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Patent litigation and wonder in East Texas

Wednesday, December 22, 2010
posted by Douglas Keene

We do a lot of patent litigation work and that means driving over hill and dale (or rather, freeway and ranch roads) to places like the Eastern District of Texas for mock trials and focus groups. A few weeks ago, as I drove to Tyler, Texas I turned to the new John Grisham book on my iPod (The Confession).  I had no idea it was based in Texas and it was entertaining to be driving past towns mentioned in the book—Austin, Marshall, Tyler—as I listened to the tale of an innocent man on Death Row. Grisham tells a good story. He has easier material than the IP lawyers.

It can be a real challenge to convert the dry and often technical patent infringement case into a story of relevance and interest to potential jurors. This time though, we were dealing with an actual product many of the jurors had purchased and used. They had opinions. They had feelings. They knew this product and they wanted to understand the lawsuit. And often that is all it takes to help jurors focus on what might otherwise be mind-numbing and sleep-inducing information. The goal, even in especially dry material—is to tell a story that engages.

We had a patent case once where a mock juror kept giggling when a slide was shown with a small section in the county highlighted on a graphic. In his deliberation group, despite his lack of formal education—he was vocal and opinionated and instrumental in shaping group opinion. When asked about his earlier giggles—he grinned sheepishly and said,

“Well, I happen to live on that spot. I know it was an example to illustrate for us how patent holders stake out their property but it just struck me as funny that they were suing for all these millions over my house!”

For him, the personal identification with a pretty obscure technical patent infringement case challenged him to focus and master the information to the extent possible.

In another case, with a small company suing a bigger company for using their product without permission—we saw the opposite of a ‘David and Goliath’ reaction.  Surprisingly, an older African American mock juror got tears in her eyes as she spoke up for “Goliath”.

This company is our future! We can’t let some small upstart take away their ability to create jobs for our children. The country is in enough trouble already.”

It was not what we expected—and that ingredient is the essence of a good story. An unexpected twist or fact or way of expressing a tale that enlightens, engages and enthuses the audience. Which leads us to a final tale from East Texas.

We were telling a story of a company (the plaintiff) suing another company (the defendant) because a third party (let’s call him Joe) had given an idea to the defendant and the defendant (not knowing ‘Joe’ perhaps did not have clear title to the idea) taught some people how to use it, improved on it, and provided consultation on how to use the improvements. So the plaintiff sued the defendant for infringement because we all know ‘Joe’ doesn’t have the money to recover significant damages. Finally, a construction worker mock juror raised his hand:

“Let me get this straight. So some guy steals a drill and brings it to my worksite. I teach him how to use it. And now I get sued for teaching him to use the drill?”

Sometimes, in East Texas, you don’t need John Grisham to have your breath catch in your throat with wonder.

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