Patent Investing: All Inventors Are Equal. But Some Inventors Are More Equal Than Others.

I was recently involved in a mock jury exercise in which about 100 residents of eastern Texas assembled in hotel conference rooms and were paid to listen to evidentiary presentations on patent infringement and invalidity and then deliberate on camera as we watched.

In the process of preparing for this event, the jury consultant we worked with (the amazing Chris Dominic of IMS) informed me that the average juror is a millennial. I did not view this information as particularly remarkable until I watched the jurors hammer out their differences with each other in deliberations.

The older jurors (Xers, mostly) tended to view the evidence through the lens of traditional markers of authority. They noted the experts’ credentials, they noted the party witnesses’ titles, they noted that the patents in the case had been duly issued by experts who worked for the federal government, they cared at least a bit about employees’ loyalty to their institutional employers. It was within this framing that they measured credibility, assessed contradictions, decided who should win and by how much.

The millennials, on the other hand, tended to view the evidence through the lens of their own personal experiences in the world. When they assessed witnesses, they didn’t start with conventional markers of credibility (say, a PhD from Cambridge) but with their own personal measure of a witness’s authenticity. And they felt little need to defend employers or defer to the expertise of anonymous government experts at the patent office.

Chris told us that this wasn’t an aberration, that he sees these trends in tendency all over the country. And indeed, we can probably see them in ourselves and those around us as we watch each other consume media and process information and arrive at conclusions about all sorts of questions. Occasionally my fifteen-year-old daughter looks at me and says “I don’t know how you people expect anyone in my generation to respect authority.” To date, I have no good answer.

When I started practicing 25 years ago, I worked with old school patent litigators in an old school patent boutique, and my crusty, grumpy partners used to growl about how when it comes to litigation, “the only good inventor is a dead inventor!” That’s because particularly in those days a bad inventor deposition could easily torpedo a case. But it was also because the official copy of a patent, with its red ribbon and shiny good seal, handled before the jury like a holy relic, could carry significant emotional water. You needed a compelling inventor a whole lot less when institutions were automatically respected, traditional trappings of authority conferred credibility, and the “ribbon copy” of the patent was imbued with the reverence in which we held our democracy.

Probably both for better and for worse, that’s not the world we try cases in now. Now jurors care less that trial counsel looks like they came from central casting and a lot more about whether they feel authentic. And a plaintiff’s case needs a human emotional center. That emotional center doesn’t have to be an inventor, but it has to be a human because it can’t be a patent or an institution. Not anymore.

In my experience, it doesn’t really matter if that inventor worked out of her garage vs. led a division at a tech company vs. founded a start-up. Jurors throw around the term “patent troll” like everybody else does, but from what I’ve seen they won’t apply it to anybody with whom they identify, meaning anybody who has dreamed big dreams and worked to bring an idea to fruition. The inventor can occupy those shoes, but the right patent owner can too, and it works just fine if that patent owner didn’t do the inventing but did the dreaming and the working.

That is why we look at the inventorship story when we assess investment opportunities, and why you should too. This is not to say that you shouldn’t invest in a case if there’s no participating inventor. But it is to say that every case that’s going before a jury needs a hero. Look for that hero at the investment stage. And good trial lawyers still must have silver tongues and impeccable suits, but nowadays more than anything else they must have the capacity to connect.