Patent infringement cases are very difficult to present to most juries. This article will discuss why patent infringement cases are so difficult and will provide some communication tools to increase the chances of success during a trial.
First let’s explore the experience from the juror’s perspective. Jurors typically only understand a small fraction of the testimony explaining the technology in these multifaceted cases, so there is a huge information gap between the evidence jurors hear and the evidence jurors rely upon to render their verdict decision. Since most jurors know they don’t fully understand the technology, many want to rely on technical experts, in particular third-party experts, as well as the inventor(s). Thus, the reliance on the Patent and Trademark Office (PTO), the technical experts presented by plaintiffs or defendants, and the testimony of the inventor(s) all drives jurors’ decision-making.
Jurors typically don’t have the experience or educational tool set to process and weigh the information. Consequently, deception and confusion can cause huge problems for the lawyers and experts during trial.
And the trial process is not designed to foster true learning since in most venues the jurors cannot ask questions, and even if they could they typically don’t know the right questions to ask. Understanding what confuses jurors in a particular case is critical to ensure that the experts and the lawyers are answering the questions the jurors are likely pondering while processing the evidence. One of the major reasons to conduct jury research centers on uncovering these hidden barriers to learning and persuasion.
Common Juror Misconceptions
Jurors have many misconceptions about the PTO and patents. Most jurors believe the PTO does its own testing and sees the invention in operation before issuing a patent. Many jurors are surprised to learn that patent examiners simply conduct computer searches, reviewing a limited selection of prior art, and then evaluate an inventor’s claims from that perspective.
Many jurors believe the myth that someone can take an invention and make three or four slight modifications and call it their own invention. Some jurors believe that if you change an invention just 10% you can use the invention as your own. And many jurors have strong pre-existing beliefs about competition and the marketplace and believe that there is nothing wrong with “copycat” products and that is just business.
Still, jurors often want to rely on the “technical experts” at the PTO who issued the patent in the first place and are reluctant to overturn a PTO action. To overcome this belief requires strong prior art that the jurors can see as relevant to proving anticipation or obviousness. It is very important that the prior art was not considered by the PTO at the time of the prosecution of the patent application. Additionally, bootstrapping the invalidity argument and prior art with an unlikable inventor or expert can give the jurors the motivation to see the patent as invalid.
Defending against the ‘WOW factor’
The “wow factor” can be a huge problem for defendants in patent infringement cases, even with strong prior art. We often see this in the medical device field. Jurors are sometimes so amazed by the technology that it is almost impossible for them to conclude the invention would have been obvious to someone skilled in the art. Defending against the wow factor can be accomplished if you have strong prior art and can successfully tie it to important pre-existing beliefs such as “healthcare is too expensive because companies are wrongly using invalid patents to maintain monopoly pricing.” Thus, invalid patents help explain why healthcare costs are out of control. Jurors are more open to invalidating a patent when they see the larger problems caused by the improper enforcement of invalid patents.
Accused infringers do not enjoy a presumption of innocence
Although every jury in a patent dispute is instructed that patent holders must prove infringement, today’s frustration with large corporations accused of infringement causes many jurors to presume an accused product infringes. This problem is particularly acute when jurors are confused and do not understand the technology. Defendants trying to prove their product is different and therefore non-infringing must find ways to (1) simplify the technological explanation, (2) support their arguments with “third party corroborating” evidence, such as their own patents covering the accused products, and (3) show that the inventor and/or patent holder is somehow unworthy of overly broad patent protection.
Tips for Success
Here are some tips that the trial team must always keep in mind during IP cases:
- To persuade jurors to find for your client the information presented to them must be believable, understandable and useable. Many times experts can persuade a subset of jurors to believe their expert opinions; the problem lies in that the jurors cannot use or effectively discuss the information because of its complexity. This is very problematic when the jurors who are persuaded by the expert’s opinion have to go into deliberation to debate the issues with opposing jurors. It is critical that the expert find simple, useable messages that the jurors are able to use to defeat the opposing jurors during deliberation.
- When defending a patent infringement suit, the trial team must clearly define an alternative plausible explanation for jurors. This explanation must be believable and should point to a different reason for why the evidence exists that the plaintiff is relying on to prove infringement. The team must demonstrate that what the other side said is not true. Once that it is established, the jury will be receptive to a compelling alternative: “Here is the truth and here is why you should believe me.”
- Trial teams must find experts in IP cases who can provide testimony at the level of the jurors. Experts must be able to use expert testimony analogies that work and are understandable. Many times the expert who wins the day from the juror’s perspective is not the Ivy League doctor or preeminent scholar on the topic. Credentials are very important, but those must be bootstrapped with compelling and believable testimony that the jurors can use in deliberations. Jurors must walk away from the expert’s testimony saying, “Wow, I just learned a lot from Dr. X. I really like him/her.”
- Understanding and identifying pre-existing beliefs that support the case are critical to success at trial. Jurors will always try to understand the case through their experiences. Pre-existing beliefs and experiences are extremely hard to overcome. Learning what pre-existing beliefs support your case can boost the persuasion of your case and motivate the jurors to fight for you in deliberations.
For more than two decades, my firm has worked with attorneys across the country on a broad range of complex litigation, including all types of IP cases. I would welcome the opportunity to talk with you about the competitive advantages of jury consulting.
Mark T. Gerard, M.A.
President, The Litigation Group