Having only the district courts will cause more patent overtures----jury bias

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 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 advertised n6 for patent cases and recruited plaintiffs n7 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. n8 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. It is also important to consider the character of much of the patent litigation in America today. A majority of infringement lawsuits are filed by parties that do not practice the invention, and the bulk of this litigation is brought by so-called patent assertion entities. These entities purchase their patents on the secondary market and often receive financial backing from hedge funds and other litigation financiers. n9 Some of the largest investment funds are foreign owned and rely on investors from foreign countries, including undemocratic ones. One might think that such a plaintiff--a foreign non-practicing entity suing an American manufacturer--would cut an unsympathetic figure before a U.S. jury. In some districts, however, patent assertion entities have been allowed to exclude evidence of their identity from the jury. n10 This effectively allows them to invoke the jury's sympathy by falsely implying that they are an independent inventor or an American start-up company. One can hardly criticize a district judge for excluding this type of evidence. Patents are transferrable property, and the identity of the parties is irrelevant to whether the patent is valid. Except that in a jury case, we all know that this evidence does matter. I am not here today to condemn our current system of litigation finance or to second guess whether foreign NPEs should be allowed to sue American companies. I simply to note that given that our system does operate this way--that a majority patent lawsuits are brought by entities that contribute very little to the U.S. economy--it is imperative that we provide American manufacturers with an accurate and reliable system for testing the validity of asserted patents. Unfortunately, recent events have further highlighted the importance of preserving access to PTAB review