Here’s a thought that’s been stuck in my head for the past few days. It would never be practical, but it’s an interesting idea to ponder. David Robinson tells me I’m not the first one to have this idea, either, but anyway…
Consider what happens in intellectual property lawsuits, particularly concerning infringement of patents or misappropriation of trade secrets. Ultimately, a jury is being asked to rule on essential questions like whether a product meets all the limitations of a patent’s claims, or whether a given trade secret was already known to the public. How does the jury reach a verdict? They’re presented with evidence and with testimony from experts for the plaintiff and experts for the defendant. The jurors then have to sort out whose arguments they find most persuasive. (Of course, a juror who doesn’t follow the technical details could well favor an expert who they find more personable, or better able to handle the pressure of a hostile cross-examination.)
One key issue in many patent cases is the interpretation of particular words in the patent. If they’re interpreted narrowly, then the accused product doesn’t infringe, because it doesn’t have the specific required feature. Conversely, if the claims are interpreted broadly enough for the accused product to infringe the patent, then the prior art to the patent might also land within the broader scope of the claims, thus rendering the patent invalid as either anticipated by or rendered obvious by the prior art. Even though the court will construe the claims in its Markman ruling, there’s often still plenty of room for argument. How, then, does the jury sort out the breadth of the terms of a patent? Again, they watch dueling experts, dueling attorneys, and so forth, and then reach their own conclusions.
What’s missing from this game is a person having ordinary skill in the art at the time of the invention (PHOSITA). One of the jobs of an expert is to interpret the claims of a patent from the perspective of a PHOSITA. Our hypothetical PHOSITA’s perspective is also essential to understanding how obvious a patent’s invention is relative to the prior art. The problem I want to discuss today is that in most cases, nobody on the jury is a PHOSITA or anywhere close. What would happen if they were?
With a hypothetically jury of PHOSITAs, they would be better equipped to read the patent themselves and directly answer questions that are presently left for experts to argue. Does this patent actually enable a PHOSITA to build the gadget (i.e., to “practice the invention”)? Would the patent in question be obvious given a description of the prior art at the time? Or, say in a trade secret case, is the accused secret something that’s actually well-known? With a PHOSITA jury, they could reason about these questions from their own perspective. Imagine, in a software-related case, being able to put source code in front of a jury and have them be able to read it independently. This idea effectively rethinks the concept of a jury of one’s peers. What if juries on technical cases were “peers” with the technology that’s on trial? It would completely change the game.
This idea would never fly for a variety of reasons. First and foremost, good luck finding enough people with the right skill sets and lacking any conflict of interest. Even if our court system had enough data on the citizenry to be able to identify suitable jury candidates (oh, the privacy concerns!), some courts’ jurisdictions simply don’t have enough citizens with the necessary skills and lack of conflicts. What would you do? Move the lawsuit to a different jurisdiction? How many parts of the country have a critical mass of engineers/scientists with the necessary skills? Furthermore, a lot of the wrangling in a lawsuit boils down to controlling what information is and is not presented to the jury. If the jury shows up with their own knowledge, they may reach their own conclusions based on that knowledge, and that’s something that many lawyers and courts would find undesirable because they couldn’t control it.
Related discussion shows up in a recent blog post by Julian Sanchez and a followup by Eric Rescorla. Sanchez’s thesis is that it’s much easier to make a scientific argument that sounds plausible, while being completely bogus, than it is to refute such a argument, because the refutation could well require building up an explanation of the relevant scientific background. He’s talking about climate change scientists vs. deniers or about biologists refuting “intelligent design” advocates, but the core of the argument is perfectly applicable here. A PHOSITA jury would have a better chance of seeing through bogus arguments and consequently they would be more likely to reach a sound verdict.
