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The Set Up

Comments on David L. Schwartz Christopher B. Seaman’s most excellent paper, “Standards Of Proof In Civil Litigation: An Experiment From Patent Law” Matthew Sag, Loyola University of Chicago. The Set Up. Do standards of proof matter? Important question generally and for patent law

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The Set Up

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  1. Comments onDavid L. Schwartz Christopher B. Seaman’s most excellent paper, “Standards Of Proof In Civil Litigation: An Experiment From Patent Law” Matthew Sag, Loyola University of Chicago

  2. The Set Up • Do standards of proof matter? • Important question generally and for patent law • Some evidence in the criminal context • Experiment in civil context. • Microsoft Corp. v. i4i LimitedPartnership • A new intermediate standard for patent invalidity • Will it make a difference?

  3. Measures • Ultimate decision on invalidity • Level of confidence re invalidity on a 1-7 scale • “How likely do you think Acme’s patent is obvious” on a 0–100% scale

  4. Percentage finding invalidity

  5. WHAT IS GOING ON HERE?

  6. Implications & Extensions • Effective drafting of jury instructions! • Testing that drafting! • Will group decision making wash out the outliers? • What is the effect of different sized juries.

  7. India, Pakistan, U.K., Romania, Italy Spain, Pakistan, Venezuela, Dominican Republic, Nicaragua, Russia, Canada, Macedonia

  8. True U.S. does not seem to make a difference

  9. An Alternative Visualization Using the Raw Numbers Why did the i4i instruction lead higher rates of obviousness?

  10. Levels of confidence: • C&C skews confident • More of a distribution in POE

  11. All conditions: Obvious/not obvious very similar in confidence distribution

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