HOW FEDERAL PATENT TUTORIAL VIDEO INFLUENCES JURORS

The COVID-19 global pandemic has led to an unprecedented backlog of cases, and, as a result, courts are considering ways to alleviate the pressure on the system.

Last month, the judge in the U.S. District Court for the District of Delaware case Shire ViroPharma Inc. v. CSL Behring LLC asked the parties to consider the use of a bench trial in their patent dispute.[1] Given the increasing delays and growing backlog, such requests will likely become more common.

As parties consider this request in patent litigation, it is important to understand how both judges and jurors understand cases with such high levels of complexity. Patent litigation is often technically and legally complex, and some scholars have questioned lay jurors’ ability to decide these cases fairly and accurately.[2]

The Federal Judicial Center’s patent tutorial video, “The Patent Process: A Overview for Jurors,” was created with the intent to provide a neutral introduction to the most common issues addressed in patent litigation.

The YouTube channel on which it is hosted describes it as: carefully crafted, in consultation with judges and members of the bar, to present a balanced view of the patent process, but individual judges will want to review it carefully and consult with counsel before deciding whether to use it in a particular case.[3]

In reality, the video is shown in most federal patent cases involving a jury.

While the video is lauded for its attempt to provide context to a complex set of laws and regulatory bodies, criticisms of the patent video are that rather than providing an unbiased foundation for jurors, it is actually slanted toward the plaintiff or defendant, of course, depending on whom you ask.[4]

Although the video was updated in 2013 to address changes in patent law and some imagery depicted in the video, concerns by both parties remain.

Primarily, defendants question whether the emphasis placed on the care the U.S. Patent and Trademark Office takes in evaluating and awarding patents, in addition to the presumption of validity, favors the plaintiff.[5]

Plaintiffs dislike inferences that mistakes could have been made or important information overlooked by the agents since scenes in the video show stacks of files piled high on agents’ desks.

However, there is little empirical research to either support or refute these arguments.[6] One study of the original patent video by J.D. Gilleland in 2012 concluded that there are elements of the video that benefit each party.

The question then becomes, which party, if either, does the updated patent video benefit? As plaintiffs consider requests to waive a jury trial in favor of a bench trial, it is important to understand the influence of the patent video on jurors’ understanding of patents, infringement and invalidity.

Our research is the first large, nationwide, empirical study to evaluate the potential impact of the updated patent video. We focus on three questions to assess: (1) participants’ perceived ease or difficulty of being granted a patent, (2) the likelihood of the USPTO’s incorrectly granting a patent, and (3) participants’ confidence in their ability to determine if a patent was invalid.

Participants

Data was collected between 2015 and 2019 at 13 patent mock trials held in seven venues across the U.S. (the U.S. District Court for the District of Kansas; the U.S. District Court for the Central District of California; the U.S. District Court for the District of Nebraska; the U.S. District Court for the District of Nevada; the U.S. District Court for the District of Wisconsin; the U.S. District Court for the District of Delaware; and the U.S. District Court for the Western District of Washington).

Participants (n = 428) were primarily recruited using random digit dialing and were prescreened to confirm their eligibility to serve on a jury in their venue. Participants ranged in age from 19 to 80 (average = 51). There were slightly more women (n = 227) than men (n = 201). Participants were predominantly white (n = 323). They were well-educated, as a large majority had at least some college credits (n = 333) and the minority had a high school diploma (n = 67) or did not complete high school (n = 5).

Procedure

Each participant completed surveys to collect demographic information and answered three questions related to patents. Participants were then read a neutral statement of the case before viewing the 17-minute patent video produced by the Federal Judicial Center.

Immediately following the conclusion of the video, participants answered the same three questions related to patents that they answered prior to watching the video.

Attitudes toward patients were measured using three questions on a 1 to 7 scale. Participants were asked:

1. “How difficult do you think it is to get a patent?” with 1 representing very difficult and 7 indicating very easy;

2. “How often do you think the U.S. Patent & Trademark Office incorrectly grants a patent?” with 1 indicating very rarely and 7 suggesting very often; and

3. “How confident would you feel as a juror determining if a patent is invalid?” with 1 representing very confident and 7 indicating not at all

Demographic questions included sex (male and female), age (split into two groups: 18-49 and those 50 and over), education (six-point scale ranging from no high school diploma to a postgraduate degree), political ideology (five-point scale ranging from very liberal to very conservative), and race (seven options, split into two groups: white and nonwhite).

Results

First, we analyzed the influence of the video on the perception of the difficulty of obtaining a patent. The difference between the pretest and the post-test was statistically significant and the effect size was large.[7] Table 1 reports the results. On average, participants reported that it was more difficult to obtain a patent after watching the video

We also analyzed the data to determine if this result was consistent across several demographic variables. The difference between pretest and posttest scores did not differ significantly based on race, education, or political leaning. There was a slight difference based on sex. Women reported a slightly greater perception of the difficulty of obtaining a patent after viewing the video (post-test average = 2.43) than men (post-test average = 2.76).

Interestingly, there was a significant difference in pretest and post-test scores based on age. In this case, younger and older participants differed in their initial attitudes. Younger participants’ pretest scores showed they believed it was easier to get a patent (pretest average = 3.55) than did older participants (pretest average = 3.07). But, after watching the video, that difference was no longer present.

Second, we analyzed the influence of the video on the perception of the frequency that the USPTO incorrectly grants a patent. The difference between the pretest and the post-test was statistically significant, but the magnitude of the effect was modest. Table 2 reports the results. On average, participants reported it was less common for the USPTO to incorrectly grant a patent after watching the video.

