Comment by rudyfink | Hacker News Reader

Comment by rudyfink | Hacker News Reader

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Honestly, I think being a juror in a patent trial is a hard proposition anywhere. Why do I say that:

-The subject matter is likely to be mostly to totally outside of a person's technical depth and factual experience. (Here I try and think if someone asked me to decide some question related to something like advanced particle physics, chemistry, or the tax code).

-There is not that much time to figure out what is going on (these trials tend to last less than a week of 7 hour days).

-There are many different complex topics being addressed in that time span: the patents, what is being accused, etc.

-What is said is being said by competing groups of apparently competent people.

-Those people are saying widely different things about the aforementioned complex subject matter.

-Everything is being said in an extremely serious environment (Federal Court) which lends substantial gravity to each side.

-Jurors are not to consult information beyond what is presented to them in court.

> -The subject matter is likely to be mostly to totally outside of a person's technical depth and factual experience. (Here I try and think if someone asked me to decide some question related to something like advanced particle physics, chemistry, or the tax code).

Not just "likely"; anyone who had such experience would get kicked off the jury.

Nobody on Hacker News will ever get to serve as a juror on a patent trial. (That cuts both ways, though: nobody biased towards patents will ever sit on a patent trial either.)

I think it's worth noting that as a nation we have chosen to be "biased" in favor of patents. A patent is presumptively valid. To find a patent invalid a jury's standard is "clear and convincing evidence." By contrast the standard for infringement is "a preponderance of the evidence."

Its worth noting that those standards evolved when patents were subject to much more intense review by the patent office, and it was (procedurally) easier for the patent office to just reject an application.

One of the easiest potential fixes to the US patent system would just remove the no longer warranted presumption of validity from patents.

"Not just "likely"; anyone who had such experience would get kicked off the jury."

I was disqualified from the jury on a drunk driving trial, because the defense was based in some way on the Breathalyzer and its design or calibration, and I have a BSCS.

And yet if someone is "biased" against murder, they will let you be a witness in a murder trial. Love the legal system.

Murder is criminal, patents are civil. They are completely different, and they absolutely should be.

Absolutely true. However, I think the principle of "innocent until proven guilty" ought to apply in both cases.

I've heard (but you should verify - IANAL) that jurors often err on the side of not sentencing in civil matters.

Judges tend to think that everything should be resolved by the court, after all - they are paid to be there. Jurors tend to think that people should just sort things out without dragging innocent bystanders into a jury box.

Also, people with legal training are taught to think everything deserves compensation, and the only question is who to bill.

agreed, it doesn't seem like it should be a jury trial, but instead should be just a hearing in front of matter experts.

What does joe schmoe know about the nuances around patent law? There is a reason there are lawyers who specialize their entire practice just around patent law.

Experts are employed in most (probably closer to all) patent trials, but they tend to have an offsetting effect (or at least that is the opinion).

I think a system of appointed masters has its issues too. Theoretically, that is the PTOs role right?

The closest idea I've been able to think of is a modification to the jury system so that the base pool that jurors are randomly selected from consists of people with experience in that field. Essentially, the base pool is of persons of ordinary skill in the art. I have no idea how to practically implement that though.

right now it's more of a case of each side getting someone who'll come out and say they agree with them.

> "What does joe schmoe know about the nuances around patent law?"

Just curious--pretty much neutrally curious--do you feel the same way about medicine? Civil engineering?

"What does joe schmoe know about the nuances around prenatal genetic screening?"

"What does joe schmoe know about the nuances around suspension bridges?"

Too much room for bias. Remember, "experts" doesn't just mean people who know to apply heavy skepticism to ignore frivolous patents; it also includes people who wholeheartedly support patents and believe most of them have merit.

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