The Art of Teaching Complex Technology in Patent Litigation

In this episode, IMS Senior Client Success Advisor Adam Bloomberg is joined by Professor Ian Cullimore, expert witness and patent inventor, and IMS Trial Consulting Lead Dan Martin to explain how to simplify sophisticated intellectual property into compelling presentations that judges, juries, and tribunals can comprehend. Our guests also discuss strategies for expert reports, requirements for Markman hearings and technology tutorials, collaborating with experts and graphic designers, and recent trends in patent litigation—including AI disputes.

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IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 45,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at imslegal.com.

Transcript

Hello and welcome to the IMS Insights podcast. I'm your host, Adam Bloomberg. Today we're speaking with Professor Ian Cullimore, a lifelong inventor and patent expert with extensive experience in complex litigation involving computer technology. Joining him is IMS Trial Consulting Lead Dan Martin, who has spent more than 20 years helping litigators develop winning visual strategies for high stakes disputes.

Our guests will explain how to simplify the most sophisticated intellectual property into compelling presentations that judges, juries, and tribunals can comprehend. They'll also discuss strategies for expert witness reports, presentation requirements for Markman hearings, and the collaborative process between experts and graphic designers. (If you're listening only and would like to watch the video version, please visit our YouTube channel.) 

Adam Bloomberg:

Starting with you, Ian, welcome aboard. I know you are currently in London. It's about, I think you said it's around 5:00 pm there, so thank you for joining us here this evening. You've worked on a number of patent disputes in the UK and here in the States in Silicon Valley, so I'd like to start with kind of your strategies for testifying in say a trial or an international arbitration where you're having to distill complicated concepts. You know, I've often heard the role of an expert is like a grade school science teacher. So with that in mind, let's start with you know what sort of tips do you have for testifying?

Ian Cullimore:

Yeah, sure. First off, it's very good to be here, so thanks for that. Very good. So I think the big thing for me is plenty of time prepping with counsel and understanding their strategies where they're trying to get with this case. And also, they'll normally have an understanding of what, if it's a trial, say, what sort of level the judge is at and the jury too, they might well know the jury members and we'll have an idea of what sort of if they're tech savvy or not. So you can start to judge what sort of level you've got to start to explain these things to people with. One thing I find is to, you know, don't be condescending to people, don't talk down to them, but don't talk up. Don't try and make out that you're super smart and that sort of thing and try and belittle them. Just try and get the level right so that you can explain these concepts to them. You may be allowed to do diagrams and whiteboarding. Sometimes you can, sometimes you can't. So oftentimes diagrams are very useful to explain some of these concepts. 

Often use analogies. Again, if you've got people who you think aren't that tech savvy, it's difficult to explain complex issues like how the Internet works or how electronics work or how software is designed and so forth. So using analogies of the flow of water to is like electricity for instance and how simple electronic circuits are put together. So just try and understand your audience and judge that and and talk to the right sort of level if you can.

Adam Bloomberg:

Well, I have an idea that you're a pretty good teacher, you've got your whiteboard there in the background. So you've been hired as an expert in in patent cases regarding specifically mobile operating systems. How do you, how do you start to think about simplifying say the inner workings of program language in say your initial meeting with counsel?

Ian Cullimore:

Again, what I was saying before, try to understand their level. With counsel, it's a bit different. What I found in in my arena of work is that, often times, they'll have done a EE degree first so and then got into law and got a law degree and specialized in intellectual property. So often times you're talking to your counsel, and they are pretty tech savvy. On the other hand, you know that you'll be writing an expert report, and you need to get the right, sort of, level for that if it's going to go to trial. Again, you'll be explaining to a judge and a jury, so you have to lower things down a bit. And again, just use, you know, simple analogies of how these things work.

Fortunately, as time has gone on, I mean it was a more difficult task when I first started as an expert witness because you know, program languages were complex. It was all low level, similar language, difficult languages. As time's gone on, it's gotten easier actually. And that's been beneficial because programming languages are easier now for people. Anybody just about to start to bang out an Android or iPhone app. So that actually makes the task easier to explain to people how to do it.

Adam Bloomberg:  

I consider myself tech savvy, but when it comes to to programming mobile applications, I have to be honest, my eyes glaze over a little bit. So I want to try something out. Will you, will you humor me for a second here? How about you tell us how would you explain the Internet to say an eighth-grade science class, maybe like a jury? And then conversely how would you explain the Internet to say a graduate level class like something like a a tribunal where they already have a general understanding of kind of the technology at play?

