One of the topics discussed in this week's class was that the choice of jury, to a large part, determines the location of patent infringement lawsuits. For example, Districts of East Texas and Delaware ranks first and second respectively in the number of patent trials in 2012, due to the higher likelihood of getting a less educated jury. Professor Mark Lemley from Stanford Law School wrote a paper, Why Do Juries Decide If Patents Are Valid?, where he discussed that jury trials for patent case has only become a only the norm in the recent decades.
There is no written rule that states that patent infringement lawsuits has to be jury trials, and they can very much be a bench trial. However, as Lemley mentioned in his dissertation, "the evidence that juries favor patentees is overwhelming", and lawyers began to realise that in the late 1970s, thus significantly increasing the ratio of jury to bench patent trials since then. Also, prior to that, it was generally taken that there was no right to a jury trial in patent case, the details of which is in the paper.
Since lawsuits can only be filed by the patent holders and not vice versa, they do not have much to lose opting for a patent trial. The process may be long drawn and cost more money, but it may be worth more than the losses the defendant may suffer, which translates to larger profits for the plaintiff.
Sources:
http://patentlyo.com/patent/2014/01/jury-trials.html
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2306152
http://arstechnica.com/tech-policy/2013/01/east-texas-courts-are-back-on-top-for-patent-lawsuits/
There is no written rule that states that patent infringement lawsuits has to be jury trials, and they can very much be a bench trial. However, as Lemley mentioned in his dissertation, "the evidence that juries favor patentees is overwhelming", and lawyers began to realise that in the late 1970s, thus significantly increasing the ratio of jury to bench patent trials since then. Also, prior to that, it was generally taken that there was no right to a jury trial in patent case, the details of which is in the paper.
Since lawsuits can only be filed by the patent holders and not vice versa, they do not have much to lose opting for a patent trial. The process may be long drawn and cost more money, but it may be worth more than the losses the defendant may suffer, which translates to larger profits for the plaintiff.
Sources:
http://patentlyo.com/patent/2014/01/jury-trials.html
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2306152
http://arstechnica.com/tech-policy/2013/01/east-texas-courts-are-back-on-top-for-patent-lawsuits/
Hi Jun,
ReplyDeleteI thought it was interesting that you framed the trial location decisions of patent litigators in terms of picking locations where jury trials are more common, and where patent holders hold a distinct advantage. During the class discussion on Monday, I had thought that the choice of a less-educated district for trials would merely even the likelihood that patent holders would win judgments against alleged patent infringers, but it seems that, given your data sources, patent holders are more likely to win.
Hi Albert,
DeleteIt was a slight surprise for me that patent holders are by default more likely to win. But I guess this could also be linked to the general human mentality. More often than not, we tend to sympathise with the victim, and if they take the stand to defend themselves, we usually support them.
Also, most people probably think that it already ought to be a strong case before the patent holder would file for a lawsuit. Evidently, this may not be the case now since its become the norm, and I think the jury might start to be more impartial from the beginning.
It's a shame that patent trials are decided by juries. In criminal trials, it makes sense to have a jury composed of a diverse set of your peers. However, patent trials are different. Patent attorneys are required to have a technical degree in addition to their JD in order to even take the patent bar. Intellectual property litigation is highly specialized and requires technical savviness. Litigating these cases in front of juries in Eastern Texas and Delaware is like trying to explain a PhD thesis in astrophysics to a 3-year old. This system needs to be reformed.
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