Category Archives: Patent Litigation

April 25, 2016

Take a Note from the Prince of IP (RIP)

By Dr. Ken Broda-Bahm: 

Prince - Wax Museum

The music world has lost some of its royalty lately. On the heels of David Bowie and George Martin, last week’s loss of Prince is another blow. The artist was known for his genre-defying sound, for his prolific songwriting for himself and other artists, for his sheer musicianship with a guitar, and for pushing a lot of social boundaries. But in legal circles, he was also known for something else: for doggedly enforcing his intellectual property (IP) at a time when public support for those protections has been waning. As described in a recent Wall Street Journal article, he enforced copyright against a 29-second home movie of a baby dancing to the Prince song, “Let’s Go Crazy,” sued a Chicago bike messenger who created a guitar using the symbol that Prince temporarily adopted as his name, hit “Twitter” with a takedown notice over users sharing six-second “Vine” clips of his music, and sued 22 of his fans for $1 million each for downloading a bootleg concert video. So in the musical world, he was not just the “Prince of Purple,” but the “Prince of IP” as well. 

Along the way, Prince won some victories, including the suit against the guitar-designing bike messenger. But he also experienced a backlash. A generation now raised on the ability to find free music on the internet didn’t like the idea of a wealthy artist clamping down on the freedom of his fans. At one point, several of the artist’s own fan websites joined together into an organization called “Prince Fans United” in order to protest what it considered to be the artists’ overbroad copyright enforcement on his music and image. The Electronic Frontier Foundation called the artist out with a “Raspberry Beret Lifetime Aggrievement Award” The response has been similar to that experienced by other artists, like Metallica, who played a role in trying to shut down Napster and other free music sharing in the early 2000’s. The pattern that emerges is that we love the artists, but hate it when these artists try to protect their art. That dynamic is representative of our love/hate relationship regarding intellectual property in general. On the one hand, we welcome innovation and those who are able to bring new art, new ideas, and new products to us. But on the other hand, it feels controlling and restrictive for the innovator – often a rich and powerful party — to control others’ use of the innovation. We like the artistry, but the control feels unfair. In this post, I’ll take a look at current attitudes toward IP and share some thoughts on how to adapt to these attitudes. 

A Large Portion of Your Jury Will Oppose the Idea of Intellectual Property

Surveys on public behavior indicate that nearly half of Americans casually pirate digital content in the form of images, videos, and music. Some might counter that much of this theft isn’t recognized as such due to ignorance or wishful thinking about the law. But when asked, a bare majority of 52 percent agree that there should be penalties for illegal file sharing. In the patent arena, we at Persuasion Strategies have tracked the attitudes that the jury-eligible population brings into court. In mock trials and surveys, for example, we have noted that some will hold with the traditional justification for intellectual property protections, believing that they protect fair competition. But a substantial portion — a third or more — believe that those protections weaken competition by allowing the IP owner to threaten or to block competitors. 

Patent Support

That data might come as a surprise. After all, we have noted over time that the U.S. Patent and Trademark Office tends to be among the government agencies with the highest levels of support. Some of our IP clients have been surprised that such a large number do not feel that it is necessary or fair to grant an inventor the right to protect that invention. That reflects a disconnect in thinking: We love the protections that encourage an artist like Prince to create “Purple Rain…,” then we love it so much that we feel entitled to download the song, the album, or the movie for free. 

But That Doesn’t Make Them a Lost Cause for IP Plaintiffs

IP cases will sometimes go all the way to trial, and when they do, you can’t exactly strike the third or more of the panel who are uncomfortable with the idea of enforcing intellectual property. Thankfully, we have found that individuals who are suspicious of patents and copyrights are still persuasible. Here are a couple of ideas for how to accomplish that. 

