Why Juries Have No Place In the Patent System

New submitter Isara writes "GigaOm's Jeff John Roberts has a compelling writeup about patent trials and how juries are detrimental to justice in such cases. Roberts uses the recent Apple-Samsung trial as the backdrop for his article; although the trial lasted three weeks, during which hundreds of documents were presented and the finer points of U.S. patent law were discussed, the jury only took 2-3 days to deliberate. 'Patents are as complex as other industrial policies like subsidies or regulatory regimes. When disputes arise, they should be put before an expert tribunal rather than a jury that is easily swayed by schoolyard "copycat" narratives.'"

Comments

flamebait?

[noh8rz8]

umm, is the entire article -1 flamebait? or -1 troll? I never can tell the difference

Re:flamebait?

[DJRumpy]

Well for starters, the patent systems wasn't on Trial. Samsung and Apple were on trial. The Jury didn't have to fully understand the entire patent system. They had to answer 700 questions. In every jury case, the jurors are presented with the necessary information to come to a consensus. It is the responsibility of the prosecution and defense to make sure they can come to an informed opinion given the necessary information as presented by both sides.

Any adult, given enough facts as presented by both sides, should be able to come to a conclusion as to guilty or innocent. It doesn't require an in-depth knowledge of law, but rather a simple way to judge to arguments and giving merit to one over the other. If it required an in-depth knowledge of the law, we would only have lawyers for jurors, and I think we can all agree that's not a great idea ;)

Last but no least, a very basic yet easily understandable reason. Jurors represent the common man. Just imagine if every person in the jury was technically 'in the know'. Look at similar discussions here on /. and you'll find hundreds of answers to the same question all with different viewpoints. Even the most basic questions can result in flame wars due to the depth of knowledge represented here. The more in-depth knowledge one has on a topic, the less likely you are to get a consensus and the less likely you are to be able to look at a case objectively.

Re:flamebait?

[NEDHead]

Aha, so ignorance breeds just conclusions. I guess creationism must be true after all.

Re:flamebait?

[Anonymous Coward]

They need to understand something about patent law and something about the subject matter. The Jury foreman actually said this in an interview:

"...wether or not the prior really did invalidate that patent, and so with that moment that I had, I relealized that the software on the Apple side could not be placed into the processor on the prior art and vise versa and that means that they're not interchagable, and that just that just changed everything right there"

Would you trust this guy to be on a jury for a case you were involved with? Obviously he was in over his head and just pulling stuff out of his nether regions. The rest of the jury followed him. And this is a guy who holds a patent and should, ostensibly, have some simple understanding of prior art.

Re:flamebait?

[MickyTheIdiot]

I am not sure that was the problem here.

One problem that I do see is that the jury foreman is a patent holder himself. That could of been an impact. There's a good chance he didn't like the idea that a jury could come back and say that some patents being given out right now are unfair and/or worthless.

Re:flamebait?

[Anonymous Coward]

"Objects in motion slow down because they get tired." - Aristotle

Re:flamebait?

[jklovanc]

Any adult, given enough facts as presented by both sides, should be able to come to a conclusion as to guilty or innocent.

When the facts are written in legalese, like patent documents, it is easy for the average person to become confused and ignore that evidence. This case was even worse in that the foreman was a self described "expert" and the rest of the jury deferred to his judgement. In effect, this was not a decision of 12 members of a jury but a decision of one expert convincing 11 non-experts.

If it required an in-depth knowledge of the law, we would only have lawyers for jurors, and I think we can all agree that's not a great idea

That is precisely what one gets in a trial by judge. Lawyers who do not have a stake in the outcome of a case can be very impartial and in complex cases like patent law knowledge is the key. It takes years to learn patent law. Do you really think that anyone can absorb all that information in a few weeks of trial? How much of the nuances are lost due to information overload?

The more in-depth knowledge one has on a topic, the less likely you are to get a consensus and the less likely you are to be able to look at a case objectively.

