Holliday & Sons v. Schultzeberge

LACOMBE, Circuit Judge. This court is practically asked in this case to prescribe a new rule of procedure, to the effect that in patent cases commissions to examine witnesses abroad should not be granted for the purpose of eliciting merely expert testimony. It is urged that such an examination can rarely, if at all, be conducted upon written interrogatories, and that the issuing of open commissions for such purpose entails a very heavy expense upon litigants. There is much force in the argument. The cost of such litigation is already great, and, where equally competent experts can be found in this country, it would be desirable, in most cases, to confine the expert testimony to such as might be elicited from them; but it is hard to see how the court can make any general regulation upon the subject. It would seem unwise for it to undertake to decide in advance whether the experts who can best inform it as to the prior state of the art are to be found here or abroad. Upon the argument of this motion it was asserted, and the assertion disputed, that within the field of the patent, viz. the chemistry of coloring compounds, the art was so little practiced here that the best expert testimony could only be secured by a commission. The interrogatories are therefore allowed, under the arrangement as to method of taking proof before the commissioner, which was suggested by the court, and apparently assented to by counsel.