August 20, 2012

The Worm in the Apple-Samsung Trial: Treat Patent Jurors Like the Consumers They Are

By Dr. Kevin Boully, with Dr. Karen Lisko:

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Inside the shiniest of apples wiggles the risk of a worm. We learned as children, when reading our first books and watching cartoons, that something might be lurking beneath the apple’s surface. As adults, we rarely give it a second thought. We take a big bite and go back to swiping our smartphones and updating social media. 

A more consequential risk lurks beneath the surface in the ongoing Apple v. Samsungpatent trial of the century.” Now in its third week in front of a nine-person federal jury, both Apple and Samsung have staked out positions around one of the most important dynamics in patent jury trials — jurors’ perceptions of how patent protection affects them as consumers. Patent trial strategy should address the fact that jurors’ foremost concerns – and a powerful and quiet motivation for their decisions – often center on how each party’s position influences them as credit card-carrying “buyers” in the market for ever-evolving techno-gadgets. In this post, we react to reports on the first two weeks of the Apple v. Samsung trial with a particular focus on the broader lessons for persuading patent jurors. 

Can you really patent the rectangle? 

Patent jurors can struggle with the bounds of patentability. While deference to the United States Patent & Trademark Office is a prominent force for most patent jurors, jurors’ own evaluations go beyond whether the patented idea seems novel or not. They also include the evaluation of whether it is fair or unfair for a company to claim a patent on something that is intended to legally restrict competition with the claimed invention.  Jurors, like some critics, may view such a patent holder as taking advantage of patent laws, and may speak the exact words one writer used: “There, all packaged up as design patents are drawings of rectangles.” 

Recommendations: Persuasion Strategies’ National Juror Survey results find that more than two-thirds of jury-eligible Americans perceive the patent process as helpful to competition. If you represent the patent holder, constantly remind jurors how the prospect of patent protection motivated your company to develop new ideas and to innovate in a way that benefits consumers through increased options and marked improvements. Be sure jurors understand the purpose of a design patent, then consistently endorse the USPTO and its thorough gatekeeping process for evaluating patent applications and awarding innovation – innovation that includes your unique design for what seems like a well-known concept. Also remind them that it is your responsibility to protect your client’s patent through litigation. Many jurors believe the USPTO is the enforcement authority.

What do consumers really want? 

Apple claims Samsung “slavishly” copied its design patents in creating smartphones and tablets intended to compete with Apple’s iPhone and iPad products. Samsung responds (in part) by arguing its designs were a measured response to benchmarking research identifying what smartphone consumers wanted.  If jurors are thoroughly convinced by both arguments, they still may lean in Samsung’s favor because a finding against Samsung would limit consumer options and result in a functional monopoly for Apple. 

Recommendations: Jurors spend a substantial amount of time talking about themselves and how a decision might impact them in the “real world.” Do not let this decision making filter silently influence jurors’ decisions when it could be addressed directly. As an accused infringer, make the overt argument that consumer options matter, but do not stop there. Tie this appeal directly to a patent’s intended purpose of fostering and protecting innovation that people can use. Ask jurors to contemplate the world without competition in the plaintiff’s product market.  Ask jurors to contemplate the plaintiff’s motivation for innovating new products if there are no others who can make a competing product. Ask jurors to contemplate their own array of choices if patents are allowed to restrict competition. Then, ask if that imagined world is consistent with the goals of America’s patent process.

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Other Patent Posts: 

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 Photo Credit: Andy Langager, Flickr Creative Commons

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