Juries: The only reason ANYONE understands patent law AT ALL

Apple's recent mobile patent trial victory over Samsung has raised the spectre of justice being done behind closed doors by self-appointed elites. Today, it's the norm for juries to decide patent disputes. Jury trials oblige the parties to speak in plain language. And there's plenty of wiggle room for cantankerous citizens to …

[Anonymous Coward]

Juries are ignorant and kept ignorant

AFAIK, juries are not allowed to ask questions - such as "is that really what the law says?" or "Who's paying this expert witness?" or "What did your last stream of jargon mean in English?". This effectively prevents them from doing their job properly and throws a huge amount of power to - surprise, surprise - the legal professions (including the judges).

One other thing I'd like to see juries doing is being able to financially penalize lawyers for time-wasting. This could be automated by requiring the legal teams between them to pay the jury members at the same rate they are charging their clients ;)

[vagabondo]

Re: Juries are ignorant and kept ignorant

> requiring the legal teams between them to pay the jury members at the same rate they are charging their clients

Brilliant! If only lawyers (including judges) could always be held accountable for their abuses of the legal system.

[Psyx]

Re: Juries are ignorant and kept ignorant

"AFAIK, juries are not allowed to ask questions - such as "is that really what the law says?" or "Who's paying this expert witness?" or "What did your last stream of jargon mean in English?"."

True, but it's the nature of our system of law that cases are *presented* to a Jury, and the Jury decides, rather than in Roman Law, where it's inquisitorial.

"This could be automated by requiring the legal teams between them to pay the jury members at the same rate they are charging their clients"

Thus further penalising the poor plaintiff and allowing the law to be purchased by the highest bidder.

Bad idea.

Personally, I don't think it should have been a jury trial, based on experimental evidence.

US trial by Jury: Massive over-complex case which resulted in an ill-thought-out result, which was never really explained or needed to be justified by the jury.

UK trial presided by judge on the same subject: Less complex case which resulted in a reasonable finding which was then written up and explained in detail by the judge, who could also use that judgement as a platform to criticise the time-wasting of the lawyers.

[Schultz]

Re: Juries are ignorant and kept ignorant

Not so, the successful lawyers and the experts they bring in will spend a lot of effort to explain their case to the jury. If they fail to do so, they probably loose the case.

I don't think the problem is created by judges or juries, the problem is one of the law and must be rectified by the legislative. Anyone up for an election?

[Marshalltown]

Re: Juries are ignorant and kept ignorant

The handy aspect is that both opponents are in the trial to win. That means that in a technical dispute - and the Apple/Samsung battle really wasn't - the opponents are often at pains to make sure that their opposition's jargon is translated into "plain language" for the jury. This means that the best strategy for a plaintiff is insure that they supply the plain language translation rather than their opposition.

[veti]

Re: Juries are ignorant and kept ignorant

Not entirely true. Juries are allowed to ask questions (through the judge, who is expected to frame it in somewhat more diplomatic terms than you just described).

But they rarely do so, for several reasons. Many may be intimidated by their surroundings, and afraid to confess ignorance. Many more may be simply bored with the whole process and want to get it over with. And quite a few probably don't even know that they have the option - AFAIK there's no procedural step that explicitly tells them how to do it.

[hammarbtyp]

Legal not technical

From what I understand from Groklaw et al is that the issue wasn't so much that the Jury did not understand the technical issues but instead the foreman of the jury instead decided to apply his own definition of prior art rather than the one laid down by the law. The real danger is(and why these things get appealed) is that the jury uses some sort of bias to make judgements contrary to the law.

While(in the UK anyway) judges ruling can set precedent and law, I'm not sure we want to get into the situation where juries do

[JEDIDIAH]

Re: Legal not technical

It also didn't help that Samsung spectacularly failed at the Vor Dire process and allowed a wannabe patent troll to be on the jury (and foreman no less).

This is a guy that captures everything that is wrong about the Patent system in the US.

[Anonymous Coward]

"Today, it's the norm for juries to decide patent disputes"

No, it's not. In fact, it's unique to the US patent system.

