Populism and Patents


Lawyers and other commentators often remark that American courts, and particularly American juries, are prejudiced against large corporate entities. Existing empirical research attempting to confirm this suspicion is contradictory and suffers from a number of shortcomings. In this Article, Professor Moore reexamines the issue by reporting the results of research on an original dataset of over 4000 patent cases and more than a million patents. The results cast substantial doubt on the hypothesis that individuals and corporations are treated identically in jury trials of patent property rights. In jury trials of patent cases between corporations and individuals, the individual won 74% of the time, with the large corporation winning in the remaining 26% of cases. Corporations and individuals won at nearly equal rates with judges. Marshaling a range of other evidence, Professor Moore explains that these results are likely to understate the degree of bias, placing a floor but not a ceiling on the impact of anti-corporate prejudice. Moreover, analysis of patent cases permits the exploration of a related phenomenon—the heroic iconization of the American inventor. As the injured tort victim is sympathetic, the American inventor is idealized for her ingenuity, productivity, and creativity. The individual inventor puts a face on the corporate entity, humanizing or personalizing the party. Hence, even corporate versus corporate litigation has an individual component and therefore an opportunity for bias to impact decision-making.


Business Organizations Law | Intellectual Property Law | Internet Law | Law and Economics

Date of this Version

February 2006