September 16, 2013

Persuade Jurors You Play Fair in the Patent Sandbox

By Dr. Kevin Boully:

Apple unveils its new iPhone 5s and all of its technological advances, including being the first Smartphone featuring a 64-bit chip, and within hours Samsung announces the next generation of its biggest Smartphone will also feature a 64-bit chip. My young nephews jump off the boat dock and into the lake over Labor Day weekend. One of them does a new “trick” and splashes into the water followed within moments by one of the other two boys trying the same trick if not something even more amazing that might create an even bigger splash, shower the innocent adults, and up the ante on the entire game. There may be few things more inherent in human nature than competition.

Whether it’s a patent dispute like the Smartphone wars or something less contentious, perceptions of litigants’ competitive behavior matters. In this post, we recommend ways to address jurors’ perceptions of competition in patent infringement litigation, including a few ideas from our new book on persuading fact-finders in patent litigation entitled, Patently Persuasive: Strategies for Influencing Judge and Jury.

1. Give Jurors a Benchmark for Fair Competition Compared with Unfair Competition

While the verdict form will not ask jurors to determine if the accused infringer (or the patent-holder, for that matter) competed fairly or unfairly, jurors will be thinking about and asking one another that very question. Jurors may see patents themselves as unfairly keeping competitors out of the sandbox and lean in favor of the accused infringer simply because they believe the patent holder is using patents to unfairly exclude others from the market. At the same time, jurors will look hard at both parties’ behavior to determine if either took any action that is unfair or anticompetitive.

Recommendations:  While a trial theme focusing jurors on the importance of fair competition can be effective (we have recommended it and have seen it work), jurors often prefer to rely on the evidence to determine on their own if your opponent’s actions constitute fair or unfair behavior. Help them understand what crosses the line by thoughtfully providing a clear picture of fair competition and the reasons it is fair so they can more easily identify conduct that goes beyond what is fair.

For instance, patents are fair and promote better competition in X industry because they protect innovation and incentivize people and companies to always pursue new ideas and try to make things better for consumers. This holds true right up until a patent holder chooses to use patents for a different purpose, such as creating a temporary monopoly or boxing its competitors out of the market by trying to persecute others not actually practicing its patents.

2. Show Jurors How You Earned It

Jurors in patent cases care deeply about balancing their verdict decisions with their perceptions of what patent holders and accused infringers have earned through their own toil and sweat. Jurors resist a verdict that results in a windfall for a patent holding plaintiff who has not worked hard (or invested resources) to earn its market position or an accused infringer who has taken the easy road to a product idea by looking to the market for inspiration rather than developing its own ideas and spending its own money.

Recommendations:  As a patent holder, be sure to tell a complete invention story including the people, hours, dollars, materials, and other resources utilized in the process of developing, researching, testing, and bringing to market a new and patentworthy idea. Use demonstrative graphics to build a visual case for damages by showing jurors what went into (and therefore what should be returned for) building a novel idea that has been unfairly infringed by a competitor who chose not to do the work and is not deserving of the benefits of the hard-earned patent elements.

For more recommendations and detail on dealing with jurors’ views of competition in patent disputes, and much more on persuasion in patent litigation, see Karen Lisko and Kevin Boully’s book entitled Patently Persuasive: Strategies for Influencing Judge and Jury.

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Other Posts on Persuasion in Patent Disputes


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