3 reasons juries have no place in the patent system

113 Comments

Unless you spent the weekend under a rock, you’ve heard that a jury ordered Samsung to hand Apple (s aapl) $1.05 billion for violating its patents. The verdict and month long trial has captivated tech types but also provides more ammunition for critics who say juries shouldn’t be deciding these questions in first place.

Background

The jury in Apple-Samsung confronted hundreds of questions, some of them on topics obscure enough to make an intellectual property lawyer blanche — design patents, patent exhaustion and so on. Yet, they were done in less than three days. As Abovethelaw editor, Elie Mystal, mused “It would take me more than three days to understand all the terms in the verdict! Much less come to a legally binding decision on all of these separate issues. Did you guys just flip a coin?”

A more damning criticism came from the popular Groklaw site which pointed out a series of basic errors by the jury: a decision to award $2 million for a patent that Samsung hadn’t infringed in the first place; a decision to assign damages based on punishment, not compensation.

This type of slapdash decision-making lends support to Judge Richard Posner and others who argue that it’s time to end jury trials in patent cases. Here are three more reasons Apple v Samsung should not have gone before a jury:

Reason 1: Jurors can be influenced by brand loyalty

Let’s remember that the jurors who decided the case were not Blind Justice but consumers who are influenced by brands.

That influence can be considerable. According to Robert Kozinets, a marketing professor at York University, “brand communities” that emerge around products like Apple’s are supplanting religions or neighborhoods as a source of personal identity. He says that Apple today has greater ideological power than many countries.

“That identification with Apple will lead to community and a sense of loyalty. It also leads to a sense of empowerment that can lead people to step up and protect it because they know there are so many others like them.”

There’s nothing wrong, of course, with defending Apple (or Google (s goog) or Microsoft (s msft)). The problem is that brand loyalty can interfere with patent policy. When asked to decide a patent case, juries are likely to go with emotion over evidence — deciding a case based on brand loyalty rather than the law at hand.

In the case of Apple-Samsung, the trial was about a beloved American brand versus a foreign competitor. Not only that, but the trial took place in Silicon Valley, right in the heart of Apple land. This was like asking Boston Red Sox fans to judge the conduct of the New York Yankees.

In this climate, it’s no wonder that the jury appears to have made their decision based on a desire to “send a message” to Samsung rather than parsing harder technical questions about whether Apple’s rectangle and “bounce-back” patents should have existed in the first place.

Reason 2: Juries are too easily swayed by “he’s a copycat”

During the trial, Apple offered an easy-to-follow narrative that is familiar to anyone who has been in grade school: “That’s my idea. He took it and pretended it was his.” Samsung on the other hand had to explain why, even though Apple had patents, it was not infringing and that the patents were not actually valid patents and so on. One story is crisp and clean, the other is furtive and guilty-sounding. Guess which story has more punch in the hands of a trial lawyer?

In the words of Posner: “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.”

Unfortunately, these simple narratives distort what patents are all about. Patents are not primarily about stopping copycats (that’s why we have trademarks) but are instead a form of industrial policy based on 20-year monopolies. If the policy is effective, it produces more innovation. If the patent policy is not effective, it creates monopolies that harm competitors and consumers. In Apple-Samsung, there’s a good chance we’re doing the latter; we may regard Apple as an innovator and Samsung as a copycat — but that doesn’t mean it’s a good idea to award Apple sweeping monopolies that may raise prices and stunt the smartphone market.

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.

Reason 3: Jury trials over patents are a waste of money

Apple and Samsung will spend  from $20 million to $500 million in legal fees, according to sources surveyed by the Wall Street Journal. While the companies would have blown a bundle no matter what, the jury presence added millions to the tab. This figure doesn’t even take account of the costs to the federal justice system or to the jurors and their employers. And for what? To respond to questions likely beyond their capacity and that will, in any case, be picked apart on appeal.

There’s a faster, cheaper and more efficient way to handle this. As Judge Posner proposes, it makes sense to stuff future patent disputes into a corner of the US Patent and Trademark Office.

Juries are not responsible for all that ails the patent system. But getting rid of them would be a useful step.

(Image by Junial Enterprises via Shutterstock)

113 Comments

imispgh

In general oriental cultures do not innovate. That is due to a cultural belief system that does not favor those who think or act outside of the norm. They do not tolerate mavericks very well. What those cultures do extremely well is build others idea very well and make small, but not radical, design improvements. That is why those cultures are very well know for manufacturing but not engineering. Not only the odds but the information in this case point towards Samsung copying Apple. if it were not for Apple exactly what product would Samsung be selling now? How would it look, act and feel?

ThinkOpenly

Doesn’t the America Invents Act (AIA) begin to help out with litigation like this later this month?

alexanderforbes

I think the proposal to replace juries with a tribunal of experts in patent disputes is more dangerous than the ills it proposes to remedy. (1) the patent system is itself a legal process, and to exclude plaintiffs from due process would be wrong. (2) Empaneling a jury free of bias and susceptibility to being swayed is the job of the trial attorneys; (3) ”Experts” can be biased too, but there is no appeal from that, and (4) a panel of programmers would look at the code, determine that different subroutines and methods had been called, and conclude that therefore it is impossible that a look and feel issue could have been copied.

