For all of the hype these days over enormous jury verdicts -- including the record $1.5 billion judgment against Microsoft Corp. in March -- few juries ever decide a patent dispute. The huge stakes and the unpredictability of juries ensure that "most companies choke down some kind of a settlement or licensing deal," says veteran patent litigator Woody Jameson, a partner at Duane Morris in Atlanta. And, of course, the cost of just getting in front of a jury is staggering: A big patent trial now costs each side more than $4 million to try.
These factors explain why there were only 102 jury trials about patent disputes in 2006, out of 2,830 such cases filed, according to the Administrative Office of the U.S. Courts. Jameson, for instance, has won nearly 20 cases on summary judgment in his 19 years as a patent litigator, but he has tried only four cases in front of a jury, including a February defense win for client EarthLink Inc. in federal district court in Wilmington. "In some respects it is mind-boggling" how infrequently jury trials occur, Jameson says.
So when the rare dispute does arrive before a jury, each side must be convinced that it has a decent chance of winning. And what usually tips the scale to the winner? Lawyering.
Because patent trials are rare, the few lawyers who have actually tried patent cases in front of juries are in high demand. Special skills are required: While every trial lawyer has to be adept at building rapport with a jury, patent litigators also often face the difficult challenge of making complicated technology understandable to those six or eight ordinary folks.
Top patent litigators identify three factors that contribute to winning: crafting a compelling story, educating the jury with a high-tech trial presentation and savvy use of local counsel.
