Arguing a patent case in court not only requires the ability to win over the jury, but it requires specific knowledge of the technologies involved in the lawsuit. Law360 contacted Finnegan attorneys Gerald (Jerry) Ivey and Erik Puknys to discuss tips litigators should consider when trying to convince a jury of patent infringement.
Jerry, an experienced trial lawyer, noted that it is important for a case to have a central theme and also for it to have an emotional influence on the jury. He said, “From the opening of the case you want to make sure that theme is showcased, that you make promises you can keep, that you give jurors the opportunity to understand that you are excited about the opportunity to share a technology with them.” One tip provided is to teach with empathy and to put yourself in the jurors’ shoes, as they are likely not as familiar with the intricacies of the technology. Jerry pointed out that there have been instances where others have explained a technology at issue and he got lost. He said, “What I try to do is, as a matter of empathy, remember that moment and remember that's exactly where my jury is going to be. And I try to make sure from that moment forward, I bring them along the same way that I needed to be brought along in this process.”
However, it is important to strike a balance between teaching the jurors about the technology without being condescending, while also not trivializing the technology involved. Erik noted that some degree of complexity helps support the notion that your client created something innovative and oversimplifying the technology could work against you on appeal because appellate judges want to see evidence of infringement. He said, “If you don't really have anything there, you just have a lot of hand-waving, that's a lot of money that just went down the tubes.”
Lastly, Jerry suggests using family members and others not involved in the case to test whether the trial themes are compelling and easy to comprehend. He said, “It's important to bring in other people so that we don't get too enamored with our scenario—as I sometimes refer to it with our team, ‘smoking our own exhaust.’”
