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| Authored by: PJ on Saturday, December 08 2012 @ 12:53 PM EST |
Here is an article by Judge Posner himself, in which
he
mentions that juries tend to make this very mistake, which is why lawyers for
plaintiffs ask for trials by jury:
These problems are aggravated by
several additional factors. One is that the Seventh Amendment to the U.S.
Constitution confers a right to a jury trial in cases in federal court if the
plaintiff is asking for an award of money damages, as plaintiffs in patent
infringement suits normally do. Judges have difficulty understanding modern
technology and jurors have even greater difficulty, yet patent plaintiffs tend
to request trial by jury because they believe that jurors tend to favor
patentees, believing that they must be worthy inventors defending the fruits of
their invention against copycats -- even though, unlike the rule in copyright
law, a patentee need not, in order to prevail in an infringement suit, show that
the defendant knew he was infringing.
And here is an
article on DecisionQuest making the very same point, by a lawyer teaching
other lawyers on how to work with a jury:
Most Jurors Have
Pre-Existing Beliefs About Patents And The Patent Office-
The PTO
conducts an independent investigation prior to granting a patent. Most jurors
believe that the PTO is in charge of checking on the prior art that is
submitted, as well as researching other relevant prior art. The assumption is
that the Patent Examiners know the applicant’s business as well as the
applicant, and that any relevant products or patents would be something of which
he or she would be aware.
- Only the PTO should be able to overturn a
patent. Jurors reason, “Why would I presume that I know more about this process
than the PTO, to overturn what they have already given a stamp of approval?
Surely they know more about this than I do.” We often call it the “Power of the
Patent Office,” but quite frequently jurors will put examiners on a “pedestal”
and assume that they could do no wrong in either the issuance or the review of a
particular patent. They are also not clear that they, as jurors, have a legal
right to make such a determination. This perception is often due to the fact
that they don’t understand the patent application process is non-adversarial,
and that other parties cannot challenge the patent until after it is issued.
As you can see, this is a known problem, so you were wrong to
state that what I wrote was encouraging bias or that prospective jurors should
disclose such an alleged bias.
They already suffer from a bias. But filing
for a patent is not an adversarial thing. You *can't* oppose it (under prior
law - it recently changed) until after the USPTO lets it issue, and their search
for its validity is known to be superficial. It has to be, given the time
allotment for each examiner to search and the limitations on what they are
allowed to search. So they miss things, and they know it, but they rely on the
courts to work it out. When a jury assumes the USPTO did the checking and the
patent *must* be valid, the jury has failed to do its job.
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