Monday, January 26, 2009

Monday Shorts: Jury Misconceptions, Patent Reform, IP Valuation Collapse?

Are Juries Misinformed in Patent Cases ? - Joe Mullin has a great piece over at titled "How Juror Misconceptions Affect Patent Trials." Despite the fact that most jurors think that infringement means inventors claiming they've been copied, research done using Stanford Law School's new IP Litigation Clearing House demonstrates that formal allegations and findings of copying are actually quite rare in patent disputes.

Because jurors think about copying even when it is not alleged, "it's vital for a defendant to talk about the fact that their product was developed independently." says jury consultant Green. "It goes to the jurors' sense of fairness." Developing a good independent invention story is vital for defendants.

[M]any jurors don't know the difference between a copyright and a patent, and many jurors believe that patents cover broad ideas, not just specific inventions. Further, jurors are hardwired to believe that corporations will "lie, cheat, and steal" to get an edge on the competition, according to polls that Kauffman has conducted with hundreds of mock jurors.

In those surveys, only 35 percent to 45 percent of jurors had a favorable opinion of corporations, while 75 percent had a favorable opinion of inventors. Nearly 70 percent agreed with the statement, "Big companies steal the secrets and inventions of their competitors." Most of the mock jurors believed that patent rights were trampled regularly, with 85 percent saying that it occurred "frequently or occasionally."
- Read the entire article here, courtesy of

- See also, Christopher Anthony Cotropia and Mark A. Lemley, Copying in Patent Law.

"Expert Patent Judge" Pilot Program Reintroduced in Congress - Rep. Adam Schiff (D-Calif.) and Rep. Darrell Issa (R-Calif.) reintroduced legislation this week that would start a 10-year pilot program to educate district judges on patent issues. Judges from courts that meet certain criteria would be able to opt into the program, which would provide funds for them to pursue educational opportunities such as patent seminars. The participating courts would also be assigned a clerk with expertise in patent law or the technical issues associated with patent cases. The bill authorizes $5 million a year to carry out the program.

- Read Stephanie Condon, "New bill approaches patent reform 'part and parcel" (CNET News) (link)

- See also, Ars Technica, "Congress weighs patent specialization for federal judges" (link)

NYLS Help Launch Post-Issue Project to Challenge Patents - New York Law School's Center for Patent Innovations (link) is helping to release the "Post-Issue Peer To Patent" project for challenging patents at the USPTO. According to the organization, the project seeks
to improve the quality of patents by providing a framework for ferreting out weak, non-meritorious patent claims in patents that have issued. Harnessing the power of a community of peer reviewers created through Peer to Patent [], Post-Issue elicits previously unidentified prior art that may invalidate or narrow the claims of issued patents. In so doing Post-Issue provides greater freedom to innovate, removes uncertainty from the patent system, and provides greater certainty as to the value of issued patents.
See more here and here.

Pending Study Suggest IP Valuation "Collapse" - from Joff Wild's IAM Blog:
In the next issue of IAM, which publishes at the end of next week, Nir Kossovsky of the Intangible Asset Finance Society reveals that corporate intangible values in the US . . . have collapsed over the last 12 to 18 months, from a median of 70% of market capitalisation to under 50% now. To put it starkly: nobody can now claim that the majority of American corporate value is composed of intangibles or IP.

Read more here, along with a fascinating debate in the comments

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