Recently, I had the privilege of interviewing Justice Sridevan as part of my doctoral research and I found it to be exceptionally insightful. She shared several pertinent points on issues concerning expert evidence in IP litigations and what she thinks is the best way forward for the Indian Courts vis a vis engaging experts in IP matters. As she kindly agreed to my request to also publish this as a blogpost, I am happy to share this with our readers. For interested readers, here is a link to Justice Sridevan’s previous interview with us as a part of the SpicyIP Interview Series.
Interview with Justice Prabha Sridevan on Expert Evidence and Judicial Practices in IP Litigation
Date of Interview: January 21, 2025
Mode of Interaction: Questionnaire (Prepared and Shared in Advance), Conducted Over the Phone, Later Transcribed and Approved
Profile of Justice (Retd.) Prabha Sridevan
Justice (Retd.) Prabha Sridevan served as a judge of the Madras High Court from 2000 to 2010. Post-retirement, she was appointed as the Chairperson of the Intellectual Property Appellate Tribunal (IPAB) from 2011 to 2013.
Justice Sridevan wears many hats: judge, public speaker, translator, writer, artist, and activist. Her wisdom and versatility have made her an inspiration in both the legal and cultural spheres. A staunch advocate for gender justice and social equality, she embodies a rare combination of judicial acumen and humanitarian values. More on Justice Sridevan’s profile can be seen here.
A special thanks to Prashant Reddy for his kind recommendation, and for facilitating this insightful interaction with Justice Prabha Sridevan.
Ms. Malobika Sen (MS): Could you elaborate on the role of expert evidence in IP litigation?
J. Sridevan: Expert evidence plays a crucial role in IP litigation, particularly in patent cases. While it may occasionally be used in areas like geographical indications or plant varieties, its primary application is in patent matters. Patents are inherently specialized, and without expert knowledge, it becomes challenging for courts—or even tribunals—to arrive at informed decisions.
Even tribunals, despite having technical members, face limitations. For example, a technical member might be an expert in a specific discipline, who had expertise in chemistry. However, patents cover a vast array of fields, so external expert evidence often becomes essential. Typically, both parties in a patent dispute submit expert evidence, and the court or tribunal assesses it.
MS: Do you think the current approach to engaging experts is adequate?
J. Sridevan: Not entirely. What I believe would be desirable is the establishment of a formal panel of experts. Similar to panels of Advocate Commissioners, there could be a roster of experts that courts can call upon for assistance in specific cases. This wouldn’t necessarily have to involve only amicus curiae. For example, a professor with expertise in a particular field could be called upon, but their time would need to be compensated appropriately.
MS: Have you encountered any specific challenges in using expert evidence?
J. Sridevan: Yes, there was one case—I don’t recall the specifics—where I suggested to the lawyers that we engage a professor with expertise in the field. I even asked both sides to propose names. However, the patent owner, which was a multinational corporation, insisted on engaging only foreign experts. I questioned whether there were no suitable experts in India, but the two sides couldn’t agree on a name. Eventually, I had to abandon the idea, but I expressed my frustration in the judgment.
MS: That must have been difficult. Do you believe courts should take a more proactive role in such cases?
J. Sridevan: Absolutely. While I understand that we follow the adversarial system under common law, I strongly believe that in IP matters, courts should take the lead. IP cases often involve significant public interest, and such matters shouldn’t be left entirely to the two adversaries. For instance, in the landmark Novartis case, Professor Shamnad Basheer was invited by the Supreme Court to assist the Court, and this worked well.
We have no dearth of experts in India, and every High Court could maintain a panel of such experts. Courts could even collaborate on a shared list. This approach would ensure that expert evidence is accessible and reliable, while also maintaining consistency across jurisdictions.
MS: That must have been frustrating. Do you think courts should take a stronger initiative in such situations?
J. Sridevan: Absolutely. I know we follow the common law system, but in IP matters, I strongly believe courts should take the lead. IP disputes involve significant public interest, and these cases can’t be left entirely to the two adversarial parties.
