Applying Ninth Circuit law (but in a holding that may well have broader application), the U.S. Court of Appeals for the Federal Circuit has ruled that, subject to restrictions designed to avoid "undue influence," it is proper for a court to appoint a technical advisor to assist in its decision making. Techsearch L.L.C. v. Intel Corp., Case Nos. 00-1226-1250, 2002 U.S. App. LEXIS 7202 (Fed. Cir., Apr. 11, 2002).
The patent in suit involved complex computer microprocessor architecture (specifically, a Reduced Instruction Set Computer or RISC microprocessor) developed to emulate the architectural behavior of another microprocessor. The district court appointed a technical advisor to assist it with claim construction and, with the advisor’s assistance, ruled against Techsearch on certain key issues, ultimately entering summary judgment of non-infringement against Techsearch. Techsearch appealed, arguing that the district court improperly relied on its technical advisor in reaching its decision.
The Federal Circuit disagreed. Viewing the issue as a procedural one and, therefore, applying the law of the regional circuit (in this instance, the Ninth Circuit), the Federal Circuit held that the circumstances of the case were "exceptional" and warranted the appointment of a technical advisor. The Court also held that the district court had employed adequate precautions to prevent undue influence by its technical advisor. These precautions included appointing a neutral advisor, limiting the advisor’s role to explaining the terminology and theory underlying the evidence and prohibiting the advisor from conducting independent investigations, providing evidence to the court or contacting parties and witnesses.
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