Special masters, which help judges understand the technologies in patent cases, are fairly common in many courts. But Judge Wilken's court-appointed experts testify at trial, and are subject to cross-examination.

"I haven't heard of this happening anywhere else," remarked Igor Shoiket, a partner at Townsend & Townsend & Crew, who has an upcoming patent trial before Judge Wilken. "I would guess that a court-appointed expert would have great swing power over the jury, because they would be looked at as impartial."

O2 Micro asserted 6,396,722 against Monolithic Power Systems. Judge Wilken had the counsels, Howrey for O2 Micro, and Cooley Godward & Kronish for MPS, recommend experts. Brian Mitchell of Cooley Godward observed, "She was concerned that the jury would not understand the underlying technology and that it would become a trial based more on personality than technical merits."

After one candidate demurred over the work involved given the timeline, MPS identified two other potential experts, one of whom, Associate Professor Enrico Santi of the University of South Carolina, was chosen over O2 Micro's objections.

Santi found five of the six claims asserted not infringed, the sixth claim infringed only under the doctrine of equivalents, and that bit of infringement moot because he thought patent invalid as obvious. The jury followed where Santi led.

Mashing the sour grapes, Henry Bunsow of Howrey acknowledged that the federal rules of evidence seem to allow for such an independent expert, but mused whether the whole idea of having an independent technical expert jeopardized the constitutional right to trial by jury. "If judges start adopting this procedure, we might as well throw the jury system out the window. [Judge Wilken] ought to just take the independent expert's report and go to summary judgment. I don't know why we bothered with the charade of a trial. We believe the court of appeals will have a field day with this procedure."

And Bunsow couldn't resist beating Santi with the stupid stick. "What happened is that an incompetent expert was appointed, and it became a one-person jury." Bunsow attacked Santi's qualifications, belittled that this was Santi's first patent expert outing, that he confused the legal requirements for anticipation and obviousness, and that he didn't follow the claim construction of the court. Bunsow forgot to mention that Santi surely could have gotten any legal coaching he needed, that Santi was subject to cross examination, and that Bunsow and his boys could have pointed out the misdirections.

Santi's supposed incompetence is well concealed by an impressive curriculum vitae, including two patents and five years working in the field commercially before moving to academia.

Shoiket, watching from the peanut gallery to see how the lawyers would cross-examine the independent expert, said attorneys from both sides treated Santi deferentially, like a well-known expert. "I didn't see them handling it very differently. They were both very respectful of the expert and they weren't trying to nail him." At least until after the fact.