We also analyzed the data to determine if this result was consistent across demographic variables. The change between the pretest and post-test did not differ based on any demographic factor, including sex, age, race, education, or political leaning.

Finally, we analyzed the influence of the video on jurors’ confidence in their ability to determine the validity of a patent. The difference between the pretest and post-test was statistically significant, though the size of the effect was modest. Table 3 reports the results. On average, participants reported more confidence in their ability to determine the validity of a patent after watching the video

We also analyzed the data to determine if the results were consistent across demographic variables. The change between the pretest and post-test did not differ based on any demographic factor.

Conclusions

The goal of the video is to provide an unbiased explanation of the patent process and patent litigation for potential jurors. While the goal is important, the research confirms that the video does influence the perception of the patent process in subtle, but meaningful ways.

In terms of whether the video benefits the plaintiff or the defendant, the results are mixed. The first two results favor the plaintiff. After watching the video, mock jurors reported a belief that it was more difficult to obtain a patent and that the USPTO was less likely to have erred in granting a patent.

By contrast, the final result favored the defense. After watching the video, mock jurors reported a greater level of confidence in determining the validity of a patent. More than simply providing context or background, these results suggest that the patent video does influence jurors’ perceptions of the patent process.

Importantly, demographic variables impacted jurors’ beliefs about obtaining and judging patents very little. As trial consultants, we often emphasize the importance of life experiences and attitudes over demographic considerations, which is further supported by these results.

These results were similar, in part, and different, in part, to J.D. Gilleland’s findings of the impact of the original patent video.[8] Although he also found that participants believed the USPTO incorrectly grants patents less often after watching the video, he did not find a difference in jurors’ perception of how difficult it is to get a patent. And while his study did measure jurors’ confidence in a number of factors about the USPTO and patent litigation, his study did not evaluate jurors’ confidence in invalidating a patent.

There are several important considerations for attorneys based on our findings.

First, while we characterize the results as mixed, the result is more complicated when invalidity is not an issue. In cases in which the invalidity argument is not being made by the defendant and is therefore not one the jury would have to decide, then the video overall would be more favorable to the plaintiff.

But, if invalidity is on the table, and jurors feel more confident in their ability to determine the validity of a patent as a result of watching the video, then it’s likely a wash between benefit to plaintiff and benefit to defendant.

Second, these results are not meant to serve as a call to abandon the use of the video. On the contrary, there is valuable information in the video that undoubtedly helps jurors as they resolve the issues of the case. Rather, attorneys should work to develop case themes and make compelling arguments in light of the fact the video reinforces beliefs about the difficulty of obtaining a patent and the diligent work of the USPTO, while also increasing jurors’ confidence in deciding the validity of a patent.

Finally, the last question assessing confidence in one’s ability to determine if a patent is invalid may simply have naturally increased as a result of learning anything about patent litigation.

In other words, given that most people have little understanding of patent litigation or validity of patents, learning any information about these topics by way of the patent video may naturally increase one’s confidence in deciding these issues but may not reflect on their willingness to invalidate a patent.

The higher clear and convincing standard for determining patent validity, general deference to the USPTO, and the presumption of validity have been found to decrease jurors’ willingness to invalidate a patent.[9]

One final word of caution is in order. While the results suggest the patent video does shape mock jurors’ perceptions of the patent process, this research does not provide evidence that the video influences the outcome of a case. That is, it is not clear that the changes in perceptions from the video resulted in different verdicts. While practically challenging to study empirically, future research could examine the influence on case outcome based on whether or not mock jurors watched the patent video.

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Alexis Knutson is a consultant and research manager at Tsongas Litigation Consulting.

Jeffrey Jarman, Ph.D., is a consultant at Tsongas Litigation Consulting and director of the Elliott School of Communication at Wichita State University.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Order by Goldberg, M. (2020). Available at https://www.cadwalader.com/uploads/media/Doc_310.pdf. See also, Montgomery, J. (2020). The Shire wants jury trial over the validity of its genetic disorder ip. Available at https://www.law360.com/ip/articles/1283952/shire-wants-jury-trial-over-validity-of-its-genetic-disorder-ip.

[2] Weiss, J. (2017). U.S. patent litigation juries and a solution for improving jury comprehension. Available at SSRN: https://ssrn.com/abstract=3270000orhttp://dx.doi.org/10.2139/ssrn.3270000. Sohn, J. L. (2016). Specialized juries for patent cases: An empirical proposal. University of Pennsylvania Journal of Business Law, 18, 1175-1205.

[3] Federal Judicial Center (2013, November 22). The Patent Process: An Overview for Jurors. https://www.youtube.com/watch?v=ax7QHQTbKQE.

[4] Mewes, H. N. & Donnelly, D. E. (2006). Going to the videotape: An introduction to the patent system. Fenwick & West,

[5] Bock, J. W. (2014). Does the presumption of validity matter? An experimental assessment. University of Richmond Law Review, 49, 417-463.

[6] Gilleland, J. D. (2012). The Debate Is On: Is the Federal Judicial Center’s Patent Tutorial Video Too Pro-Plaintiff?. TrialGraphix.

[7] Statistical analyses included repeated measures ANOVA with a test (pretest and posttest) as the within-subjects variable and each demographic factor as a single, between-subjects factor. All references to statistical significance are p<.05.

[8] Gilleland, J. D. (2012). The Debate Is On: Is the Federal Judicial Center’s Patent Tutorial Video Too Pro-Plaintiff?.

[9] Bock, J. W. (2014). Does the presumption of validity matter? An experimental assessment. University of Richmond Law Review, 49, 417-463.