Jury Unanimity Targeted in Patent Appeals Totaling $530 Million

Three appeals in federal patent-infringement lawsuits center on the legality of an East Texas judge’s unconventional choice to have juries answer a single yes-or-no question on whether defendants copied multiple patents rather than deciding separately whether each individual patent was infringed.

In each case, District Judge Rodney Gilstrap rejected requests for separate, more specific verdict questions, and juries assessed tens or hundreds of millions in damages. Each defendant appealed to the Federal Circuit, and the specialized patent court must decide whether to endorse or reject the verdict format.

The three defendants—Apple Inc., PNC Bank NA, and Ecobee Technologies ULC—each asked the US Court of Appeals for the Federal Circuit to throw out the generalized verdict format, along with the combined $530 million they owe. They argued they were denied their right to jury unanimity, as jurors could’ve disagreed over whether any given patent or claim was infringed while still marking “yes” on the verdict.

It’s unclear if other district judges have adopted the format, but Gilstrap’s use has gotten the attention of defense-side patent litigators because of the amount of damages connected to the verdicts and his place in the patent-litigation ecosystem. Gilstrap presides over more patent trials than any other US judge, and his decisions over every facet of a patent case take on heightened importance for litigators.

“Judge Gilstrap is effectively experimenting and maybe taking some test cases, and what’s motivating it is a concern for the jury,” said Dennis Abdelnour, a patent litigator at Honigman. “You have a lot of high-tech and complex patent cases and you have a jury of lay people, so he’s trying to streamline things and make it easier for jurors to get to a verdict.”

Still, Abdelnour said, the judges on the Federal Circuit may be uneasy with the general verdict question.

“How can you actually assess damages if you have a huge cloud over what was found on the liability side?” Abdelnour said.

Multiple Verdicts

Plaintiff Optis Cellular Technology LLC and defendant Apple agreed before trial to present jurors with patent-by-patent questions to determine infringement, according to court records. Gilstrap instead went with the general format, and jurors returned a $506 million verdict, later reduced to $300 million.

He also used a general question in an earlier case in which USAA accused Wells Fargo of infringing claims from two mobile check-deposit patents. Wells Fargo pushed for a claim-by-claim infringement question, while USAA asked to go patent by patent. Gilstrap went even simpler and presented jurors with a yes/no question. The parties settled following a $200 million verdict.

USAA asked for a repeat of the general verdict question in its suit against PNC. The bank raised concerns over jury unanimity and quoted a magistrate judge’s recommendation that infringement be decided “on a patent by patent (or even claim by claim) basis” as PNC was also challenging the patents’ validity at the Patent Trial and Appeal Board.

Gilstrap again went with the general verdict question, and the jury awarded USAA $218.5 million.

One of the four patents was ultimately axed at the PTAB, creating the possibility the jury’s infringement finding rested solely on an invalidated patent. The single infringement question “not only deprived PNC of its right to jury unanimity on each patent, but separately compels a new trial if this Court vacates based on any one patent—as it should,” PNC said in its appellate brief.

USAA responded that the verdict structure isn’t reason to upend the case because Gilstrap specifically instructed jurors to “consider infringement ‘claim-by-claim’ and agree unanimously on its findings.” USAA separately argued PNC failed to preserve its jury unanimity argument during the 2022 trial.

In another case, Ollnova Technologies Ltd. won a $11.5 million verdict after asserting 13 claims from four patents against Ecobee’s smart thermostats.

Ecobee’s appellate brief argued “the bare minimum required by law” for a general verdict would be separate infringement questions for each patent. Gilstrap cited inapplicable Federal Circuit opinions to support his use of the general verdict question, it contended.

Ollnova countered that Ecobee waived this argument and defended the verdict format, noting Gilstrap accompanied it with instructions to the jurors to “analyze infringement separately for each asserted claim.”

Yes or No

One Federal Circuit judge weighing Apple’s appeal has expressed skepticism about the verdict question already.

Judge Leonard P. Stark, during oral argument May 9, raised a hypothetical in which jurors considering a five-patent case agree there was infringement, but split five ways on which patent. A plaintiff could lose 4-1 on each patent, but win nevertheless if a generalized form is used, Stark posited.

“I just don’t see what in our record—verdict sheet, instructions, or even the dollar figure awarded—allows us to be even reasonably certain that that’s not what happened here,” he said.

General verdict questions that apply to more than one patent or patent claim are typically supported by plaintiff patent owners and resisted by defendants, said Betty Chen, a patent litigator at Desmarais.

If the Federal Circuit limits the use of general verdicts for infringement, Chen said it could re-spark interest from the patent defense bar in challenging the more widespread use of general verdicts for determining damages in multi-patent cases.

Its use for damages has been fairly widely accepted, Chen said, but similar criticisms could be raised when juries don’t break out the damages owed for each infringed patent or claim.

If the Federal Circuit green-lights the generalized verdict for infringement, however, Abdelnour predicted Gilstrap could use the yes/no format as his default.

“If they bless this, this may be what you’re getting in East Texas going forward,” he said. “I’m sure plaintiffs would love that.”

The cases are

• Optis Cell. Tech., LLC v. Apple Inc., Fed. Cir., 22-1904;
• United Servs. Auto. Ass’n v. PNC Bank N.A., Fed. Cir., 23-1778;
• Ollnova Techs., Ltd. v. ecobee Techs. ULC, Fed. Cir., 25-1045.