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Tag Archives: Jury

Rocky Mountain IP Institute: So You Want a Jury to Decide Your Technology Case?

Posted in Legal Seminars

Late last month, I attended the 11th Annual Rocky Mountain Intellectual Property & Technology Institute.   I have attended and spoken at the Institute for the last three years.  In part because the excellent team running the Institute finds ways to reinvent it each year, it remains one of the top two legal CLE conferences in the country.  I hope to see you there next year.

One of the constants at the Institutes is the judicial panel.  And this year’s panel did not disappoint, continuing the tradition of frank discussion by prominent jurists.  This year the discussion centered around trying IP cases to judges and juries.  Here are the key take-aways from each of the four federal judges:

Chief Judge Marcia Krieger (D. Col.)

  • Your case will be decided by a jury in every instance, the only question is whether it is a jury of twelve, ten, eight or one.
  • Patent litigation has three focal points to choose from:  1) trial outcome — the result at the trial level; 2) cost, inconvenience and delay; or 3) appellate outcome.
    •  The decision between a jury of twelve or one may changed based upon your focal point.
    • If you are looking at trial outcome, you may choose the judge because you want a rational outcome.  But Judge Krieger’s experience is that juries come to rational outcomes as well, particularly where judges and juries help them get there.
    • The cost and expense of trying a case to a jury of twelve is often greater than trying to a jury of one.  There are no shortcuts with a jury.  There can be with a judge — reading transcripts, post-trial briefing, trying cases on non-consecutive days around other schedules, etc.
    • For appeal purposes, it is far more difficult to get a jury verdict overturned than to overturn a judge’s verdict.  With a jury verdict, the focus on appeal is finding judicial error that infected the jury’s verdict.  That is a difficult standard.  Fed. R. Civ. P. 52(a) requires a judge hearing a case to make specific findings of fact delineated from its conclusions of law.  The Federal Circuit can then review legal findings de novo and factual findings for clear error.
  • The idea that one or more jurors take over the decision-making process does not bear out in practice.  They tend to work collaboratively.

Chief Judge Gregory M. Sleet (D. Del.)

  • Judge Sleet largely agrees with Chief Judge Krieger’s analysis of the jury of twelve versus the jury of one, and the three focal points.
    • Judge Sleet has only had a very few cases in which he disagreed with a jury verdict in a patent case.
    • It is a relatively recent change that patents are tried to juries instead of to the bench.
  • It is dangerous to challenge invalidity, but juries do find patents invalid.
  • Judge Sleet agreed with Judge Grewal that the jury is still out on whether the PTO will finish the new PTO review procedures in the twelve to eighteen month period.  If they do, it will likely increase the percentage of stays that are granted.  Judge Sleet also noted that the Federal Circuit’s Chief Judge Rader recently also raised doubts about whether the examinations will be completed in the planned timeframes.
  • Judge Sleet agreed that jurors tend to all be actively involved in deliberations and that, from his post-trial jury discussions and looking at juror notebooks post-trial, juries tend not to be led by a single strong-willed juror.

Judge Paul S. Grewal (N.D. Cal.)

  • Judge Grewal is an MIT grad.  Does the judge versus jury change when you have a judge with technical expertise?
    • It is the rare case where you have a judge with a technical background and that judge’s technical background squarely fits your case.
    • Judge Grewal tried his first patent case to verdict last year and took the verdict away from the jury.  He agrees that juries try hard to get the facts and law right, but IP trials put extra strains and demands on juries.
    • There is a power in collective deliberation.  A group of nine or ten usually gets things more correct than a group of one, regardless of the relative experience and background of the two groups.
  • Do the new PTO review procedures (many with time limits) change your views on stays pending examinations?  “It depends.”  Extensions are available and there has not been time yet to see if they really get done in twelve to eighteen months.  Judges are currently skeptical, but if they really get done in that period, it may increase the percentage of stays granted.

Judge Craig Schaffer (D. Col.)

