It’s no secret that juries often struggle to make sense of patent cases. The patented technology in dispute is often obscure and frequently resists the kind of “big picture” summarizing that helps jurors get their bearings in other cases. In patent cases, jurors rarely get an easy-to-understand concise story; they are instead expected to dive into murky technology, orient themselves somehow, and come up with a clear solution to the case. Faced with such a difficult and ambiguous task, jurors often seize on any information they believe will help them get their bearings.
Ironically, much of the evidence jurors use to orient themselves in patent cases – information they use to decide whether a patent is valid or whether infringement really occurred — actually falls outside the technology, outside the bounds of the patent. It’s a common contradiction: Attorneys and their experts focus on the details of the patented technology; jurors focus on everything else. Certainly, the details of the technology are important, but for jurors, the most useful case guideposts often have little to do with the technology.
For example, in deciding whether an invention is truly new or groundbreaking, jurors often look outside the patent to the inventor’s conduct, particularly to whether the inventor tried to promote or develop the patented invention. If an inventor makes an effort to promote his or her invention, it is a commonsense indicator to jurors that the inventor truly believed he or she had come up with something new to offer the market. Promoting or developing an invention can also help alleviate jurors’ concerns that a patent is just being used to hobble competitors without offering anything benefit to consumers. Jurors also look to the parties themselves, specifically to whether either of the parties has a reputation as an innovator. Companies like Dyson or Apple, who have carefully groomed their reputation as innovators, often have a decided advantage with juries, who are naturally inclined to see their patents as innovative.
In evaluating the strength of your patent case for trial, it is crucial to go beyond basic questions like “can we teach jurors the technology?” and to assess your case in light of the guideposts that jurors rely upon to make their decisions. Ironically, sometimes the best way to assess the strength of your patent case is to ignore the patent. Set the patent aside for a moment, and take a closer look at some of the evidence that falls outside it. In effect, think of the patent or patents in the case as a “black box.” They could be anything, any technology, any device, or any method. What matters for this “black box” analysis is what happened outside the patent. In the next few OnEDGE posts, we will discuss some of the “outside the patent” guideposts that jurors use to make their verdict decisions. Our goal is to help you accurately evaluate the strength of your patent case, whether you are the plaintiff or the defendant.
Be sure to subscribe to OnEDGE to make sure you get notified about these posts.