In the past ten years, the Eastern District of Texas has become a wildly popular venue for plaintiffs in patent cases. This has been attributed to a number of factors including judicial expertise, plaintiff-friendly local rules, speedy dispositions and jurors who are predisposed to find for plaintiffs and award large damages.

 

As trial strategy consultants who advise attorneys on how to maximize the persuasiveness of their cases to jurors, this last factor is of particular interest to us. There is no doubt in our minds that regionalism plays a significant role in juror decision-making, and therefore must be taken into account by attorneys trying cases away from their "home turf." In this paper, we offer observations about how jurors in East Texas think about patent cases, based on pre-trial research conducted in such cases. We offer advice to plaintiffs about how to build on their natural advantages in this venue, and to defendants about how to overcome the unique challenges of this venue.

 

We begin with a brief summary of trends in East Texas patent litigation, with special attention to jury verdicts in the District.

 

The Rise Of The Eastern District As

Plaintiff's Venue Of Choice

 

In the past decade, the Eastern District of Texas has experienced a meteoric rise in patent litigation: In 1999, it was not even on the "top ten" list of venues with large numbers of patent cases,1 but by 2008, more patent cases were filed in East Texas than in any other district in the country (over 300; the next highest was the Central District of California with 244).2

 

There is broad consensus that these numbers are a function primarily of forum-shopping; in fact, one article described patent suit filings in East Texas as the equivalent of going to Mexico to get a "quickie divorce."3 It should be noted, though, that analyses comparing the Eastern District of Texas with other venues demonstrate that it is not necessarily a "rocket docket." In fact, at least five other districts have been faster for patent cases4, though the Marshall Division of the district initially became a hotbed of patent litigation because of the judge's decision to move cases more quickly.5

 

Given that it is not the fastest docket, that few if any major corporations are actually housed in the district, and that Eastern Texas is unlikely to be chosen as a venue because of its convenience to parties and witnesses, many have looked to other factors to explain the soaring popularity of this region with plaintiffs in patent cases. The causes that have been suggested are judges with expertise and experience in patent litigation, local rules that are often favorable to the plaintiff, a general judicial disinclination to grant summary judgment and jurors who tend to favor patent holders – so much so that for one three year period, there were 20 consecutive plaintiff victories without a single defense win in a patent case in the district.6 More broadly, from 1995 to 2007, plaintiffs won in over 70% of the district's jury patent trials, the third-highest plaintiff win rate in the country.7 In 2008 the district fell to seventh place, with a plaintiff win rate of 61%.8

 

While plaintiffs' chances of winning at trial may have started to decrease, a fundamental truth remains: When plaintiffs win at trial in East Texas, they tend to win big. In 2008, the median damages award in patent cases was $20.4 million, the third highest in the country.9 Moreover, in mid-2009, East Texas jurors awarded the largest US jury verdict to date in a patent case: $1.67 billion to Centocor Ortho Biotech and NYU after finding that Abbott Laboratories had infringed their patents.10

 

These are not the only factors that have contributed to plaintiffs' choices to file in the Eastern District of Texas. Judicial expertise in patent cases, local rules that favor plaintiffs and a faster-than-average case disposition time have also helped to establish the District as a preferred venue for patent plaintiffs. In fact, the district – and in particular Marshall – has been called a "haven for patent pirates"11 and Supreme Court Justice Antonin Scalia has called it a "renegade jurisdiction."12 Marshall was also held up as an example of the problems in patent law that result in plaintiffs having wide latitude in forum-shopping.13

 

While terms like these clearly reflect the distaste that many have expressed for plaintiffs' rush to East Texas, it is worth noting that the plaintiffs are aided in their forum-shopping by a venue that has, at least to some extent, worked to lure litigants to the area. Marshall, in particular, had its economy revived when it became a hotbed of patent litigation, and is understandably eager to keep what has become its "cottage industry" strong and thriving.14

 

Marshall and the rest of the Eastern District maintain their attraction for plaintiffs, and the numbers above tell why. Perhaps most telling, when there was a series of defense victories in this seemingly unwinnable venue, after a long run of plaintiff wins, it was such a significant event in the IP world that an article entitled "Taming Texas" graced the cover of the American Lawyer in March 2008.15 The author attributes one of the victories (EchoStar's win over Forgent Networks, after a crushing loss to TiVo a year earlier) to defense lawyers learning some important lessons: hiring consultants to teach them how to talk to Texas juries, deferring to local counsel at trial, and simplifying complex cases.

