burst out in laughter. That was a case of you never know what to expect and attorneys make mistakes too, but the thing about being prepared and being confident- he thought he was going to surprise me and make me look like a fool. In fact, he let me brag about my resume and in the end, he ended up not asking me a single question about my report. His client ended up settling shortly after that for a large pot of gold.
Noah Bolmer: That’s spectacular. Before we wrap up, do you have any tips for newer expert witnesses or attorneys working with experts?
Stephen Pope: The first thing is, find out- it’s just the academic admissions answer. How can you study it? Get good at reading patents and summarizing patents. I used to teach that in grad school when I was teaching Multimedia Engineering. I said to my students, “Look, you’re lucky if you get to work on state-of-the-art stuff, which means you’ll probably end up reading patents, maybe to implement them. Or maybe to [ask] how can we do the same process without infringing?” Get good at reading patents and summarizing them. Then, become [skilled] at looking at patents and figure out how much of it is prior art. I had done a lot of that before, and the first couple of cases I was on, they just gave me reports. I said, “Yeah, I want to learn how to write claims charts, can you give me some?” They said, “Yeah, here, we [have] file cabinets full of them.”
The [second] thing [is] ask questions. They can’t fault you for saying, ” Is there a claim construction? Can you tell me what exact claims are being asserted?” That makes you look like you’re in the know. Those are two questions that any attorney coming on a case is going to ask. This engagement interview is not a normal interview. Seeing your CV and thinking your relevant means you’re halfway there. The question is, can you convince them that you asked the right questions and are a team player. The kind of person [who] isn’t afraid to say, “I don’t know.” or “That’s out of my area of expertise.”
Noah Bolmer: It’s important to remember that during those interviews, you’re also interviewing them. Ultimately, you can decide whether to take an engagement.
Stephen Pope: Certainly, it’s bidirectional. I agree, Noah.
Noah Bolmer: Mr. Pope, thank you for joining me here today at the Round Table.
Stephen Pope: It’s been fun. I look forward to hearing it and catching up on the other previous podcasts.
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