Given my natural modesty, few readers will realise that I am an expert on the justice system in the USA. It is true that my expertise stems largely from watching TV crime shows and courtroom dramas and reading John Grisham, but it is an expertise of a sort (the sort that usually asserts itself after too much red wine). But, whenever I read about IP litigation in the USA, even an expert like me has to stop and wonder.
The latest Microsoft patent action (see {here: http://www.scl.org/site.aspx?i=ne12746}) renews my amazement. Do you think that the citizens of the Eastern District of Texas are particularly expert in patent law? Given that, according to the Department of Spurious Statistics, every third person in the USA is a lawyer, that might be true (the actual figure is high, but in Texas it’s more like 1 in 1000). The residents of the area seem to be expert enough for many patent cases to be referred to them and for a remarkably high level of awards to be made there. (Probably just coincidence!)
In the most recent case, a jury in Texas was asked to decide on a dispute involving an allegation that Microsoft infringed the I4i patent issued in 1998, which covers software designed to manipulate ‘document architecture and content’. The cynical reaction is to guess that the jury awarded $200 million to I4i because they didn’t like the fact that Microsoft had out of town lawyers – guys who wore shiny suits and didn’t know their hayseed from their oil pump (I have definitely seen that in a film or three). It might be so, and it is very tempting to dismiss the whole idea of jury verdicts in patent litigation as a bad joke. But there might be room for just a little humility here.
First, it is worth noting that jury trial in civil litigation was once the norm in England and Wales and, even now, juries are used in coroners’ courts. In Scotland (for which jurisdiction, I claim no expertise whatsoever), the civil jury is still used for many types of cases (eg determining damages awards). Secondly, we might reflect on the fact that jury trial presumably forces lawyers to make patent litigation understandable – that’s certainly not a bad thing. The assumption that you have to be Lord Justice Jacob to understand patent law is uncomfortably close to being true in England and Wales, and when it comes to computer patents the old Palmerston bon mot about the Schleswig-Holstein Question comes to mind. In the USA, or so I naively assume, there must be a limit to just how complicated cases can get if they are in danger of being referred to a jury of Texans.
I have read a {relatively recent piece: http://www.iptoday.com/pdf/2007/7/Janicke-July2007.pdf} from Professor Janicke of the University of Houston Law Center on {i}Patent Jury Veridcts: Myths and Realities{/i}. But I would love to hear from US attorneys or others with real expertise as to how they adapt cases for jury trial and whether it really works in IT-related patent disputes. Perhaps there is someone out there who thinks we should adopt their system.
Given that entering comments in the box below is a right limited to SCL members, you can e-mail me at lseastham@aol.com if you are not an SCL member but want to volunteer to write on this issue.