Address the Power

The central reason for discomfort with IP enforcement isn’t necessarily a disrespect for the law. More often, it seems to stem more from a worry over an abuse of control: Jurors fear that one-time innovators will abuse their positions and stifle future innovation. One solution is to equalize the power, reminding jurors for example that infringers are often large and powerful parties as well, either individually or in the aggregate. When the power balance does favor your side, it helps to point that power in a good direction: Yes, the ability to protect our innovation does protect us and our profits. At the same time, that power also protects the small-time innovator when faced with larger companies who want to steal that innovator’s work. In this case, power is on the side of innovation whether the innovator is big or small. 

Go Beyond the Law

It may be legal to defend your intellectual property, but is it also right? Is it helpful? Pointing the power in the right direction also helps to answer that question. As Prince’s lawyer told the online site TMZ at the time of the suits involving the downloaded bootleg concert video, “We recognize the fans craving for as much material as possible, but we’d prefer they get it from us directly than from third parties who are scalpers rather than real fans of our work.” One reality is that many artists don’t want the bootlegs out there, not just due to the lost profits, but also due to the fact that they don’t want to be associated with a poor-quality recording. It is also a good reminder to speak not only to the law, but to basic fairness as well. 

 

Postscript: Picking a Picture for This Post

Given the subject matter and the fact that Prince’s estate is likely to be just as aggressive on IP as the artist was in life, I faced a practical problem in finding a photograph to use for this article. In the aftermath of Prince’s death, of course the internet is awash in images with some of them being licensed and a great number of others likely being simply grabbed from the internet and used without permission. I didn’t want to do that — and in fact never do that for this blog: My policy is that all images are used legally. In this case, however, it turns out that legal pictures of Prince are hard to come by, perhaps owing to the artist’s reputation. Luckily, I found a photographer who had visited Madame Tussaud’s wax museum, snapped a picture of Prince’s wax figure (which Madame Tussaud allows) and then shared the photo with a “Creative Commons License” to Flickr. So thanks to the photographer known as “InSapphoWeTrust,” for helping me stay on the right side of the law and in the good graces of the Prince estate. 

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Other Posts on Public Attitudes in Intellectual Property Litigation: 

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Photo Credit: InSapphoWeTrust, Prince at Madame Tussaud’s Wax Museum, New York City, Flickr Creative Commons (edited)

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April 27, 2015

Account for Technophilia

By Dr. Ken Broda-Bahm: 

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We are used to hearing about “technophobia,” or a fear of new, confusing, powerful and scary gadgets. In modern times, however, it’s opposite — technophilia — is likely to play a stronger role. Take the current launch of the Apple Watch. While it is likely to generate at least some criticism and disappointments, it will, by all indications, succeed in the market anyway. After all, that is what we expect new technology to do: to be adopted and to make life easier and better over time. We expect our next computer to be thinner, faster, and prettier than our last computer. This belief in the success and inevitable advance of technology has a name: the “Technology Effect.” 

The Technology Effect is explored in a new study (Clark, Robert & Hampton, 2015) showing that we tend to associate technology with success and to overestimate the chances that any given new technology will be adopted. In our minds, “new,” “different,” “cool,” and “better” all become merged in a positive glow of technological optimism. Sure, we will curse our computers when they don’t do what we want, and we’ll be frustrated when Siri doesn’t understand what we’re asking. But on the whole, we still love our gadgets, love what they can do — and what’s more — we expect them to succeed in getting better and better over time. And sometimes that assumption is accurate, and sometimes it isn’t. In legal cases having to do with technology, most notably intellectual property cases, our general attitudes toward technology and its success can be highly relevant. In this post, I’ll take a look at the study and what it means for those cases that overlap with technology. 

Research: We Love Technology and Overestimate Its Effectiveness

Researchers from the University of Missouri and the University of South Dakota (Clark, Robert & Hampton, 2015) sought to investigate the attitudes that we bring when evaluating technological innovation. Over the course of three studies, they discovered “an implicit association between technology and success that has conditioned decision makers to be overly optimistic about the potential for technology to drive successful outcomes.” When research participants made simulated investment decisions, solved resource dilemmas, or took implicit association tests, they exhibited a strong tendency to both equate technology with success and to overestimate technologies’ chances for success.

