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Why Juries Have No Place In the Patent System 387

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.'"
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Why Juries Have No Place In the Patent System

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  • Or you know... (Score:5, Insightful)

    by Glarimore ( 1795666 ) on Tuesday August 28, 2012 @03:47PM (#41154947)
    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.
    • Re:Or you know... (Score:5, Informative)

      by MickyTheIdiot ( 1032226 ) on Tuesday August 28, 2012 @04:05PM (#41155347) Homepage Journal

      The problem is the agenda of the debate is constantly controlled. Plus, you would need to discuss it in the mass media, which takes the corporate side in each and every debate.

      The first time I have EVER heard patents brought up in the MSM was on CNN last weekend, and the spokemodel (oh sorry, anchor woman) talked like patents were God's gift to the earth.

    • Oh yeah gosh I *never* hear anyone talking about problems with the patent system. More talk isn't what's needed.

      • Outside of Slashdot, my own family, and my coworkers I *never* hear anyone questioning the patent system.

        A lot of people don't care. Even though it does affect the everyday life they don't make the connection.

    • Re:Or you know... (Score:5, Interesting)

      by Jason Levine ( 196982 ) on Tuesday August 28, 2012 @04:29PM (#41155825) Homepage

      I think one problem is that patent lawsuits are just assumed to happen. It seems, too often, the patent office just approves patents figuring that they'd get sorted out in the courts. Meanwhile, the courts just assume that patents must be valid by default if they've been approved by the patent office.

  • Ugh... (Score:5, Insightful)

    by denmarkw00t ( 892627 ) on Tuesday August 28, 2012 @03:49PM (#41154999) Homepage Journal

    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.

    • Patents are basically a protection racket. Companies (like Apple, Samsung, etc.) shovel money at attorneys, into the patent office, into litigation, into licensing rights etc. in order to maintain an air of exclusivity over what is really a kind of pathetic "innovation" (rounded corners? wtf?) The narrowness threshold needs to be raised a LOT if the current system is to be kept tenable. If not, the precedent we see here (where a jury can be swayed on a pro-patent line with flimsy evidence) will cause a fi

    • the endless copyright screen on Unix may be instructional. last change I had to view one, back before endless IT mergers, 14 companies from ATT through DEC to HP had copyrights on that screen.

      if these cutthroat outfits today would hold their exclusivity for a year max, then license the patents to a common use pool, everybody except the lawyers would make out nicely, thanks.

  • 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.

    • This to a trillion degrees. The USPTO and the guys challenging a patent application are much better suited to knocking out bad patents before they are even born. Even more fundamentally, however, patents on genes and software should not be patentable subject matter.

      • That only works if they have some incentive to knocking out those bad patents. The USPTO is basically a rubber-stamping factory, depending upon the courts to fix the messes it creates.
      • by gander666 ( 723553 ) * on Tuesday August 28, 2012 @04:36PM (#41155985) Homepage

        Well, I am going to blow out my moderations for this story.

        What you say is fine in theory. Patent examiners are well suited to examine, and determine validity. But, they are so swamped at this point, there are far more patents to process than they can reasonably work through.

        A former colleague worked at the USPTO, as an examiner, and he explained what happens. When you apply for a patent you are obligated to include the prior art that you found. In theory, they (the examiner) is also supposed to conduct a search for prior art, and to use that in their review process. But, one side effect of their being so overloaded is that this becomes a cursory search (if at all), and thus they rely on the submitted by the filer prior art declarations.

        And here is how you game the system. A company tells their people to not be too diligent in their vetting and searching. Thus major prior art is not stated, and the patent moves forward, because the examiner believes that it is novel, given what he has in front of him.

        Back in the old days, (mid 1990's) I worked at a company that made chip building systems. We filed lots of patents. We deserved to file for them, as we spent beaucoup bucks developing techniques to apply to chip inspection and measurement. We always were sent back to revisit the prior art by the patent examiners. My last job? Some of the stupidest business process patents sailed through, although an afternoon searching on Google would have found reams of invalidating prior art.