 

The Tide Begins To Turn

 

With these verdicts and then four defense jury verdicts in 2009 and early 2010,16 there are some indications that the tide is turning and defendants are facing better odds at trial. Moreover, recent decisions by the Federal Circuit suggest that the heyday of the Eastern District may be coming to an end. In 2008, a writ of mandamus granted by the Fifth Circuit In re Volkswagen of America (545 F.3d 304 [5th Cir.2008]) directed the Court to grant defendant's change of venue motion in a product liability case. Later that year, the Federal Circuit cited that precedent in granting a similar writ of mandamus in TS Tech (551 F.3d 1315 [2008]), a patent case. It stated that the Court had clearly abused its discretion in refusing to transfer venue, instead giving too much priority to plaintiff's preference. This was followed by a similar decision in In re Genentech in 2009 (566 F.3d 1338 [2009]). These decisions have had a marked effect on the number of patent cases filed in the district: In the eight months following the October 2008 Volkswagen decision, the monthly average for new cases filed in the district dropped from 15.5 to 7.5.17 The drop has been so dramatic that some attorneys suggest that the forum-shopping provision in patent reform bills currently in Congress is no longer necessary as the East Texas problem is taking care of itself.

 

Current trends notwithstanding, there is little doubt that East Texas will continue at least for a while to receive more than its fair share of patent litigation, as plaintiffs find ways to justify their filing in this patent-friendly venue. And, many of these cases will continue to end up in the hands of juries. With this in mind, we offer some observations about jurors in East Texas based on recent pre-trial research we conducted, followed by advice to both plaintiff and defense counsel. First, though, we consider what makes East Texas jurors different from those in other venues, and then we offer lessons learned from our research.

 

What Makes East Texas Jurors Different?

 

There are universal challenges to trying patent cases in any venue. Teaching complex technology to a jury of laypersons is simply difficult, no matter where you are trying to do it. Patent law can be equally difficult to understand, and sometimes goes against commonsense principles. For example, the idea that U.S. citizens can undo an act of government and invalidate a patent is a foreign notion to some. Similarly, the typical pairing of a non-infringement defense with an invalidity defense smacks to some of "I didn't borrow your lawn mower and besides, it was broken when you loaned it to me."

 

These challenges become even greater in a venue where jurors are relatively uneducated. In some of the major counties feeding the East Texas courthouses, college graduation rates are as low as 15% (e.g. Harrison County, home to Marshall, where the large majority of Eastern District patent cases are filed).18 We note, however, that in voir dire panels seen at the Tyler courthouse in early 2010, college graduates and IT professionals were reasonably well-represented, suggesting that there may be considerable variability in the region, and that more educated people may be overrepresented on some panels. Even with this variability, though, a generally older population of jurors in most East Texas counties means that jurors are coming to technology cases with less experience with complex technology than in other, younger venues.

 

Furthermore, East Texas differs from more urban venues because of the paucity of large corporations based there. Thus, corporations are likely to be viewed with more suspicion in East Texas than they are in places like New York, Delaware, or even Dallas, just a few hours away from Tyler and other East Texas courthouse locations.

 

Finally, while research and anecdotal evidence has suggested that U.S. jurors nationwide are generally pro-plaintiff,19 this pattern appears to be particularly marked among East Texas jurors. This has been attributed to East Texans' respect for government and their strong belief in property rights.20 In the context of such beliefs, infringement on intellectual property is akin to trespassing on physical property, and is taken equally seriously.

 

These observations form the basis for our discussion, below, of how mock jurors deliberated in mock trials for several East Texas cases. In one of the cases, the mock jurors came from Tyler, Texas. In the other two, they were recruited from Kaufman County, a county immediately adjacent to East Texas and often called the "gateway" to East Texas. Demographics of mock jurors were matched to the general demographics of the Eastern District venue.21

 

Lessons Learned From East Texas Mock Trials

 

 

Lesson 1: Simplicity Is The Hallmark Of Effective Teaching

 

In pre-trial research for East Texas computer technology patent cases, we saw mock jurors struggle to understand complex technology. Many were simply unable to do so, grasping only the broadest principles of the technology that they were taught. To the extent that they tried to engage in comparisons of the patent and the accused devices, they looked for simple visual matches in schematics. They rarely ventured beyond this kind of analysis.