According to professor Chris Robert in a comment to ScienceDaily, “It turns out that people have more confidence that unfamiliar technologies will provide solutions to a range of problems. People seem to put new technology in a category of ‘great things that work which I love but don’t understand,’ whereas they are not as excited about familiar technologies like electricity, solar power or telephones, and they don’t believe these technologies are as likely to provide new solutions.” 

Implication: Account for Jurors’ Technophilia in Patent Cases

To the extent that technophilia just makes us hopeful or thrilled about the new Apple Watch, it’s not really a bad thing. But when it leads us to make biased assessments of the performance of technology in the marketplace, it could lead not only to bad investment choices, but to skewed decisions in litigation as well. 

Benefitting from Technophilia

The field of litigation most associated with technology is probably patent and other intellectual property litigation. In that context, it is easy to see how this tendency toward technophilia could lead to a pro-patentee bias. If we are motivated to believe that new inventions are effective and successful, then we could be biased toward a feeling that those inventions deserve protection. That squares with our own experience in patent mock trials, where all things being equal, mock jurors want to protect the patent holder. 

Patentees can seek to augment that effect by giving particular attention to their invention story, knowing that story tracks with jurors’ own expectations about inevitability and benefits of technological progress. In patent damages scenarios, jurors will also sometimes need to think hypothetically about what a particular technology will do or would have done in the market. Or they may need to speculate about the licensing arrangement the parties would have reached if they had reached one. In that setting, optimism about technology is likely to be a force pushing those estimates up. In other cases, it is more complex, with both sides potentially claiming to be the ones on the side of technological innovation. Assessing and adapting to jurors’ tendency to be on your side from the start can be important to your strategy and your case assessment. 

Reducing Technophilia

In other cases, a bias toward technology will work against you. If you’re a patent defendant arguing invalidity, for example, you might be in the position of claiming that the patentee’s shiny new invention is just an obvious extension on an old and less shiny example of prior art. In a scenario like that, a tendency to equate new technology with success and effectiveness is going to run counter to your interests. So how do you reduce unrealistic expectations for technology? 

One thing that we know from the case of other biases, like hindsight, is that awareness helps to some extent. Sensitizing jurors to the existence and the strength of the bias can improve their ability to resist its influence. So acknowledge the bias. Remind jurors of our tendency to valorize each new innovation, and provide examples — the number of people willing to wait in line for a new Apple product before the reviews are even in. In addition, it also helps to understand the cause of our tendency to be too optimistic regarding technology. According to the study authors, overestimates of technologies’ effectiveness can come from an imbalance in publicity: We hear a lot more about the successes than about the failures. So one strategy is to create some perspective by reminding jurors that many new technologies fail, often without very many people knowing about it. 

Whether technophilia is likely to help or to hurt your case, it will often be a good idea to learn what attitudes your potential jurors are bringing into the case:

  • Do they own the newest technology? 
  • Are they likely to adopt a new gadget immediately, or to wait until many others have it?
  • Do they believe that new technologies tend to make life better, or worse? 
  • If they had to estimate, what percentage of new patented products do they believe are successful in the market?
  • Are they aware of examples of successful products in the case-relevant area of technology? Or examples of unsuccessful products? 

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Other Posts on IP-Relevant Attitudes: 

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Clark, B. B., Robert, C., & Hampton, S. A. (2015). The Technology Effect: How Perceptions of Technology Drive Excessive Optimism. Journal of Business and Psychology, 1-16.

Image Credit: 123rf.com, used under license

December 29, 2014

Top Patent Posts

Patent Pic

Patent and other intelletual property cases are known for being notoriously difficult. Not only do they often involve complex technology, but the core of the claim frequently centers on an argument about meaning. Legal writers and engineers may be used to having those discussions, but your average juror isn’t. Here at Persuasion Strategies we see patent litigation as one of our main areas of emphasis, and two of our senior consultants even wrote the book on persuasion in a patent context (Lisko & Boully, 2013). So for this post, I thought I would revisit a few of our top patent posts and share them here, all in one place. 

