PTAB invalidation concerns are overstated. The Court’s standards are worse.

The last four decades of the development of post-issuance proceedings at the USPTO have also coincided with a shift in how the courts resolve patent cases. As recently as 1978, judges decided over 90% of these cases, but as changes in Seventh Amendment jurisprudence have been absorbed by the plaintiff’s bar, three quarters of patent cases now go before a jury.4

Although district judges’ patent validity decisions have proven less accurate than those made by the PTAB, jury verdicts present even more difficulties. As compared to judges, juries are more likely to favor particular types of parties, more likely to favor the party that initiates the suit rather than the defendant (regardless of whether it is the patent owner or a declaratory judgment plaintiff), and more likely to decide all issues in favor of one party or another rather than distinguishing among the different questions before them.5

Lay juries often find complex technologies inaccessible, and they are notoriously resistant to engaging in an obvious analysis that combines patents and printed publications. Patent validity is just one of several issues before the jury—in addition to infringement, willfulness, and damages—and it is easy to simply defer to the USPTO’s initial examination of the patent. Rather than scrutinize the teachings of the prior art, juries tend to focus on stories about the invention and the parties.

Few things are more dispiriting from a patent policy perspective than watching how skilled trial lawyers prepare for a patent jury trial. There is an enormous focus on narratives and themes, on trying to present one’s own side as the “little guy,” and on uncovering internal communications that can be presented in a bad light and thereby taint the jury’s view

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of all the issues. What is often missing is an analysis of the limitations of the claims and how they are met by the prior art.

Another unfortunate development in patent litigation in recent decades is the rise of the patent magnet jurisdictions. Judges in these courts have actively advertised6 for patent cases and recruited plaintiffs7 to file before them. In their efforts to make themselves an attractive venue for patent plaintiffs, they have also allowed the presentation of jury instructions and arguments that tend to depress the jury’s sense of responsibility to assess patent validity. This, in combination with a routine disregard for Rule 702, has made it possible to seek outsized awards for invalid patents.8

This is an absurd way to run an intellectual-property system, particularly when critical technologies are at stake. In many cases, a PTAB trial is not simply a less expensive or more technically accurate form of validity review—it is the only meaningful form of review.