The 'spectre' firmly hangs over ill-informed juries incapable of assessing the subtleties of competing technologies in regions of the US deliberately selected for their pro-US partisan leanings (such as the East Texas, which would otherwise appear an odd choice for a Californian company to sue a Korean competitor).

The better option *is* a group of 'self appointed elites' if the appointment process is rigourous and fair - and in morst of the rest of the world, the appointment to act as a patent attorney, barister or Judge is not a trivial one.

Patents represent the interface between law and technology, and hence also the interface between two sets of exclusionary languages. It should not be surprising that skills in understanding both (whether for software, mechanical engineering, chemistry or biology) is going to be a fairly rare combination, and not one that should be regularly entrusted to the courts - or the quoted opinion of any particular non-practicing academic.

In short, the article is almost wholly wrong in every respect.

[nichomach]

Re: "Today, it's the norm for juries to decide patent disputes"

Well said; the recent example of the runaway foreman making up his own (inept) definition of prior art on the hoof being a damned good example of why.

[vagabondo]

Re: "Today, it's the norm for juries to decide patent disputes"

The better option is a patent office that acts in the public interest, and if necessary can provide unbiased expertise to the courts. The essential problem is that patent offices have essentially been prvatised, and are run as profit centres rather than providing a public service.

The courts require professional technical experts acting honestly, and not primarily for the protagonists. Lawyers and experts should face perjury charges when they act dishonestly.

[P. Lee]

Re: "Today, it's the norm for juries to decide patent disputes"

If the law cannot be explained in terms that those subject to that law can understand, you need to ditch the law.

It is utterly inappropriate to suggest that we should be governed by laws that we have no hope of understanding.

If there was a problem with an inaccurate understanding of the terms, time should have been set aside to explain clearly what the concepts mean and there should have been some concept checking to make sure the jargon is understood. The meanings should have been gone over again before the jury retired. The judge should have ensured this and should have noted use of jargon and pulled up the lawyers when they used it and made sure both sides agreed on the definitions - perhaps keeping a "cheat-sheet" available to the jury. We don't need to switch to an inquisitorial system for this, this is what the judge is for - to make sure things are conducted properly.

There will be times when justice is not well-served by jury trial and a "better" outcome could have been achieved some other way, but a jury trial is the mechanism by which the people keep control of the legal system. That is far more important than this one trial.

[nichomach]

Re: "Today, it's the norm for juries to decide patent disputes"

The problem is that the jury in the Samsung case was provided with extensive, clearly written instructions as to the law; it wasn't a jargon problem - they simply elected not to read or elected to ignore the direction that they received, largely at the instigation of one man with a vested interest in a particular definition of IP.

[Anonymous Coward]

the party of the first part...

"Parroting technical language can obscure an inability to grasp the full meaning and implications of an issue."

Ha ha ha ha, are you telling me that lawyers are going to start speaking standard English or (insert local language here)? Or did you just say that lawyers don't understand much more than interpretations of laws?

[Charles 9]

Re: the party of the first part...

The point is that legal jargon and technical jargon are just that: jargons meant exclusively for those "cliques". They're not meant to be interpreted outside their specific cliques, and it's been that way for centuries. IOW, they WANT to make the stuff as hard to understand as possible: it means job security to them. The problem is that patent law has to necessarily mesh these two together. The results usually aren't that pleasant, and not enough people are happy for any one solution to be embraced.

[The Mole]

Re: the party of the first part...

No, the point of jargon is to provide a single word/phrase to replace a generally complex concept that otherwise could only be said in multiple sentences - often that concept could be phrased in multiple different ways which may not be immediately self evident to actually mean the same thing. They therefore exist to improve the efficiency and accuracy of communication between people who are knowledgeable in the subject.

They also have a benefit to new comers to the subject as the jargon word can simplify and hide complexities and details that the full definition may need to touch upon. Most novice programmers will know what a procedure or function is. Trying to provide a concise but accurate description of it may be harder - particularly one that won't be criticized (or potentially misunderstood) by experts who understand more of the subtleties and differences in low level implementations.

