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Academic patent experts Adam Jaffe & Josh Lerner weigh in to favor patent reform in today's WSJ (subscription required). Mostly, they endorse the consensus reforms represented by currently-introduced legilation, but they also raise the jury question, which is too little discussed:
The reliance on jury trials is a critical problem. The evidence in a patent case can be highly technical, and the average juror has little competence to evaluate it. Having decisions made by people who can't really understand the evidence increases the uncertainty surrounding the outcome. The combination of this uncertainty with the legal presumption of validity -- the rule that patents must be presumed legitimate unless proven otherwise -- is a big reason why accused infringers often settle rather than fight even when they think they are right. Juries are good at making findings of fact about what probably happened. As determiners of issues of scientific causation and complexity -- they stink, turning the legal system into a lottery. This is a significant part of the ever-growing cancer of the tort liability system. Clearly, their role in patent litigation needs reconsideration. There should not be a right to an institutionally incompetent decision-maker.
posted by James DeLong @ 1:58 PM | Patents
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