There has been a ton of armchair quarterbacking since last Friday’s one billion dollar damage verdict in the Apple/Samsung patent war. While Apple is generally regarded as a high-tech innovator, many commentators take issue with the mechanism by which Apple has asserted their rights. Many uninformed commentators are quick to decry the verdict as an exploitation of a patent system in need of reform. Yet, it is important to note that the U.S. patent system was reformed not even a year ago. The vast majority of legislative changes to U.S. patent laws will only begin to go into effect this September 16th.
Nowhere is the potential for the current AIA reform more clearly pronounced than in the public statements of the Apple/Samsung Jury Foreman.
When interviewed by Bloomberg (link here), the foreman explained (around the three minute mark) that his “aha moment” in assessing the alleged obviousness of Apple patents was when he realized that the Apple software would not work on the processor of the prior art. This is an odd statement considering that the test for obviousness is not whether features may be bodily incorporated into a prior art structure, but rather, what the combined teachings of those references would have suggested to one of ordinary skill in the art. In re Keller, 642 F.2d 413.
It could be that the Foreman was simply being inarticulate in his explanation. However, it seems far more likely that the jury was confused as to a proper obviousness analysis; this is not at all surprising. The Foreman and his colleagues were tasked with an impossibly complex mission: to navigate over a very short period of time, unfamiliar and arcane legal concepts mashed together with complex questions of technology. For this reason, jury verdicts and their corresponding damage awards can be quite the “crap shoot.” Not surprisingly, most patent litigation will settle prior to a jury trial.
After September 16th, defendants will have a choice to continue on to roll the dice at the district court with a jury trial of laypeople, or avail themselves of the new USPTO patentability trials of the AIA. The new trial proceedings of the AIA will be completed within 12-18 months of initiation and will be conducted before the USPTO’s Patent Trial & Appeal Board (PTAB).
Unlike jurors, the decision makers of the PTAB are not laypeople. Rather, PTAB judges are experienced in the application of U.S. patent law and must additionally have an engineering and/or science background. In addition to the established expertise in technology and patent law, unlike the courts, PTAB judges do not accord patents a presumption of validity, nor do they require clear and convincing evidence to invalidate a patent. Indeed, patent claims are accorded a broadest reasonable interpretation at the USPTO, which makes them that much easier to invalidate.
While some will take advantage of the alternative to litigation this September 16th, others will insist that they “save their arguments” for court. As between the two paths, the choice seems rather “obvious” to me.