 

The few exceptions were the mock jurors who had either educational or employment experience with technology. While these jurors sometimes made an effort to engage others in discussions of the technology, it was an uphill battle and most continued to do an "end run" around the technology. Instead, as we discuss below, they often defaulted to other considerations, focusing on moral and contextual aspects of the story that were easier to understand.

 

The lesson learned here is, never overestimate the importance of simplicity in your teaching. Do not assume any knowledge or familiarity with the concepts that you are teaching. For example, some mock jurors in our research did not know what "hardware" and "software" meant or how they differed from each other. Start with the basics and work your way up slowly to more complex concepts. In all of your teaching, use as many concrete examples as you can.

 

It is also important to resist the temptation to litigate – and teach – every detail of your technology. Consider what is essential for the jurors to understand, and then assume that they will remember the "gist" of what you say rather than the minute details. Mock jurors in our research were best able to hold on to short key phrases that were easy to understand and easy to remember. In one mock trial, for example, while many did not understand the technology, most remembered that the defendant had built a "better, faster" product. We heard this phrase from even the least sophisticated jurors. Short phrases like this – ideas that you determine are most important for jurors to hold on to – should be used repeatedly in your presentations.

 

Parties have a definite advantage if the product at issue is one that is concrete rather than one that is abstract and can be visualized only in schematics. Nonetheless, simplicity will always serve you well. In both your oral presentations and your demonstratives, short sentences, easy definitions, and simple examples will work in your favor. And good, clear demonstratives with simple instructive images are nothing short of essential.

 

We offer an important final caveat: In your efforts to simplify, be careful not to cross the line into patronizing your jurors. In the recent trial of i4i v. Microsoft in Tyler, jurors found that Microsoft had infringed i4i's patent and awarded i4i $200 million (to which the judge added $90 million for willfulness and post-trial interest), and the software giant was enjoined from selling some versions of its Word 2007 and Office 2007 packages. The case garnered extensive media attention, some of it unfavorable to East Texas jurors. One of the trial jurors complained to a reporter that bloggers and others talked about patent holders rushing to Texas because of the "stupid people in Texas, ignorant people in Texas."22 Particularly in light of this portrayal and its backlash, it will be important to show your respect for East Texas jurors' ability to wrestle with and comprehend your case.

 

 

Lesson 2: Jurors May Think Broadly, Considering Infringement, Invalidity And Damages Together In Ways That Favor The Patent Holder

 

Across multiple mock trials, we found that mock jurors tended to think about infringement and invalidity (and sometimes damages) as part of the same package: In deliberating on one question, they often relied on information pertaining to the others as well. Thus, in considering infringement, some believed that the defendants infringed simply because the patent holder held a valid patent, or was the first to come up with an idea. These basic beliefs often trumped (or took the place of) an infringement analysis involving detailed comparisons of the patent claims with the accused device. When mock jurors relied on the existence of the patent or the primacy of the inventor to support their infringement analysis, the patent holder was given a distinct advantage.

 

In a similar vein, mock jurors tended to consider information about damages as part of their infringement analysis. Upon hearing the defense offer a damages position mitigating the numbers in the event that jurors found infringement, a number of mock jurors believed the defendants were conceding infringement. For example, one mock juror reacted negatively to a defendant's alternative damages number, saying:

 

If I'm certain I'm not guilty, I'm not going to throw out any number for the jury to consider. I'm going to say we're not guilty, the evidence shows we're not guilty, so the only number you need to be thinking about is a big zero.

 

Similarly, in a case involving computer technology the defendant argued that its accused product was only configured to use the allegedly infringing feature 10% of the time. Thus, any royalties should only apply to 10% of the sales of the product. Some heard this as tantamount to an admission of guilt, as illustrated by this quote:

 

At one point the attorney said something to the effect of "if we did, it was only a little bit" and I thought, it's kind of like saying "she's a little pregnant."

 

Jurors' misinterpretation of defendants' alternative damages calculations conferred obvious benefits upon the patent holders/plaintiffs.

