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Graphics are critical for patent cases - Judge Ware
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Michael Kelleher

The Need for Graphics in a Patent Trial, and Other Insights from Judges

At the 2014 annual meeting of the San Francisco Intellectual Property Law Association, SFIPLA, a panel of judges shared their experiences and reflections on what works and what doesn't work in a courtroom, and how to connect with juries and judges in patent trials and hearings.

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After deliberations have finished, I’ve seen that the pictures were important to jurors because the whiteboards in the jury room often have the jurors’ reproductions of the pictures and diagrams that the attorneys used during trial. The juries are not writing out the long claims of the patents. Instead, they discuss the case in abstractions using those pictures from trial. − Hon. Paul Grewal

These judicial observations on graphics in patent trials came from a judges’ panel at last weekend’s Annual Meeting of the San Francisco Intellectual Property Law Association (SFIPLA) in Healdsburg, California. As usual, the annual meeting provided wonderful opportunities to learn about recent developments in intellectual property law and to network and relax with leading IP attorneys and judges.

On Saturday, the meeting featured a judges’ panel of current and former judges from the Northern District of California discussing IP litigation. The panel consisted of Senior District Judge Susan Illston, Magistrate Judge Paul Grewal and retired District Judge James Ware (now a mediator at JAMS). Michael Carlson, a patent litigator at Schnader and the Vice President of SFIPLA, guided the discussion.

The judges shared their experiences and reflections on what works and what doesn’t work in a courtroom, and how to connect with juries and judges in patent trials and hearings. In this post, I’m going to share some of those comments. [Note that while I try to be accurate here, and I scribbled notes and live-tweeted during the session, so you shouldn’t consider this post or my tweets as a transcript. For the tweets from this SFIPLA meeting or future meetings, check out]  

The Importance of Visually Explaining Technology in Patent Cases

The panelists stressed the difficulty of understanding patent cases. Judge Ware said that many times, jurors have expressed concern to him about their ability to understand complex technologies. As one way to counter this, the panelists agreed on the importance of using visual aids to help explain patents. The panel’s observations about graphics during the panel included the following:

Both static and moving litigation graphics are very helpful for explaining patents. − Hon. Susan Illston

Images of moving DNA or moving electrons are helpful to jurors to understand these technologies. When your case involves a physical product, bring it in and show the jury. People understand things by seeing them. − Hon. Susan Illston

Juries are good at comparing one physical thing to another, but not as good at comparing the language of a patent to a product or a process. You need to allow them to see it to help them understand. — Hon. James Ware

PowerPoint slides with out-of-context quotes from patent decisions are not helpful. There are so many opinions, and attorneys can find a Federal Circuit decision that say almost anything. Putting those quotes on a slide without explaining the context does not help. — Hon. Susan Illston

In addressing the varying learning styles of jurors, Judge Illston referred back to an excellent session from Michelle Galloway of Cooley LLP that opened the SFIPLA educational sessions at the meeting. Galloway had taught us about how Baby Boomers, Gen-Xers and Millennials differ in how they process and absorb information. Judge Illston picked up on this theme during the judges’ panel, cautioning attorneys, “There will likely be a mix of young and old jurors on your panel, and you need to communicate in ways that each of the jurors will understand.”

Use Tutorials Before Markman Hearings to Educate Your Judge

The judges all spoke of the importance of patent tutorials in which the parties and expert teach the judge about the technology at issue. The judges agreed that tutorials can be enjoyable and interesting for the judges if done well. Judge Grewal likened tutorials to a graduate school seminar with great professors for just one student, the judge.

The judges also cautioned practitioners not to treat judicial questions during the tutorial as positions taken by the judge. Rather, attorneys should remember that the judge is learning, and that questions along the path of learning may or may not reflect what the judge understands after the lesson.

Appreciate Your Jurors, and Minimize the Burden on Them

The system abuses jurors by long time commitments, boring them, and not letting them discuss the case until the end. − Panelist at Judges’ Panel

Each of the judges shared observations on how burdensome trials are to juries, and advised counsel to seek stipulations and other methods to shorten trials and reduce the number and complication of issues presented to jurors.

Judge Illston noted, “Jurors love time limits on patent trials—no juror has ever come up after a trial and said he or she wishes the case could have been longer. Rather, jurors commonly observe that attorneys should move along faster, and that it seemed like the attorneys kept asking the same question over and over.”

The judges emphasized how trials can be confusing to juries, and emphasized helping them understand the process. Judge Grewal noted the importance of constantly reminding jurors of how the next piece of a trial fits into the bigger picture: “Attorneys often forget how hard it is for juries to understand where in the big picture you are—the best lawyers have a map to keep bringing the audience back to how it fits in.”

The panel agreed that shorter trials are generally better, despite the challenges this puts on attorneys. Trial time limits force attorneys to choose their best arguments and evidence rather than letting attorneys fall for the temptation to include everything, no matter how cumulative.

Moreover, the judges noted that longer trials limit the pool of available jurors who can endure an interruption in their lives for the trial, and that this may affect the quality of the jury’s decision-making.

Judge Grewal mentioned psychological studies on cognitive processing, noting that there are limits to how long people are able to pay attention, and that jury attention is more likely to be lost during longer trials.

Juror Hostility to the Patent System

As Robert Stoll, former Commissioner of Patents at the USPTO, observed in another session at the SFIPLA Annual Meeting, there has been a great deal of anti-patent news coverage in recent years, particularly in the discussion of patent trolls. Judge Grewal noted that this sentiment is showing up in juror pools:

Patent juries used to be easy to pick. However, in the last couple of juries in patent cases, potential jurors have brought in very strong biases against the patent system. They have been comfortable voicing that view in court, in front of other panel members. These potential jurors did not want to hear about claims or expert opinions—they believe patents are worthless. Cultural hostility to the patent system is being voiced.

Samples of Patent and Technology Animations:

Cogent Legal was proud to be a sponsor of SFIPLA’s annual meeting. Some samples of patent animation are shown in this video that Cogent Legal displayed at its sponsor table during the SFIPLA meeting:

(Click here to view the video on YouTube if the video does not appear above.)

Support and Follow SFIPLA

SFIPLA, the San Francisco Intellectual Property Law Association, provides the Bay Area with engaging IP programs at SFIPLA’s annual meeting and throughout the year with monthly meetings offering continuing legal education (MCLE). You can connect with SFIPLA at its website,, on LinkedIn, and by following @sfipla on Twitter.

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