In this piece from GigaOm, columnist Jeff Roberts argues, in the wake of the verdict in the Apple vs. Samsung case, that juries should not be involved in the resolution of patent disputes. While Roberts does point out some of the issues that can potentially skew results in jury trials, I am dubious that this is really a valid “fix” to the increasingly clear problems with our current patent system.
His first two points about juries potentially being swayed by brand loyalty and/or “He’s a copy-cat!” are unfortunately just (or at least nearly) as true for judges as they are for juries. While judges are well trained in the law, that does not mean that they do come to cases with certain “biases” in place. (They are human, after all.) Nor are judges immune from falling victim to certain logical fallacies in their analysis of complex matters, including oversimplification of those complex matters to fit them into paradigms with which it is easier to grapple (i.e. “He’s a copy-cat!”). What’s more, both of these issues can cut either or both ways, in any given case. I am not sure that either of these issues necessarily favors plaintiffs vs. defendants in general. In many cases it comes down to the particular facts of that case and how effective the lawyers on each side are at telling a compelling and believable story to ties together the complexity of the case.
With respect to Roberts’ point about jury trials being more expensive than bench trial, this is undeniably true. There are more moving parts to a jury trial, and thus they are more expensive. The larger and more complex a trial is, however, the smaller the gap in complexity and expense between jury and bench trials. This gap can be huge in a small case, with a relatively small number of factual and legal issues to be decided and relatively small amounts of money at stake. The difference. in cases that are already highly complex, dealing with mountains of evidence ,and in which the stakes are very high, is, in terms of percentages of difference, relatively small. It is not the fact that each side in Apple vs. Samsung case might have saved a million dollars by having a non-jury trial that is so ridiculous. It is the fact that each side spend tens of millions of dollars on legal fees in the fight that is ridiculous.
Don’t get me wrong. The lawyers in this case worked hard (many, many late nights, missed children’s birthday parties and soccer games, etc.) and they undeniably fought hard and effectively (some more effectively than others) for their clients. They deserve their compensation for the hard work they did. The problem is a system which incentivizes the creation and hoarding of patents and the use of those patents to create an environment where companies seek to control markets through litigation. This is made worse by the fact that billions of dollars are spent each year in carrying out the strategy of market dominance through litigation, rather than spending that money on fresh R&D, charity, or other productive, positive pursuits.
Ultimately for our Intellectual Property schema to make sense in society as whole, as well as from an economic efficiency standpoint, it must balance a number of goals, including (but by no mean limited to): (1) incentivizing companies and individuals to innovate, (2) providing an avenue to grow and benefit the national economy, and (3) giving predictability and stability to industries so that it is reasonably possible to understand what is and is not protected intellectual property (anybody who tells you we are already there has never actually been involved in IP litigation).
The current system, by most objective analyses, is failing to a greater or lesser extent in each of these goals. Rationalizing out system of defining and protecting intellectual property will be no small task as there remain many fundamental disputes as how to accomplish such a reform (and, indeed, whether such reform is event truly needed.)
In the meantime, the IP landscape remains treacherous. Failing to protect one’s IP can tremendous costs, both actual and “opportunity” in nature. The process of defending that IP (and/re defending ones’ self from someone elses’) is complex, length, and expensive. Making ones way through the complexities of the technology economy is fraught with both great peril and great opportunity. And closely minding one’s IP “Ps and Qs” is a critical part of minimizing the perils and maximizing the opportunities.