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On the Role of Juries in Patent Litigation

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On the Role of Juries in Patent Litigation ON THE ROLE OF JURIES IN PATENT LITIGATION Philippe Signore, Ph. D.1 I. PROLOGUE.................................................................................................................................... 3 II. INTRODUCTION........................................................................................................................... 4 III. THE PRESENT JURY SYSTEM FOR PATENT LITIGATION ..................................................... 8 A. The Jury’s Role in Patent Litigation..................................................................................... 8 1. Law Versus Fact Questions ............................................................................................... 8 a. Claim Interpretation...................................................................................................... 11 b. Validity Issues.............................................................................................................. 12 c. Infringement Issues....................................................................................................... 18 d. Enforceability and Inequitable Conduct ......................................................................... 21 e. Damages and Other Issues ........................................................................................... 22 f. In Summary..................................................................................................................... 24 2. Means to Limit the Jury’s Role ......................................................................................... 26 a. Waiving the Right to a Jury........................................................................................... 26 b. Settling the Case........................................................................................................... 26 c. Seeking Only an Injunction........................................................................................... 26 d. Summary Judgments..................................................................................................... 27 e. Judgments as a Matter of Law...................................................................................... 28 f. Jury Instructions............................................................................................................... 29 g. Special Verdicts........................................................................................................... 30 h. General Verdict Accompanied by Answer to Interrogatories ......................................... 31 i. Appeals........................................................................................................................... 31 j. Arguing the Complexity Exception.................................................................................... 33 B. Statistics Related to Juries in Patent Cases........................................................................ 35 1 Dr. Signore is a patent agent in the electrical/mechanical practice group of Oblon, Spivak, McClelland, Maier & Neustadt, P.C.. The author gratefully acknowledges Professor Oldham of the Georgetown Law Center for providing the motivation for this paper and research assistance. The author also thanks Greg Maier, Steve Tabackman, Frank West, Alex Gasser, and Loris Grammit for reviewing this work and providing useful comments. The opinions expressed herein (unless otherwise attributed) are solely those of the author and do not represent those of the above individuals, Oblon, Spivak, McClelland, Maier & Neustadt, P.C. or the Georgetown Law Center. Contact: [email protected] 1. Statistics on the Number of Patent Cases Tried by Juries .................................................. 35 2. Statistics on Jury Decisions............................................................................................... 36 C. Why Parties Choose or Avoid Jury Trials in Patent Litigation............................................ 43 1. Why Parties Choose Jury Trials In Patent Litigation.......................................................... 43 2. Why Parties Avoid Jury Trials in Patent Litigation............................................................. 44 D. The Advantages and Disadvantages of Jury Trials in Patent Litigation................................ 44 1. The Advantages of Jury Trials in Patent Litigation.............................................................. 44 2. The Disadvantages of Jury Trials in Patent Litigation.......................................................... 46 a. Technical Complexity................................................................................................... 46 b. Legal Complexity......................................................................................................... 48 IV. CONSIDERING A MODIFIED JURY SELECTION PROCESS................................................. 49 A. A Modified Jury Selection Process................................................................................... 54 1. The Mechanics ................................................................................................................ 54 2. The Statutory Amendments.............................................................................................. 58 B. The Merits of the Modified Jury Selection Process............................................................ 58 1. A More Informed Jury..................................................................................................... 58 2. Special Jurors as Unsworn Witnesses............................................................................... 60 3. A Balanced Jury.............................................................................................................. 63 4. Users Are Involved.......................................................................................................... 64 5. Juries Are Still Available................................................................................................... 64 C. The Constitutionality of the Modified Jury Selection Process ............................................. 65 1. The Modified Jury Selection Process Would be Consistent with 18th Century English Practices...................................................................................................................... 66 a. Mixed Juries: The Jury De Medietate Linguae ............................................................. 66 b. Impaneling Jurors Meeting Special Qualification Requirements....................................... 68 2. The Modified Jury Selection Process Would Satisfy the Jury of Peers Requirement ........... 70 3. The Modified Jury Selection Process Would Satisfy the Reasonable Cross Section of the Community Requirement............................................................................................... 71 V. CONCLUSION............................................................................................................................. 73 VI. APPENDIXES............................................................................................................................... 75 A. The Jury Selection Process For Federal Cases ................................................................. 75 1. The Jury Selection and Service Act .................................................................................. 75 2. District Court Jury Plans and Local Rules ......................................................................... 81 a. District Court Jury Plans ............................................................................................... 81 b. Local Rules.................................................................................................................. 83 c. Challenging the Selection Process ................................................................................. 84 B. Sample Jury Instructions on Obviousness.......................................................................... 85 2 I. Prologue The foreman insisted that American companies were being systematically shut out of foreign markets, while the U.S. continued its liberal free-trade policy and let foreign companies freely compete in this country. According to him that policy had damaged many U.S. companies, even entire U.S. industries. The foreman explained that, while he did not want to participate in Japanese bashing, the Japanese were the most skilled at keeping American products out of their country. The fact that the Japanese government had refused to grant a patent to the American company in this patent case, while the United States Patent Office had granted one, was evidence of this unfair Japanese treatment toward foreigners and Americans in particular. The foreman further explained that Japanese businessmen had brought upon themselves a worldwide negative reputation because of their own practices, which often included bribing officials. One juror added that, while working as a machinist at a packaging plant, he had seen Japanese businessmen lurk around his plant, obviously trying to learn about its operation so as to exploit that information back in Japan. The rest of the jurors were keeping their participation to gentle nods and approving mumbles, respecting their foreman’s apparent authority. They had been selected from the population of the capital of a mid-western state and had agreed to participate in a mock jury trial for a patent case that was scheduled to be heard in a local
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