The number of words in the description section of a patent has increased exponentially over the past 20 years. Patent disputes often boil down to a fact finder’s interpretation of a minuscule subset of the patent’s highly technical language.

But the authors find that no matter how many or few the disputed terms, the typical patent jury looks beyond the language to decide issues of infringement and invalidity. They rely in part on the claims terms and can be expected to work hard to do so, but they also rely on context to understand meaning and broaden their understanding, by paying attention to the parties’ behavior as portrayed by advocates.

Patent case jury selection is unique. In most civil litigation, jurors who tend to defer to authority will defer to regulatory bodies like the FDA, typically meaning they tend to favor the defendant.

But those “authoritarian” jurors might flip their allegiance in a way that favors the plaintiff on a patent case. The patent holder was awarded approval by the Patent and Trademark Office when the examiner allowed the plaintiff’s patent to issue. The authors’ research of the national jury-eligible population found that the PTO is ranked as the most credible of all federal agencies.

Their research also found that judges and jurors have similar views on the patent system. Most mock jurors said they agreed that the patent process “helps competition,” as did 70 percent of surveyed federal judges.

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