        If you want to fix the patent system, we need to treble the number of examiners. Alas, the congress critters seem intent to not increase the funding to get to a healthy state.

  • by davidwr ( 791652 ) on Tuesday August 28, 2012 @03:54PM (#41155119) Homepage Journal

    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

    - Amendment VII, The Constitution of the United States of America

    • Yes, we all know what the Constitution says, but that doesn't necessarily mean it is good policy. We've amended it before.

    • by Above ( 100351 ) on Tuesday August 28, 2012 @04:02PM (#41155279)

      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.

      • Expert juries are an interesting concept that pops up in law reviews from time to time. However, to the best of my knowledge, they're not allowed under the common understanding of the right to a jury of your peers.
    • Congress just has to define what you are allowed to sue over. If you can't sue, you can't have a Jury. ('cept in criminal cases)
    • by sl149q ( 1537343 )

      There is no reason to believe that patents are somehow such a sacred and / or arcane subject that juries should not be allowed. The exact same arguement can and has been made for many parts of tort law and tax law.

      These arguments are typically trotted out by the losers after the fact to justify why they lost. Or by people who think that the laws (patent, tort, tax, etc) should be simplified or reformed.

      There IS some validity to their claims. But not to limiting it to patent law.

      But to paraphrase Churchill -

  • by PortHaven ( 242123 ) on Tuesday August 28, 2012 @03:57PM (#41155165) Homepage

    "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.

    • You're not supposed to patent ideas, but machines and processes. AFAIK, the filing fee isn't that large, it's the patent search that costs so much.
    • by gl4ss ( 559668 )

      you can already "patent" anything by publicizing it, if you intend it to end up in public domain.

  • by Maximum Prophet ( 716608 ) on Tuesday August 28, 2012 @03:58PM (#41155191)
    All the experts for a given technology already work for industry. Finding independent experts that are affordable and want to work on a tribunal would be a challenge.
    • Given the millions upon millions spent by both Apple and Samsung in this up to this point, and the millions more to be spent on appeals, I suspect a reasonable compromise could be had whereby each side pledges a stipend for the expert pool. There might even be a "loser pays" clause in there somewhere to add a little extra incentive to not be overly litigious.

  • "Reason 1: Jurors can be influenced by brand loyalty."

    Duh. But the more relevant issue is: would a "tribunal" not be swayed by brand loyalty? Is there any reason to believe that would be the case?

    "Reason 2: Juries are too easily swayed by âoeheâ(TM)s a copycatâ"

    Quote 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."

    Posner may have reason to believe that, but it's still nothing more than his opinion about what someone else is thinking. It isn't actual evide

  • but not a requirement. If you don't think a jury can handle it, don't use one.

    Better still, the likes of Apple and Samsung could agree to arbitration. After all, if it's good enough to force upon consumers...

  • As a court room is a poor place to learn about deep issues covering tech cases.

  • If the parts were switched in this trial, Apple would leave not paying a dime, it is an American court defending an American company with American juries versus an Asian company !

  • by patent-troll-industry-friendly political appointees, a la the SEC, FCC, etc. Although the current system of relying on lay people seems seriously flawed.
  • by JDG1980 ( 2438906 ) on Tuesday August 28, 2012 @04:13PM (#41155515)

    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?

  • I have a more revolutionary idea that just sparkled blindingly bright in my mind:

    What if I say that any case that a person from the street cannot comprehend should not be a matter of litigation at all?

    If the intricacies of alleged Samsung's patent infringement on Apple-owned patents are so complicated that a street person like me need hundreds of volumes of documents to look through, may be there should not be such case at all?

  • To me, it's the job of the lawyers to educate and present in layman's terms what the case at hand is all about. If we can have jury trials for murder, where expert witnesses present complex evidence, I don't see why we can't have them for patent cases.

  • by quacking duck ( 607555 ) on Tuesday August 28, 2012 @04:15PM (#41155555)

    the jury only took 2-3 days to deliberate

    "they should be put before an expert tribunal rather than a jury that is easily swayed by schoolyard 'copycat' narratives."