Ian Cullimore:

Yeah sure. And in fact, it's an interesting question. I had a case like this where I had to do both things at the same time basically. That I had a judge and some other panel members who were not very tech savvy but also had counsel on the opposing side who were very tech savvy and so I had to try and do both at the same time. So explaining things simply to half of the audience, you know, trying to explain that there are parts they didn't need to worry about. You know when you type, type in a domain name, www dot, you know, apple.com or something like that. What's, what's really going on? Well, there's some deep complexities in the background of it, but really you don't have to worry too much about that.

Just explain that there's some communication going on over the wires or wireless and these back-end servers understand, and they just know you want to have some data displayed on your phone for this particular website or buy something off Amazon or whatever it is. On the other hand, if you've got counsel who are tech savvy, which they were in this case, they really wanted to drill deep into the technology of this and almost try to make out that, you know, I didn't know quite what I was talking about, but I had to show in this case, I didn't want to bamboozle the judge, but I had to show in this case that I already did know the deep inner workings of how the Internet works and TCPIP and packets and, you know, secure layers and so forth. So you just got to judge it right, I think for the target audience.

Adam Bloomberg:

So Dan, it's your turn. As a trial consultant, you might also be able to approach your work differently in these, kind of, two scenarios that we're talking about. So given what Ian's talking about here, what, what sort of visuals come to mind based on that? I mean, how, how would you approach visuals for these two scenarios?

 Dan Martin:

Right. Thanks, Adam. It's good to meet with you guys today. Yeah, the Internet I think is a really great example of sort of an everyday use that we, kind of, take for granted and that probably very few of us truly understand the inner workings of. So for the lay jury, I would probably recommend leaning on, you know, simple graphics that start with the basics. It's both worldwide and it's, you know, it's both wide and narrow, it's worldwide, it's personal. And so you know it's a singular experience dependent on satellite connectivity, presumably, a top endless array of networks. So these are things that we that can be illustrated quickly with symbols and icons. You know and these things that we're used to associating with technology. So to the extent we can minimize the words on the screen for the jury that would compete with the verbal narrative of a expert like Ian or counsel, the better off we'll be with a jury. So it would be, you know, a different approach for a sophisticated arbitration panel for instance like the one that Ian described. You can get away with a lot more technical descriptions I think and less reliance on everyday analogies like the water flowing type thing. The panel would likely find more benefit and more descriptive detailed text maybe right on the slide, on the graphic than a jury would, you know a little more appetite for that. So essentially the panel would have more capacity for understanding complexity and the expert can use that, in my experience, to their advantage when they're doing their visual presentations.

Adam Bloomberg: 

So Ian, during one of our prep calls, you mentioned a case years ago where you were called to testify about mobile technology and it was a criminal dispute in the UK, right? Yeah. That's what it was. Yeah. In that case, the judge may have been less tech savvy than even the opposing counsel, so what would be your tip for approaching that situation?

Ian Cullimore:

Yeah, in this case it certainly wasn't very tech savvy. It was quite a long time ago too in the, you know, early days of, you know, way pre-smartphones back in the early days when computers were only just being adopted as personal ones, so a lot of people hadn't even used computers back then. I was involved in some of the early handhelds and PDAs and palm tots. This case came up where in fact somebody had been saving records on one of these early computers and been deleting them. And I said, “Well do you know that maybe they're not really deleted.” So I was able to undelete them and retrieve all this data. So trying to explain this as to how this could be done, in fact, it's very simple because of the mechanism that was often being used and still is of saving the data. When you want to delete it, you just flag it. We call them flags. And this is an interesting analogy. It occurred to me, we started talking about analogies, and it occurred to me how many analogies are used in in high tech. So instead of having to delete all of that data, which is a bit time consuming and energy consuming, you just flag it as simple, you know, one thing that says whether it's deleted or undeleted. So kind of all you have to do is to change the flag from undeleted to deleted and hey presto, it's all there still if it's not been deleted. So using analogies like that, I found, was very good in trying to explain these actually quite complicated software technology issues to laymen. 

Adam Bloomberg:

We're going to come back to analogies. That's a really good topic. Dan, as a trial consultant, how do you, how do you meet the challenge of assisting in expert testimony?

Dan Martin:

You know of course we work with all kinds of experts, from people who would rather have literally no imagery displayed at all, you know, and they they're uncomfortable with that, to those who have total clear idea about what visuals they want to show to support their testimony and how they are displayed. So either way on either end of that spectrum, it's our job to collaborate on what the story is and tease that out, right, and then we can help best visualize it. 

