In part 1 of this topic, we discussed the concept of juror comprehension and in part 2, we gave examples of juror miscomprehension and covered the ethical question around utilization of miscomprehension. In the final part, we discuss the concept of “differentness” and what jurors believe and comprehend around “differentness”. 

The appearance of “differentness”

In many cases, with complex material, jurors are unable to explain their reasons for finding non-infringement by citing explicit differences between key patent claim elements (or a diagrammed embodiment of the claims) and features of the accused device. Instead, they make comments to the effect of “they’re just different” (or some variation). When it goes the other way – infringement is found in the absence of true comprehension and jurors have found the appearance of similarity or congruence – then the result is often a conclusion that any claimed differences by the defendant “are just tweaks” (and consequently insignificant). In such cases, one side or the other has failed to effectively engineer the appearance of differentness – perhaps because of inadequate graphics, perhaps because of a failure to identify the crucial area of “meaningfulness” ascribed by jurors to the decision, or for other reasons (for example, conduct issues can “color” the determination of “differentness”).

The appearance of differentness is implemented by jurors when they become comfortable with judging (dis)similarity between claim elements and accused devices (infringement) or prior art without being able to explain or justify such judgments in specific or technical terms. Jurors may even be comfortable in accepting that they cannot understand the technology, while at the same time gauging similarity or dissimilarity based on overall appearance. Often these (dis)similarity judgments utilize some degree of comprehension of the functional operation of the technology, but based on their comments, jurors seem to be relying first and foremost on the fundamental conceptual building blocks (usually based on visual features) that they obtain from presentations, graphics, and/or expert testimony, leading to the conclusion that they are “different” (or similar).

But it does something different…

The appearance of differentness may also be regulated by the output or function of the technology. In other words, the output (e.g., optics, digital media, audio technology) generated by an embodiment may appear to vary from that of an accused device, leading to the conclusion of “differentness,” while if such output conversely is equivalent, there may be a conclusion of “similarity” (and therefore infringement). The same can be said for function, ie, how the technology is utilized, what it does, etc. All of this takes place without actual comprehension by jurors of the technology, patent claims, and how they operate. Thus, illustration of function, output and the like can influence infringement decisions in the absence of comprehension.

The resulting tactical observation for litigators with complex material is that it may be most advantageous to accept as a goal the establishment of an “appearance of differentness” (for defendants; similarity for plaintiffs), rather than an operational understanding of the technology among jurors. It is important to note, however, that when we speak of “appearances” we are not necessarily referring to a visual image but rather what jurors believe the technology actually is, for example in terms of its functionality, how it performs its intended purpose, etc. “What jurors believe” in this sense is in actuality a complex amalgam of not only visual appearances but also assumptions that are generated from the nuances of the fact pattern in the case.

As an example, consider a patent on a telecommunications system in which a system is proposed with various relay stations and data correction mechanisms, alleged to have been infringed by wireless telecommunication companies. The patent was applied for in 1996, granted in 2000 and the litigation was commenced in 2011. The diagram of the preferred embodiment shows desk phones connected in an office environment, while the plaintiff is alleging in its claims that the functional operation and processes of the device are equally applicable to wireless networks. Defense arguments that the patent is outdated; solves a problem that no longer exists; and describes technology that is no longer used were found to be effective as jurors gave the diagram of the preferred embodiment disproportionate weight in their inferences as to the scope of the patent. In short, jurors concluded there was no infringement because they concluded that the patent applied only to older office phone systems and not modern wireless networks, chiefly as a result of the age of the patent and the character of the diagrams themselves. These reasons more or less entirely bypassed the true functionality of the invention, that is, the actual nature of how the claim elements read on the accused device.

What happens to actual comprehension?

The relegation of true comprehension from the strategic equation into an esoteric dust bin leaves the natural question, “OK where does it fit in then?” If the litigator is accepting the manipulation of miscomprehension and the establishment of appearances as strategic goals, what valuable time and effort should be spent on teaching jurors the technical details that truly comprise the technology?

Pure teaching is a painstaking and time-consuming process that requires planning and testing beforehand, not only to hit the target but also to know precisely what the target is. For example, a great deal of time might be expended in demonstrating to jurors how a circuit functions, when in reality what may be of more interest to them is what the circuit produces in terms of output. So, the first goal is to find out what it is precisely what jurors need to know, and to fulfill those needs without trying to make them experts in the field.

The amount of literature describing the powerful role of effective graphics in a case is by now well-known among litigators, but it should be noted that, frequently, trial teams may create graphics in one section of the team, and conduct jury research in another, without allowing the two sectors to interact. In fact, the development of effective graphics is an iterative process that requires feedback from mock jurors to ensure the greatest possible impact. Graphics can and should be tested in conjunction with the jury research environment to prove – or disprove – their utility in the case. However, this can only be done once it has been conclusively identified what jurors need to know – versus what they do not need to know – to find for your client.