 

Lesson 3: Jurors Accord Great Respect To Inventors, Patents And The PTO, And Are Loath To Find Invalidity

 

In our pre-trial research, mock jurors in East Texas cases were both highly respectful and quite protective of inventors/patent holders and their rights. These jurors tended to personalize the cases, framing them as moral conflicts rather than as business disputes. They talked about companies cheating each other (or an inventor) and stealing ideas, and experienced these perceived violations in very personal terms, often talking about how they would feel if this were happening to them.

 

Some became so wedded to the moral dimensions of the conflict that they engaged in their own versions of jury nullification, taking positions that they thought were morally right even if they were unsupported (and unsupportable) under the law. For example, in one mock trial some jurors voted to award damages to the plaintiff even though they had found that the patent was not infringed. They felt that the defendant had used some aspects of the plaintiff's invention, though not each and every element of any of the claims. Nonetheless, these jurors felt, the patent holder should receive some compensation in acknowledgement of the patentee's role in developing aspects of the technology that the defendant ultimately used. One mock juror articulated this sentiment:

 

[The defendant] profited from [the plaintiff's] patent. I do feel that they profited from that; and by doing so, I do feel that they should be entitled to something.

Consistent with the respect and value that these jurors attached to the patents, they also displayed more resistance to the idea of invalidating a patent than we have seen in any other venue. They often began their deliberations on invalidity with blanket statements indicating their reluctance to consider this question, as illustrated in these two comments from mock jurors:

 

It's valid. I don't think we should even argue that point. If the Patent Office gave it to them, it's there.


You can't challenge what the Patent Office does.

 

Some mock jurors were, in fact, offended by the defendant's effort to overturn an issued patent. These jurors perceived the invalidity defense as a cheap trick to distract jurors from the defendant's infringement of a hard-earned patent. For example, one mock juror said:

 

[The defendant] was trying to draw attention away from the fact that maybe they used it and shouldn't have.

 

Jurors' unwillingness to invalidate a patent stemmed from several sources. First, some simply refused to believe that they had the power to do so. At each mock trial, a few mock jurors held on to the belief (despite repeated instructions to the contrary) that only the Patent Office could "undo" a decision that it had made. One even believed it would take an act of Congress to reverse a Patent Office decision. He equated patents with laws and said:

 

Once they get it, it validates. Once it's validated, that's the law. That's what a patent is – a law.

Second, most jurors believed that the Patent Office would not have "gotten it wrong." Partly, these jurors typically lacked the cynicism with which more urban jurors often view government agencies. Documents issued by the U.S. government were assumed to be correct and beyond questioning. Additionally, these mock jurors assumed that the expert patent examiners would have researched the prior art on their own, and would have been sure to have all the facts before allowing the patent to issue. One mock juror expressed this clearly:

 

There's a lot of diligence goes into getting a patent, especially on something like a chip or a circuit board that requires so much technical information. And the United States does a very good job of monitoring it. I mean, that's why very few other countries have patent offices or patent guidelines, because it's very tough and very rigid and strict. And so I think it's a valid patent. I don't think — you know, our country doesn't issue a lot of them that are full of — frivolous or not necessary.

Similarly, another said:

 

If they issued them a patent, they had a reason to do that…They're gonna research that, and they had all the references that went with them, and I feel confident they're gonna research that before they offered it.

This sentiment was generally shared by other mock jurors in the research described here. Furthermore, these jurors believed that once a hard-won patent had issued, it was valid no matter what. This belief was so strong that more than once, we heard mock jurors insist that a patent was valid even though they agreed with an argument that would legally render it invalid. In one mock trial, for example, several jurors agreed that the invention might have been obvious, but nonetheless upheld the validity of the patent. Speaking on behalf of this group, one mock juror said:

 

It's obvious but not invalid…I can't just say I think he has a good patent and then say, "Throw it out."

Lesson 4: "First-ness" Is Important To Jurors, Even In The Face Of Obviousness

 

In deliberating invalidity (and to some extent, infringement as well), mock jurors in our research put a lot of stock in "first-ness." This was a more important concept to them than was non-obviousness or newness. Mock jurors talked about "the race" to the Patent Office, and believed that the first to patent, wins. They held on to this belief even when they thought the idea was obvious. In a mock trial in which the defendant argued for invalidity on the basis of obviousness, a number of people agreed that the idea was obvious because, as the defendant had said, "everybody was working on it." Nonetheless, some credited the patentee/plaintiff with being the first to patent this obvious idea, and thought the patent should be upheld.