A lot of the expert testimony like Ian's is scientific, right. And so a quick and credible lesson in a topic of interest in a case and whatever it is, is always going to be enhanced by graphics. You know, it's truly necessary to teach, I think and and we can and we do make beautiful graphics but that's not necessarily the primary goal. It really isn't, right. Graphics shouldn't be necessarily so eye-catching that they distract from the point of the argument being made. And it's pretty simple. A judge, a jury or judge or a panel should come away I feel like grateful that the graphics help them understand the the issues and we do hear that in in post-trial interviews which are generally conducted by our jury consulting team in trial. So above all, we want the demonstratives to be compelling and from a graphics perspective, teaching and clarity are key and I think the experts would would want that and I would agree with that. 

But usually my first goal in these meetings with experts and clients is to grasp the concept so that I can help translate that to the jury, obviously. I mean I'm a lay person who needs a minute probably to absorb the meaning of what you're telling me, especially if I've never heard or thought about this topic that we're discussing, which you know, I I'm grateful to be in a job where it's interdisciplinary. I get to learn a lot of different things. So whether it's something very technical like what we're talking about with Ian's work or real-life example, the propulsion system of a toy fish spring propelled, right. So if you're the expert that's hired to explain that system because it's the issue in this patent dispute, it's my job to help you tell that story of the fish's propulsion system in the bathtub in a way that's engaging and informative and hopefully helps us win for you. 

Adam Bloomberg:

So what does that back and forth process look like? I mean, let's say that you and Ian are in a case together. So what does that look like to, to, to create that final piece?

Dan Martin:

Well, it's iterative obviously. I mean, a lot of experts, a huge portion that we work with our academics like Ian, right, and who have a lot of teaching experience. So explaining things in court or in in arbitration is usually second nature to them. They're great to work with because they're used to storytelling and the use of visual aids usually. But sometimes they need to be reminded that they're speaking to regular people and not their grad students, but generally they're teachers and and they're relishing the opportunity to connect with people, whether it's jurors or judges or panels. So we'll kind of work with that, I think as a starting point. You know, why are we here? Why are you here? What's what's interesting about the case? How can your expertise help the jury understand why they should believe, you know, our side. And so these are the kind of questions that get us going. And then it's just the back and forth, the sort of sausage making of the creation of graphics. That's just getting the work done.

Adam Bloomberg:

So I'd like to transition here, Ian, I'm going to come back to you here and kind of the anchoring point with your written report. What are your best strategies for a written report and really how do you approach that?

Ian Cullimore:

It's obviously a big part of what an expert witness has to do and so much hangs around your expert report. So it's so important. Now, the thing is that there are some very different ways of going about it. And what I found is that there are big differences certainly between the UK and Europe and US. My early cases were over here in the UK, but most of my cases since then I've been in the US with US law firms, attorneys and trials and so forth. And even within, say, the US set of law firms, there are quite big differences as to how they like to go about it. I found in the UK for instance, that it's much more common for the expert to be left on their own almost entirely and write the whole report themselves. Maybe given a thin template but generally left alone to get on with things, with some talking to the counsel, going back and forth, understanding, explaining some issues to them and seeing where they want to go with it, but pretty much writing it yourself. I found it rather different with in the US, with US counsel, in that they will certainly want more participation in it, at least as far as providing templates go, heavy templates, the way the reports laid out. And obviously you need your counsel because I mean, I'm not a patent expert, a patent attorney myself, so I don't know you know the law as it pertains sometimes. So you need help from your attorneys to actually put in that boilerplate some of the important legal issues that they might think need to be in there. But apart from that, they'll either, again, let you leave you on your own and you get on and you fill out the real meat of it, which is where, of course, your expertise comes in because you know you're hard as the person who really knows the deep stuff about the technology, if it's software or hardware or whatever. So that's the real sort of meat of doing the expert report.

Now sometimes they'll kind of like to be quite involved in that and you might just end up talking to them a lot with them taking the notes and then them actually writing it. So there's quite a big, it's interesting, there's quite a big variance in in the way that these expert reports come about. Some of the key things I think about it is to, you know, I've always felt that being an expert witness that I, I'm impartial, you know, I'm not there really to take sides. Yes, you're, you know, taken on by one side of the argument in this law case, but you want to try and you know, keep it down, down the middle, straight, be impartial, just offer your best technical advice, explain the issues to them. Don't be biased. You've got your credibility to maintain too. So keep it like that and then you'll get a good report out of it. So that's my basic strategies for it.

