[co-author: Katerina Oberdieck]
“Just because you came up with something doesn’t mean somebody else can’t come up with it, too. Don’t hate the player, hate the game.”
Juror 12 makes his case: It isn’t fair to protect the Plaintiff’s claimed intellectual property.
“But they were first,”
Juror 17 responds, supporting the Plaintiff. Then, Juror 12 – a 19-year-old male – jumps in again,
“Anyone can come up with this thing, it’s nothing special.”
The mock jurors’ discussion is resolved with the conclusion that if the Plaintiff did not adequately prove the novelty and value of the claimed intellectual property, the supposed innovations cannot be protected by the law. The exchange got us thinking.
What does it take in today’s big data age to prove an idea is novel?
How typical is the 19-year-old’s view about what ideas are and are not protectable?
Who holds a high bar for whether an idea counts as innovative or not? Who holds a low bar?
You want to know whether your fact-finder is inclined to believe in what your client or your opponent call innovations, inventions, or trade secrets. We analyzed our BigJury™ database of thousands of jury-eligible Americans to look for answers.
What Counts As Innovation?
One useful way to assess perceptions of innovation is to ask whether only original and new concepts count as innovation or merging two preexisting concepts can count as innovation. BigJury™ includes data from more than 12,000 mock jurors and potential jurors, and provides the opportunity to analyze, forecast, and apply artificial intelligence to inform questions in litigation. We examined a portion of the BigJury™ sample to determine how members of the jury-eligible population define innovation. Two key factors stood out as most predictive of people’s perceptions of innovation.
Need for Predictability: Higher Need Translates to Higher Bar for Innovation
Some of us have a greater preference for predictability in life than others. Respondents in a 2018 national survey who said that only original and new concepts count as innovation show a higher preference for predictability than individuals who believe merging two preexisting concepts is innovation. People who express this preference are likely to more quickly “seize” and “freeze” on a line of thinking to satisfy their need for predictability. They are also less likely to consider multiple explanations for an outcome and need for predictability is correlated with individual-level traits like authoritarianism and dogmatism and can be induced by situational variables such as time pressure (Webster & Kruglanski, 2011).
Age: Older Translates to Higher Bar for Innovation
Older potential jurors are more likely to perceive innovation as only original and new ideas. When controlling for need for predictability (along with a handful of other variables that did not significantly affect views of innovation, like supervisory work experience), the likelihood that an individual will say only new concepts count as innovation increases by 2 percent for every year increase in age. Our analysis of approximately 300 jurors who participated in mock patent trials also demonstrates that jurors under the age of 35 are more likely to enter deliberations with a defense orientation.
Why does it matter?
After surveying hundreds of federal jury-eligible individuals across the United States last year, 53 percent with a strict definition of innovation favored the claimant in a brief case scenario in which the Defendant corporation sold a product with features similar to the claimant’s for half the price. Only 42 percent who held a looser definition of innovation sided with the claimant. Reviewing these results prompted our curiosity as to how mock jurors, who have the benefit of learning detailed case information presented by trial attorneys, assess invalidity and infringement claims in light of their definition of innovation.
We observed that individuals with a more flexible view of innovation were more likely to find the patent-in-suit valid (60 percent) than those who endorsed a stricter definition of innovation (50 percent). Jurors who accept combinations of concepts as innovation were less likely to find infringement (70 percent did) than those who said only original and new concepts are innovative (81 percent). While these differences are not statistically significant, they are consistent with the pattern of findings informing how jurors’ preexisting opinions on innovation affect their individual-level verdicts.
Older jurors with higher need for predictability present challenges for patent owners and litigants arguing their ideas, trade secrets, or inventions are innovative and deserve intellectual property protection. These jurors are less willing than others to perceive combinations of existing concepts as innovative. Furthermore, jurors who say that a concept can only be innovative if it’s entirely original and new are less likely to favor the claimant on patent validity but more likely to find patent infringement. At the same time, younger jurors in our focus group research are more likely to favor patent defendants.
What Can You Do?
Knowing your venue is essential to intelligent filings and effective advocacy just as ‘know your audience’ is among the most durable recommendations for effective persuasion. Active patent lawyers know the heavy dockets in Delaware, the Eastern District of Texas, and the Northern District of California constitute a substantial share of patent disputes, totaling 47 percent of new filings in 2018 (Lex Machina, 2019). As millennial jurors comprise larger proportions of jury pools, it is helpful to identify those venues likely to be ‘upside down’ with younger jurors.
Age, however, is one among many factors that will affect a given venue. While our research demonstrates that jurors under the age of 35 are more likely to favor defendants in patent cases, it is key to understand other venue dynamics that influence juror perceptions. For instance, while the District of Delaware is the oldest of the three most popular districts for patent case filings, it has the highest rate of defense wins – 44 percent of 102 patent cases tried from 2014 to 2018 (Lex Machina Search, 2019). This underscores the importance of not only examining the demographics of your trial venue, but also assessing potential jurors’ relevant attitudes.
1. Engage a BigJury™ Analysis
Our BigJury™ analytics allow you to pinpoint the major factors we have observed in similar cases and gather new data about your case. We deploy our past observations in similar cases, forecast key questions and predictors for bias against your case, and assess those forecasts with today’s jurors through an online jury research model. The results can include generational analyses, venue comparisons, case-specific feedback, and more. The goal is to evaluate your case-specific issues in the context of what we already know about key questions and venue characteristics to drive venue and discovery strategy early in your case.
2. Consider Juror Questionnaires
A well-constructed juror questionnaire can assess a variety of perceptions of innovation that will inform your case. A thorough questionnaire is not necessarily a long questionnaire. The right approach will be palatable to the judge and include an assessment of only those questions that have proven informative to innovation cases, including items from validated scales such as the Need for Closure scale, Need for Cognition scale, Persuasion Strategies’ own Anti-Corporate Bias Scale, and more.
3. Obtain In-Court Jury Selection Assistance/SMA
Recent Pew Research Center reports show that 82 percent of Americans aged 18-49 use social media. Analyzing a venire’s social media use quickly and efficiently provides insight into the key variables unearthed in our BigJury™ analysis. While age is often a simple finding online, social media analysis can also provide clues to factors correlated with Need for Predictability such as authoritarianism and dogmatism. This, along with the overall value of better understanding your potential jurors and devising a strategy before jury selection begins are effective tools for using what we know to leverage what you do.
Image credit: 123rf.com, used under license