Yagya Sen

Actually the definition of patent has to either republish or redefined. May be patent owner are clear about the copycat. why I can’t built something similar to already existed thing but with different methodology or technology. The question arises are what they have applied patent for ? is it the methodology or technology or the material or everything. If everything then Patent system and implementer has to understand that it will not only hinder free economy but also encourage Monopoly and impose restriction and loss for ultimate consumers. If not everything then why not a copycat create the same thing using something which is not patented ( Well you . It’s all manipulation of patent system architecture because it is not robust and has many many weaknesses and loopholes. And the article is right, we should not have jury in patents verdict especially in software patent verdict.

Shawn

When you selectively state that certain cases are no longer subject to trial by jury, you open the door for future cases to follow the same pattern. Trial by jury isn’t perfect, but its far better than trial by a single person who suffers from the same challenges as the three reasons listed above.

Observer

Oh my god, even Google agreed with Apple and told Samsung to not copy the iPhone that closely.

What part of that don’t you understand.

Note to the author… So it’s ok by you if I take from now on every article you write, change a few words and publish them with my name as the author?

Oh I can’t do that? It will stifle creative writing if I can’t copy your articles.

Christian

Why are most of the articles after the trial about the general discussion about the patent system and if the Jury was capable of making such a decision?
Let’s face it: Everybody with a little bit of common sense must agree that Samsung blatantly copied Apple, made a lot of money with it (compared to Palm and Microsoft, who decided to implement their own ideas) and was hoping to get away with it. Luckily the jury didn’t let them.

Robert MacAnthony

Interestingly, the bulk of the comments on this story support the author’s position. The whole discussion here and elsewhere degenerates into a bunch of fanboys squaring off against one another, with the name on the device (Apple or Android or Samsung) being the only important factor in determining which side of the issue a person supports. It is a ridiculous situation, really.

RexRiley

T-mobile are selling (for a limited time) 4 Samsung phones 2fers:
Galaxy S II 4G (white face) which appears to be an exact copy of an iPhone in white
Galaxy S III 4G which looks like a newer version of an iPhone (except Samsung branded)
Galaxy S BLAZE 4G that looks a copy of an older iPhone
Galaxy EXHIBIT which looks like an iPhone wannabe (but not close)

Looks like the jury came to the right verdict GigOM.

Mark Tarrabain

If ‘X’ gets done by somebody before Y ever does it, but Y happens to be the first one to get some fame for it, is Z wrong to imitate Y by doing X, when Y didn’t ever invent X?

Who cares if Samsung was copying Apple? All that they were copying was stuff that Apple did not invent or originate, and even at best is obvious. the very fact that you can take an iOS device, or any of the devices that preceeded it with a similar interface, to somebody without any prior training and they can manipulate the user interface, heck… you can even give it to a freakin’ 3 year old and they don’t have a problem, pretty much irrefutable points to the notion that the design notions which Apple are trying to claim exclusivity over are simply extremely natural, intuitive, and – most importantly – obvious. A point on which a patent is supposed to be refused.

Now granted, most of the devices that existed before the iPhone which sported similar user interface components which Apple is now evidently claiming total ownership of existed only on platforms that were not geared for mass market consumption – typically priced in the +$10K range, but they certainly existed. Apple did not innovate them. And again, their interfaces were very easy for people to use without any prior training because the gestures and corresponding graphical feedback were intuitive, natural, and obvious (which is why nobody bothered trying to patent it before… because everybody before Apple already realized that those things were obvious).

Fill F. Fill

I think it comes around full circle a bit. Patents (and Trade Marks, Trade Dress, Community Design, etc.) have an intent to protect the innovators. Apple clearly thought Samsung ripped them off. The court has to wade through technicalities and legalisms and the jury uses these to help enforce the essence of the law. I’d rather have a jury making the rulings than some unknown bureaucrat in the back corner of the USPTO, as the article put it. After all they are all people, so brand loyalty and other potential biases are just as likely in a bureaucrat. In fact, if anything, a jury of 9 people vetted by both sides is probably more fair than any bureaucrat.

Chris Esser

Working for a company that had to pay $300M for a suit that stated it used ATM networks as the patent violation….when an ATM network never once existed in our sites, I can say that jury trials are useless.

How is a jury of the general public supposed to make accurate rulings on technology? It’s just not possible.

A reform of this entire system with regards to what can and cannot be patented in technology needs to happen.

Apple is the third coming of IBM. IBM started as the giant monster, with Microsoft following them and now Apple. A company with pockets so deep they can hardly be stopped. They are in a position to now manipulate the market as a monopoly by sheer financial strength.

Doug Hill

Jeff,
Have you listened to the Bloomberg interview with the jury foreman? He would dispute much of your article.
I would also ask why you think a panel of judges would be immune to Reason #1 and Reason #2?

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