Adam Bloomberg:

Dan, you work with the experts to bring some of the complicated processes or concepts out of the report and and to create a visual. So how do you get involved and maybe can you describe that process from the report itself?

Dan Martin:

You know we'll get the report completed from the expert and to a consultant and a graphics person I mean it's gold, right. It's it's even more so than potentially the complaint. You know it's digging into specific really important issues and usually has figures or some kind of visuals, you know, in within the report and and sometimes a lot of part of our job is to actually take those figures and enhance them or make them you know more jury friendly. How do they look on a slide. So sometimes it's as it's as simple as taking detail off you know to highlight what what's important. So you know, expert reports are gold for a trial consultant. And and in recent years it's interesting it's become more common for experts we work with to ask us to actually assist with their reports. And and I find this in arbitration, you know, briefs as well, even more so potentially.

But and it's partly a function of the fact that at IMS we, you know, we do expert placement and so now we have a chance to get in way earlier in the process and meet with and speak with experts sooner than we we would otherwise and that we do on other cases. So that enables us to take part in some really preliminary visual strategy, which is great. And sometimes you will get to see that in the report. So we'll have input. I mean of course a lot of a lot of experts will have teams behind them that help them put together their their reports and and their and their figures and stuff. And so we'll work with them as well. But of course, we also get involved just through attorney connections and repeat clients and experts we've worked with on past cases who look to us for help. 

And of course this is true when we're revisiting technology or patent issues that are recycled or that have been tried in the past for, for which we've created graphics, just makes sense to to bring us back. So in other words, the expert doesn't have to, you know, do remake something, reinvent the wheel if they if they have it already in some form.

Adam Bloomberg:

Okay, let's say the, the report's done, Ian, and now we move to deposition. I'd love to hear a little bit about your strategy for for preparing for deposition.

Ian Cullimore:

Yeah, it's I expect everybody in the audience knows depositions are the, the grueling thing for this part of the whole process. And it's funny the number of times when I've been taken on for a new case and the attorneys will, often in the early days say, “Well, you know, do you like giving depositions?” And of course, anybody who's really truthful probably doesn't really like giving them, but they're a necessary evil, as it were. And a very important part of the whole process. So even though you don't really enjoy them, you have to do them and you do the best you can and make the most of them and that they can be grueling, they vary quite a lot.

So my sort of strategy is, it depends, I mean if I'm in the US, well even the US of course you have four time zones in your country. So there might be some travel involved and you've got a bit of jet lag there, especially going West to East Coast I find. It’s a bit worse for me if I'm in the UK and flying out to to the States, it's five hour difference to the East Coast, eight to the West Coast, California where I often go and used to live and work. So jet lag is a big thing that you have to you know take into consideration to start off with. So I'll try and get out a day or two early, get over the jet lag a bit. You're just spending plenty of time with counsel again going over your report. You don't have to, you're not expected to memorize it. You have that expert report with you in the deposition and you're allowed to refer to it. So that's very useful, of course some prop for you. But yeah, just just working with your counsel, understanding what their strategies are. What sort of, always ask for what sort of points are the opposing side going to try and catch me out on? What sort of points in my report are they going to focus in on? And are there some areas where we can focus ourselves to, you know, make sure we've got a really good story here for it? Apart from that, you know, staying calm with it, being rested, not getting flustered, taking your time.

One of the great things I've been taught by counsellors that, you know, you really do have whatever time you want. And these are long days. I mean, nominally it's about seven or seven and a half hours of grilling time as it were. But with breaks and and lunch and everything, it can be quite easy in an 11-hour day. So it's a very long tiring day. But one thing is you can control the timing of it. And if you're asked a question, time and again, you, you know, talk to say, well, let me refer you to my report. And then you take a few minutes flipping through your report, finding the place that you're trying to point them to, point them to that that's read it out, get them to read it out. So these sort of tactics you can try and control it. So it's really trying to control the deposition as best you can and not have that control taken away from you by the opposing counsel. Also, they may well have worked with the opposing counsel before and will understand what sort of way they go about taking these depositions and if they're, what their sort of attitudes are to cross examination. So I'd be very useful in prepping yourself for what you're going to expect in in the deposition.

Adam Bloomberg:

You mentioned a little bit about meeting with your team and certainly wanting to know the strategies for how you're going to be crossed, but can you talk a little bit more about the initial prep with the team hiring you. What does that look like?