It can be misused to try and exclude people but generally that is an issue with people not being prepared to explain and support new entrants to the field - getting rid of the jargon isn't actually going to help that.

[Psyx]

Re: the party of the first part...

"are you telling me that lawyers are going to start speaking standard English or (insert local language here)? Or did you just say that lawyers don't understand much more than interpretations of laws?"

You laugh, but our legal system is MUCH less reliant on Latin maxims than others. In fact, there were concerted efforts a couple of hundred years ago to move away from the use of Latin, and back to a purer Common Law system.

And every clique has it's argot that is foreign to outsiders, so let's not -as techies - even TRY to get on that high horse. It's massively hypocritical to do so.

[John H Woods]

Democracy...

... is a useful tool against totalitarianism. For almost everything else, especially informed decision making, it is useless. Would you rather your doctor, your surgeon and your consultant discussed your medical care, or do you just want a straw poll of the waiting room?

[Fibbles]

Re: Democracy...

"Democracy... is a useful tool against totalitarianism."

It's a preferable alternative but it does not prevent against totalitarianism. How many dictators have been voted into power over the years?

[I think so I am?]

Never

Juries don't understand most of what is said by lawyers. No SHIT.

[Steve Knox]

Translate me a Spaceship

"The goal should be to encourage translation of scientific terms into understandable concepts, rather than to indulge jargon by creating its own forum."

This sentence underlines the assumption in the entire quote in the article, and the wishful thinking in the article itself: that you can translate highly technical information into plain language, which non-experts can absorb and understand within the time span of, e.g, a jury trial lasting less than an year, without losing some important detail.

That is absurd on its face.

[Sean Baggaley 1]

Re: Translate me a Spaceship

Bullshit. Stop assuming everyone is a feckless imbecile unless they have a beard and a pocket protector. All you need to do to fix the 'problem' is to ensure that a jury of my peers comprises people with a similar level of intelligence and skills.

[Gorbachov]

Re: Translate me a Spaceship

"All you need to do to fix the 'problem' is to ensure that a jury of my peers comprises people with a similar level of intelligence and skills."

So, you are advocating a 'self-appointed elite' approach then.

[Michael Wojcik]

Re: Translate me a Spaceship

All you need to do to fix the 'problem' is to ensure that a jury of my peers comprises people with a similar level of intelligence and skills.

I'd be interested to hear your proposal for ensuring that.

I'll also suggest that an at least equally important qualification for a juror is a willingness to perform the required intellectual work. Plenty of people are both intelligent [1] and skilled, but uninterested in performing intellectual labor outside a narrow field of interest. When it's Not Their Problem, they're happy to delegate to their inclinations, prejudices, visceral reactions, and environmental cues (particularly the direction of the group).

[1] Insofar as that adjective has any meaning, that is. Here we might take it as "capable and willing to make a sustained, productive effort at considering at least some lines of thought".

[Fibbles]

Re: Translate me a Spaceship

"Er, a drawer about a hundred yards longs has just slid out of a box about fourteen inches square," said Moist, in case he was the only one to notice.

"Yes. That's what happens," said Ponder, as the drawer slid back about half way. Its side, Moist saw, was a line of drawers. So drawers opened... out of drawers. Of course, Moist thought, in eleven-dimensional space that was the wrong thing to think.

"It's a sliding puzzle," said Adora Belle, "but with lots more directions to slide."

"That is a very graphic analogy which aids understanding wonderfully while being, strictly speaking, wrong in every possible way," said Ponder.

Adora Belle's eyes narrowed. She had not had a cigarette for ten minutes.

Reducing complex technical information into 'plain English' inevitably means using analogies and and lies to children. Should we really be giving lawyers even more wiggle room with the truth?

[Tim Parker]

The majority is always wrong

"the minority is rarely right."

Ibsen had a way with words, some of them i'd even go along with - this for instance...

"It is inexcusable for scientists to torture animals; let them make their experiments on journalists and politicians."

[Anonymous Coward]

Patent and copyright laws ain't that complicated

In my personal experience - and I ain't a paid liar, patent and copyright laws are not that complicated. What I find is paid liars want to "interpret the laws" to suit their needs and that of their client - if they actually give a damn about the client.