6a01156e439be2970c015432d40df3970c-320wiTell Your Patent Invention Story In a Way That is Worth Copyrighting

By Dr. Ken Broda-Bahm: Last month, Uniloc USA lost a multiyear battle against Microsoft to preserve a $388 million jury award against the software giant, and will now be retrying the patent infringement case on damages alone.  One thing Uniloc has in its corner for retrial is a compelling invention story:  a plucky Australian inventor working since the early 90’s to figure out how to prevent the ubiquitous practice of copying software to multiple machines, only to see his novel solution incorporated without compensation into Windows XP and Office programs, according to Uniloc. Invention stories won’t always have legal relevance.  Microsoft’s software either infringes or it doesn’t, and the story might only legally bear on the less frequently argued element of wilfullness.  However, from the perspective of persuasiveness, the story matters in nearly all patent disputes, as arbitrators, judges, juries, and even examiners look to the story in order to determine what is original and novel about the invention.  This post takes a look at why you should tell an invention story, when you should tell it, and how you should put that story together. Continue reading

6a01156e439be2970c019aff7cf09a970b-300wiPersuade 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. Continue reading

6a01156e439be2970c01676955afc1970b-800wiThe Worm in the Apple-Samsung Trial: Treat Patent Jurors Like the Consumers They Are

By Dr. Kevin Boully and Dr. Karen Lisko: 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. Samsung “patent 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. Continue reading

6a01156e439be2970c016765793696970b-300wiClimb Down the “Ladder of Abstraction” in Patent Cases (And All Cases)

By Dr. Ken Broda-Bahm: For many years, the word among intellectual property defendants has been “Don’t Mess With (the Eastern District of) Texas.” And statistics have borne that out. According to a recent analysis in the Patent, Trademark & Copyright Journal (Pistorino & Crane, 2012), cases in the district have come down in favor of plaintiff patent owners in two out of every three cases. That fact has fostered a gold rush mentality among patent owners, and while some of that venue mojomay just be the force of self-fulfilling prophecies, it is still interesting to look at some of the reasons local observers offer for a continuing plaintiffs’ advantage in Eastern Texas. After all, patent cases tend to be abstract and technical. Why would it be better for plaintiffs to try those cases in Texas locales like Beaumont, Tyler, and Texarkana? Bloomberg News posed that question to McKool Smith attorney Sam Baxter, and his response brings it down to earth:  “People here believe if you own something, you own it and certain rights come with that,” the Marshall, Texas based attorney said, “If you didn’t want someone coming to your pastureland and building a house, you can tell them ‘No.’ ” So it could be that Eastern Texas jurors are just able to understand patent cases in ways that favor plaintiffs and are “grounded” in a literal way. Continue reading

3405152555_464ab7b6d4In Patent Arguments, Remember that Words Don’t Have Meaning

By: Dr. Ken Broda-Bahm; Okay, that is a deliberately provocative title, but I mean it literally:  words don’t have meaning any more than scissors have cut paper.  Meaning isn’t an inherent or immutable attribute or possession of a word (something it “has”), but is rather an effect of the word when used in a particular context (something it “does”).  What we like to think of as a “definition” is a selective view of the work that words do or ought to do in a particular context.  In the case of patent litigation, where meaning is everything, it is strategic and helpful to your fact-finder to conceive the work that words do as a verb (“to mean”) rather than as a noun (“meaning”).  This basic approach has some very important practical implications for the patent litigator who is looking for clear and reasonable ways to argue for the superiority of one meaning over another.  So in this post, I’d like to unpack that perspective a bit, and sketch out some of the main ways of advocating your definitions in patent litigation. Continue reading

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Photo credits: See individual posts

September 16, 2013

Persuade Jurors You Play Fair in the Patent Sandbox

By Dr. Kevin Boully:

6a01156e439be2970c019aff6d34b3970b-500pi
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.