We don’t lack experts in India. Each High Court could maintain a panel of experts. With today’s technology, such as Zoom, experts don’t even need to appear physically. This is a pressing need if we want our judgments to be robust and less prone to challenge.
MS: That’s an insightful suggestion. Could you comment on the nature of cases where expert evidence is most critical?
J. Sridevan: Expert evidence is particularly important in cases involving patents, as the issues often revolve around the inventive step rather than novelty. Determining whether an invention is obvious requires a deep understanding of the field. While expert evidence is akin to any other witness testimony in many respects, the expert’s specialized knowledge is what sets it apart.
When each side brings its own expert, it’s natural for their testimony to align with the interests of the party that engaged them. I believe courts should appoint neutral experts who are not aligned with either party.
MS: So, you’re suggesting a system of judicially-appointed experts?
J. Sridevan: Yes, judicial verification through court-appointed experts would provide a more balanced perspective. A neutral expert would give judges greater confidence in their decisions. Of course, the expert must have the appropriate qualifications, and any issues with their credibility would likely be raised by the opposing side during proceedings.
MS: Ma’am, Based on your experience, what do you consider the most critical factor in evaluating expert evidence?
J. Sridevan: It comes down to how convincingly the expert presents their evidence. The judge must carefully weigh the testimony and assess its credibility. While parties naturally present experts who support their case, a court-appointed expert would provide a neutral perspective, which would make the judge’s task easier and the process more transparent.
MS: Ma’am, in your experience, when expert evidence is presented in IP litigation, do you believe the methodology of the expert plays a decisive role?
J. Sridevan: Oh, absolutely. The methodology used by the expert is crucial. Ultimately, it’s not just about what the expert claims, but how convincingly they explain their reasoning. For instance, an expert might assert that a particular invention involves an inventive step or that it doesn’t—that it’s merely an automatic progression. But the judge needs to be satisfied with the process by which the expert arrives at their conclusion.
MS: Would you say the judge evaluates the methodology critically?
J Sridevan: Yes, definitely. The judge must assess whether the methodology is logical and consistent with the principles of the law. But, at the same time, the judge cannot blindly rely on the expert’s opinion. If we start saying “yes, sir, yes, sir” to everything an expert says, we’re essentially making them the judge. That’s not our role.
MS: Speaking of challenges, what are some of the common difficulties you’ve encountered when dealing with expert witnesses?
J. Sridevan: Oh, there are quite a few. Sometimes, the expert’s testimony can be too technical. We’re not experts in every discipline—we rely on them to simplify complex concepts. I often had to request them to explain things in layperson’s terms. For example, molecular biology or electrical engineering patents can be challenging. The expert must treat the court like a class, breaking down technical jargon into understandable terms.
MS: That resonates with some practices in other jurisdictions. For instance, I recall a UK case where a judge expressed a willingness to learn from a “shadow expert” to better understand technical evidence.
J. Sridevan: That’s an interesting parallel. In fact, there was a similar instance here in the Madras High Court. Justice Anand Venkatesh openly admitted his lack of understanding in a case involving an LGBTQ+ couple. He took time to educate himself, consulted experts, and then delivered a judgment. It was remarkable and unprecedented in many ways.
MS: That’s inspiring! Do you think judges should undergo specialized training or education in areas like IP to better evaluate expert evidence?
J Sridevan: Well, how many subjects can you train a judge in? The variety of issues that come before a court is vast—IP, taxation, constitutional matters. What’s more important, I think, is having a constitutional vision. A judge with a strong grasp of constitutional principles is better equipped to decide any case, regardless of the technicalities. Assistance from experts or amici curiae can always supplement that understanding.
MS: That’s a compelling argument, ma’am. Based on your experience, is there a particular approach you found effective when dealing with complex technical subjects like patents?
J Sridevan: Yes, the most effective approach is when the expert or even the lawyer explains the claims and the history of the invention thoroughly and fairly. It’s not about being unbiased—let’s be realistic, they are there to represent their client—but they must remember that their primary duty is to the court. A good lawyer or expert will make an effort to educate the judge, not just argue their case.