  • In Colorado over the last 11 years, there have been only 21 IP cases tried to juries.  Plaintiff won 19 out of 21 times.  That is less than .1% of IP cases being tried to juries, but when they do plaintiffs win 90% of the time.
    • [My side note:  This incredible win percentage could explain the recent increase in patent litigation filings in the District of Colorado.]
  • Only about 50% of D. Colorado jurors have a technical job or degree.
  • Plaintiff has a powerful opening position just by opening with the presumption of having been granted a legal right.  Defendants must look to how to neutralize that advantage.
    • If your defense strategy is to win on invalidity, a defendant has to “hit it out of the park.”  There could be a “significant blowback factor” because a failed invalidity challenge could be viewed by a jury as an unfair attack on a government granted right.
  • In light of the extreme success rate in Colorado and the theory regarding the power of the patent grant, there is a good argument to be made for seeking review before the PTO or other administrative proceedings.

Rocky Mountain IP Institute: Persuading Patent Juries, Some Counterintuitive Research

Posted in Legal Seminars, Trial

I recently attended and spoke at the Rocky Mountain IP Institute in Denver.  It was the second year in a row I have attended and spoken at the Institute.  In my opinion, the Rocky Mountain IP Institute is one of the two best IP CLE events (and destinations) in the country.  As evidence of that, the following is one of a series of posts from the excellent presentations over the two days of the conference.  I encourage you to consider joining me at next year’s Rocky Mountain IP Institute.

This post (cross-posted from my Retail Patent Litigation Blog) discusses one of the best presentations of the Institute – an exceptionally high bar.  Drs. Kevin Boully and Karen Lisko of Persuasion Strategies presented a series of maxims that they have learned based upon studies of judges and juries over years.  Their results are very interesting and occasionally counterintuitive.  Here are some of their key takeaways:

  • You should never assume that pro-invalidity jurors have the same characteristics as pro-defense jurors, the way they do in many other types of litigations.  In fact, pro-invalidity jurors can even be quite different from pro-noninfringement jurors.
  • The more education a juror has, the more willing the juror will be to invalidate a patent.
  • You should look at jurors attitudes more than their demographics.
    • For example, it is more important to find out whether the juror has a positive perception of the Patent Office, and will therefore be more likely to find patents valid, than to focus upon the juror’s age.
  • Never use a claim-by-claim approach in opening statements.  It is critical to tell a story.  That is what jurors understand best.
  • You should always assume that judges are more similar to jurors than they are different. 
    • As a result of that, briefs and other papers should be as visual and direct as possible.  It is important to help the judge, just like the jury, understand the story to give the case context and importance.
  • Jurors sometimes view trolls as less credible than practicing entities.
    • 57% of jurors say trolls have less right to damages.
    • Similarly, 47% of judges say trolls have less right to damages.
  • Defendants should always underscore the fallibility of the Patent Office, even if they have their own patents.
    • Perhaps the most interesting part of the presentation to me was that Persuasion Strategies’ evidence show that the Federal Judicial Center’s patent video actually increases jurors’ belief in the fallibility of the Patent Office.
  • Defendants should sometimes tell their noninfringement story before their invalidity story.  My experience disagrees with this somewhat.  I would say that you almost always want to explain your noninfringement story first, realizing that there is an exception to every rule.

Latest Edition of the John Marshall Review of Intellectual Property

Posted in Legal News

John Marshall’s Summer 2008 edition of its Review of Intellectual Property Law is on bookshelves everywhere, plus it is online (click here for the table of contents of the current edition with links to pdfs of each article).  Some of the highlights in:

  • The text of Chief Judge Michel’s address to the Federal Circuit Judicial Conference in which he discussed the state of the Circuit and asked Congress to add a fourth law clerk for each appellate judge to speed the Federal Circuit’s output;
  • An article by R. Mark Halligan arguing for the addition of a trade secret misappropriation cause of action to be added to the Economic Espionage Act of 1996; and
  • Hal Wegner’s discussion of the impact of the Supreme Court’s patent exhaustion decision in Quanta v. LG; and
  • Daniel Sullivan’s student arguing that an Article I patent tribunal should be created and that patents should know longer be subject to trial by jury.

Whether you agree or disagree with the authors, this edition has some provocative arguments.

The Power & Danger of Researching Social Networking Sites for Voir Dire

Posted in Legal News

I have written about the legal issues surrounding social networking sites (click here and here to read those posts).  I even did an ALI-ABA teleseminar with Eric Goldman yesterday discussing, among other things, how the Communications Decency Act protects social networking sites against suit based on third party content published on the sites.  But Julie Kay’s National Law Journal article yesterday — click here to read it — provided a new angle on the power of social networking sites in the courtroom. 

