Thoughts About Copyright Litigation v. Patent Litigation
Now that I have some experience under my belt in both patent and copyright litigation, I’ve been thinking a lot about the two disciplines lately.
One of the interns here at CIS made a comment at lunch the other day about how he imagines that the two practices are similar. I thought about it for a while, I could see his point, but I still disagree.
I think that what sets patent litigation apart from copyrights is that when dealing with patents, the jury is constantly in our mind from the second we hear about the case. That’s not to imply that we don’t think about the jury when litigating copyrights, but I think that as someone new to the practice who at least generally understands the jurisprudence, I have a better idea from the get-go whether a copyrights case is a winner (based on the law) as opposed to a patents case where I really have to step back and think about it, and even then I’m not entirely sure. Undoubtedly though, the discrepancy arises out of a jury selection pool of laymen.
In my experience with copyright litigation, it seems like we attack the law first and then think about how to present it to the jury. With patents, I almost feel like our primary concern was with the jury, and we’re more careful about picking our legal battles based on what and how we can actually explain it to the jury.
Disclaimer: Not a political statement -- just a case I'm working on.
In the last patent case I worked on, we essentially had to come up with a novel way to describe the patent law just so that we could have a shot at explaining out case to the jury. In my limited experience, it seems like copyright doesn’t have such a serious a problem with juries. Of course, maybe this is all obvious because generally speaking many copyright fundamentals are obvious to the layperson whereas biochemistry, maybe not so much.
I’m wondering whether those practicing or other IP interns feel the same or have a completely different opinion.
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While I haven’t done much from the patent side, I agree with you based on my copyright experiences. I think it is easier to use the law to show what is copyrightable. The copyright bar is original expression fixed in a tangible medium. Whereas patent requires something that is useful and innovative.
I would argue that while copyright inquiries are primarily objective, patent inquiries are more subjective. Whether something is useful or innovative is always in the eye of the beholder (and thus the jury).
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