Standards of Proof in Civil Litigation: An Experiment from Patent Law

Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome by clear and convincing evidence. However, it also explained that the jury should be instructed that it may be easier to satisfy this standard when the party challenging the patent’s validity offered evidence that was not previously been considered by the U.S. Patent & Trademark Office. In this project, we conducted an experimental study to test the impact of standards of proof in patent invalidity challenges. We found that delivering the jury instruction directed by the i4i decision resulted in mock jurors finding a patent invalid at rates statistically indistinguishable from the preponderance of the evidence standard explicitly rejected by the Court in that case. This surprising result suggests that Microsoft may have actually achieved its desired outcome in i4i by making it easier for juries to invalidate questionable patents, even though it lost the case

The DTSA at One: An Empirical Study of the First Year of Litigation Under the Defend Trade Secrets Act

This article represents the first comprehensive empirical study of the Defend Trade Secrets Act (“DTSA”), the law enacted by Congress in 2016 that created a federal civil cause of action for trade secret misappropriation. The DTSA represents the most significant expansion of federal involvement in intellectual property law in at least 30 years. In this study, we examine publicly-available docket information and pleadings to assess how private litigants have been utilizing the DTSA. Based upon an original dataset of nearly 500 newly-filed DTSA cases in federal court, we analyze whether the law is beginning to meet its sponsors’ stated goals of creating more robust and efficient litigation vehicles for trade secret misappropriation victims, thereby helping protect valuable American intellectual property assets. We find that, similar to state trade secrets law, the paradigm misappropriation scenario under the DTSA involves a former employee who absconds with alleged trade secrets to a competitor. Other results, however, raise questions about the new law’s ability to effectively address modern cyberespionage threats, particularly from foreign actors, as well as the purpose (or lack thereof) of trade secret law more broadly. We conclude by discussing our data’s implications for trade secret law and litigation, as well as commenting on the DTSA’s potential impact on the broader issues of cybersecurity and information flow within our innovation ecosystem