# Patent Enforcement

## Trial


### Learning Objectives

After completing this section, you will be able to
1. Understand the importance of jury selection and opposing arguments.
2. Grasp why patent trials are often called “morality plays.”
The following describes a jury trial. A bench trial is essentially the same, but without the elements involving the jury.
        See generally, Rules 40-63, Fed. R. Civ. P.
      
    

### Jury Selection

The trial begins with the selection of the jury. The jury is selected (or “picked”) from a group of prospective jurors called to court to serve in accordance with the laws and practices of the local jurisdiction.
Each judge has a procedure for picking a jury. Most involve a questionnaire that each prospective juror must complete and provide to the judge and the parties’ lawyers. The answers are intended to reveal whether any
      reason exists why a prospective juror should not serve on the jury. Typical reasons for excluding a prospective juror include that the juror works for or knows one of the lawyers in the case, works for or does business with one of the parties, has a
      close relative that works for one of the parties, knows something about the subject matter of the case, or is unable to serve because of a disability or a previously planned vacation for which they have already purchased a nonrefundable ticket.
      The judge also typically asks the prospective jurors whether they have a bias or prejudice that would prevent them from making a fair decision.
Once the judge has “excused” from serving any prospective jurors for “cause” (i.e., because of one of the reasons listed above or some other reason that court believes provides good cause for excusing that person), the clerk
      selects at random from the remaining prospective jurors the number that will be seated as the jury, plus six. The number of jurors seated in a case depends on the expected length of the trial and the practices of that judge. At least six and no more
      than twelve jurors must decide a case, but any number between six and twelve can be seated.
        See Rule 48, Fed. R. Civ. P.
      
      The reason a court usually seats more than six jurors is to assure that the trial will end with at least the minimum of six jurors necessary to decide the case even if one or more jurors need to be excused during the trial, such as for illness or
      emergency. Judges typically seat seven to nine jurors for this reason. Only rarely do judges in civil patent cases seat a full twelve jurors, because once seated a juror must participate in reaching the decision (unless excused for cause), and all
      jury decisions in federal cases, including patent cases, must be unanimous.
        See Rule 48(a) and (b), Fed. R. Civ. P.
      
      The general rule is, the more jurors there are, the longer it takes for them to reach a unanimous verdict, and the higher the likelihood that the case will result in a “hung” jury (i.e., an inability for the jury to reach a unanimous decision).
The clerk selects the designated number for the jury, plus six, because each party gets three “peremptory challenges” to the proposed jury panel, whereby a party can remove a juror without having to give a reason why. Thus, if the
      judge has decided the jury should begin with eight jurors, the clerk will select 14 so that the plaintiff and defendant (collectively if there is more than one plaintiff and/or defendant) are each able to strike or eliminate three prospective jurors,
      leaving eight to hear the case.
Once the jury is picked and sworn in, the judge will give the jury preliminary jury instructions. These explain what the case is about, how the trial will proceed, and a description of what a patent is and how the patent system
      works. Occasionally, judges opt to show the jury the video below, entitled “An Introduction to the Patent System,” which was created by the Federal Judicial Center and is intended to be neutral.
        You can see this video at
        https://archive.org/details/gov.ntis.ava21157vnb1.
      
    

### Opening Statements

The next step is the opening statements by the opposing parties, starting with the plaintiff and followed by the defendant. If there are multiple plaintiffs or defendants, the judge will give equal time to each side
      and let the individual parties work out the allocation of time. The opening statement is intended to provide a road map for the jury about what the party intends to prove, and is expected to be devoid of argument. But lawyers rarely present an
      opening statement without some argument. The judge can intercede, and an opposing party may object, if a party crosses the “no argument” line too far.
The opening statements are where many believe the trial is won or lost because the jury forms initial opinions about who is right and who is wrong in the case based on what they hear at this beginning stage. Thus, each party’s
      trial lawyer tries to craft a story to tell that casts their client in the best possible light. Trials can be likened to a morality play, in which each party tries to cast themselves as in the right, and the opponent as doing them wrong. In patent
      cases, plaintiffs often portray defendants as thieving freeloaders, attempting to benefit unfairly from the inventiveness of the plaintiff rather than invest in developing their own products. Defendants, on the other hand, often portray patentees as
      greedy monopolists, trying to stifle competition and deny consumers choice and less-expensive alternatives.
Whether or not the common wisdom is correct, it is with the opening statements that the jurors begin their struggle to find truth among the competing stories they will hear during the trial.

### The Evidence is Presented

The plaintiff then presents its case, calling witnesses and introducing exhibits that support its positions. Each opposing party has the opportunity to object to exhibits and testimony, and to cross-examine
      witnesses. The judge rules on all objections and generally oversees the proceedings to assure that the trial is conducted properly. After the plaintiff rests its case, the defendant presents its defense, again by introducing exhibits and offering
      testimony from witnesses. The trial concludes with the plaintiff calling rebuttal witnesses, who are limited to rebutting testimony from the defendant’s witnesses. Each side usually calls one or more experts to testify on the issues of infringement
      and validity (or invalidity), as well as on damages.
    

### Closing Arguments

After the evidence has been presented, the parties make their closing arguments. Usually the plaintiff goes first, followed by the defendant. The plaintiff has the opportunity to reserve time for rebuttal if it
      chooses. In some jurisdictions, the defendant must go first and the plaintiff next. In this case, the plaintiff has the last word, and the defendant does not have any opportunity for rebuttal.
Closing arguments give each party the opportunity to highlight what they believe is the critical evidence in their favor, and attack the deficiencies in their opponent’s case. It is here that an observer would see the greatest
      geographic diversity in style and practice. Quite apart from the different styles of trial lawyers and judges across the country, jurors in different parts of the country expect different things from trials, and especially from closing arguments.
      Thus, an observer would see a very different “show” during a closing argument in the Eastern District of Texas than in the District of Maine.
After closing arguments are concluded, the judge reads the final jury instructions. These set forth the law to which the jury must apply the facts they determine during their deliberations.
        See Rule 51, Fed. R. Civ. P.
      
    
Thereafter, the jury retires to the jury room, with copies of the exhibits admitted into evidence, to decide the case.

### Deliberation and Verdict

In most patent cases, the jury must answer detailed questions listed in a verdict form, called a special verdict.
        See Rule 49, Fed. R. Civ. P.
      
      These questions typically list the accused product(s) and the asserted claim(s) and require the jury to decide infringement and validity for each claim and accused product separately. If appropriate, the jury may also be asked to decide what damages,
      if any, are to be awarded the plaintiff and whether any infringement they may have found to exist was willful or not.
    
The jury deliberates as long as it takes to reach a unanimous decision on each question. During their deliberations, the jury may ask questions of the judge in writing, which the judge answers after consulting with the parties.
      Should the jury tell the judge that it cannot reach a unanimous verdict, the judge may provide additional instructions and return the jury to its deliberations to “try harder.” Most juries reach a unanimous decision, which is recorded on the verdict
      form and read by the clerk in open court with the parties present.