Ian Cullimore:

Yeah, sure. Because they want to, you know, collaborate with you to, you know, get the best possible they can out of this whole team. You're typically working with two or three, you know, one lead counsel, a couple of other people helping out too. They'll have their own expertise in some areas. So you want to know that and understand how you can explain to them some of these issues. But again, I'd stress that as a expert witness, you're an independent advisor, really. So you're not, yes, you're retained by by counsel, by that law firm, but you don't work for them strictly. So you need to be independent. If if if your counsel is bringing up points that you don't think are right, then you have to raise those issues with them and discuss it and and see what sort of tack you can take in some of these trickier areas.

You know keep your credibility, always, as an expert witness because that's that's what they're looking for, as well I think in these initial preps, that they're getting good solid straight advice from you and assure them that you know what you're talking about, explain the areas you've worked in, explain these sort of sometimes difficult concepts and try and understand what they need to know in this whole process. But finally, I think the more that you can do, the more you get involved in the better you get with them and more experience you can get under your belt and the more you can help out the your attorneys and your your law firm.

Adam Bloomberg:

So back to opposing counsel in your, in your 31 cases, I'm sure there's had to be some challenging moments during cross examination. Do any come to mind?

Ian Cullimore:

Yeah, sure. There have been some some difficult ones. I've had the table thumpers with the guy literally banging on the table. And I've had the guy go red in the face accusing me of deliberately not answering questions and things like that. They're just trying to fluster you, you know, for you to lose your guard. I had one where it was a video deposition a few years ago during the lockdown phases, and there were three attorneys. Well, one attorney and two other guys that didn't really know why they were there on the video. And one of them was just behaving obnoxiously. He was just, like, staring at me and laughing and trying to put me off. And in the end, I did make a break in proceedings and say, you know, “Why is that guy there?”. And they did remove him, actually. So they're all sort of tactics that are that are used.

Another one that gets sort of a bit, they're trying to embarrass you. One thing you're told is that in a deposition, it's your expert report. That's what you've written, that's what you stick to, that's what you refer to all the time, and that's what you point to them. So if they start asking questions outside that, that's actually not allowed, really. They're supposed to be asking about your expert report. I've had times where one of the more brandish, a patent I've never seen before, and thrust it at me and say, “Well, what do you make of this patent then?”. And of course they're trying to trick you because they're trying to get you to make an opinion on that when you won't have had time to form a proper opinion.

So I had one case, it was extreme where he took out patent after patent after patent. There were literally about 30 in all. And each time I'd accept it and I'd say, “Well, I haven't had time to review this. I haven't formed an opinion on it.” And then they come back and say, “Well, what do you mean you haven't formed an opinion? You're supposed to be an expert, aren't you? Why haven't you got an opinion on this?”.  So you have to explain, “Well, no, I need time to digest it and go away and do my research and and so forth.” So those are the sort of things that get difficult in depositions. They do occur quite often, I must admit.

Adam Bloomberg:

You know your example about the contentious situation in a video deposition, we've seen cases where counsel will request that questioning attorney will, and whoever is going to be on the other side of that, will also be on camera and we'll have multiple cameras in the room in addition to the witness. So sometimes that can help to kind of neutralize that example. But yeah, we we've definitely seen that too. So moving along the life cycle here of a patent case, Dan, it's been said that that cases can be won or lost at a Markman hearing. What is the role of a trial consultant during a Markman hearing?

Dan Martin:

Right. You know in patent cases usually, often times with technology patent cases, we'll get involved by the client reaching out to us to help them prepare their technology tutorial which is a required component of a Markman hearing. So these are filings, you know these are technology-based filings that that each side provides sort of supposed to be kind of neutral and it's each side telling the story of the patent technology at issue. And so we work with with the teams to use animation usually and and voice over, you know, it's literally like a movie sometimes interactive, sometimes it just plays end to end. And this is intended to instruct the court in the basics of the technology and we can develop these drafts, usually it's just straight from the trial briefing, which is handy. 

Adam Bloomberg:

Do you have any any other ways that you help attorneys in that preparation for the hearing?

Dan Martin:

Well, yeah, because that's, you know the, the tutorial generally is before the hearing, right. So in addition to storyboarding the tutorial or working with that, we also, for the presentations themselves, you know, we have clear templates to display the claims and the language and the figures. I mean that's what the hearing's all about is about fighting over the words and the patent, right. So and you know this is kind of off the shelf stuff, you know it's generally we can we can we can generate these slides for hearings without a ton of back and forth based on the briefing. And it's a it's kind of plug and play. 