That is precisely the issue in this situation. The jury foreman was well versed in patent law as viewed by a patent holder. When technical questions arose the jury took the foreman's advice instead of deciding on their own or asking the judge question. Legal definitions and complex laws such as patent law are difficult at best. 700 questions is a huge number in a legal case. It take a lot of brain power to keep them straight. Most of the people in this group are well above average intelligence and we have issues dealing with these subjects. Do you really think that someone with an IQ of 90 would have fewer issues?

Patent law is too complex for the average person.

Re:flamebait?

[jedidiah]

The flip side of that is that you have ignorant people that are easily swayed by propaganda into wanting to "send a message". This can be compounded by someone on the jury having an obvious conflict of interest.

Vor dire clearly failed in this instance.

Re:flamebait?

[viperidaenz]

My hands are wet with light blue paint. The person next to me has purple paint on his hands. You are not colour blind. The evidence has dark blue paint on it. The prosecution and/or defense is not telling you the full an unaltered truth. The judge has disallowed other evidence. Which one of us is guilty? Did I try to wash off the dark blue paint from my hands and made it light blue? Did the other guy try to hide the blue paint on his hands by mixing it with red? Are we both innocent and the wrong people are being tried? Has the evidence that was allowed been altered in some way?

Good luck solving the mystery.

Re:flamebait?

[viperidaenz]

Especially since he patented the TiVo, several years after it was released.

Re:flamebait?

[Sir_Sri]

It is the responsibility of the prosecution and defense to make sure they can come to an informed opinion given the necessary information as presented by both sides.

The primary argument being that this an intractable problem. You are banking on the ability of lawyers to teach a jury portions of law they will understand enough to rule the way each side is advocating. That fundamentally mistreats jurors and the law, it limits the ability of jurors to recognize information outside the scope presented by a lawyer (who might be bad, or simply underestimates the jury), and it supposes that laws can be considered in piecemeal isolation.

Any adult, given enough facts as presented by both sides, should be able to

That is a truly profound assumption, which is the basis of much of jury based legal systems. It's quite possible this assumption is wrong. Whether it's demonstrably right or wrong is harder to say, because legal systems that don't have juries are different from ones that do on more than just the existence of juries.

we would only have lawyers for jurors, and I think we can all agree that's not a great idea ;)

um....
That's actually a good idea. In effect it is what your supreme court is, which is a 9 rather than 12 person jury of professional legal experts. Just about every country has the most important cases decided by a collection of lawyers or lawmakers for precisely the reason that it is simply not appropriate to have common people establishing definitive precedents.

The more in-depth knowledge one has on a topic, the less likely you are to get a consensus and the less likely you are to be able to look at a case objectively

A lack of consensus may be preferable to decisions based on purely superficial understandings of problems. Broadly speaking the thrust of the article is that Juries aren't capable of making good decisions about patent law, in part because of jurors themselves and in part because the legal system is constrained by having to work around these 'common people' where you are burdening them and their employers to resolve a dispute that justifies far more time and far more expertise than is available to a jury, and may broadly require addressing much deeper questions. Should rectangles be patentable at all is a question that should be addressed before a jury is ever told 'assume they are patentable and work based on that assumption', because that's an absurdly stupid process.

The three basic points he makes:
1. Juries start biased, and are being asked to overcome that bias. Which is certainly true of both professional and non professionals.

2. It's harder to prove a negative than a positive, even if the negative is better. 'He copied me, that's why I have a patent on this and he doesn't' is easier to understand than 'we knew that too, but we didn't patent it because it shouldn't be patentable at all' is an inherently worse argument to make. I'm not sure I agree with this, but it's a psychological argument about how juries perceive information and there are valid underlying psychological principles about how people perceive information that have to be considered.

3. Patent problems specifically should be handled by the people who actually issue patents. Whatever you think about juries, you should be able to have a discussion with the people who granted the patent at all about whether or not that should have happened, and the patent system itself may need to pass information up the chain to their government managers about things that are causing them problems. The thing is, patents sort of exist in their own sub legal domain already, I guess the argument about apple vs samsung is that it was outside that sub domain, but that's more of a specific problem than a problem in general with the patents appeal process.

