Why a Hatch-Waxman Patent Expert Witness Will Likely Appear in a Bench Trial

Excerpted from SEAK’s Course:  How to Excel as an Expert Witness in Patent Cases:  Special Techniques

We’ll talk a little bit more in detail, I think tomorrow about Hatch-Waxman. How many of you have heard of Hatch-Waxman? Okay, so Hatch-Waxman governs most of the litigation between generic and brand drug companies. And the interesting thing about Hatch-Waxman trials is that the cases that they occur before any actual money has been made by the alleged infringer. So it sort of…the trial happens before the actual infringement in most cases and the constitution provides for a jury trial for any case that exceeds $10 in damages. Well, your blockbuster drug that may have a $1 billion in annual sales, there’s actually no money damages that have occurred as of the time of the trial, and so these become what are called bench trials which means the trials held before a judge. And so when you have a judge, it’s a little different than a jury, especially in Marshall, Texas where you have a very educated person who probably has some knowledge of patent law and you may have a little more leeway in making these kinds of obviousness arguments and combining more prior references.