Adam Bloomberg:

We're going to move, move along here in in the life cycle of this case. After you've completed the work for a Markman hearing and the case is going to continue, what sort of services do you do you offer moving forward? How do you stay involved?

Dan Martin:

Sure. I mean it's really dependent on the client's needs. So obviously the Markman is often the first step that we get involved in. And again starting with the tech tutorial, but then the hearing itself, after which there is some kind of ruling about where things stand. Then any pre-trial motions other fights along the way. Sometimes they're in need of some visual help for for these proceedings. And then you know we, very often, get involved in mock trials to, of course, to help guide the strategy ahead of trial. So of course ideally that mock is going to occur after most of these major issues have been decided by the court. You know, to certainly make for the most accurate test in that mock.

Adam Bloomberg: 
 
We've learned a lot here today so far about, you know, kind of how graphics can contribute to an understanding of of complex issues. And Ian, thank you very much for sharing your experiences and and insights from an expert witness point of view. Let’s see, I know we've received a few questions from the audience, so let me take a look here. Dan, I think this first one's for you. Okay. What's the most, it's a great one. What's the most complicated technology you've had to explain, whether it's an arbitration panel or or jurors or or even a bench trial?

Dan Martin:

Well, I'm not a scientist, so they're all pretty challenging and complicated from my perspective. I guess probably one that comes to mind, we had to teach the nuances of a chemical structures in a biopharma case, right. And so this is where our client had an amazing cancer drug and we had to show, convincingly, that the difference between this life saving cancer drug and a deadly poison was a tiny nuance in the molecular structure of this drug. And and you know, we also had to dig deep into how it was discovered and the history of the research and development and all the resources that went into it, the successes and failures, of course, that's all part of the case story. But, and that was complicated to unspool it, but talking about that that that structure, you know, we, we ended up having to rely on and create a really sophisticated 3D representation of it and drive around it, you know, to make the point. Otherwise, you know, it was really difficult to to explain. I think we actually did it in 2D and 3D animation so that you really saw every possible angle that we could that we could make that point and it was successful.

Adam Bloomberg:

Ian, this has got to be like a drop shot at Wimbledon for you. You've got to have tons of examples of explaining something complicated.

Ian Cullimore: 

Yeah, they've all been complicated, so plenty of examples. But I think probably the most complex, I've alluded to this a bit before, you won't be a surprised is really the Internet, you know, how does, how does the Internet work? Very simple question. We're all so used to the Internet. We're on the Internet right now. But actually, how is this all hanging together? How can it be that we can see each other and listen to each other, talk to each other across the world, across these time zones and and so forth?

So again, it's kind of like I've been saying before, it depends on who you're trying to explain this to you. If you were one of my colleagues, I could explain, we can have a great discussion, very deep levels about how some of these technologies work, how these packets are kind of sent around, and how you look up domain names and this sort of thing. But that could be entirely inappropriate for for other, sort of, audiences. So I think as an expert you need to come up with these different ways of explaining a particular subject, like the Internet, how the whole stack hangs together to different sort of target audiences and come up with simple analogies. Don't try to confuse the areas if they don't need to be confused. If you do need to drill down into some of them, because that's the sort of target person you're talking to, then be prepared to do that and do get, you know, really down in the in the weeds because that might be very helpful for them. On the other hand, it could just be too confusing for for most people and they don't need to know that level of detail. So I'd certainly say, yeah, trying to expand the different facets and all different parts of the Internet, there's no one such thing. There's so many different components that need to work together to get it all to work. So certainly a tricky one I've found in the past.

Adam Bloomberg:

Okay. Here's another one. Dan, I think you can answer this one again. And I think this could be for expert witnesses or attorneys presenting. So what tips can you offer specifically to the to the visuals. When you're explaining that complicated issue, you know, graphically, what sort of tips can you offer?

Dan Martin:

Well, of course it would depend on the issue and, like Ian's talking about, we're often up you know put under pressure to think up analogies to explain stuff on the spot. So we're kind of trained to have to do that for the more difficult to understand stuff. And sometimes analogies aren't really necessary. I mean sometimes with technology patents, well usually, we'll start with the figures right and think about how best to bring them to life or bring them into the real world, right. And taking basically stick figures and either translating them to something real or making an analogy for it. You know, train cars coupling and decoupling, you know, capacitors on a circuit, sort of simple random, you know stuff like that.