The more science you put in the courtroom the more juries are going to b

Re:flamebait?

[Applekid]

nonsense.

BOTH sides had patents they were trying to enforce. He could easily have sided with Samsung with respect to their patents, but he didn't.

The fact that he held patents at all means he should have been dismissed. There's a reason why, for example, in Oracle v Google, potential jurors that are in the technology sector or had used Java were excused. That reason: because only evidence brought into trial is supposed to be used to determine the outcome. By having patents in his head, he has information that he can't avoid tapping into during deliberation. Lawyers typically screen for that kind of thing and it's surprising they didn't. Perhaps because modern-day patents are all about corporate ownership, and the idea that an individual could hold one is outside their understanding.

That he wasn't dismissed turned out to be a gamble for Apple and a blunder for Samsung. Further reading here. Choice quote:

The foreman told a court representative that the jurors had reached a decision without needing the instructions.

Re:flamebait?

[Anonymous Coward]

Surely the peers should all be faceless, billion+ dollar, global corporations with huge patent portfolios, no?

Re:flamebait?

[QuantumLeaper]

It's easy when the jury doesn't follow the Judge's instructions.

Or you know...

[Glarimore]

we could start debating the patent system instead of patents themselves. There is a lot of talk about the validity of these patent lawsuits and not enough about the validity of the system itself.

Ugh...

[denmarkw00t]

We should either

1) Gut the patent system, releasing all patents into the public space or
2) Move patents to a 5-10 year maximum life before they are turned over to the public

Innovation is key, but innovation doesn't necessarily mean figuring it out on your own. Too many companies have strangleholds on great technology and methods, and the not being able to access that information only hurts those trying to compete and become viable. The idea that you can patent things as silly as a lot of what comes through in the IT world (rounded corners, click to buy, slide to unlock, etc) is stifling not only competition, but entrepreneurs, students, and people who could take it and do something better.

If your company has to bank on a patent to remain profitable, then you probably don't deserve to continue to be a company - part of being the leader is being able to continue and innovate in a space without worrying that your competitor might know how you're doing X because you're already focusing your efforts and resources on developing Y instead.

Re:Ugh...

[Anonymous Coward]

I would like to see some actual evidence that the American patent system is stifling innovation rather than simple claims. For example, is there less innovation in the US compared to other countries with more lax patent laws? Are there fewer software start-ups today than before software patents became common. It is easy to make emotional claims, it is much harder to find evidence to support these claims.

Re:Ugh...

[MozeeToby]

Allow me to introduce to you the Sam Vimes Boot Theory of Economic Injustice

Samuel Vimes earned thirty-eight dollars a month as a Captain of the Watch, plus allowances. A really good pair of leather boots, the sort that would last years and years, cost fifty dollars. This was beyond his pocket and the most he could hope for was an affordable pair of boots costing ten dollars, which might with luck last a year or so before he would need to resort to makeshift cardboard insoles so as to prolong the moment of shelling out another ten dollars.

Therefore over a period of ten years, he might have paid out a hundred dollars on boots, twice as much as the man who could afford fifty dollars up front ten years before. And he would still have wet feet.

Without any special rancour, Vimes stretched this theory to explain why Sybil Ramkin lived twice as comfortably as he did by spending about half as much every month.

A rich person will be able to spend the money upfront for future gain that a poor, or even upper middle class person has no chance or raising on their own. Poor people don't have investments because they cannot afford to have them, not because they don't understand the benefits of having a long term income.

overhauling the USPTO is a better solution imo

[Trepidity]

I don't really like the idea of replacing trial-by-jury as the ultimate arbiter, and in any case it would be difficult to get such a thing passed. A more incremental reform, easily doable within current constitutional law, would be to give the USPTO approval process more teeth so fewer bad patents get issued in the first place, and therefore trial never becomes a possibility. It shouldn't approve any old stuff that comes its way, but should really take the non-obviousness and novelty tests seriously.

