Facts and Impressions that Juries Find Compelling in Patent Cases
It is rare to be able to see into the minds of the jurors after a large patent trial damage award. However, from Joe Mullin, “Patent Litigation Weekly: So What do E.D. Texas Jurors Really Think?,” IP Law & Business (Jan. 9 2010), we are able to get a glimpse.
Actual copying is not required to show patent infringement. However, where there has been any appearance of actual copying, it will likely be a key factor in a jury’s decision to the extent they find in favor of a patent owner (and increase damage awards). For example, according to the article:
Testimony during the trial revealed that i4i and Microsoft representatives met at one point to discuss Microsoft’s interest in i4i's software, a type of XML editor that could be used in conjunction with Microsoft Word. Stephenson says that was an important factor in helping him reach his decision. "[Microsoft] got their foot in the door and got enough information, and then took it.”
Like Stephenson, Cook says one thing that tipped the scales in i4i’s favor was the testimony about a meeting between representatives of the two companies to discuss Microsoft’s interest in i4i’s software.
“At the meeting, when [i4i] actually showed [the XML software] to [Microsoft] …Microsoft was very excited about it.” Then, she says, Microsoft “started figuring out what it was and started using it.”
Thus, to the extent there is evidence of a meeting and subsequent copying, make sure that it is well documented.
In addition, absent evidence of an actual meeting and subsequent copying, there are other ways to show that a patent infringer had access to the patent owner’s disclosure and still disregarded the patent owner’s rights that may also be convincing to a jury. As one example, using a service such as Enhanced Objective (a legal services company also owned by Mr. Busch), forward rejections might be located to the extent they exist showing that a patent infringer attempted to patent the same technology later than the patent owner and was rejected by the patent office using the patent owners’ patents.
Furthermore, based on my experience, it is not atypical for large companies to engage in “name-calling” among other things that show a lack of respect or disregard to a small patent owner asserting their rights. This can backfire for the large companies—even when the large company is at least initially held in high esteem by the jury. This apparent “bad attitude” can manifest itself both through the actions or omissions of both counsel and key stakeholders within the company.
First, counsel for the large company can rub the jury the wrong way:
Of the lawyers who tried the case—Powers for Microsoft and Douglas Cawley of McKool Smith for i4i—Stephenson says they “both seemed really intelligent.” But, he says, the jury found Cawley “much more genuine and sincere.” Powers, Stephenson says, “came across as being cocky, and kind of always on the defensive about everything. He made several low blows and comments about i4i's lawyer and Michael Vulpe. That was frowned upon by the jurors.“
In addition, when key stakeholders are not involved it gives the juries the impression that the party is indifferent to the matter and to the amount of money involved:
A second juror, electrician Jarrett Stephenson, says he was struck that Microsoft’s lone witness was a software engineer, unlike i4i, whose founder, Michael Vulpe, testified. “I think a lot of the jurors, we all thought if this was that big a deal to Microsoft, they might have had some of their more executive-type people present."
In describing his take on the case, Stephenson strikes something of a populist tone. “It's the same thing going on with America these days. It's big business. They just don't care. Two hundred million dollars seems to me like a great amount of money…I would think if I was Bill Gates, and had $200 million on the line, I would want to be present.”
In summary, patent owners generally have the deck stacked against them when asserting against the largest companies in the world. To convince a jury or the patent office that they are right, a patent owner usually needs to build a case that makes it impossible for the fact finder to decide any way other than for the patent owner. The jury didn’t want to find against Microsoft, but after the facts came out they felt that they had no choice:
“I wanted Microsoft to be right,” she says. "Microsoft employs a lot of people. I didn't want a Canadian company to come here and take our money. There were a lot of reasons I didn't want it to be that way.”
"If you sat through that trial at all, you would know, it was just so clear cut. … None of the eight jurors was even slightly inclined to find for Microsoft, says Cook.
As you are prosecuting your patent portfolio and attempting to license it, keep these factors in mind that the jury found important—and make sure they are well documented. To the extent it is ever necessary to go to trial, this evidence may make the difference between a “win” and a “loss”.