Comments on

David L. Schwartz Christopher B. Seaman’s most excellent paper, “Standards Of Proof In Civil Litigation: An Experiment From Patent

Law”

Matthew Sag, Loyola University of Chicago

The Set Up

• Do standards of proof matter? – Important question generally and for patent law– Some evidence in the criminal context– Experiment in civil context.

• Microsoft Corp. v. i4i Limited Partnership – A new intermediate standard for patent invalidity– Will it make a difference?

Clear and Convincing Evidence < Clear and Convincing

Evidence With i4i-type Instruction

< Preponderance of the Evidence:

• Clear and convincing evidence is evidence that shows it is highly probable that the patent was obvious.

• This is a higher standard of proof than a preponderance of the evidence, which means more probable than not.

• However, clear and convincing evidence is lower than the beyond a reasonable doubt standard used in criminal cases.

• Clear and convincing evidence is evidence that shows it is highly probable that the patent was obvious.

• This is a higher standard of proof than a preponderance of the evidence, which means more probable than not.

• However, clear and convincing evidence is lower than the beyond a reasonable doubt standard used in criminal cases.

• The burden of proving obviousness is more easily satisfied when, as in this case, the prior art on which the claim of obviousness is based was not considered by the Examiner.

• A preponderance of the evidence is evidence that shows it is more probable than not that the patent was obvious.

• This is a lower standard of proof than either clear or convincing evidence or the beyond a reasonable doubt standard used in criminal cases.

Measures

• Ultimate decision on invalidity• Level of confidence re invalidity on a 1-7 scale • “How likely do you think Acme’s patent is

obvious” on a 0–100% scale

Clear and Convincing Clear and Convincing with i4i-Type Instruction Preponderance0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

27.1%

43.6%

38.3%

Clear and Convincing Evidence < Clear and Convincing

Evidence With i4i-type Instruction

> Preponderance of the Evidence:

Percentage finding invalidity

WHAT IS GOING ON HERE?

Implications & Extensions

• Effective drafting of jury instructions!• Testing that drafting!

• Will group decision making wash out the outliers?

• What is the effect of different sized juries.

India, Pakistan, U.K., Romania, ItalySpain, Pakistan, Venezuela, Dominican Republic, Nicaragua, Russia, Canada, Macedonia

Clear and Convincing Clear and Convincing with i4i-Type Instruction

Preponderance0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

27.1%

43.6%

38.3%

True U.S. does not seem to make a difference

An Alternative Visualization Using the Raw Numbers

Why did the i4i instruction lead higher rates of obviousness?

Levels of confidence: • C&C skews confident• More of a distribution in POE

All conditions:

Obvious/not obvious very similar in confidence distribution