AIPLA’s Updated Model Patent Jury Instructions Address “Clear and Convincing” Standard of Proof & Streamline Case Citations
At every jury trial involving patent-infringement or -invalidity claims, a judge must tell jurors what the law is and how to apply it when reaching a verdict. In the legal community, patent law is known as one of the most complicated and specialized areas of law, so this is asking a lot of most judges, who have broad and vast legal knowledge, but do not typically specialize in patent law. Fortunately, organizations including the American Intellectual Property Law Association (AIPLA) publish model patent jury instructions. These model instructions are helpful templates that ultimately save litigants and the public substantial resources compared to the alternative, where patent jury instructions would need to be drafted from scratch in every case.
In March 2020, AIPLA published the ninth edition of its AIPLA Model Patent Jury Instructions. Prepared by a subcommittee of AIPLA’s Patent Litigation Committee members, and approved by a vote of the full Patent Litigation Committee and then by AIPLA’s Executive Committee and Board of Directors, AIPLA heavily vetted the updated instructions. AIPLA has made these instructions freely available to the public and federal judges since 1997. The new edition, as well as a redline showing changes made to the previous edition, are freely available on AIPLA’s website.
AIPLA’s Model Patent Jury Instructions are drafted to neutrally explain the law to lay jurors in a manner that does not favor patent owners or accused infringers. The instructions are provided in Microsoft Word format, in addition to PDF format, so that attorneys and judges can easily copy, paste, and modify as needed for a given trial.
Although the updated model instructions closely track the previous edition in almost all respects—because the relevant patent law has remained relatively constant—one noteworthy change in this year’s edition is a new practice note regarding the “clear and convincing evidence” standard of proof that applies to patent validity. The practice note clarifies that:
All of the following instructions use the phrase “clear and convincing” wherever clear and convincing evidence is the standard of proof. To help jurors better understand and apply the clear-and-convincing evidentiary standard, consider substituting that phrase with language including “highly probable” wherever it appears throughout these instructions. For example, the statement, “[The Defendant] must prove by clear and convincing evidence that each asserted claim is invalid” . . . could be substituted with, “[The Defendant] must prove that it is highly probable that each asserted claim is invalid.” Practitioners and courts need to decide, on a case-by-case basis, whether, and if so what, substitute language is helpful.[i]
In other words, this note instructs attorneys and judges that it is up to them to determine whether to phrase the legal standard verbatim or to use additional or substitute language, such as “highly probable,” to potentially clarify it. Consistent with this, the updated model instructions include related minor word changes to instructions that previously used varying terminology to refer to the clear-and-convincing standard of proof.
AIPLA also streamlined its case citations. As with previous editions of its model instructions, each instruction concludes with citations to the most relevant and up-to-date case law on the instruction’s subject matter. In addition to tracking legal developments with new case citations, the new edition includes a substantial reduction in the average number of cases cited at the end of each instruction. This change reflects the goal of simplifying and clarifying AIPLA’s model instructions. It does not reflect a shift in AIPLA’s approach, or sweeping changes in the law. Instead, it flows from the fact that AIPLA updated its instructions regularly over the past 23 years and, in doing so, accumulated a substantial and growing list of cases relevant to each model instruction. Yet, many of those accumulated cases appeared to merely restate established law or apply that law to a novel fact pattern. In either situation, the arguably cumulative case citations did not reflect fundamental changes or developments in the patent law which led to the instructions. Thus, by removing the arguably extraneous legal citations, AIPLA struck a balance between thoroughly citing the chief legal authorities and keeping the document succinct. Of course, regardless of which legal authorities the model instructions cite, attorneys and courts remain free to tailor the instructions as needed.
Other organizations and courts also publish model patent jury instructions. They include the Federal Circuit Bar Association (2016) and the United States District Court for the Northern District of California (2019), which are widely used, as well as the Court of Appeals for the Seventh Circuit (2017), the National Jury Instruction Project (2009), and the Intellectual Property Owners Association (2010, Model Design Patent Jury Instructions).
[i] AIPLA Model Patent Jury Instructions (9th ed. 2019), p. 6.