Many large companies knowingly violate patent laws for profit just as Intel and Microsucks routinely violate anti-trust laws for profit. Until the fines and punishment is at least ten times the revenue generated by these criminal acts, these companies will continue to violate law - for windfall profit.

[Anonymous Coward]

Professor of law in shock should-stick-to-teaching-law blunder

"The goal should be to encourage translation of scientific terms into understandable concepts, rather than to indulge jargon by creating its own forum"

A patent is a (technical) disclosure necessarily concerned with (technical) subject-matter and addressed to relevant skilled (technical) persons (scientists, engineers, chemists, etc. practicing in the field of art concerned by the patent).

The very reason why -unlike the rest of the legal profession (pretty much all of it, anywhere)- 99.99% of patent attorneys (who draft and prosecute patent applications) have acquired degree-level technical background and qualifications, and used them in anger in industry, prior to entering their IP/legal professions. In that context, I will refer redares to AC's comments of 13:07 above, which are absolutely on-the-ball.

Trust a US Professor of Law, unschooled in technical matters, to opine in favour of jury-based litigation in all contexts, and to have an oblique stab at patent professionals (that breed of legal peers which must still be oh-so-incomprehensible to him, just like to most other legal professionals unschooled in technical fields).

[Anonymous Coward]

I'm a little bit puzzled here.

According to what Mr. Orlowski is saying at the end of his article, criminals should also be judged by their peers instead of being judged by honest law-abiding people like us who have nothing to do with crimes.

Also following his logic, a neurosurgeon preparing for a difficult intervention should go out in the street and pick up members of his team preferring especially those who have no medical knowledge or training.

No, sir, I have no bloody legal training or knowledge so don't ask me to judge if someone is right or wrong, thank you very much.

[Psyx]

Re: I'm a little bit puzzled here.

"No, sir, I have no bloody legal training or knowledge so don't ask me to judge if someone is right or wrong, thank you very much."

Don't be puzzled.

Because you put your finger on the very CRUX of our legal system, and what is great about it:

You - the man in the street - SHOULD be the judge of right and wrong. You ARE the judge of right and wrong.

The law should follow the actions of a fair and reasonable person. Explicitly, the law is in the hands of the common man, and should not be doled out by someone who needs years of training and who is restricted to following maxims and rotes.

Even Judge Baliss' mentioned this in his recent judgement, explicitly citing that he felt that a man on the street who was buying a Tablet could tell the difference between tablets by appearance, and was not an idiot who just saw a rounded rectangle.

[Craigness]

Re: I'm a little bit puzzled here.

The law should be written by the man in the street, but cases should not be decided by people who are unable to apply the law properly. In the Apple/Samsung case prior art should have played a part in Samsung's defence, and any layman would be able to work out that prior art should be part of the relevant law. But the jury dismissed the prior art on the grounds that Apple's code would not run on the example hardware, which is ridiculous.

Samsung's code would not run on Apple's hardware, but that didn't seem to matter when infringement was being decided. A layman would write the law such that if something works differently to what is described in a patent then it does not infringe that patent. Samsung demonstrated that their software doesn't identify a multiple-point contact and decide to zoom rather than scroll, which is a feature of Apple's protected technology (in Android you can scroll by accident whilst you're zooming). But those applying the law in this case were unable to judge that specific technology even though they would probably be able to decide in general terms whether something is infringing, and write the law they failed to follow.

We need experts in these cases if there is to be a just outcome.

[Anonymous Coward]

Re: Psyx...

I'm puzzled as to what your reply would be if the common man decided to make it law to string up anyone with the forum name Psyx? For those reasons, most law is not really decided by the individual, but by someone/something else.

[Psyx]

Re: Psyx...

"I'm puzzled as to what your reply would be if the common man decided to make it law to string up anyone with the forum name Psyx? For those reasons, most law is not really decided by the individual, but by someone/something else."

Deciding what laws exist is a completely different thing from deciding if a law has been broken, or if they are guilty.

