The preponderance standard invalidates too many patents

Schwartz & Seaman (2013) also conducted a randomized survey experiment on 500 subjects and gave each subject one of three possible standards of proof: a preponderance standard, a clear and convincing standard, and a unique standard of proof called the i4i standard that is used only in patent invalidity challenges.52The mock case was based on a plaintiff claim that a golf ball patent should be invalidated [*139] on obviousness grounds.53The authors claim that this study was the first to alter the burden of proof in a civil-litigation experiment with a diverse, broadly representative group of jury-eligible citizens.54The results from the survey experiment suggest that jurors are more likely to find patents invalid under the preponderance standard than under the clear and convincing standard, and this difference was shown to be statistically significant.55While 38.3% of the 162 subjects receiving the preponderance standard invalidated the patent, only 27.1% of the 166 subjects receiving the clear and convincing standard invalidated the patent under the same fact pattern.56This represents roughly a 90% increase in invalidity findings by changing the standard of proof from clear and convincing to preponderance.