PatentlyPersuasive_7 17 12C

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Other Posts on Persuasion in Patent Disputes

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Photo Credit: 123rf.com, Used under license

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

April 23, 2012

Climb Down the “Ladder of Abstraction” in Patent Cases (And All Cases)

By Dr. Ken BrodaBahm

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For many years, the word among intellectual property defendants has been "Don't Mess With (the Eastern District of) Texas." And statistics have borne that out. According to a recent analysis in the Patent, Trademark & Copyright Journal (Pistorino & Crane, 2012), cases in the district have come down in favor of plaintiff patent owners in two out of every three cases. That fact has fostered a gold rush mentality among patent owners, and while some of that venue mojo may just be the force of self-fulfilling prophecies, it is still interesting to look at some of the reasons local observers offer for a continuing plaintiffs' advantage in Eastern Texas. After all, patent cases tend to be abstract and technical. Why would it be better for plaintiffs to try those cases in Texas locales like Beaumont, Tyler, and Texarkana? Bloomberg News posed that question to McKool Smith attorney Sam Baxter, and his response brings it down to earth:  "People here believe if you own something, you own it and certain rights come with that," the Marshall, Texas based attorney said, "If you didn't want someone coming to your pastureland and building a house, you can tell them 'No.' " So it could be that Eastern Texas jurors are just able to understand patent cases in ways that favor plaintiffs and are "grounded" in a literal way. 

Reading that quote reminded me of a snippet of communication philosophy that I learned in graduate school. That was a long time ago, but I try to apply it today to my writing, speaking, and consulting:  Move down the "ladder of abstraction." This post takes a look at what that idea means in patent cases, and all other cases as well. 

What Is a "Ladder of Abstraction?"

Based on the work of the only U.S. Senator who was also a renown communication theorist S.I. Hayakawa, the idea of a ladder of abstraction is a recognition of the fact that language can range from broad abstractions ("liberty," "power," "good,") down through several levels to specific identifiable concepts ("a day off," "a traffic ticket," "a chocolate cake"). Applied to the practical needs of communication, the lesson is that you can often improve communication by moving down the ladder. Using more concrete language increases the chance that the thing you think of when you use a word comes closest to the thing your audience thinks of when they hear that word. 

But still, communicators have a tendency to creep up the ladder because we think it makes us sound educated, or formal, or broadly inclusive. But better communication in most cases is found at the other end, down in the nitty gritty of identifiable things and actions. 

How Can You Reduce Abstraction in I.P. Cases? 

Intellectual property cases are difficult by nature. Contrasting them with other kinds of cases, like personal injury, they can lack the sense of place, event, main character, and visceral harm, leaving you with just a technical dispute over precise meanings. For the many lawyers who've spent time in the field of academic debate, it can be more like the sterile world of "topicality" rather than the flesh and blood narrative of advantages and disadvantages.

But that isn't inevitable. One way to move your patent case down the ladder is to tell a compelling invention story:  your client's own story if you're claiming infringement, or a prior art story if you're claiming invalidity. Nothing breathes life into abstract issues like a human story. Another way to increase concreteness is to simply scrutinize your language and adapt to the frame of reference jurors are likely to carry. Whle you can't always use the jurors' language, you can often base your themes on the concepts. For example: 

Slide1And How Can You Reduce Abstraction in Other Cases? 