It is no surprise that lawyers, either alone or assisted by jury consultants, research juror backgrounds, and use their research during voir dire and to inform their trial presentations, in particular opening and closing arguments.  Of course, internet research has been a cornerstone of those efforts for years.  But social networking sites have vastly increased the amount of information available about the average person.  Instead of learning someone’s Turkey Trot 5k time and one or two newspaper quotes, you now may be able to see their entire resume on LinkedIn, read about major life events on FaceBook, or even read their personal, daily thoughts on a blog.  Kay reports that the information is a valuable fact checking tool, acting as a backstop to information provided in a jury questionnaire.

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Trading Technologies v. eSpeed: Verdict Update

Posted in Trial

As I posted yesterday afternoon, the jury came back for Trading Technologies ("TT").  The jury found that eSpeed willfully infringed TT’s patents for a six month period in 2004, found the patents valid and awarded $3.5M in damages.  The parties have not completed their bench trial on inequitable conduct.  So, the Court may still hold the patents invalid based upon inequitable conduct, which would render the $3.5M damages award moot.  But unless and until that happens, the award stands and has the potential to be as much as trebled based upon the willfulness finding. 

There has been some press coverage already.  Here is some of the best:

You can read much more about this case and its related cases in the Blog’s archives by clicking here.

Trading Technologies v. eSpeed: Jury Deliberations Update

Posted in Trial

The jury continued its deliberations yesterday and reconvened this morning.  That is not a very informative update, but based on the Blog’s traffic this week people are looking for updates on the case.  And that is all there is right now.

A relative who is a criminal defense attorney, often said that longer jury deliberations benefited the defense.  Of course, when he had a close case and a fast jury, he sometimes thought that benefited the defense also.  It is difficult to read the tea leaves with a jury.  But I will let you know as soon as I learn the jury’s verdict.  For more on the case and Trading Technologies’ related cases click here for the Blog’s archives.

Trading Technologies v. eSpeed: Trial Update

Posted in Trial

The parties have rested on the issues of infringement, validity and damages.  Closings were Thursday and the jury now has the case.  I attended the closings.  Look for my thoughts on them Monday morning — unlike the Northern District, other government offices, the Post Office and many schools, the Blog will be working on Columbus Day.  Judge Moran will hear the inequitable conduct case beginning next week. 

I will let you know as soon as I learn the jury’s verdict.  For more on this case and Trading Technologies’ related cases in the Blog’s archives click here.

Trading Technologies v. eSpeed Trial: Thoughts on the Jury

Posted in Trial

Trading Technologies Int’l, Inc. v. eSpeed, Inc., (N.D. Ill.) (Moran, Sen. J.).

Last week, I attended several hours of the Trading Technologies (“TT”) v. eSpeed trial. I watched the direct exam of TT’s infringement expert. Unfortunately, because of an ill-timed lunch break and other responsibilities, I missed eSpeed’s cross-exam. The jury is made up of eight members and two alternates, equally split between men and women. To their credit and that of the Northern District’s jury pool generally, the jurors appeared very engaged, dressed appropriately for court and were taking detailed notes.

None of the issues that I have written about came up (click here for the Blog’s archive on the case), but I came away with several thoughts about making your case to a jury:

  • TT’s PowerPoint slides were often, although not always, very dense. This led to a jury that was over-focused on the slides and not listening to the testimony. Of course, TT’s infringement case was on the slides so they may be comfortable with that. But I want the jury focused on my expert and her credibility, not her slides.
  • Despite their occasional wordiness, TT’s expert interacted very well with his slides. When the expert stepped away from the witness stand and pointed out information on the slides, he recaptured the jury’s attention very well.
  • When the expert relied upon deposition or trial testimony, TT put the testimony on a slide next to the person’s picture. This was an excellent way of humanizing the cold transcript. I suspect it also helped the jurors remember the testimony by attaching the words to a face.

I understand that trial will continue at least this week and maybe in to next week. I will try to observe the trial again, but I am traveling most of this week so it will not be until late this week or early next. And if I do make it back, I will do my best to watch both the direct and the cross of a witness or maybe both sides’ closings. That way I will be able to provide more perspective on the substance of the trial.

