No. 186 Managing Intell. Prop. 42 (February 2009)
Why US Juries are Pro-Plaintiff

handle is hein.journals/manintpr186 and id is 44 raw text is: Why US juries are pro-plaintiff
Corporate defendants face an uphill battle in patent infringement cases - but not for the reasons
their lawyers usually cite. Chuck Kauffman and Casey Anderson explain

A      recent PriceWaterhouseCoopers study shows that plaintiffs won more than
63% of patent infringement cases tried to a verdict. This finding comes as lit-
tle surprise to patent lawyers, who often express frustration with the difficul-
ty of explaining cutting-edge science to jurors lacking the technical experience to
evaluate scientific evidence.
The study documents the advantage for plaintiffs in different jurisdictions with
wildly divergent demographic characteristics. The data shows that the most
favourable venues for plaintiffs are the Eastern District of Virginia (including the
suburbs of Washington DC), the Western District of Wisconsin (including Madison,
home of the University of Wisconsin) and the Eastern District of Texas (including
the poorer rural areas of northeast Texas).
These findings are consistent with our experience as jury consultants. We have
seen that the edge enjoyed by plaintiffs transcends demographics: rich and poor, edu-
cated and uneducated, black and white, male and female - all have tended to sup-
port plaintiffs.
We have found, moreover, that the challenges faced by defendants in patent cases
are not limited to teaching jurors about unfamiliar science and technology, as diffi-
cult and important as this task may be. Instead, our research shows that defendants
are at a disadvantage from the moment jurors enter the courtroom.
When conducting a research project with mock jurors, we begin the exercise with
a short, neutral summary of the facts. Next, we ask participants: If you had to
decide the case based on what you know right now, which side would you support?
After the neutral summary, and before the mock jurors have heard arguments or evi-
dence from either side, on average, 66% of participants support the patent owner.
This means that patent owners have an advantage even before jurors have had a
chance to be confused by any arcane technical issues. In fact, most jurors tilt in
favour of plaintiffs before they know anything more than the fact that the plaintiff
has a patent and the defendant is accused of infringing it.
This can put in-house counsel in a difficult position, because their clients - the
senior executives of their companies - often see patent infringement cases as frivo-
lous, creating unrealistic expectations for settlement or for victory at trial.
Know the risks
So how can in-house lawyers better understand, manage and explain the risk posed
by infringement claims? Based on our research in dozens of patent cases, we have
identified five sources of plaintiffs' advantages in patent litigation. These advantages
arise from the attitudes and opinions jurors bring with them to the courtroom,
which are the product of their life experiences.
Jurors misunderstand the substantive law governing
patent disputes
Few jurors have ever invented anything, and they do not know anyone who
has tried to get a patent. Neither they, nor anyone they know, have dealt with the
USPTO. In the absence of personal experience, jurors form their opinions about the
patent system based on what they learn from secondary sources.
In practice, this means that jurors' knowledge of IP law is fragmented, rudimen-
tary and often wildly inaccurate. Many jurors cannot distinguish, for example,
between a copyright and a patent. And very often, what jurors think they know
about the law of intellectual property is wrong.
A patent has a halo that confers protection to any related or similar technology.
Many jurors believe that patents protect general ideas, not specific inventions, and

One-minute read
Statistics show that juries
are particularly pro-plain-
tfwith respect to decid-
isgpaten infringement
dsue.While some
;45          observers attribute this to
a simple lack of technical understanding,
there are other factors defendants should
consider when developing their litigation
strategies in such cases. For instance, jurors
tend to have high regard for inventors,
patents and the patent system, while their
views of the typical corporate patent defen-
dant are decidedly negative. By understand-
ing this perspective and taking time to teach
the jury their own invention stories, defen-
dants can markedly improve their chances of



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