The man in the street can't decide to string up someone called Psyx mainly because Juries don't have anything to do with sentencing. Only guilt or innocence.

The essence of the law is set by Statute or is inherited by past court rulings. That is: Someone else decides what the law *is*, and then it is enacted in a reasonable manner, based on the current circumstance. If that specific circumstance has been encountered before and is applicable, then the court uses the Precedent of that case in order to reach a decision, or be guided by it. If there is none, then the court decides on a reasonable course of action.

Rather than simply taking my word for it, have a look at the history of our legal system. It's kind of important to understand the legal structure of the country that you choose to be a citizen of. Then if you do not agree with it, you can attempt to do something about it, and at the very least you are somewhat more informed of your Rights.

[Anonymous Coward]

Re: Psyx...

Still problematic to me. I could see problems where others get to decide if someone is innocent or not by random poll (a jury)? You do hope they are not bias against people called Psyx, else who knows, they could say your guilty because they don't like the look of you. Them being "common" and you being an outsider and all. Your in court accused of something, you must be guilty.

[Anonymous Coward]

@Psyx - Re: I'm a little bit puzzled here.

First of all, as a person who has spent a half of his life under a communist regime I find it extremely disturbing to discover they used to serve us the same kind of nice talk you're mentioning here.

Now regarding the common man in the street being able to judge right and wrong, that was feasible at a time when the worst possible offense was stealing a horse or quarreling about few strayed cows.

[Psyx]

Re: @Psyx - I'm a little bit puzzled here.

"First of all, as a person who has spent a half of his life under a communist regime I find it extremely disturbing to discover they used to serve us the same kind of nice talk you're mentioning here."

Except the difference is that this nation's entire judicial system is based on Common Law, not Civil Law; as yours was. The two are entirely different. Civil Law is all about inquisitional trial, ruled by a judge whose hands are tied by maxims, rotes and very specific courses of action. This country works on the basis of a judicial system that is not shared by any ex-communist country, nor indeed most of the rest of the world. It is based on a group of people coming together and deciding what is fair, guided by the judgements of their predecessors..

"Now regarding the common man in the street being able to judge right and wrong, that was feasible at a time when the worst possible offense was stealing a horse or quarreling about few strayed cows."

That's not true at all. Granted: This particular case should have been heard by a judge (as per my comment elsewhere on this thread praising the Judgement of Judge Baliss in comparison to the farcical US jury trial), but the man on the street generally has a pretty good idea of what is right and what is wrong.

Essentially, with your statement, you are just singing the praises of the legal system of the country where you used to live. I disagree with that system. The essence of our system is that judgement is NOT handed down in some arcane manner by an expert, reading from a book.

If you don't believe that this country's legal system is different from the one that you used to live under, then I heartily recommend looking into it. It is crucially important in my mind for people to understand the foundations of a nation that they live in, or order to understand and either accept or to elect to protest.

[Pete 2]

Behind closed doors

Juries always make their decisions (or choose which side they like best) behind closed doors - though in some countries they're allowed, or even urged, to blab about it afterwards. So the process is already shielded from scrutiny.

As well as these highly publicised patent trials (really? is a legal process the best way to adjudicate on a spat between two sets of geeks?), fraud trials come under criticism for exactly the same reasons - they're too complicated for the man on the Clapham omnibus to understand.

For both these sets of disputes, it does seem sensible for some sort of tribunal of experts to form a coherent opinion, rather than for the great unwashed to randomly spit out legal precedents. "Ordinary people" are great for "ordinary" crimes against the person: burglary, hitting people, etc. , but for plumbing the depths of arcane points of dubious laws, nothing beats the considered opinion of people who know what they're talking about.

Now, how to find 12 techies who can agree amongst themselves about *anything*

[Psyx]

Re: Behind closed doors

"Juries always make their decisions (or choose which side they like best) behind closed doors - though in some countries they're allowed, or even urged, to blab about it afterwards. So the process is already shielded from scrutiny."

Correct. Whereas judges have to publish their judgements in court records.

Personally, I believe that juries should have to put their reasoning down as a matter of public record, too.

