Patent trials are a major undertaking with millions of dollars at stake and complex technology to sort through, so a blunder by an attorney presenting the case to jurors can be devastating. Here are some of the biggest mistakes attorneys make during patent trials and how to avoid them.
Get Lost In The Weeds
Getting a jury on your side first means making sure they understand your argument, but that simple fact is sometimes lost on patent attorneys who have lived and breathed the arcane technical details of a case for years, attorneys say.
It’s important to remember that most members of the jury pool may not have even thought much about science since high school, so technical concepts that might seem intuitive to the attorney need to be broken down at a granular level.
“Sometimes I see lawyers and witnesses making it more complex than it needs to be and failing to put the technology into terms that the average juror who might not have a background in science or technology can understand,” said Erik Paul Belt of McCarter & English LLP.
Attorneys who think they might be clearly explaining high-tech concepts like gene-editing or computer circuits need to ensure that they aren’t going over the heads of jurors, which is a frequent occurrence in patent trial.
“You see PowerPoint presentations that are almost written for scientists at a scientific convention, as opposed to a juror who might be an English major or not have a degree,” Belt said.
Passions can run high in patent trials and zealous advocacy is a cornerstone of the legal profession, but jurors are turned off by attorneys who lob insults at the other side and engage in ad hominem attacks on their opponent, Belt says.
“I’ve seen that in several trials over the years and it just backfires,” he said, adding that while the risk of undercutting your case by disparaging your opponent may appear obvious, such attacks are nonetheless a common feature of many patent trials.
An attorney representing an accused infringer who stands in front of the jury and says “this patent is a sham” or “this inventor didn’t invent anything,” just opens the door for the patent owner to present a compelling counterargument, Belt says.
“The inventor gets up on the stand and says, ‘I spent years and years developing this technology,’ or ‘I had a Eureka moment at 3 a.m. and wrote it down,’” he said. “That gets the jury’s interest and they think, ‘How can this guy be a fraud when I’m hearing this great testimony?’”
The same goes for patent owners who frame their case as the accused infringer is ripping them off or stealing their valuable technology, which gives the defense an opportunity to calmly and carefully explain why their client doesn’t infringe, Belt says. You can often tell just by looking jurors that they are unimpressed by caustic language from attorneys, he noted.
The best course of action for patent attorneys at trial is to take the high road and show through evidence and witnesses why your side is correct, and attacking your opponent’s legal theories and arguments, rather than the people themselves.
“I think the jury sees through personal attacks. It just doesn’t work,” Belt said.