Jurors are often instructed to become time travelers and reconstruct what may have happened “back when.”1 The courts have instructed that for jurors facing issues of obviousness in a patent trial, the decision regarding whether or not an alleged invention was new and non-obvious at the time of the invention should be predicated on the choices that a person of ordinary skill in the art (POSA) would have made in the past.2
Not surprisingly, jurors are often skeptical about the relevance and credibility of this hypothetical exercise. As a result, in preparing for trial, the patent trial lawyer and her expert face the challenge of adding meat—in the form of credible and reality based details—on the bones of this amorphous skeleton by showing what would have been the thoughts and choices of this fictitious mind.