[paul derry]

I respectfully disagree :-)

I normally agree with you, Andrew, but I think you have got this one wrong. I am qualified to comment as a UK and European patent attorney, with 18 years experience of procurement with a little contentious work.

Before I start, I should say that you probably meant to qualify your statement “it's the norm for juries to decide patent disputes” with “in the US”. The statement is not true for most other jurisdictions.

I would argue that the fact that patent cases are tried by juries is one of the factors by which patent litigation in the US is as awful as it is (others include triple damages for wilful infringement and the fact that the winning party cannot claim their costs from the loser).

Trial by jury introduces a randomiser and makes it less likely that the ‘right’ party will win. Juries are a randomiser because they have to decide on issues that they don’t fully understand, or in some cases don’t understand at all. These issues include technical issues and legal ones. Some of this stuff is really hard to get to grips with, and the less you understand it the more likely you are to make the wrong decision. The process is randomised further because the parties can deselect potential jurors. If you have the weakest case, you deselect the smartest jurors (a US attorney told me that this a commonly used strategy).

Trial by jury increases costs. If you have to spell everything out in court in plain English to lay people (some of whom will not be the sharpest tool in the box), attorney time and court time goes up. This increases the costs for everyone. And you don’t get your costs paid by the loser when you win.

In the US, judges overseeing patent cases may not have any technical expertise. In other countries, they often do. In other countries, judges can appoint technical advisors to help them with the technical issues. This happens quite a lot in the UK.

In the US, judges overseeing patent cases may not have any experience of patent law. Experience counts for a lot with patents as with most complicated things, and it is only with experience or a very very sharp mind that you will be able to see the interplay between various (often individually tricky) issues. In other countries, patent cases are decided by specialist patent (or general IP) judges.

If your judge is experienced in patent cases and has technical expertise and/or an advisor that does, they are going to come to the ‘right’ decision more often than a jury. If the court is going to come to the right decision, the wrong party will settle. If the wrong party might win, the case will proceed further and is more likely to go all the way to trial. If the wrong party is bigger than the right party, bullying through (ab)use of procedure is almost inevitable.

The thing that bugs me the most is the way the various ‘features’ of US patent litigation work together such it is cheaper to settle than it is to win at trial. Non-infringers and infringers of invalid patents thus pay patentees when they shouldn’t have to. The balance really does swing in the favour of patentees, especially against SMEs. Thus, patent trolls are very successful. They would be less successful if patent trials were not jury trials. They would hardly succeed at all if there were no triple damages and the loser paid the winner’s costs.

And this is not even going into the issue of calculating damages …

[Charles 9]

Re: I respectfully disagree :-)

Then how do you deal with single points of failure inherent with using a judge? IOW, how do you control corruption that can go all the way up the chain unless you use random laymen from the street who are the most difficult part of the court to corrupt (because there is not enough advance knowledge of them to lean influence)?

[DragonLord]

Re: I respectfully disagree :-)

@charles - I suspect that they rely on 1) uninterested 3rd party - i.e. the judge 2) the fact that this is 1 case in the entire lifetime of the judge - which is a job where reputation is very important 3) the cost to the system for corrupt officials when they're found out.

[disgruntled yank]

juries and jargon

Juries are an excellent political tool: to pervert justice, you have to corrupt a jury pool rather than just the bench. As an administrative tool, they have their drawbacks, for criminal and civil trials both. The noted American judge Learned Hand said that in his worst nightmares he was the defendant in a trial by jury.

Jargon has its uses in many fields. Where would techies be with "normalize", "initialize", "parameter" and innumerable other such words that have a clear meaning in their context but are barbarous to the outsider's ear? Certainly it can be abused.

[Flocke Kroes]

Why do we have a patent system at all?

Juries or patent specialists, ignorance or mallice, who do you want to be trolled by?

[Charles 9]

Re: Why do we have a patent system at all?

Then how do you encourage innovation without some kind of incentive? Money alone won't suffice since without legal protection you're bound to get copycatted.

[Lars]

The Jury

Help me out, but I wonder how many countries have this "jury" system. Is it an Anglo-American system only.