So you know obviously an analogy is a storytelling tool. Let's go back to the story and we have there's so many sort of go to analogies we all have recognized that make points instantly. You know, we we already have them as part of our shared language. You know, I'm thinking of Jenga, right? Or a house of cards collapsing when a crucial piece is removed. You know, these are obviously things that that the jury or judge or whomever is going to pick up on instantly. We have hurdles on a track, bridges with missing planks, you know, pathways, and these are analogies that obviously are common, and they make for easy and and good visuals.

And then of course the key is to consider any pitfalls of these. You know, are we oversimplifying things? Is it the right tenor for the audience? I mean, a lot of a jury of younger people may hear an analogy totally differently than a than somebody, a jury of, I don't know, my peers that remember the world before the Internet. So you you want to consider the audience and whether this analogy is universal, it could backfire, used against you, etcetera. 

Adam Bloomberg:

Well, I've got to ask, I always love this topic about analogies. I was listening to something on talk radio and they and they actually use that Jenga analogy, and in my mind I can, I can perfectly picture that and it makes sense when you connect it that way to the spoken language, but do you have any more, maybe specific ones and say an IP case?

Dan Martin:

Yeah. And funny about Jenga, like we actually, in the past, have done a 3D model of Jenga and you know, like it's Pixar or something and it's like we should probably just videotaped it. But yeah, we had a very technical IP case involving more Ian's realm about how packet data is sent and received and and things like that. And we had to come up for, I think it was for closing like a very sort of quick graspable analogy for the consequences. You know, if all this starts breaking down and simply ceasing to function. The challenge was to make it, you know, the point, you know, with no slides, you know, and just immediate impact, no words rather and just immediate impact. And so we came up with an acrobat suspended in midair having, you know, left the trapeze but without another one to catch and seemed to be a winner. So that's my example.

Adam Bloomberg:

Well, I have to ask if you, this is actually not one of the questions, but it comes to my mind. Have you ever seen one of these backfire? I know that some attorneys are a little reticent to use analogies for a number of reasons, but have you seen any backfire?

 Dan Martin:

Right. And personal prejudice might get in the way, and we don't know why some someone likes something and it doesn't, you know, resonate with somebody else. I actually haven't seen that happen very often, but, you know, that's also why analogies get tested in mock juries, right? Or graphics in general, right? I mean since, since an analogy as a rule is subject to interpretation, you have to be careful about how a jury or tribunal or a judge in a bench trial is going to receive it and just be aware of how it might get get thrown back at you by opposing counsel.

Adam Bloomberg:

Okay. There's another one here. Ian, this is going to be, this is going to be for you. Are there different sets of strategies for expert reports in the UK versus the United States?

Ian Cullimore: 

Yeah. And as I've been saying earlier that there are different ways that the law firms and attorneys will work with you between the UK and Europe and the US and within the US themselves that's that they can have different ways of working. But also, of course, you know the, the style of patents and the types of patents. My personal sort of preference and experience, I've got several patents to my name, is to, I would typically file in the US first and that's for strategic reasons because you get a priority date 12 months beforehand and so forth and you can tag your UK or European or Japanese patents onto that, too. But you tend to tailor the patents, and this is the difference between the UK and US, to the particular product for instance that you're trying to protect. And these different countries, whether it's UK or Europe or US or Japan, Far East, have different sort of sets of technologies and products that they want to protect.

So there's different strategies to come up with this. I mean for instance, you know the US especially Silicon Valley is very tech heavy. You got wonderful companies, you know like Facebook and Twitter and Google that come out of this and their patents, Apple, you know, work with a lot and Hewlett Packard and so forth. They're you know very strong and these sort of technologies whether it's hardware or software, computing operating systems, communications, Qualcomm. So there are particular sorts of patents and their particular strategies for wording them and getting them through and then supporting them, whereas in in the other parts of the world there are different strengths and weaknesses in technology or other sorts of areas.

So again, you find quite different sorts of patents you have to get used to them being laid out rather differently. In the States you're very used to US patents and there's a particular style which I like a lot of the way that of the standard formatting for them. While actually other ones, UK, European and formatted in different ways too. So you have to get, you know, used to the way that these are set out and the way that you work around them and and where to find things. Again, those who know of US patents know that all the important part of the claims are put right at the end. Well, in other countries the claims aren't right at the end. So you know you have to look around a bit and find parts of the patterns that that you need to refer to. So that's why there are these differences that you need to get used to if if you're sort of a global expert, witness writing, expert reports.

