Jury Selection in Intellectual Property Cases
In the early days of patent litigation – when real inventors were suing corporations (Kearns v. Ford Motor Company) or corporations were suing each other (Procter & Gamble v. Kimberly Clark, a.k.a “diaper wars” or Dow v. Exxon Chemical) -- the scientific approach that was taken in developing juror profiles for patent cases was cumbersome and complex. It was posited that two different sets of profile characteristics were needed to reliably identify plaintiff and defendant juror types: Those who would tend to find (non)infringement and those who would tend to find (in)validity. Moreover, it was believed that these two sets of juror profile characteristics would not necessarily have attributes or components in common with each other.
Thus, for example, statistical analyses found that those in highly analytical job positions (lab technicians, machinists, engineers, architects) tended to find for defendants on infringement because they had highly refined perceptual or cognitive categories – they did not “lump things together” but rather used fine levels of differentiation between types or classifications of components, devices or processes, increasing the likelihood that things would look different from each other and therefore that the accused device would appear dissimilar to patent claim elements. As another example, the analyses revealed that (past or current) workers from government offices tended to find for defendants on invalidity, since they were very aware of the cut corners and neglect that occurs in such government offices, and therefore skeptical of patent examiner performance. Thus, markers or profile characteristics in the two domains of juror characteristics bore little resemblance or correspondence between each other, and two sets of such markers or characteristics needed to be used in tandem to implement an effective jury selection strategy.
Eventually the challenge became how to integrate these two sets of profile characteristics into a useful jury selection strategy on the courtroom floor. What happens, for instance, when a juror is “good” in one domain but not the other? Does a litigant “bank” on one set of profile characteristics or the other, or does that party try to satisfy them both in selecting jurors for a case?
A Pragmatic Approach
A pragmatic approach was surely required, and the basis for formulating such an approach rested on the fact that, for defendants at least, all that was needed was to win in one of the two domains – (non)infringement or (in)validity. In other words, for defendants, finding a juror who was likely to render a favorable result in either one of the two domains was sufficient, since plaintiffs need to prevail in both to collect damages. Thus, for example, having a government worker who believes that mistakes tend to be made in administrative offices would satisfy the necessary criteria, regardless of how he tended to come down on infringement issues, since an invalidity judgment by the jury would be a satisfactory outcome (defense verdict) overall. Similar considerations applied for (non)infringement. For purposes of discussion, we later refer to this initial framework for juror profiling as the “2-dimensional” approach.
Nonetheless, the problem persisted for plaintiffs, who need to prevail in both domains: A juror could not be a favorable one unless he/she would find both for infringement andagainst invalidity. Thus, in our example, such a juror would have to be both trusting of government offices and hold more simplistic, less refined cognitive categories for judging the accused device vis a vis the patent claim elements.
Application of scientific methods
The decision was made to look for commonalities across dozens of IP cases from California to Delaware, taking a psychological measurement approach using a “scorched earth” procedure: By compiling dozens of IP cases across the country, significant progress was realized that had initially been sought in completing and refining juror profile characteristics using smaller, more localized databases. We say “scorched earth” since no assumptions were made regarding profile characteristics -- all of the IP cases were lumped together and treated like any other case, using a generalized approach wherein all possible profile characteristics were analyzed as though the cases had come from any category (product liability, employment, toxic tort, antitrust, etc.).
Analyses were also guided by information gleaned from Focus Groups. Interestingly, comments from jurors regarding their problem-solving methodologies in patent litigation revealed that they were generally construing these cases as misappropriation cases – essentially corporate theft – and the question posed by jurors was essentially “Did they (defendants) steal it (the accused device)”? Decisions in this regard were driven mostly by perceptions of conduct issues – for example, if defendants had acted as though they wanted or needed the technology, and/or if their conduct was sinister or malevolent in some way, the inference would be made that the technology must have not only been valuable (and therefore the patent must be valid) but also that the defendants had likely needed, and managed to get their hands on the intellectual property (and therefore that the patent had been infringed). So jurors were boiling down IP disputes into unidimensional issues connected with misappropriation or corporate theft, making inferences connected with (in)validity and (non)infringement based on the manner in which the litigants behaved in connection with the accused technology.
What had previously been two distinct dimensions of the verdict decision – (in)validity and (non)infringement – was therefore merging into one (misappropriation). Behavioral, conduct and other aspects of the case fact scenario – not the least of which was witness performance, especially in the nonverbal realm (facial expressions, eye contact, fidgeting etc.) – were being used by jurors to ascertain the likelihood of misappropriation, and from there, other perceptions and judgments of the case (infringement, invalidity) subsequently fell in line with those judgments. The more likely theft seemed to be, the more likely it was that the plaintiff’s theory of the case was true, whereas the less likely theft seemed to be, the more likely it was that defendant’s theory of the case was true.
