“It’s Still a Pot Roast”- Jurors’ use of metaphor during mock patent deliberations

I’ve always been drawn to patent cases due to their complexity.  Not only are jurors asked to grapple with a foreign vocabulary including: invalidity, infringement, prior art, on-sale-bar, and a person of ordinary skill in the art, but they must work to understand the intricacies of the inventions in dispute as well.  They listen to claim language and watch as attorneys and experts meticulously walk them through each nuance of the design.  They check off boxes and pay close attention to how many claims must be met in order for infringement to occur.  Then sometimes, they hear evidence that there might have been prior publications outlining something very similar to the patent they have just learned to identify.  Perhaps, a trade show brochure with something comparable to the invention is discovered.  Maybe it is “just a minor tweak.”

These jurors want to do a good job.  They want to “get it right,” and they pour over the information given and draw comparisons to what they can relate to in their own lives.  They work diligently to make sense of it all. Over the past seven years, I have watched over a hundred mock patent deliberations and began taking note of the types of comparisons jurors make.  Counsel across the various cases typically explain a patent as being similar to a deed to land, or maybe they reference Thomas Edison and the light bulb.  However, frequently, jurors create their own metaphors as a form of sensemaking.  While over the years, there has been a range of metaphoric contexts, time and again mock jurors turn to food.  Perhaps, this can be explained as chef Anthony Bourdain once said, “People confuse me. Food doesn’t … I just know what I see. And I understand it. It makes perfect sense.”

Below, I’ve gathered some of my favorite mock juror comments made during deliberations likening advanced and intricate technology to pies, hot dogs, and chili.  These don’t seem too far removed to me; cooking is an act of creation.  The formation of a final product through creativity, experimentation, refinement, and persistence. Maybe we should be talking about cooking more and Edison less- they are.

“It’s like bread, sugar, and peaches. Who was the first person to make a peach cobbler?”

“We’re in the kitchen, and we get a big pot out. We’re all using the same ingredients, the same pot, and the same tools, but we’re each calling it a different dish. It’s a different name for the same dish. It’s still pot roast.”

“If I invented a cooking method and then you use it, you are infringing upon me even if it isn’t something you can touch or feel.  It’s a process that their minds came up with, and they designed it.”

“At first, I did think that they should get half of the damages. Then I realized it was 50 million dollars for a piece of the total product.  You had just a little piece in that pie. It’s like saying you made that coconut cream pie, and you made eight bucks. You should give me four bucks because I gave you the eggs to make it. That just didn’t seem fair to me.”

“That’s just it. If you think you know how to make a hotdog, but if you don’t know how to put everything together, how to physically make the hotdog, then you haven’t made the hotdog. That’s the thing. That’s how I’m looking at it.”

“Well, you’re talking about a recipe. I’ve been in the food business most of my life. I’ve seen people that have taken recipes to publish them, and they use, you know, take ancho chili. You’ve got the dried spice and you’ve got the chili pods. And people use the chili pods, they still call it ancho chili. It’s a different product, of course, but it is the same recipe though. And that’s how they sell their cookbooks.”