Subtitle: Velvin Hogan, We’re Looking at You.
Probably there are many reasons that companies settle with patent trolls, but honestly I think the fear of a jury trial is at the top of the list. Look what happened in the Samsung/Apple
vendetta by Steve Jobs trial. Turns out, the jury foreman would have been good friends with Steve, in that he too behaves out of spite. You get one guy on there who doesn’t disclose his history in voir dire, and you’re sunk. Which begs the question in my mind that, hey, isn’t that juror misconduct or contempt of court or something? Can you really omit relevant facts before you serve on a jury? I don’t think you can. This specific problem with a juror is an anomaly, but it points to one potential issue avoided if you just settle out of court.
Then there is the problem of putting very technical arguments in front of the general public. That’s not a slam on the general public, for I are one of them. Patent infringement trials are fraught with all manner of industry-speak and jargon and terms that people have to look up in order to understand. Or worse, they need the lawyers to explain it them and we all know how that is likely to end up. (Hint: lawyers are terribly partisan explainers, in that they explain only the part of the definition they want you to know, the part that will tip the verdict in their favor.) Unless you just enjoy spending your time reading about the ins and outs of your newest gadget, all that stuff is going to fly over your head. And if you buy into the rhetoric that corporations are E.V.I.L. and don’t deserve to make money, then you’re almost always going in with the attitude that Deep Pockets is wrong and the Patent Troll is right. It’s an easy assumption that is difficult to overcome no matter how good your lawyer is.
The way you stay out of court, the solution the trolls are banking on, is that you’ll settle for their outrageous licensing fees. Increasingly, we see companies go after invalidating the patent with prior art, which is a step in the right direction. I still claim the best solution is coming back at the trolls with all the firepower you can amass via collaborative defense. There is a whole slew of people being sued in Central California by Digitech:
Every single one of those companies ought to pool their resources and fight them. Get in bed with the enemy long enough to defeat the bigger enemy, and see what happens. I’m telling you, you stop bullies by punching them in the nose. Time to take a swing, folks. Or, go to court and hope you don’t end up with someone like Velvin Hogan on your panel.
Irwin M. Fletcher, you choose. (I love that movie.)