While this “one-dimensional” view of how IP cases are problem-solved by jurors held appeal, and provided considerable explanatory power in reconciling verdict results rendered by jurors in the research database, it was still not complete. Indeed there were exceptions, such as cases where perceptions of inequitable conduct rendered patents invalid (especially in the days before this decision was relegated to the bench); alternatively, on some occasions, on-sale bar and inventorship arguments, when effective, would often carry the day for defendants as well (more so than obviousness, anticipation, indefiniteness, etc.). Decisions regulated by these exceptions had the effect of superseding the “theft” issue in selected cases.
Nonetheless, most IP cases were still being construed in terms of theft, and therefore, in searching for precursors (predictors) of beliefs pertaining to misappropriation, the search was on – what kinds of juror characteristics make it more likely that a person will find theft? Identifying these characteristics would fill a sizeable gap in juror profiling for IP cases that had previously been unaddressed in jury selection strategy.
To large extent, we already had our answer from other cases. Cynicism, as a stable temperament dimension, refers to a person’s tendency to view the world as inherently predatory, sinister or malevolent (it should not be confused with skepticism, which is defined as a person’s need for unambiguous proof of a statement, principle or proposition). People with above average levels of cynicism are more likely to view corporate conduct as oriented toward targeting less powerful businesses or seizing an opportunity to steal something of value.
More generally, if there is a fact pattern that suggests the possibility of greedy or rapacious conduct, a cynical person will relentlessly adhere to an ominous interpretation of it. Thus people with high levels of cynicism tend to “resonate” with a complaint, and are found in disproportionately high percentages among plaintiff jurors across a wide variety of cases, including antitrust, fraud, employment cases, toxic cases – and intellectual property. In short, one of the leading predictors of plaintiff verdicts and high damages that had been noted in other types of cases was now being confirmed in patent cases as well – because these cases were being construed as misappropriation (theft) disputes.
Completing the Picture
Elements of the initial research using the 2-dimensional framework described at the outset were considered for their applicability in finalizing juror profiles. It was considered particularly important to account for cognitive sophistication, namely the extent to which jurors used fine detail in categorizing perceptual experiences – a juror characteristic that had been identified early in the game as being highly relevant to IP litigation. Psychologists refer to this cognitive trait generally as “information need:” That is, how much data, evidence and information do people generally need in order to make a decision or come to a conclusion?
Prior research in a number of different types of cases has revealed that plaintiff jurors tend to be low in information need, and to reach decisions comparatively quickly, resulting in more extreme or strongly committed response patterns. This tendency exists not only in their reactions to Juror Questionnaire items (they tend to check the endpoints of measurement scale items) but also in their reactions to the case itself (which explains why such individuals tend to “shut down” during the plaintiff case-in-chief and adhere to decisions made in the early phases of trial, before the defendant gets a chance to put on its case).
Defense jurors, on the other hand, typically give more neutral or equivocal (“It depends…”) type responses, and are less committed to their opinions and attitudes, because they tend to need more information before they can finalize a firm decision or position on a matter. These are also the types of jurors that are still listening when the defense case-in-chief begins later, midway through trial – because they need more information.
Using specially designed measurements of cynicism and information need in Supplemental Juror Questionnaires during jury selection has demonstrably improved outcomes in cases. In a sample of fourteen trials in the Eastern Division of Texas, working for defendants, seven defense verdicts were obtained, with average damages of $1.2 million for the group as a whole. It is important to note, however, that specific items need to be built into the Supplemental Juror Questionnaires in advance in order to effectively use research results associated with the previously described analyses. This requires a proactive approach well before the trial date in formulating and advocating Juror Questionnaire items with the Court and opposing counsel.
At the outset it was stated that initial cases were considered in which inventors sued defendants or alternatively, corporations were suing corporations. Later cases involved NPE’s (non-practicing entities, or “patent trolls”) as plaintiffs – but this shift did not have an effect on the previously considered juror profile dynamic related to misappropriation. Plaintiff jurors tended to interpret the cases in terms of misappropriation even when the plaintiff itself was not an inventor or manufacturer – at least until very recently.
In small, rural venues in which patent cases have been repeatedly filed over a period of decades by “tolls,” the populace has started to become aware of the trend and the result has been a growing skepticism toward NPE’s that was previously non-existent. This growing skepticism in the population in turn has further altered the dynamic in identifying effective juror profiles, such that individuals who are wary of excessive litigation become stronger defense jurors. By the same token, the flip side of the coin is that some people (plaintiff jurors) believe that “litigation is necessary to keep corporations honest.”
Thus, sociological and historical changes in the litigation arena and society more generally will continue to shape and alter juror profiling characteristics. It is therefore necessary to continually adjust juror profiling databases through ongoing research efforts in order to have a maximally effective jury selection strategy – and associated measurement instruments in the form of Supplemental Juror Questionnaires.
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