Jury assessment of patent damages: truly a joke?

In August of last year, Merpel posted some fairly critical comments about the use of a jury to assess patent damages in the United States infringement litigation suit brought by Apple against deadly rival Samsung; a follow-up post by guest Kat Stefano here.  Well, jury assessments in patent trials are officially the stuff of which comic cartoon strips are made, as can be seen from the Dilbert strip which was published on 26 February.

It is no exaggeration to say that most of the civilised world is not enamoured with the use of juries in patent infringement litigation.  Their critics have hitherto been found among the better-informed members of the legal profession, among practitioners, businessmen and academics who are of the opinion that issues relating to the infringement of patent claims and its consequence are far too technically difficult for most ordinary jurors to comprehend.  This should not be seen as a criticism of jurors per se, but rather as an acknowledgment of the extraordinary complexity of patent law and many of the areas of technology in which it is the subject of competing claims.

The Dilbert cartoon above reflects this widely-held belief that the notion of the jury's involvement in patent proceedings is absurd and laughable.  If you consider how difficult it can be for a student to sit through even a one-hour patent class, on a course for which he has enrolled and which may turn into a source of future income for him, just imagine what it must feel like to be a juror who has to listen to both legal submissions and recitations of technical data for days at a time; no wonder the smart folk wriggle out of jury service.  And the captioned reference to the square root of whatever 22 over zero, given the mathematical abilities of the average human being, may not be far from the mark.  So this Kat salutes Dilbert:  it's comforting to know that the right to jury trials in patent disputes which, in this era, is as incomprehensible to the non-American psyche as that other Constitutional relic, the right to bear arms, is shared by at least one perceptive American critic.

Should juries hear US patent cases? See Jennifer F. Miller here
Risk of reversal of jury awards here
Some qualified support for jury awards, at least the ones that seem to be okay, here
Dilbert on patent trolls here

A katpat goes to Chris Torrero for being the first to forward this cartoon.
Jury assessment of patent damages: truly a joke? Jury assessment of patent damages: truly a joke? Reviewed by Jeremy on Thursday, February 28, 2013 Rating: 5


  1. So juries are no good...

    We don't have them in Israel. IP rulings by Israel Court judges are generally wrong. I used to advocate a specialist IP court. However, rulings from IP specialists at the patent office seem to be poor as well. So what's the answer?

  2. In a word, yes. But then, most of the US patent system is a bad joke, especially the very American insistence that it's the best.

  3. "It is no exaggeration to say that most of the civilised world is not enamoured with the use of juries in patent infringement litigation"

    An assertion based on one cartoon? I'm glad you're not my lawyer.

    Juries have shown themselves perfectly capable of making sensible decisions in patent trials. For example, the Apple vs Samsung jury in California rejected Apple's claims for damages in the tablet market, arguing the market was too new to lock-in dominant players.

    The contempt for the public by an elite that is exhibited in this post is not an attractive sight.

  4. When I was working in New York in the 1980s, there was an antitrust case where the USFL sued the NFL for $1 billion but was awarded $1 by a befuddled jury. Afterwards the foreman said that it was a toss-up between $1 billion, $1 million and $1. Consolation for USFL: They actually ended up with $3 because of the antitrust triple damages rule.

  5. Anonymous 16:48. You write "Juries have shown themselves perfectly capable of making sensible decisions in patent trials". The fact that the decision is objectively sensible doesn't mean that it's reached by a sensible process. You'd expect even a random toss of the dice to give a sensible decision from time to time, just as plenty of drunken pedestrians cross the road again and again without getting run over. The fact that it happens doesn't mean it's the best way.

    Give me a specialist any time.

  6. Surely the obvious solution is to keep the juries, but train them. A squad of well paid, highly-trained, expert professional jurors with scientific backgrounds would no doubt prove invaluable: their experience and their constant exposure to the issues would surely make them better able to reach the right result than any current jury and most trial judges.

  7. When Chief Judge Rader was at a UCL function last year, he was very generous with his time and persuasive in his comments about IP matters. The only time he became less than convincing was when he sought to justify the use of juries in US patent trials. He looked like a man who felt he had to justify them as Chief Judge of the US Court of Appeals for the Federal Circuit.

  8. The sheer arrogance of the post (poster) is startling. Since the right to a jury trial can be waived by both sides if they agree, the fact that so many cases are tried by juries means that there are a number of "better-informed members of the legal profession" (i.e. those who spend their lives trying patent cases) who believe in the value of jury trials.

  9. I agree with the sentiment - the suggestion being that juries have neither the ability nor motivation to make critical and complex decisions in areas where even trained professionals struggle - in terms of industry knowledge and legal principles.

    The example above of Apple v Samsung is hardly support for the proposition that they do have such capability - it seems a shortcut answer which (I would suspect) was not the answer to the question they were posed. It was a sensible outcome, but law works based upon rules, not sense ;)

    It would seem that the use is tactical... if you're onto a loser reframe the question as one the jury WOULD like to answer.

  10. I’ve worked as an information professional in or around patents for many years. On occasion, staff at my place of work have asked me, “If we did this, would we infringe this patent”? Apart from those cases where I have been able to demonstrate that the patent has lapsed/expired (although even then there is the potential e.g. that the patent may be revived by payment of a penalty fee or a hearing may decide that the lapse was “inadvertent”), I have always declined to give an opinion.

    How 12 people who have never seen a patent specification in their lives would cope is beyond me.


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