Testing the White Hat Effect in Patent Litigation

Ideally, juries assess cases on the evidence presented at trial. To the extent that they are unrelated to the merits, the identities of the parties or their individual stories should not matter. But jurors are human, and both academics and practicing lawyers have long believed that how parties frame their cases to the jury can influence outcomes.\u27 We examine two such frames common to patent law. First, we look at whether accused infringers can improve their chances of prevailing by being the aggressor. Prior studies have observed that accused infringers that file declaratory judgment actions to vindicate their rights win more often than those that are sued by patent holders. However, these results may simply be an artifact of the accused infringers suing on stronger cases. To date, no studies have tried to control for these selection effects and determine whether it is truly the story that sways juries. Second, we look at whether non-practicing entities are less likely to prevail in a patent suit than a practicing entity that sues its competitor. Both commentators and the press have disparaged these entities, labelling them patent trolls. We examine whether these portrayals affect potential juries as they decide cases. To test these frames, we created four different video presentations to simulate the arguments real trial attorneys would make at trial and ran a 2x2 between subjects experiment on Amazon Mechanical Turk. We successfully recruited 314 participants and found that mock juries render verdicts at higher rates for accused infringers that file declaratory judgment actions than those where the patentee initiated the lawsuit. Even though the declaratory judgment effects that we observed were smaller than what others have previously observed in the field, we believe the differences can be explained by selection effects in earlier studies. In addition, our study found that mock jurors awarded practicing entities infringement decisions at a higher rate than non-practicing entities. We discuss the implications for strategy and policy in this Article