Working Paper No. 02-06:
Jury Demands: Who's Asking?

Author(s):

Kimberly Moore

Date Posted: 2002

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Abstract:

Despite skepticism regarding a lay jury's ability to comprehend and adjudicate patent cases, parties have increasingly called upon juries to resolve patent disputes. The absence of data on jury demands and their impact on patent litigation has handicapped analysis of reforms aimed at jury adjudication of patent cases. This Article's empirical study on jury demands attempts to correct that problem.

This Article presents the empirical results of an original dataset of all patent cases adjudicated in the two-year period, 1999-2000. It uses party characteristic data and data about the litigation itself to examine two important questions: 1) who is demanding the jury; and 2) what impact this demand has on the litigation. The study measures only perceptions of relative jury bias - i.e., bias relative to a judge's decision-making. For example, even if juries are thought to be biased against foreign corporations, those foreign corporations would still demand a jury if they believed that judges are even more biased against them. This Article does not attempt to prove or disprove the accuracy of these perceptions by looking at case outcomes. Instead, it focuses on how the parties incorporate these perceptions into their strategic decision-making about the case.

If juries seem biased in favor of patent holders, then it should not surprise anyone that patent holders disproportionately request jury trials. Similarly, if juries appear to favor individuals over large corporations, domestic over foreign parties, and local, in-state folk over out-of-state companies, we would expect these characteristics to influence the circumstances in which jury demands are made. By examining these factors I can report how they influence the parties' perceptions of jury competence and bias. Jury demands thus reflect perceptions of the patent process and are useful as a way of gauging that process.