To take an immediate example, the morning this post comes out, I'm scheduled to be selecting a jury. It isn't the John Edwards trial, which is also scheduled today (darn it), but a case that involves high level investment issues. Voir dire in this case will focus not so much on panelists' attitudes toward these high-level financial instruments, because for most potential jurors, that is purely an abstraction. Instead, our questions will focus on concrete and tangible experiences:  the ways the case issues intersect with their lives

In addition, every litigator should consider a table like the one above as it relates to your case. Instead of satisfying yourself with the knowledge that your words are legally accurate, ask yourself whether you are using words that would allow jurors to draw a picture of what you are talking about. I mean that literally. A good test of whether you are truly at the bottom rung of the ladder is whether your listeners could pick up a pencil and create an image showing the setting, character, and action that you are describing. 

  • No picture:  "The law allows remedies for the intentional infliction of emotional distress." 
  • Picture:  "Right here in this courtroom, you can create a line that individuals like this defendant can't step over."

Some of the East Texas magic may in fact be draining away, as the analysis by Pistorino and Crane also shows that USDC Delaware now leads Texas in number of I.P. cases, though the Lone Star State still holds the crown for the greatest number of named defendants. It may or may not be the case that the remaining plaintiffs' advantage has to do with a Texan's tendency to view I.P. abstractions in the concrete terms of land and trespass. But we do know from some recent defense wins in the district (e.g., Google and United Continental Holdings) that the other side of the bar is able to get in on the game as well. "Property rights are like a fence on the land, but you've got to own the property you fence in," as Jones Day attorney Hilda Galvan said. "We tell them the patents are invalid because they didn't own that property." That is concrete. 

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Other Patent Posts: 

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Photo Credit: fdecomite, Flickr Creative Commons

   

June 9, 2011

Tell Your Patent Invention Story In a Way That is Worth Copyrighting

By Dr. Ken Broda-Bahm –

Lightbulb
Last month, Uniloc USA lost a multiyear battle against Microsoft to preserve a $388 million jury award against the software giant, and will now be retrying the patent infringement case on damages alone.  One thing Uniloc has in its corner for retrial is a compelling invention story:  a plucky Australian inventor working since the early 90’s to figure out how to prevent the ubiquitous practice of copying software to multiple machines, only to see his novel solution incorporated without compensation into Windows XP and Office programs, according to Uniloc.   Continue reading

February 24, 2011

In Patent Arguments, Remember that Words Don’t Have Meaning

By: Dr. Ken Broda-Bahm –

dictionary focus

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Okay, that is a deliberately provocative title, but I mean it literally:  words don’t have meaning any more than scissors have cut paper.  Meaning isn’t an inherent or immutable attribute or possession of a word (something it “has”), but is rather an effect of the word when used in a particular context (something it “does”).  What we like to think of as a “definition” is a selective view of the work that words do or ought to do in a particular context.  In the case of patent litigation, where meaning is everything, it is strategic and helpful to your fact-finder to conceive the work that words do as a verb (“to mean”) rather than as a noun (“meaning”).  This basic approach has some very important practical implications for the patent litigator who is looking for clear and reasonable ways to argue for the superiority of one meaning over another.  So in this post, I’d like to unpack that perspective a bit, and sketch out some of the main ways of advocating your definitions in patent litigation. Continue reading

February 1, 2010

Stop Searching for the Perfect Analogy (but Don’t Surrender a Communication Lifesaver)

by: Dr. Ken Broda-Bahm

Broda_Bahm_Ken_88_120Sigmund Freud is credited with having said that “analogies prove nothing, but they make us feel right at home.”  Among litigators, there are two schools of thought on whether to deploy analogies in the course of legal persuasion.  One side argues that the explanatory staying-power of an analogy makes it a vital communication tool.  For instance, it isn’t easy to discount an analogy that seems to perfectly boil down the case:  “a smoke detector that stops working due to a simple short circuit is like a life preserver that keeps you afloat until it gets wet.”  One side, however, is equally insistent that analogies are counterfeit proof, rarely fit the exact situation, and are frequently exploited by the opposition. 

It turns out that both sides are right.  Analogies are simultaneously weak proof and strong communication.  They are simultaneously ill-fitting yet familiar.  Like all elements of legal persuasion, success depends on how you use them.  Continue reading

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