Patent Case Timelines: Do you see what jurors see?

Timelines speak volumes to jurors in patent cases. They can tell jurors how valuable the patented technology is, how long the inventor has to “cash in” on his or her invention, and even whether the invention was “copied.” Seemingly innocuous events on a timeline – events that have no legal significance — can become the foundation for jurors’ verdict decisions; some can literally tell jurors the whole story of the case.

Examining your case timeline is thus a valuable part of doing what we often call a “black box” analysis of your case. A black box analysis is simply setting aside the patented technology (in effect, temporarily putting the technology into a box and setting it aside) and taking a hard look at the evidence that falls outside the technology. Why examine your case in this way? Attorneys and their experts traditionally focus on the technical/legal aspects of the patents, but much of the evidence jurors use to orient themselves in patent cases – information they scrutinize to decide whether a patent is valid or whether infringement occurred — actually falls outside the technology, outside the bounds of the patents at issue. More so than almost any other kind of case, jurors in patent cases engage in peripheral processing. The patented technology and the legal issues at the center of the case are often technical and incomprehensible, so jurors rely heavily on evidence at the periphery of the case (e.g., the public reputation of the parties, the conduct of the defendants, the inventor story, the market’s reaction to the patented invention, and in this post, the case timeline). Examining this peripheral evidence can give you an accurate picture of the strengths and weaknesses of your case.

The question is whether you can see the same story that jurors see in the following case timelines. Simply put, can you read a patent case timeline like a juror would? Are you sure your case timeline is telling jurors the story you want them to hear?

Time to test your skills, what story does the following timeline likely tell jurors?

*Timeline generously provided by Suann Ingle Communications

From a legal standpoint, this case timeline means nothing; whether an inventor and a defendant company had a meeting usually has no real legal significance. From a business standpoint, this timeline means nothing; these kinds of meetings are very common as inventors try to license their patented technology and businesses decide whether these patents are worth licensing. But from a juror standpoint, this timeline can mean a great deal. Jurors are examining the case timeline for “story” elements, and they can easily read this timeline as evidence that the company copied the patented invention or that the patented technology gave the company a valuable head start on developing its own technology.

Meetings between inventors and defendant companies can be highly important story elements for jurors, who are curious about which party set up the meeting, what information was shared at the meeting, and whether the defendant company’s technology took a leap ahead after the meeting. In fact, jurors frequently give undue weight to meetings that actually made little difference to either party.

Here’s another timeline:

*Timeline generously provided by Suann Ingle Communications

Again, this kind of first-to-market timeline often has little relevance to legal issues like infringement or validity, but it can be highly important to jurors. A timeline like this one can certainly fit with the “head start” story jurors sometimes create about a case – i.e., that a plaintiff’s patented technology gave the defendant company an unfair head start to the market. Thus, this timeline can move jurors closer to a plaintiff verdict. But there are some important exceptions. The story jurors see in this timeline can depend on how they see the technology at issue. Specifically, if the technology is in an industry that jurors see as critical to their lives or their future (e.g., crucial medications), a timeline like this can work in the defendant’s favor. The defendant can get credit from jurors for making much-needed technology work in the real world and for preventing one company from monopolizing a crucial industry.

Certainly, there are many other “story” timelines in patent cases – from timelines showing how the defendant company developed its own technology to timelines showing that a defendant company suddenly changed the name of its own technology after it was sued (which to jurors can easily look like an effort to hide infringement). In fact, timelines in patent cases nearly always tell jurors a story. The real question is whether you can see the same story that jurors are likely to see.