Populism and Patents


Lawyers and other commentators often remark that American courts, and particularly American juries, are prejudiced against large corporate entities. Existing empirical research attempting to confirm this suspicion is contradictory and suffers from a number of shortcomings. In this Article, Professor Kimberly Moore reexamines the issue by reporting the results of research on an original dataset of over 4000 patent cases and more than 2 million patents. The results cast substantial doubt on the hypothesis that individuals and corporations are treated identically in jury trials of patent property rights. In jury trials of patent cases between corporations and individuals, the individual won 78% of the time, with the large corporation winning in the remaining 12% of cases. Corporations and individuals won at nearly equal rates with judges. Marshaling a range of other evidence, Professor Moore explains that these results may understate the degree of bias, placing a floor but not a ceiling on the impact of anti-corporate prejudice. Although differential case quality may explain some of the win rate disparity it is unlikely to account for magnitude of the difference.

Moreover, analysis of patent cases permits the exploration of related phenomena — the heroic iconization of the American inventor. As the injured tort victim is sympathetic, the American inventor is idealized for her ingenuity, productivity, and creativity. The inventor puts a face on one of the corporate entities, humanizing or personalizing the party. Hence, even in corporate versus corporate litigation, there is an individual component to every patent case and therefore an opportunity for bias to impact decision-making.