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If jurors had their pick of trials to sit through, it’s a sure bet they wouldn’t opt for a patent dispute. Unlike murder, assault or dog mauling trials, patent cases are filled with technical jargon that you don’t hear about on “Law and Order” or “The Practice”. But sitting through a patent trial might be a little easier in the future. The Federal Judicial Center is producing a video about the patent system, featuring actors in the roles of inventor and attorney and footage from the U.S. Patent and Trademark Office. James Pooley, a partner in the Palo Alto, Calif., office of Milbank, Tweed, Hadley & McCloy, came up with the idea for the video and drafted a script. He eventually suggested the project to the head of the Federal Judicial Center, who agreed to have the center produce it. Pooley said the project is intended to help jurors understand the patent process and also relieve the federal courts of using patent experts. He said there is always concern that expert witnesses will talk about issues in a case and color a jury’s opinion. Those involved in putting the video together tried to present facts in a neutral way, and Pooley said the biggest challenge writing the script was making it acceptable to both plaintiffs and defense attorneys. “The defendants would love for you to say the average time a patent examiner spends on an application is a little over 16 hours,” Pooley said. “And the patentee would love you to talk about how Abraham Lincoln had a patent, wave the flag a little bit, and emphasize the technical education and quality of the examiner.” A committee of federal judges worked with Pooley in crafting a final script and several lawyers and judges reviewed it. While some raised concerns that it was slanted a bit toward the plaintiff, he said others said it was slanted in favor of the defendant. “We were slightly amused and encouraged by that,” Pooley said. “It meant we came close to the centrist presentation that we wanted.” Video producer Bruce Clarke, an attorney with the Federal Judicial Center, said he was careful in casting the role of inventor. “We’re trying to be impartial and not do anything in the video that would help one side versus the other in litigation,” Clarke said. “When you say ‘inventor’ a stereotype might spring to mind, and we don’t want to signal an inventor is a certain type of person.” Despite such efforts, it’s unclear whether judges and attorneys will embrace the final product. “The idea that you can create a one-size-fits-all that everyone can use is difficult,” said Matthew Powers, a partner at Weil, Gotshal & Manges’ Redwood Shores, Calif., office. But he said the video is “an excellent start toward the ultimate goal, which is a better process.” In addition to the video project, Pooley has been involved in another effort to make patent trials easier for jurors. He was among a committee of attorneys that crafted “plain English” patent jury instructions for the U.S. District Court for the Northern District of California. Finalized in February, the instructions are intended to tell jurors what they need to know about patent law in a way that’s clear and understandable. Initiated by San Jose U.S. District Judge Ronald Whyte, the committee drafting the instructions included Whyte; Pooley; Powers; Boalt Hall School of Law professor Mark Lemley; Martin Fliesler of Fliesler, Dubb, Meyer & Lovejoy; David McIntyre of Lifescan Inc.; and James Yoon, a partner at Wilson Sonsini Goodrich & Rosati. “It’s hard to let go of the language we use as lawyers and judges because we think we know what something means,” Pooley said. “When we change to the vernacular there is concern because we’re always leaving something out.” And attorneys worry that the wording of instructions or interpretation of the law might benefit their opponents. “We’ve spent days and days and days with a judge arguing what the instructions should be,” Powers said. “Everybody perceives they can get some advantage from how a phrase is spun.”

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