In my experience, blown trials are the result of judicial ignorance and jury prejudice, not malice. Let's face it. Judges are trained as lawyers. Outside of the law they have, on average, a high school- level understanding of anything technical. It is therefore critical for the attorneys to teach the jury what they need to know. This does not happen, of course. Juries tend to be people who get stuck on the jury against their will and therefore carry a chip on their shoulders. Worse, the lawyers systematically exclude from juries people who do understand technical issues. Then, too, there is jury nullification, wherein juries jump completely off the rails and find 100% for their feelings or prejudices.
In our case, we have a judge who, through no fault of his own, has probably spent most of his time on the bench ruling on less technical issues. I have eight years advanced education and am a registered electronic technician and I do not understand most of the issues in this trial. If the Markman remains contested or even revoked, the jury is going to have to create its own definitions of the issues in the patent. There will be chaos. The win/lose will then come down to all the factors I've stated above, plus having to figure out WTF is going on. This usually makes a jury angry so it is imperative that our lawyers convince them that not only is TM guilty of theft, but of making it harder for the jury to rule. They will likely come down to the side they like more. If our lawyers are smart they will hammer TM's use of our technology after they saw ours and agreed not to steal it. That is easy to understand and easy to document. meanwhile, TM is trying the grape shot approach: fire everything they can cram into a cannon and set what gets hit.
This case is far less about technical issues than others. In my state it takes 10 out of 12 jurors agreeing to render a verdict in a civil case.