 

While some jurors focused on the patentee being first to reduce the invention to practice, for others just being the first to patent was enough. For example, one mock juror said:

 

Everyone has ideas but the one who gets the egg at the end of the rainbow is the one who files the paperwork.

In a similar vein, another said:

 

I don't know the exact rules, is it the idea first or the patent first? I've always heard "first come first served" which is who gets to the Patent Office first.

 

Lesson 5: Jurors Rely On Contextual Factors To Guide Their Decision-Making

 

Largely because of their difficulty in evaluating the case based on technological comparisons, mock jurors looked to other (non-technical) factors for guidance. In particular, they looked to what other companies in the industry were doing. If others were acknowledging using the patent holder's invention, jurors wanted to see the defendants acknowledge this as well. If others were paying large amounts of money for this use, jurors wanted the defendants to do so also. For example, one mock juror said:

 

I just keep coming back to – these other companies have settled with them out of court. They've had two, three companies already pay them off. There's something there. Nobody's going to give you money unless they think you deserve it.

In generalizing from what other companies have done to determine what the disputant parties should do, mock jurors failed to acknowledge fine (or even gross) distinctions between products that would make one product infringing and another not infringing. Instead, they assumed that within a general field of technology, companies should behave in roughly the same manner.

 

Similarly, mock jurors relied on information about how others in the industry viewed the patent to reach their own conclusions about the patent's value. In some cases, they even used this information to infer the patent's validity, as in the following comment from a mock juror:

 

If their patent was invalid, do you really think [Company X, a licensee] would have paid them $13 million for that? No, that wouldn't have happened. It wouldn't have gone down like that.

Conversely, though, some mock jurors used contextual information about the defendant's "usual" practices to infer honorable intent: If a company routinely paid for licenses from others when it was warranted, why would they start infringing now? A mock juror used this argument to support his vote for non-infringement:

 

I don't think [defendant company] feels like they owe him [the inventor] anything, otherwise they would have paid. They paid everyone else. They paid $75 million [to license another technology]! It's not like they can't afford to pay it. They don't feel like they owe it.

Implications for Plaintiffs And Defendants

 

The observations described above have important implications for both plaintiffs and defendants. Here, we offer suggestions to plaintiffs about how to build on their natural advantage in the Eastern District, followed by advice to defendants on how to overcome the unique challenges associated with the District.

 

Advice To Plaintiffs

 

•Feature your patent physically. Show jurors your patent as often as you can, ribbon, seal and all. Reinforce in their minds that it is a piece of property, not just an abstract concept.

 

•Emphasize that you were first. The more you can tell a story of being first – first to conceive of the idea, first to reduce it to practice, and first to file a patent – while you argue that the idea is not simply commonsensical,23 the more jurors' respect for the patent will stand firm.

 

•Show jurors that others in the industry respected – and paid for – your patent. Information about others who took licenses from you should serve you well at trial, enhancing perceptions of both the defendant's infringement and the patent's validity.

 

Advice To Defendants

 

•Make confusion your friend: Suggest to jurors that if they are confused and cannot see a clear match between the patent and the accused device, it is the plaintiff's failure to prove infringement, not the jury's failure to comprehend. We saw this happen successfully in one mock trial, where jurors translated "I didn't get it" into "I didn't see the evidence to prove it."

 

•Pre-empt jurors' tendencies to understand your damages analysis as an offer or a concession of infringement. Acknowledge that some may perceive the defense's analysis as an "offer" or an admission of infringement, but then explain why you are presenting these numbers – and that, in fact, you have a legal obligation to do so.

 

•If you have your own patents, wave them in the air, literally and figuratively. Learning that you have your own patents on the accused technology can mitigate jurors' bias in favor of the plaintiff/patent holder, allowing the benefits of their respect for patents to accrue to you as well as to the plaintiff.

 

•Educate jurors about the legal limitations of "first-ness" in the context of patent law. Explain to the jury that the law – handed down from the Federal Circuit – has changed recently and that being first with something that is only commonsensical is not patent-worthy.24 Even if an idea is new, if it is also a common sense solution to the problem of interest, it does not deserve a patent.25 These days, perhaps because so many people are at work in technological fields, non-obviousness means the most. Then, bring this concept to life with examples.

