What Happens at a Patent Trial. Episode 117

Overview of Patent Litigation to This Point

This is probably going to be the last episode I do about patent litigation, with maybe one more about a special kind of litigation that happens at what is called the International Trade Commission. So far, I’ve covered the basics of a cease and desist letter, a complaint, responding to the complaint, scheduling, shifting the case back to the patent office in some circumstances, various types of motions like summary judgment, and discovery.

Clarifying the Purpose of Discovery

In the last episode, I covered discovery. Maybe I didn’t make this entirely clear, but discovery is where you are gathering the evidence that you’re going to present in court. There are basically three different kinds of evidence: written evidence like answers to interrogatories or requests for admission, oral evidence gathered during depositions, and physical object evidence, which might come from requests for production of documents.

Telling Your Story at Trial

At this point, you need to tell a story to a jury to make your case. You tell your story by bringing witnesses. A patent trial is not actually any different from any other type of civil trial. If you’re the plaintiff, you want the jury to find that the other party infringed your patent and owes you monetary damages. If you’re the defendant, you want the jury to find that you did not infringe the patent. What the jury decides is called the verdict.

Markman Hearings and Pre-Trial Settlements

Getting to the actual trial stage is pretty rare these days for a lot of reasons. It’s very expensive for both sides, so people usually want to settle early. There are parts of the litigation process that make it much more likely for both sides to know who is likely to win—such as Markman hearings, where a judge decides on the meaning of words in a patent claim.

For example, if one party says there’s no infringement because the patent requires a “tunnel,” and their product has a “groove,” a judge might rule that a groove counts as a tunnel. If that happens, it’s a big clue as to who will likely win, and one side might just settle knowing that.

Questions of Law vs. Questions of Fact

You might think the jury decides what a “tunnel” or a “groove” means, but no—that’s a question of law, and judges decide questions of law. Juries decide questions of fact. For example, when an attorney says, “Objection, hearsay,” the jury doesn’t vote on that—that’s for the judge. The same logic applies to how patent claims are interpreted.

There are still questions of fact during the trial, such as whether a patent has utility, whether the written description was sufficient, and how much damage was caused. These are things the jury decides, while legal issues like claim interpretation are handled by the judge.

Likelihood of Reaching Trial

Even though it’s rare, some patent cases do make it to trial. I saw one statistic—maybe a little old—that only about 2% of patent cases actually go to trial.

Jury Instructions and Case Preparation

Let’s say you make it to trial—what happens? First, you should start at the end and work backward. The end of the trial involves the jury receiving instructions about how to determine patent infringement and calculate damages. You should study those jury instructions early so you know exactly what the jury will be looking at.

If infringement requires A, B, and C, then as a plaintiff, your evidence needs to show that the defendant did A, B, and C. If you’re the defendant, your job is to show that one or more of those elements didn’t happen.

Jury Selection

The first thing in trial is jury selection, also known as voir dire. You don’t actually have to have a jury in a civil trial—a judge can decide everything—but in about 95% of patent cases, the trial is by jury. Typically, there are 12 jurors, although technically you can have as few as 6.

Each side can eliminate a certain number of jurors without explanation, and if a juror has an obvious bias—like if they used to work for one of the parties—they can be removed without using one of those limited strikes.

Opening Statements, Witnesses, and Evidence

After jury selection, you get into what you see in TV shows and movies. Each side gives opening statements, then calls witnesses. Witnesses provide oral testimony, and if you want to introduce physical evidence, a witness has to identify it. You’ll likely have expert witnesses explaining the technology and giving opinions on infringement and damages.

Closing Arguments and Jury Deliberation

At the end, both sides give closing arguments. The judge then reads the jury instructions—what constitutes patent infringement, how to calculate damages, and more. The jury then goes into a room to deliberate.

Burden of Proof in Civil vs. Criminal Cases

Patent cases are civil, not criminal, so the burden of proof is “preponderance of the evidence,” not “beyond a reasonable doubt.” If a juror is 50.1% sure there was infringement, that’s enough to vote for infringement.

There’s also another standard used specifically for invalidating patents—“clear and convincing evidence.” This means something like “highly and substantially more probable to be true.” There’s no strict number, but to me, it’s around 80-90% certainty, whereas “beyond a reasonable doubt” is closer to 98-99%. But lawyers can’t say those numbers to the jury—it’s just my personal interpretation.

Post-Trial Motions and Appeals

After the verdict, the case isn’t necessarily over. You might get a new trial if the judge believes there’s been a miscarriage of justice or new evidence surfaces. There’s also a motion called “judgment notwithstanding the verdict,” where the judge overturns the jury’s decision—but that’s rare.

Patent cases are appealed to the Federal Circuit in D.C., no matter where the trial took place. This is different from most federal cases, which go to regional circuit courts. The Federal Circuit might affirm the trial decision, reverse it, or send it back for a new trial due to errors—like bad jury instructions.

And that’s the basics of a patent trial.

I’m Adam Diament, and until next time, keep on inventing.