MS: That’s an excellent point. Ma’am, are there particular subject areas where expert evidence has been more challenging to assess?
J. Sridevan: Certainly. Highly technical fields pose challenges, like taxation. In one taxation case, I specifically asked a senior lawyer to take time to educate me about the background of a particular provision. His explanation was unbiased and thorough—it gave me the confidence to write a judgment even though I wasn’t a tax expert.
MS: Based on your experience, how consistent do you think the practices regarding expert evidence are in different jurisdictions and courts in India? Is it uniform, or have you observed variations?
J. Sridevan: Well, I have not seen any other court except mine, so I can’t speak for the consistency in other jurisdictions.
MS: Understood. Do you anticipate any significant changes in the use of expert evidence in IP disputes in the foreseeable future?
J. Sridevan: I can’t really anticipate, but I do think judges should be proactive in encouraging the use of expert evidence. It would serve their interests in arriving at the right conclusions. I don’t expect lawyers to push for this, as they are focused on their client’s interests, but judges should take the lead. It’s in their best interest to arrive at a well-rounded conclusion—not necessarily the absolute truth, but the right conclusion.
MS: Moving to the topic of amicus curiae, in your opinion, how significant is the contribution of amicus curiae to the overall quality of IP adjudication on a scale of 1 to 5?
J. Sridevan: I would say minimal contribution, but that’s primarily because the court hasn’t enlisted their aid in many cases. If they had, it could have been more significant.
MS: Do you think the court generally considers the neutrality of the amicus curiae when appointing them?
J. Sridevan: Yes, I would expect the court to ensure that the amicus is neutral. However, the perspective of the amicus may still influence the case, and that’s something separate from neutrality.
MS: How do you think the use of technology has impacted the presentation and evaluation of expert evidence? Has it had a significant impact, an adequate impact, or no impact at all?
J. Sridevan: Maybe in the future, AI will help the court with regard to expert evidence, but I’m not sure at this point.
MS: That’s an interesting anecdote! What about simple technology, like presentation tools or projections used by experts? Do you think such technology helps in presenting expert evidence?
J. Sridevan: Those are simple technologies and, honestly, I think they have already become quite outdated. In fact, I’ve never used PowerPoint presentations myself. I prefer to speak directly to the audience and engage them in the discussion. I want them to look at me while I share my experience, rather than focus on a screen. It’s a personal choice.
MS: That’s a very authentic way to engage with the audience. Do you think the judicial training institutes should change their programs to better equip lawyers and judges in handling expert evidence, particularly in IP cases?
J. Sridevan: No, I don’t think there’s a need for drastic changes. An expert witness is just like any other witness, and their role is to assist the court. What’s more important is ensuring timely disposal of cases. I often got frustrated with adjournments, especially when I had to travel to circuit benches. When I had to travel to circuit benches, IPAB, in Calcutta, an adjournment would take two months before I could return. We who are working in IP jurisdictions must understand that we should work towards eliminating unnecessary delay. We must remember that patents have a shelf life.
MS: Absolutely, efficiency is key. One of the suggestions I came across is that there could be a list of vetted expert witnesses available publicly, and perhaps a website where courts can easily access this list. What’s your take on that?
J. Sridevan: We already have something like that, but I don’t know how effective it is. I am not sure how the experts are vetted or how reliable the process is.
MS: It’s definitely something worth looking into. In your opinion, how has the handling of expert evidence in IP litigation evolved, and how do you see it faring in the future?
J. Sridevan: Honestly, I don’t know how it is currently being handled. When I was dealing with IP cases, I was involved in some significant matters like the Novartis case, where constitutional and patentability challenges were at stake. However, when IPAB came into being, the law stated that all matters would be transferred to them, and that shifted the responsibility. IPAB could not serve the purpose effectively, as it created more hurdles rather than easing the process. I welcome the formation of the IP Benches and Divisions in every High Court which will be more efficient and effective.
MS: That’s a very insightful perspective. Thank you, ma’am, for sharing your thoughts today.
J. Sridevan: You’re welcome! If you need anything else, feel free to email me. It was my pleasure to speak with you.