Jury Must Decide Disputed Critical Date

Posted in Summary Judgment

Trading Technologies Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Aug. 16, 2007) (Moran, Sen. J.).*

Judge Moran granted in part plaintiff Trading Technologies’ (“TT”) motion for summary judgment regarding prior use and denied defendant eSpeed’s cross motion for summary judgment. TT argued for a March 2, 1999 critical date (one year before the March 2, 2000 filing of TT’s related provisional application). eSpeed argued that the provisional application did not fully describe the patented invention and that, therefore, the critical date was June 9, 1999 (one year before filing of TT’s parent application). The Court held that whether the provision application met the written description requirements was a question of fact for the jury. The Court, therefore, determined this summary judgment motion in the alternative, either if the jury found a March 2 or a June 9 critical date. eSpeed argued that various uses of TT’s software before March 2 constituted public use because trades were either completely or partially performed to test the software. But the Court held that this use of the software was only experimental and done solely for the purpose of making sure the software functioned properly. The trades that were initiated during the testing were canceled prior to completion, except in several discreet incidents where the users testified that they had intended to cancel the trades but forgot. eSpeed also argued that the software was reduced to practice before March 2. But the Court held that the software was not reduced to practice until March 2 based upon the developers’ testimony that they did not believe the software was fully functioning and were still testing it prior to March 2. The Court, therefore, granted TT summary judgment for pre-March 2 use of the software. 

The Court held that the March 2 to June 9 alleged use was a question of fact for the jury. eSpeed’s email, video and trading record evidence for the March 2 to June 9 period might constitute public use, but a question of fact remained.

Trial started in this case the week of September 10. Expect to see several more opinions in this case and its related cases (there are two weighty summary judgment opinions still in my queue, as well as several other smaller opinions and orders). Additionally, I have some other obligations, but am planning to blog some of the trial. Stay tuned.

*You can read much more about this case and related cases in the Blog’s archives.


Pre-KSR Validity Verdict Upheld Under KSR Standard

Posted in Trial

Lexion Medical, LLC v. Northgate Techs., Inc., No. 04 C 5705, Slip Op. (N.D. Ill. Jun. 8, 2007).*

Judge Rosenbaum (a visiting judge, who is the Chief Judge for the District of Minnesota) denied defendants’ Fed. R. Civ. P. 60(b) for relief from the Court’s judgment.  The Court held a trial in October 2006 resulting in a jury verdict that defendants’ insufflator (a device that blows a powder, gas or vapor into a body cavity) infringed plaintiff’s patent (you can read more about the case in the Blog’s archives). In their motion, defendants argued that the Supreme Court’s April 2007 obviousness decision, KSR Int’l Co. v. Teleflex Inc., __ U.S. __, 127 S.Ct. 1727 (2007), dramatically changed obviousness law and conflicted with the jury instructions which “nullif[ied] the jury verdict.” Defendants moved the Court to invalidate two claims of the patent in suit or to order a new trial on obviousness. But the Court held that even under the KSR standard, the jury’s verdict was fully supported by evidence at trial. Because a corrected instruction would not have changed the result, the erroneous instruction was harmless.

*You can read the opinion here.

A Glimpse Into Public Perceptions of Litigation

Posted in Legal News

As I pointed out early this week, the Conrad Black trial has little or no intersection with IP, but I could not resist posting about Neil Steinberg’s column in yesterday’s Chicago Sun-Times.  Steinberg spent a day observing the Black trial and provided his impressions of the jury system and Judge St. Eve.  Two of his observations were particularly interesting.  First, he found the trial very boring.  As IP lawyers and particularly patent lawyers, this is something we have to struggle with.  Making technology analysis and damages interesting is a difficult job and keeping jurors who only see a portion of the litigation proceedings awake and attentive can be difficult.

Second, Steinberg notes that "pay all that money to lawyers for a reason."  I would like to believe he meant because of the immense skill involved, but I am afraid it is because of how boring and complex he found the trial.

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Northern District of Illinois Jury Instructions

Posted in Uncategorized

Crafting proposed jury instructions is one of the first steps when preparing for trial.  And one of the first steps in drafting those instructions is looking for pattern or sample instructions that the court has previously used or endorsed.  In order to help speed that process, I am adding a new Blog feature.  I have gathered the jury instructions that each of the Northern District judges identify on their respective  web pages as either form or model instructions.  Most have general civil instructions and a few have specific sample instructions for various types of IP suits.

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