I did like the "Twelve brave men" film, (where were the women) very much and I know at least every second film ever made in dear USA is about a jury. But the end, as mostly, in the USA, is a happy end. The innocent are always cleared and there are happy faces and a lot of nice, heart stopping tears, running down both old and yuong cheeks. I cannot remember one single film where the jury was wrong. (perhaps my memory is bad).

I also find it very revealing that the innocent are apart from happy also very surprised.

Just bury the jury even when dealing with people, especially when dealing with well known sportsmen.

Anyway, how the hell could we expect anything more than a 50/50 chance of justice dealing with patent questions bye any jury. And I think the answer to this is that a fifty fifty chance to win is exactly why cases are brought before a jury in the USA. Just look a SCO, the jury was their only chance to survive. (many thanks to the jury in this case, and many more to Groklaw).

Still the real rascal is the office granting all there patents accepting absolutely anything without doing anything to check prior art and demanding absolutely nothing like a working example. All that is needed i a text and perhaps some sketch.

If you add together all the software patents granted to big companies each year I think 99% is absolute rubbish.

The only software I remember since 1968 worth a patent was VisiCalc, and there was "some" prior art even to that, still. In those days VisiCalc was not considered patentable. Patent lawyers have since then seen the light , unfortunately.

What about relying a bit more on all this "forensic" stuff we are given to day, choked with, hats and coats.

[veti]

Re: The Jury

Actually, quite a few countries use juries in at least some cases. And not just the usual suspects (USA, Australia, Canada etc.) who inherited the idea from English common law: they also exist in various forms in places such as Norway, Belgium and Brazil. (Check out the Wikipedia page on 'Jury' for references.)

Many other countries, including Italy, Germany and France, also have provision for lay people to have a role in deciding cases alongside trained judges - a watered-down version of the jury idea.

Of course 'Twelve Angry Men' has a happy ending. (The original play was written in 1954, so the women were in the kitchen, obviously.) How many police shows do you see in which the cops fail to catch the criminal, or fabricate evidence to fit up the wrong suspect? If you judge reality by Hollywood standards you will be disapponted, period. In that respect the legal system is exactly like every other part of life.

As for the jury being wrong - how would you know, if the film ends with the end of the trial? That wouldn't come out until years later, in the sequel. But you could try checking out the 'miscarriage of justice' film genre, which is pretty healthy in its own right. (e.g. 'The Fugitive'. See also 'Runaway Jury'.)

[Psyx]

Re: The Jury

"Help me out, but I wonder how many countries have this "jury" system. Is it an Anglo-American system only."

It is an English system that has been inherited predominantly by nations descended of colonised by the UK.

It is known as Common Law, whereas most countries utilise what is known as Civil Law.

The essence of it is that law should be in the hands of reasonable people and decided on circumstance, rather than by some arcane figure whose hands are tied by specific practices and maxims. (qv Roman Law).

It's a good system, in theory.

[Mike 16]

Tech vs Legal jargon

I assume from the comments that many have not actually read any patents. They are most definitely not written in Tech Jargon. They are written in their own special dialect of Legal Jargon. I can barely recognize the inventions at the base of my own patents, so what hope does a jury of non-patent-lawyers have?

And yes, it doesn't help that juries are expressly forbidden to use anything that they know independently of the testimony. That leads me to wonder how one could inject his own definition of "prior art". In theory, you are not even allowed to know that the sun sets rather later than 6PM in mid-summer, if neither side introduced that in testimony

[Anonymous Coward]

Re: Tech vs Legal jargon

This is precisely why UK juries are not permitted to talk about how they came to their verdicts, while the judge makes every effort to sum up and explain the points of law that are relevant, once you're in the jury room then other things are considered because it's essentially impossible to ignore aspects of reality that apply but were not mentioned in court.

Fortunately this allows juries to make sensible and pragmatic decisions even when the expert witnesses and the lawyers have tried to steer them in a direction because they're being paid to do so.

[Pat 4]

Not even related.

