August 7, 2020

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Considering the Human Elements in IP Litigation

At the heart of intellectual property litigation are people: People who are disputing the uniqueness and similarities of products and trademarks. The dispute is resolved through the decisions made by judges, arbiters, and jurors. These decisions are influenced by the thought process and biases of such individuals.  To increase the likelihood of a favorable outcome for your client, consider the following based on what is known about human behavior.

  • Don’t lose the forest by focusing on the trees.  Focus on the human element as opposed to the technical aspects of the dispute. It provides a relatable context for technically-based decisions.

  • Teach in a story format, using props for demonstrations.

  • Use every day - not technical - language.

  • To deal with complexity, people resort to simple reasoning.  It is important to break down complexity into smaller relatable concepts –concepts that are important to their lives. 

  • In defending infringement, first demonstrate the proper way a patent should be filed to insure a issuance of valid patent.  That paves the road for demonstrating how the patentee in your case missed steps leading to invalidity. You cannot infringe an invalid patent.

  • An individual inventor against a big business accused infringer is a compelling David and Goliath story. Look for and eliminate jurors with anti-big business attitudes if your client is the accused infringer.

  • Innovation and competition are part of the fiber of American values.  Actions viewed as stifling those values are deemed unacceptable.  Thus, companies that develop similar products that are less expensive can be favored in opposition to large businesses seen as controlling the marketplace with higher priced products.               

  • Simplify the complex scientific and technological issues into persuasive arguments by testing your presentation in advance of a Markman hearing. Recruit a sample of former judges or other appropriate surrogates to serve as a focus group.  Their reactions are recorded, quantified, and analyzed.  The results will contribute to the development of particular themes that will resonate at the hearing as well as contribute to the remainder of discovery and trial.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VII, Number 249

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About this Author

Sandra Donaldson, Womble Carlyle Law Firm, Trial Consultant
Ph D

Sandy enjoys a rather unique position in the trial consulting industry.  Holding a degree in Social Psychology, Sandy created Womble Carlyle’s in-house Trial Consulting services in the late 80’s.  A combination of the need for supplying full litigation support services and the demand from clients outside the firm, led a group of medical specialists and Sandy’s trial consulting group to grow these services into FirmLogic – a service of Womble Carlyle Sandridge & Rice.  Today, FirmLogic is a nationally recognized service company for law firms and corporate clients all...

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