Solution to Patent Problem

[PortHaven]

"Allow any patent that is submitted into public domain, to be filed free of charge."

***

Let's be honest, most ideas are not conceived of in some big corporate lab. Most are conceived in the minds of individuals long before. Often the best ideas are conceived when an idea person is unemployed - a time when they're even harder pressed to find the $1K-$5K to file a patent.

Those individuals, usually do not have the resources to get their ideas off the ground very quickly. They might start, but then they find by the time they're working toward their goal. A big corp with lots of $$$ for lots of developers releases something similar. Worse, now they own the patent on it. The individual now can't even continue their own idea.

Happens all the time.

Re:At the end of the day

[oxdas]

Courts in the Netherlands, the UK, and Korea found that Samsung devices were not in violation of Apple's designs. So, whether or not Samsung copied appears to depend on where you live.

Re:Unless it's in the United States

[Above]

Trial by Jury does not mean "trial by 12 random people off the street".

Cases like this could have jury pools drawn from experts, not laymen. That would still be a trial by jury.

Re:At the end of the day

[Anon E. Muss]

The jury saw that, and decided that that was wrong.

And therein lies the problem. The point of a trial is to decide what is LEGAL. It's great when Right and Wrong correspond to Legal and Illegal, but it doesn't always work out that way. One reason it doesn't is because right vs. wrong can be very subjective, but legal vs. illegal is supposed to be very objective.

I'm concerned that this jury simply got offended that "Samsung copied Apple", and didn't fully consider the prior art that would make such copying perfectly legal. The foreman saying they wanted to "send a message", in clear violation of the judge's instructions, calls the result into question.

Juries in civil cases are a bad idea in general

[JDG1980]

The problems with trial by jury in civil cases go far beyond the specifics of patent law. Patent cases aren't the only ones that rely upon complicated technical and/or legal issues. With criminal trials, we accept that even if juries might not always be as competent as judges, we want them as a safeguard so that the government can't throw people in jail without a representative part of the community saying so. But in civil trials, it's not about the state versus the individual; the issue is whether private party A has to pay money to private party B. Why not have these cases handled by judges, preferably trained in the specific fields at issue? Let's also consider the plight of the jurors: not everyone can easily miss work for long periods of time, and many companies don't pay for jury duty. Again, civic duty might be a plausible justification for doing this for criminal trials, but is it really right to pull private citizens out of their normal lives for months on end to hear a random business dispute between 2 companies?

It's worth pointing out that the jury's role has already been significantly weakened in civil cases. It is not uncommon for judges to order the jury to return a verdict for one particular side in a civil case. (In criminal trials, the judge can order a directed verdict for the defense, but not for the prosecution.) It's also not uncommon for a jury's decision to simply be overridden on the spot by the judge. And even if it survives that, almost all big judgments are modified on appeal. The jury isn't sovereign in deciding civil cases, so what purpose does it serve other than as another stumbling block where things can go wrong?

The US is about the only First World country that has trial by jury in civil cases. There's a reason for this. No one would come up with a system like this today; why should we stick with it just because the Founding Fathers thought it was a good idea 220 years ago?

Re:At the end of the day

[Anonymous Coward]

Oh come on. 2 errors on a form with 1,400 fields on it is *commendable*.

Reason?

[dutchwhizzman]

But what if all people in the jury were color blind and one that claimed to be able to see color, claimed that the evidence had blue paint on it? Would that still be the concept of the US law?

Re:Reason?

[mwvdlee]

Thank god there is no such thing as "peer pressure".

We The People

[tpstigers]

are supposed to be in charge of this country. We do not elect the judicial branch of our government, so we need juries to help keep our fingers in the system. If any aspect of the legal system is "too complicated for lay people to understand", the solution is to simplify the system, NOT to remove the people from the equation.