Judges, Juries and Patent Cases: An Empirical Peek Inside the Black Box

Abstract

There has been a recent surge in demand for jury trials in patent cases which has caused many commentators to question the ability of the jury to comprehend and accurately resolve complex patent cases. This Article examines this phenomena and presents the first large-scale comparison of patent holder win rates and recoveries in judge and jury trials. The data set includes all patent cases that went to trial in the United States from 1983-1999. At first blush, the results of my analysis suggest that complaints about juror bias and incompetency are unfounded. Judges and juries do decide some issues such as infringement and willfulness differently. However, the magnitude of the difference is not as profound as many would have suspected. Moreover, judges and juries are affirmed with equal frequency on appeal. The lack of significant difference in adjudication is likely attributable to the selection of cases that proceed to trial. Tried patent cases is not a random or a representative sample of all patent disputes and therefore may not permit accurate measurement of bias. Perceived adjudicator bias and incompetence is factored into the selection of cases for trial which would mitigate its appearance in the outcome data. A closer look at the data indicates that there are differences in judge and jury adjudication that may not be sufficiently transparent or intelligible for appellate correction. Juries significantly more than judges decide whole suits rather than individual issues. In addition, who files suit is a significant predictor for win rate when the jury in adjudicator. In jury cases, the patent holder win rate in infringement suits is 65%; in declaratory judgment actions the patent holder win rate is 42%. Patent holder win rates are nearly identical (50%) in judge cases regardless of who brings suit. This Article concludes that there are some significant differences in judge and juror resolution of patent cases and there may be problems with juror decision-making which are masked by the adjudicative process. However, the outcome data does not substantiate the pervasive juror incompetence and bias the popular perception suggests exist.