 

•Take advantage of jurors' tendency to look to contextual factors for guidance. Tell jurors about the defendant's history of paying license fees to other companies when it was appropriate to do so. Emphasize that a company that honors others' valid patents would have no reason not to do so in this case if it were warranted. Actions speak louder than words, and the defendant's actions in the broader industry context show that it is not an infringer.

 

An Overarching Consideration: Jurors Look For Fair And Respectful Behavior By The Parties And Their Lawyers

 

One of the important lessons we learned from the mock trials we conducted, which transcends any particular decisions about trial strategy, was how much importance Texans place on polite and respectful behavior. They deferred to each other in deliberations (sometimes giving in on verdict votes rather than arguing for strongly held positions), they disliked what they perceived as aggressive or nasty behavior by either party, and they wanted to see parties treat each other with respect. Thus, for example, we saw jurors get offended when a defendant proposed a damages number of several hundred thousand dollars for technology for which others had paid tens of millions. People talked about this as an "insult" and a "slap in the face" to the plaintiff.

 

Similarly, jurors were offended when defendants in another case mocked the plaintiff, a small company that never had the resources to develop its patented technology and instead focused on licensing. Jurors in urban venues may expect to see a certain amount of aggressive lawyering, but East Texans do not. They complained that the defense arguments were "nasty" and that the defendant was "bashing" the plaintiff.

 

Reliance on local counsel is particularly important in East Texas, where a kind of self-effacing charm and personal openness are a significant part of their courtroom advocacy. Their manner should set the standard for out-of-town practitioners.

 

Conclusion

 

At the broadest level, our experiences with both mock jurors and actual trial jurors in East Texas cases has taught us that attorneys trying cases in this venue must take regionalism into account. In a region where being nice takes precedence over aggressive business practices or retaining the competitive edge, it is more important than ever to stake out the high moral ground – but to do so without violating the standards of fairness and decent behavior that East Texans will demand of you. You will need to demonstrate your respect for the jurors' intelligence and ability to decide your case, while accommodating to the generally low levels of education in the venue. If you are the defendant, you will need to reckon with the deference to the Patent Office and the great respect accorded to patents and inventors, while empowering jurors to make decisions about invalidity and non-infringement. In either case, the better you understand the regional and cultural factors that play into jurors' decision-making, the better prepared you will be to enhance your natural advantages as a plaintiff or overcome your initial challenges as a defendant, and the better your chances of prevailing at trial.

 

 

Julie Blackman, Ph.D. (jblackman@julieblackman.com) is a social psychologist and the Principal of Julie Blackman & Associates. She has worked as a trial strategy consultant for more than 25 years and has consulted on a number of trials in East Texas. The special concerns addressed in this paper reflect her ongoing commitment to educating jurors in meaningful ways even in complex cases. She believes that trial consultants are ideally positioned to help lawyers become better teachers and that the better teacher wins.


Ellen Brickman (ebrickman@julieblackman.com), Director of Research at Julie Blackman & Associates, has worked in trial consulting since 1987.  Dr. Brickman received her B.A. from Barnard College, and her Ph.D. in Social Psychology from Columbia.  She has extensive experience directing large-scale research studies in the social sciences.  Dr. Brickman has also worked on trials in East Texas.


Corinne Brenner (corinne.j.brenner@gmail.com) graduated from Cornell with a B.A. in Psychology in 2008.  As an undergraduate, she conducted research on decision-making.  She then worked as a litigation paralegal in New York.  Ms. Brenner currently works as a Research Associate at Julie Blackman & Associates.


 

End Notes 

 

1Moore, Kimberly A. (2001, July 24). Judges, juries and patent cases: An empirical peek inside the black box. Michigan Law Review 99. Available at SSRN: http://ssrn.com/abstract=222708.

 

2Beamer, Norman H. & Lee, Janise. (2009, August 17). Freedom of choice. The Recorder 133(158). Available at: http://www.ropesgray.com/files/upload/Article_Freedom_9-17-09.pdf.

 

3Mahmud, Shahnaz. (2006, October). See y'all real soon! Managing Intellectual Property.

 

4Meece, Timothy C. & Medlock, V. Bryan. (2009). Is TS Tech the death knell for patent litigation in the Eastern District of Texas? IP Litigator 15(6), 22-27. Available at http://www.bannerwitcoff.com/news/429/.

