Hindsight Bias in Juries
Patents challenged on non-obvious validity grounds can be struck down because of hindsight bias in juries. If a jury is presented with information about a problem, and given a description of the solution, the jury is less likely to rate an invention non-obvious than if it is provided only with infomation about the problem, and the fact that someone is trying to come up with a solution. Even more interesting, if the jury is informed of the possibility of such a “hindsight bias” on top of the problem and solution information, they are still more likely to rate the invention as obvious. (This is from an experiment described in the most recent Bill Heinze IP Updates Weekly).
This provides some insight into jury psychology, and human psychology. There are numerous experiments wherein participants continue to believe one thing despite significant evidence to the contrary, or more relevant here, proceed to make the exact mistake they were warned against making.Â
[This also makes me wonder whether juries are actually able to “ignore” statements by lawyers and evidence that a judge instructs them not to take into account in their deliberations.]Â
The information thus begs the question of what lawyers and judges plan to do to rectify this problem. Shall juries deliberate before they learn of a solution, come to a conclusion, hear the solution, and then have an opportunity to reconsider? Should a judge not allow juries to ever hear of a solution? Should the jury be composed of people with knowledge in the field of the patent, so that they would recognize whether a use or design is in fact obvious, without needing additional information?Â
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