Having had some experience in the recent past with the way intellectual property law is handled in the courts, I'm of the opinion that there must be a better way...
Over the past couple of weeks, I've been dragged into a patent
infringement case. I'm not enough of a fool to even try to comment on the
case itself, if for no other reason than that I was a witness and
therefore not able to see any of the proceedings that occurred prior to my
testimony. But I did come away wondering if this was any way to run the
adjudication of intellectual property.
The trial, like most (perhaps all) such trials, was a jury trial. This
meant that the decisions having to do with patent validity, infringement
of any patents, and the penalties that should be paid for any
infringement is decided by eight people chosen from the voting lists of
the area where the trial was held. Of course, the people sitting on the
jury couldn't have a direct connection to any of the parties involved in
the trial, but other than that they just had to be breathing to be part
of the jury.
I actually have great respect for people who serve on juries. They
aren't paid much, they have a lot of hard work to do, and they are
pulled out of their regular lives for an unknown period of time to do
their civic jury. The people sitting in the jury box were clearly
working hard when I was in the courtroom. They took their job
seriously. They did the best they could.
But they were being asked to do an impossible job. The intricacies of
patent law are pretty overwhelming (for instance, you have to prove that
something is obvious, which seems pretty weird to me). And the
technology is subtle, difficult, and not easily understood (much of what
was discussed covers topics I teach in a graduate course at
Harvard). The jurors were expected to understand both the law and the
technology by listening to very selective reports guided by lawyers
trying to make a case in a very artificial environment.
I've seen reports that something like half of the patent cases decided
by a jury are reversed during the appeal process. This means that we
would do just as well if we let the opposing sides present their cases,
make their arguments, and then flipped a coin to decide the
outcome. Whether a jury gets it right (or at least as right as the
circuit court, which hears the appeal, gets it) is random.
It needn't be that way. We could have a process where the court
appointed a special master, someone who knows both the law and the
technology in question, who could try to aid or even make the
decision. The decision could be appealed, but at least the original
decision would be made by someone who had some expertise in the fields
under discussion and would have some chance of understanding the issues
being raised (with any luck, he or she might even understand the issues
better than the lawyers presenting the case).
But this would be a denial of the notion that a jury of one's peers
means just ordinary folk; that you don't need to know anything to make
an informed decision. There are lots of cases where I'm willing to buy
this as a premise-- elections, criminal cases (although the use of DNA
evidence is making this more difficult), and most civil actions. I
actually have a lot of respect for the abilities of the average
person. But when it comes to the intricacies of intellectual property
law, I have my doubts. I think we could do better by realizing that
while we may all be created equal, there are some who have developed
valuable skills that would make the determination of justice more exact.
How has the special master acquired his/her technical knowledge? Their experience has formed along the way: by the stuff they learned and used.
To articulate: now the question, what is your favorite programming language? Would you be willing to vote *against* any stuff you like and have spent many years with it? And don't get me wrong, there has to be a language, algorithm, paradigm, etc. that you like - otherwise you wouldn't be reading this forum.
While I agree that proposing changes in the U.S. judicial system (albeit any U.S. established system) is a sticky subject, nevertheless something must be done. It is a plan fact that some people would much more qualified to hold title as a juror. The idea of the American judicial system is a fair and balanced trial and while they do a juror screening process it is not hard for a racist juror to simply claim he is not. Yet, more importantly the need for more intellectual jurors, who have developed skills that other people have not, is absolute. There truly is no argument against the fact that an intelligent person is more suitable for this job than a complete moron. It seems to me like a clear cut decision, if I was in control it already would be implemented, along with the requirement for all prospective presidents of the U.S. to have PhD's in Political Science or a similar field.
Not to go on a tangent but what is wrong with thinking that the person representing and leading our country should be the brightest.
People might complain that the democratic way is that anyone can "technically" run for president and what about the people who are born leaders but did not have the money or smarts to get a PhD.
I say to that: First you need to have more money to campaign for president than it would take to get 10 PhDs
Second: If you are truly motivated to become this nations leader than suck it up and study all day and night to get that PhD to become President.
*Sorry about the rant it just gets me fired up when I see no-brainer decisions.