The problem with patents, and more specifically software patents is that the patent system is broken. Patents are issued without being checked, granted for completely trivial things, prevent incremental improvements, are used to keep competition out and stifle innovation, are not examined for prior art, are too difficult to invalidate, are granted on very vague and wide encompassing concepts, are granted on concepts and algorithms, are owned by companies who do not actually produce anything but lawsuits etc etc etc the list of problems with software patents grants is practically endless...

Solve those... and there is NO jury "problem"...

Instead of getting an "elite" group of people to replace juries in court....why dont you make that "elite" group make sure retarded patents like "a square with rounded corners" aren't allowed in the first place.

[Charles 9]

Re: Not even related.

OK...care to foot the bill for all the staff you'd need to handle that case load?

[Pat 4]

Re: Not even related.

It's not a case load!

Fix the patent office... and there go most of the useless cases!

Poof!... gone.

[Chris 228]

Re: Not even related.

There are very few "useless cases" that are ever litigated. The patent office isn't the issue at all. A litigious society/mentality is the real issue.

[Anonymous Coward]

Re: Not even close to being a correct comment

Your comments are meritless. The patent process is long and arduous. Patent's are routinely refused and hard to actually obtain.

U.S. juries however IMO are technically clueless. The education system and TV are a big cause of techincal illiteracy in America and that includes many Judges.

[btrower]

Re: Not even related.

Re: the list of problems with software patents grants is practically endless

Agree.

I reject the assumption that patents, especially software patents, have net value to society at this point in history.

The patents that I have seen the fighting over could have been 'invented' thousands of times over by probably millions of qualified people out of the current 7 thousand million people available.

We do not have to grant a monopoly on a simple idea that would have shown up in the sea of ideas anyway. To the extent that things are (perhaps) legitimate such as LZW encoding (something I expect I could not have invented), the patent system has been a total disaster. The patenting of that algorithm stalled a bunch of things and generally created havoc. Arguments over compression wasted countless man-years of time shifting from .gif files to .jpg and .png files, re-writing archive utilities, re-compressing and redistributing things and wasted hideous amounts of bandwidth and storage back when they were both exceedingly dear. The patent holders made next to nothing and arguably the attempt to enforce the patent was net-injurious even to the patent holder.

SCO's entry into the patent trolling fray, beyond perhaps its entertainment value, did nothing but harm all-around.

If we made patents and copyrights illegal (I mean punished people who even tried to re-instate them), the world would be awash in new wealth created simply by brushing aside entirely unproductive (actually net-destructive) rent-seekers. The very best would be chosen for manufacture and distribution and creators could build upon the very best without being held back by rent-seekers. We would have better quality art and science, more of it and at radically less cost.

What is particularly sad is that even the majority of the rent-seekers are net-impoverished by the laws they think enrich them. Only a very small minority gain a net-benefit from patents and copyrights and they gain that advantage at an enormous and unacceptable cost to the rest of us.

We are entitled to our cultural, artistic and scientific heritage. Think of how much richer your life would be if you had immediate free access to all the world's music, literature and ideas. Is it unreasonable to think that if we dropped all the pay walls around scientific research that research would thrive?

[Dave Fox]

Re: Not even related.

"Is it unreasonable to think that if we dropped all the pay walls around scientific research that research would thrive?"

Yes, I'm afraid it is!

Whether we like it or not, we live in a risk/reward society, and that is what drives an awful lot of scientific endeavour and research.

Why would company X invest billions to develop say, a new cancer drug, if company Y could immediately pick up their work and produce their own generic version of the drug having incurred none of the development costs?

In such a world, for every company X there would be hundreds of company Y's leeching off them taking most of the revenue and driving the innovators out of business.

Patents do serve a purpose when applied to the right areas - it's just that in my opinion, for the most part, software isn't one of them.

[Charles 9]

Re: Not even related.

But at the same time, you never see a private company develop CURES, only TREATMENTS (that have to be repeated). There are some socially desirable things that the money angle draws away. One-and-done solutions are one, devices and appliances that don't wear out after a few years are another.

[someone up north]

are heard by their peers

are heard by their peers

NOT exactly,

by - some lucky *ones* who represent *no one*, answerable to no one