Adam Bloomberg:

Oh, I knew this one would come too. Okay, let's start, Ian. Within the, within the umbrella, it's about intellectual or artificial intelligence, I should say. Within the umbrella of IP, what kind of potential litigation issues do you anticipate because of artificial intelligence?

Ian Cullimore:

Yeah, and that's certainly a hot current topic at the moment with all that's been going on recently, explosive in the last sort of few months or year or so with the AI, ChatGPT, and so forth. Of course everybody knows that that name now. As an aside, the funny thing with AI, which I've been very involved in over the decades, frankly, is that it seems to me, in my working life for the last many decades, it's, you know, you go back to the 50s and 60s and that was it. AI became really big for a short time, going to be the next big thing, and then it dies away. And it seemed like every ten years or so AI would come back. And I myself, I've developed written AI software a lot, which was very interesting, very useful. This was, you know, 30 years ago or so. Looked like the next big thing, went away again. Well, here we are again. It's come around for the fifth or sixth time or something. Looks like maybe it's here to stay. There's so much resource, so much money, so much manpower being put at this. Will it go away again? I don't know. But it's on everybody's lips of course, at the moment.

As to you know, where where is this going with, you know, litigation over IP,  I think the two big obvious ones, which are worries, are of software source code for instance, and images. And we've seen lots of examples in the popular press with this. As far as software goes, I mean I myself, you know, do use and I've tried out the engines writing bits of software. I must admit I'm skeptical as to how good they are. I would say there's only one case where the code was actually any good. I've had code produced that was frankly rubbish. Just wouldn't compare. Other times wasn't really doing what I was asking it to do. But where did this code come from? I mean, we need more openness with this. Has it been stolen? Is it all open source? Who might claim you know the intellectual property ownership of this? So I can see increasingly there being issues about this code coming from somewhere and there not being the traceability for it.

Another big area, like I was saying is in images, graphics, photographs. You know, we've seen again on in the popular press. I think come examples of some photographer whose work on animals, for instance, there's a famous one which was a lion, I think a lion or tiger, tiger perhaps, have been blatantly copied, slightly different. I thought it was pretty obvious which one was, you know, human generated that sort of painting, even generated which one was artificially generated. But there's the thing of ownership. I also got an engine to write a song for me, some lyrics for a song in the style of a particular band of my favorite band. So, you know, it's going to be a hotbed. I think of some litigation in the years to come until some real guidelines are sorted out. 

Adam Bloomberg:

Well, my only question is, was it The Beatles? Was it The Beatles or was it U2. Which one? Either one?

Ian Cullimore:

It’s an obscure punk band from over here that was my favorite called The Stranglers, as it happens, so in the style of The Stranglers.

Adam Bloomberg:

Actually, I was thinking, as you said images, Dan, while we're on this subject, how would you feel if you saw one of your graphics you've personally designed used by AI?

Dan Martin:

Oh man. Well, I'd probably experience a range of emotions, right, from anger initially to flattery and then maybe, depending on how close I am to retirement, acceptance.

Adam Bloomberg:

Ian, you kind of touched on it. I mean does do you see AI, the benefit as a tool within kind of the realm of expert testimony and patent litigation to, you know, to further help you do what you do: distill complex technology down?

Ian Cullimore:

I think it's, there's potential there for that. I'm cautious about it at the moment. Certainly using AI in cases, it's a bit like, you know, quoting Wikipedia in your expert report. It it's not, you know, it's not yet robust enough for that sort of thing. AI experiment with it. I'd be cautious about including anything from it in an expert report, certainly without talking to my counsel a lot about this.

Again, you know, we're touching on legal implications of including some of these things generated by AI. I think that as time goes on and it's refined and the boundaries are understood, it's going to become a more and more useful tool for working on your expert report. But again, I would just urge caution at the moment in these early days that we don't understand implications well enough yet. And I certainly would not and can't imagine, really, for a long time, if ever, just saying write me this expert report and it in this in the way that some students are getting their, you know, essays prewritten like this. That's not the way to learn and that's not the way yet to produce an expert report. Maybe one day they might do as good a job as me, but I think that's still a fairway out. And maybe never, I hope.

Adam Bloomberg:

Well, thank you. Thank you both. It was a great discussion. Ian, I'm going to need a link to this punk band. I want to check that out.

Dan Martin:

 Yeah, that would be great.

Adam Bloomberg:

Yeah, thank you all.
 
Thank you to Ian and Dan for speaking with us today, and a special thanks to our listeners. Please join us next time and subscribe to the IMS Insights Podcast.

 IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 43,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at expertservices.com.