    Clearly, the solution is to have juries working at the patent office, scrutinizing each patent for 2-3 days, and patent examiners in the courtroom to accept/reject patent cases using the half-day or less they use now when granting patents in the first place.

  • That's what you get when you give "personhood" to a corporation, they can be judged by their peers.

    • So, does that mean the jury for Apple vs. Samsung should have consisted of 12 corporations? What about having corps sit on criminal case juries?

  • The central problem with the current system is that it forces the people actually making things to defend themselves from entrenched interests. We need to redirect that fight so patent holders settle it amongst themselves rather than the wider public.

    Set a patent tax at the point of final sale, and have patent holders lodge their claims against products as they come to market. Patent holders themselves will then have the burden of fighting off frivolous patents without troubling the organization actually pr

  • by ScooterComputer ( 10306 ) on Tuesday August 28, 2012 @04:57PM (#41156421)

    Screw "expert tribunal", fight to the death! Each side puts up 12 contenders (to tie it to the jury system), twelve "angry" men (or women, whichever). Then, fight it out Kirk & Spock style, ala koon-ut-kal-if-fee in 'Amok Time'. Damages are based on the number of surviving "jurors".

    Because otherwise, the "experts" will just get bought off like every other "regulatory" body in the US and it won't be any fun for anyone. I'd be OK if at least one of the jurors was a VP or higher.

  • by wisnoskij ( 1206448 ) on Tuesday August 28, 2012 @05:17PM (#41156855) Homepage

    Jurors are not supposed to know the people involved in the trial, it creates huge bias.
    What I want to know is how did they find so many people who did not know Apple or Samsung?
    Because, of course, if a juror had a iPad and liked it (or just saw an apple ad, or read an article by someone saying that the iPad inspired these other devices) he/she would be biased towards Apple. So of course the only fair trial you could have would be one where all the jurors had never even heard of Apple or Samsung.

  • We The People (Score:4, Insightful)

    by tpstigers ( 1075021 ) on Tuesday August 28, 2012 @05:47PM (#41157355)
    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.
  • by Jodka ( 520060 ) on Tuesday August 28, 2012 @06:39PM (#41158045)

    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.

    The same case could be made that voters have no place in democracy. And is: Those seeking to concentrate political and economic strength in the hands of the few and powerful pose governance as a choice between decision making by wise and altruistic "experts" or by the ignorant and selfish common people. The myth of benevolent despotism is as old as the hills.

    But that rhetoric was busted long ago. "Industrial Policy" is a euphemism for corporate welfare. "Expert tribunals" are typically comprised of those expert in only cronyism and graft if not incompetent ideologues. So the plan is that a small group of politically appointed experts will assign penalties and grant awards of billions of dollars. What could possibly go wrong?

    For those who are not aware, the plan to enact all-powerful government controlled by the benevolent and wise has never really worked out . The actual course has been to grant government powers and then debate our preference for rule by the corrupt few or the incompetent many. (See TFA and surrounding comments.) Perhaps instead we should all consider before granting more power to government that it will not be wielded by wise and benevolent philosopher kings. Those with the knowledge that government power by any system is often misapplied and abused are less willing to grant power to government.

    Fundamentally, the choice between administering patent law with "expert tribunals" or trial by jury is a false dichotomy, for we could remedy the problem as well by abolishing patents.

  • by giorgist ( 1208992 ) on Wednesday August 29, 2012 @04:25AM (#41163281)

    How about leave the system as it is, and 5% of all patent costs go to a fund who's sole purpose is to reveal prior art and offending patents. The targeted patents are based on some algorithm that will return the most to society. This fund should also be open to donations from geeks to big companies who has a say where their own money is spent. If Apple wants to fight a Google prior art I am good for that even if Apple is the devil's devil.

    There will be a connection between the number of patents and the funds income. There still is intensive in applying for patents.

Karl's version of Parkinson's Law: Work expands to exceed the time alloted it.