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No way to run a judicial system...
by Jim Waldo
October 6, 2004
Summary
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...

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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.

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About the Blogger

Jim Waldo is a Distinguished Engineer with Sun Microsystems, where he is the lead architect for Jini, a distributed programming system based on Java. Prior to Jini, Jim worked in JavaSoft and Sun Microsystems Laboratories, where he did research in the areas of object-oriented programming and systems, distributed computing, and user environments. Before joining Sun, Jim spent eight years at Apollo Computer and Hewlett Packard working in the areas of distributed object systems, user interfaces, class libraries, text and internationalization. While at HP, he led the design and development of the first Object Request Broker, and was instrumental in getting that technology incorporated into the first OMG CORBA specification.

This weblog entry is Copyright © 2004 Jim Waldo. All rights reserved.

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