Watch Out for Blogging Jurors
By Trish Renaud
Fulton County Daily Report
February 17, 2009
Jurors have always had certain itches.
Some found it hard to resist searching newspapers to see just what they weren't being told about the case before them. Others would insist on finding a better definition in the dictionary for that legal term that had become a sticking point in deliberations. Still others simply couldn't refrain from sharing details of the case with a friend or family member. Now, in the era of the smart phone and BlackBerry, satisfying those itches is easier than ever. Research is a breeze on the Internet, and today's jurors are as likely as a lawyer to be Internet-savvy...(more)
How Juror Misconceptions Affect Patent Trials
Patent infringement suits rarely make the claim that the defendant actually copied the invention. But copying is always on the minds of jurors
IP Law & Business
January 26, 2009
Jurors walk into courtrooms loaded with misconceptions about how intellectual property law works, says Chuck Kauffman, a consultant at CapAnalysis Group, a litigation research firm that is affiliated with Howrey. For example, many jurors don't know the difference between a copyright and a patent, and many jurors believe that patents cover broad ideas, not just specific inventions. Further, jurors are hardwired to believe that corporations will "lie, cheat, and steal" to get an edge on the competition, according to polls that Kauffman has conducted with hundreds of mock jurors.
In those surveys, only 35 percent to 45 percent of jurors had a favorable opinion of corporations, while 75 percent had a favorable opinion of inventors. Nearly 70 percent agreed with the statement, "Big companies steal the secrets and inventions of their competitors." Most of the mock jurors believed that patent rights were trampled regularly, with 85 percent saying that it occurred "frequently or occasionally."
Jurors have a "romantic" view of invention, rooted in archetypes like Alexander Graham Bell and Thomas Edison, says Kauffman. They also have a high regard for the Patent and Trademark Office, and believe that patents are hard to get and the review process is rigorous.
"It's really a myth that's grounded in the 19th century," says Kauffman. "But the inventor story is important because it talks about people, not technology," says Kauffman. "It's an element of the patent case that every juror can understand."
Inventor testimony isn't always a slam dunk. Sonnenschein Nath & Rosenthal's Yar Chaikovsky remembers that in his first patent trial in 1996, working for the defense, the inventors suing his client sounded overly prepared and rehearsed when they kept answering questions about prior art with the same phrase. "They weren't convincing," he remembers. "They kept using the same one-liner." The jury found the patent invalid.
But attacking inventors can be risky. Hunton & Williams partner Greg Stillman represented MercExchange in the district court win against eBay over online auction technology. Stillman believes that an overly harsh, four-day-long cross-examination of MercExchange's founder Thomas Woolston, contributed to the victory. "The jury almost felt sorry for Woolston," says Stillman. "We emphasized that the patent system is designed to protect the little guy against these corporate monopolists. That's usually the theme you want when you are the plaintiff."
Jurors also tend to be skeptical of reverse engineering and "design-arounds," often finding nefarious intent in such actions. That issue came up in the trial of Moscovitch's claims against Ergotron, when an Ergotron engineer had to explain that once the company was sued over Moscovitch's patent, he modified the design of their computer stand to limit their liability -- even though, he emphasized, Ergotron didn't believe its product infringed...(more)