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.