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Patent Practice Professional Liability Reporter Your Pacific Northwest Law Firm

Jury Notes and Special Verdicts in Patent Cases: A Case Study in Jury Comprehension

Posted in Jury Instructions, Patent Litigation, Patent Pleadings

It is commonplace to bemoan the lack of juror comprehension in patent cases and to describe jury deliberations as a “black box” resisting analysis.

The Federal Circuit favors the use of special jury verdicts to alleviate such criticisms. Special verdicts can focus jury attention on the facts that may or may not support key patent findings such as those relating to infringement under the doctrine of equivalents, obviousness or other invalidity determinations, and damage and reasonable royalty calculations.

Whether special verdicts achieve “better” overall results than general verdicts, however, is a debatable proposition in light of social science research into how juries think and reason.

The underlying record in a recent Federal Circuit decision, Therasense v. Becton Dickinson and Co. (pdf), provides a good working example for evaluating jury comprehension issues when both jury notes and a special verdict are utilized at trial.

Case Background and Result. The Therasense case involves an ’890 patent directed to electrochemical sensors for measuring glucose levels in blood. The plaintiff alleged that BD Test Strips manufactured and sold by the defendants infringed two claims of the subject patent.

After a trial taking place over four weeks, the jury returned a special verdict (pdf) finding infringement pursuant to the doctrine of equivalents, but in response to the very next special jury verdict question found that the ’890 patent was invalid based on anticipation or obviousness grounds.

The bulk of the Federal Circuit’s decision focuses on the jury’s answer to the following special verdict question: ” Have defendants proven by clear and convincing evidence that Claims 11 and 12 of the ’890 patent are invalid by reason of anticipation or obviousness. Yes  √   No ___.”

More after the jump.



The Federal Circuit affirmed the judgment of invalidity based on the jury’s answer to this question. While it found an error in the district court’s “anticipation” jury instruction, the Federal Circuit concluded that the evidence would support an obviousness determination as a matter of law. Since that ground is sufficient for invalidity purposes, an error in the anticipation jury instruction was deemed harmless.

Case Significance. The Therasense case represents, in many ways, a typical hard-fought, professionally-litigated patent lawsuit.

The record reflects a continuing predilection in patent litigation for the preparation of lengthy jury instructions and use of a special verdict form that contains bare-bones, high-level questions answering the ultimate patent issues in dispute. This is all the more noteworthy because the Northern District of California Local Rules offer a detailed special verdict form that’s been available to patent practitioners since November 2007.

Use of jury notes is a fairly new phenomenon and reflects a reform in action intended to increase jury participation and cognition.

The Jury NotesJury notes (pdf) from the Therasense case furnish us with an illuminating window into how jurors struggle with esoteric patent concepts far removed from their everyday activities.

For example, one juror asks, “What is the function of a ‘court construction’? Is it a way to focus or limit the conversation?”

Another inquires, “There has been made mention of a ‘one year rule’ in patent law. Could you please clarify that? Thank you.”

One juror wonders, “Should we consider the shipping of the PQID product to the Netherlands in deciding whether PQID had been reduced to practice?”

These inquiries show how patent law terminology is processed in the minds of the uninitiated. On the plus side, the jury is clearly trying to make sense out of strange patent lingo. And one can hardly expect jurors to become insta-experts in patent law during the course of trial.

As one legal commentator states, the “jury is the only decision making body in the world selected specifically for its lack of expertise in the subject matter.” Longhofer, Jury Techniques in Complex Civil Litigation, 32 U.Mich. J.L. Reform 335, 337 (1999).

Other jury notes are more banal, but equally important. They demonstrate the importance of speaking to and understanding your true audience, to wit, “Please have your younger lawyers speak more slowly.”  The juror complains that the lawyers were speaking “at the speed of sound/light ” and that she or he “hardly understood the defendants and questions!”

Detailed Jury Instructions. Like most patent cases where a jury is empanelled, the bulk of the parties’ and court’s attention in the Therasense case was focused on the language of the jury instructions themselves.  Unfortunately, the expense of wordsmithing and fine-tuning jury instructions may not be justified by social science research.

That research suggests: “A general characterization of juror’s cognitive performance during trials is that they are good at remembering and understanding the facts of a case but are poor at remembering, understanding and applying the relevant laws. * * * Study after study has shown that jurors do not understand the law they are given, often performing at no better than chance level on objective tests of comprehension.” Ellsworth, et al., Juror Comprehension and Public Policy: Perceived Problems and Proposed Solutions, 6 Psychology, Public Policy and Law788, 795-6 (Sept. 2000)(citations omitted).

In hindsight, the Therasense jury may have performed better than average. The jury notes at least demonstrate that they are trying to discuss the anticipation issues with specific reference to certain lines from the jury instructions. In fact, they raise the very issue that ultimately led the Federal Circuit to hold that the anticipation jury instruction was in error.

The Therasense jury notes thus offer tangible, anecdotal evidence that jury notes do marginally improve jury comprehension in patent cases.

The Special Verdict. While labeled as special verdict form, the Therasense verdict form consists of five questions and two special interrogatories (pertaining to doctrine of equivalence determinations).

The special verdict form employs binary logic (i.e., yes or no questions). It requires serial findings.  In other words, that questions be answered in a certain order, or what it known to social science researchers as “path-dependency.”

Because the jury is not asked to come to conclusions with respect to sub-issues that are pertinent to an obviousness determination, had the defendants lost on that invalidity issue, it would have been difficult for them to overturn the jury’s verdict given the deferential standard of review for overturning jury findings on appeal (as discussed in the previous post).

Overall, the generality of the special verdict questions—especially in relationship to much more detailed jury instructions—likely means that the Therasense jury’s special verdict is much more akin to a general verdict.

A general verdict—even though the reasoning leading to it is opaque—efficiently sums the jurors’ impressions about who should win and who should lose in a case. In that regard, the general verdict operates at the level where juries perform most effectively as a collective.

“It appears that jury deliberations typically do not analyze the evidence by following an element-by-element approach. Rather, jurors use the evidence present at trial to generate and test a variety of hypotheses or “stories” to explain the evidence, then select the most credible story, and determine the ultimate facts in accordance with that story, provided they are sufficiently convinces of its truth.” Lombardero, Do Special Verdicts Improve the Structure of Jury Decision-Making?, 36 Jurimetrics J. 275, 284 (Spring 1996)

Because of the central importance of special verdicts in patent litigation, upcoming entries planned for the PPPL Reporter will continue to explore the use of special verdicts and their effectiveness in reaching just and fair results in cases tried to a jury. One forthcoming topic will be the novel incorporation of “fuzzy logic” interrogatories into special verdicts and the use of “fuzzy logic” polling questionnaires as an aid to facilitate jury deliberations in patent cases.