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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 success. 42 1 FEBRUARY 2009 WWW.MANAGINGIP.COM F-US: JURY TRIALS

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