 

5Court Marshall: High-stakes patent lawsuits surge in small East Texas town. (2006, April 16). Austin American Statesman. Available at: http://www.tortreform.com/node/219.

 

6Your guide to U.S. patent venues. (2008, September). Managing Intellectual Property. Kauffman, Chuck & Anderson, Casey. (2009, February). Why US juries are so pro-plaintiff. Managing Intellectual Property. Available at www.managingip.com/Article/Why-US-juries-are-so-pro-plaintiff.html.

 

7Levko, Aron, Torres, Vincent &Teelucksingh, Joseph. (2008). A closer look: 2008 patent litigation study: Damages awards, success rates and time-to-trial. Available at: http://www.pwc.com/us/en/forensic-services/publications/assets/2009-patent-litigation-study.pdf.

 

8Levko, Aron. (2009, February 11). 2009 patent damages study: Preliminary results. FTC Panel Discussion. Available at: http://www.ftc.gov/bc/workshops/ipmarketplace/feb11/docs/alevko.pdf.

9Ibid.

 

10Largest patent jury verdict awarded in Texas. (2009, February 11). Managing Intellectual Property Weekly News.

 

11Williams, Sam. (2006, February 3). A haven for patent pirates. Technology Review. Available at:http://www.technologyreview.com/communications/16280/page1

 

12Court Marshall: High-stakes patent lawsuits surge in small East Texas town, 2006.

 

13Frank, Ted. (2008, February). There is a role for Congress in patent litigation reform. American Enterprise Institute for Public Policy Liability Outlook Series. Available at: http://www.aei.org/outlook/27550.

 

14Creswell, Julie. (2006, September 24). So small a town, so many patent suits. The New York Times. Available at: http://www.nytimes.com/2006/09/24/business/24ward.html.

 

15Raymond, Nate. (2008, March 1). Taming Texas. The American Lawyer. Available at: http://www.immagic.com/eLibrary/ARCHIVES/GENERAL/GENPRESS/080301R.pdf

 

16Smith, Michael C. (2009, November 23). Defense verdict in patent case in Marshall; trial stats so far in 2009. Available at: http://mcsmith.blogs.com/eastern_district_of_texas/2009/11/defense-verdict-in-patent-case-in-marshall-trial-stats-so-far-in-2009.html.

Mullin, Joe. (2010, February 17). Not so plaintiff-friendly this time, eh? Google's first patent trial win. IP Law & Business. Available at: http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202443585156&Not_So_PlaintiffFriendly_This_Time_Eh_Googles_First_Patent_Trial_Win

17Meece & Medlock, 2009.

 

18U.S. Census Bureau, 2006-2008 American Community Survey 3-Year Estimates.

 

19Kauffman & Anderson, 2009.

 

20Raymond, 2008.

 

21In 2008, Judge Ward of the Eastern District of Texas issued an order requiring anyone conducting a mock trial in the Marshall Division to reveal that a mock trial was taking place and to provide the names and addresses of the mock jurors. Mock trials had become so frequent in Marshall that the court was too often obliged to excuse jurors for cause because they had been mock jurors for the cases at hand. See Standing Order of District Judge T. John Ward and Magistrate Judge Chad Everingham. (2008, February 19). United States District Court, Eastern District of Texas.

 

22Mullin, Joe. (2010, January 9). Patent litigation weekly: So what do E.D. Texas jurors really think? IP Law & Business. Available at: http://www.law.com/jsp/iplawandbusiness/PubArticleIPLB.jsp?id02437806740.

 

23See Perfect Web Tech., Inc. v. InfoUSA, Inc., No. 2009-1105 (Fed. Cir. Dec. 2, 2009).

 

24Ibid.

 

25For example, imagine a man is raking leaves in his front yard on a windy fall day. He realizes that it is easier to rake the leaves in the direction the wind is blowing. He thinks he has discovered a great idea. However, as he looks toward his neighbors' yards, he sees that they have all had the same idea, and are all raking their leaves in the direction of the wind. (Thanks to Dr. David Albonesi of the School of Electrical and Computer Engineering, Cornell University for this example.)

 

 

Citation for this article: The Jury Expert, 2010, 22(2) 5-15.