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When a patent is prosecuted, is the patent ever found guilty? If so, does it get jail time? Those probably strike you as absurd questions, but to the average person, they might not seem quite so ridiculous. That is, unless he or she has already seen a relatively new video being shown in federal courts across the country. The video, entitled “An Introduction to the Patent System,” is distributed by the Federal Judicial Center. According to the FJC, approximately 650 copies have been requested by federal district judges since late last year for use in trials — or, at least, to view for potential use. The idea for the video originated with James Pooley, a patent litigator in the Palo Alto, Calif., office of Milbank, Tweed, Hadley & McCloy. He observed that the average juror knows little to nothing about patents: “You can see it in their eyes. You tell them it’s a patent case, and they look like you just told them they’re going to have a root canal.” So a few years ago, Pooley talked to U.S. District Judge Fern Smith, then director of the FJC. (Her tenure ended in September.) She liked his idea, and a video was born. Or, rather, a committee was born — to perfect the script. The committee consisted of Smith, Pooley, and three other current or former federal judges: Roderick McKelvie, now a D.C. partner at Fish & Neave; Alfred Lechner Jr., now a Princeton, N.J., partner with Morgan, Lewis & Bockius; and Judge Ronald Whyte of Northern California. “The purpose of the committee was, first of all, to make a tape that was as impartial and unbiased as possible,” says Bruce Clarke, the FJC official who produced the video. The Patent and Trademark Office was also involved. “The PTO reviewed [the script] as well, and they were a help because they let us use their facility so we could film on site,” says Clarke. According to Clarke, all parties hoped not only to explain the patent system to jurors, but also to help judges conduct more time-efficient trials. “If a judge uses this video, it can help not only to clearly explain patent law, but also to avoid use of an expert witness,” he says. The 18-minute video gives a step-by-step explanation of what a patent is, how someone obtains a patent, and why there are trials. A sample patent application and a mock patent — for a “portable seating apparatus” (a stool) — is also supposed to be distributed to jurors. While the FJC has created many educational programs, this video is unusual. Says Clarke: “There aren’t that many that are used in a courtroom trial.” Judges and jurors aren’t the only ones who have access to the patent video. The FJC will only send copies to federal judges. But the public can view it online at the FJC’s Web site ( www.fjc.gov). And copies can be purchased from the American Bar Association and the American Intellectual Property Law Association. The FJC hopes to use more technology in future efforts. Pooley also notes that while he isn’t planning more videos, people in other fields might be. For now, though, Clarke and Pooley are content with the success of this video. Pooley describes the feedback from lawyers as mixed, but calls that a good sign: Though some said the video favors one side over another, the comments have run equally both ways. And Clarke reports that the response the FJC has received “has been very positive.” Here’s some feedback from an “average person”: The video does what its creators hoped — it offers an objective view of the basics of patent law. It also leaves some (more complicated) questions unanswered. But then, if it didn’t, what would we need the trial for? Laura Lacci, a journalism student at Indiana University at Bloomington, was an intern atLegal Times during the summer of 2003.

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