Don’t call jurors in East Texas “yahoos.”
Or refer to patent plaintiffs as “pirates,” “bandits,” or “trolls.”
Those phrases are among a growing list of words banned by federal judges, who over the years have aimed to keep derogatory and potentially inflammatory and prejudicial phrases from the ears of jurors in patent cases.
Most recently, US District Court Judge
Before the trial began this week, Gilstrap granted a motion barring any reference “to the jurors, court, or citizens constituting the jury pool as ‘yahoos’ or other similar derogatory references.” He further instructed the lawyers to “not make reference to the intelligence of the jury, the Court, the population of the Marshall Division, or the population of the Eastern District of Texas.”
Other previously banned words and phrases have seemed more geared toward patent or intellectual property law, such as references to a plaintiff as a “bounty hunter” or “privateer,” and to infringement allegations as a “stick up,” a “hold up,” or a “shakedown.”
Barring “yahoos” makes sense too, said Paul Gugliuzza, a law professor at Temple University’s Beasley School of Law via email. “It’s an expression that might antagonize the jurors and so ought to be excluded.”
The phenomenon occurs more broadly and outside the patent law context, as well.
Pre-trial motions “to prevent certain turns of phrase or even discussion of factual matters of this nature are quite common,” according to law professor Edith Beerdsen, who teaches civil procedure and evidence at Temple.
As examples, Beerdsen said it’s “not unusual” for parties to seek to stop opposing counsel from comparing their client to “a ‘big corporation from out of town’ or ‘foreign’ or its attorneys having been flown in from another state, or the like.”
The “yahoo” issue arose as lawyers for garage-door giant The Chamberlain Group and the defendants, Overhead Door Corp. and the Genie Company, were prepping for a trial redo. In the first trial last March, the jury cleared the defendants of patent infringement and also found Chamberlain’s asserted patents were invalid. That spared the defendants from a potential $62.7 million verdict.
However, Gilstrap granted Chamberlain a retrial after a revelation that defendants provided the company with key information pertinent to its case just a day before jury selection.
The new trial is expected to close by the end of the week.
‘They Think We Are Yahoos’
Chamberlain filed a pre-trial motion that homed in on a line from the other side’s previous closing argument. Overhead Door lawyer, E. Leon Carter of Carter Arnett PLLC, was highlighting testimony from a key Chamberlain witness—the engineer credited with inventing a patented garage-door wireless feature designed to comport with a new safety standard.
Carter said the inventor, Chamberlain engineer Edward Laird, appeared unfamiliar with a patent Chamberlain says Overhead Door ripped off. He implored the jury to remain skeptical about Laird’s actual involvement in getting the patent.
“You know, I grew up about 15 miles from here, and I know a lot of you all are from East Texas,” Carter told the jury, according to the trial transcript. “But they filed this suit in Marshall, Texas, because they think we are yahoos in East Texas; they think we won’t use our common sense.”
Chamberlain’s motion said “yahoo” references should be kept out of the second trial, which began on Jan. 23. “In addition to being woefully inaccurate and irrelevant, this inflammatory statement was immeasurably prejudicial to Chamberlain,” it said.
Overhead Door responded by saying Chamberlain’s motion was just sour grapes after the jury didn’t return the verdict it expected. It said Chamberlain filed four motions aimed at its closing argument from the last trial, including a comparison of Chamberlain to a “patent factory.”
Chamberlain also had the chance to raise objections at trial when Carter made reference to “yahoos” and “patent factory,” Overhead Door said in its opposition to Chamberlain’s motion. Instead, the filing states, Chamberlain claimed prejudice too late—"only after the jury returned its verdict” and Chamberlain “realized its trial strategy had failed.”
Nevertheless, it agreed not to “argue at the retrial that [Chamberlain’s] choice of forum was based on its views of the jurors’ intelligence.”
A motion “to preclude derogatory language is super common, said Olivia Luk Bedi, an IP litigator and partner at Neal Gerber Eisenberg in Chicago. And “that kind of play to the jury isn’t new either.
But Carter’s use of the use of the term ‘yahoo’ in a self-deprecating way that lumped Carter in with the East Texas jury was something of a twist, Bedi said.
Gilstrap ultimately ruled that “yahoos” was derogatory and shouldn’t be used, and that two other terms, “patent factory” and “fake news,” were also off limits—though the parties could use the term “frivolous” in their closings to attack the other sides’ arguments.
Lawyers for the two sides either declined to comment or didn’t immediately respond to Bloomberg Law requests for comment.
Since as early as August 2006, judges have granted requests from patent holders barring defendants from using the controversial term “patent troll.” In the first of two patent infringement cases involving chipmakers Rambus Inc. and Hynix Semiconductor Inc.,
Whyte and judges who would rule similarly in subsequent years were right to do so, according to Ed Lee, an Illinois Institute of Technology Chicago-Kent College of Law professor, who wrote a 2015 law review article about “patent troll"-specific pretrial motions.
The term “may operate as a moral panic in a way that is detrimental to reasoned analysis and consideration of the root problems related to the issue of abusive patent litigation tactics,” Lee wrote. Given the nature of the term and the negative way it has been used in news articles, Lee concluded that it would be prejudicial in the context of a patent trial.
The term “patent troll” has been used by a US Supreme Court justice—Antonin Scalia in a dissent—and by former Seventh Circuit Court of Appeals Judge Richard Posner, who used the term with something approaching relish in an article critiquing the US patent system.
Numerous district judges, however, have been careful to keep that particular loaded phrase out of their trials, according to Lee. They’ve used more neutral terminology to describe patent plaintiffs who don’t make or sell products that embody their patented innovations.
Gilstrap has issued more than the normal share of pretrial orders in patent cases, given that he’s been one of the busiest patent judges in the country—if not the busiest—since his appointment to the bench in 2011. He’s barred the use of “patent troll” and “patent factory,” but also numerous other colorful terms sometimes lobbed as invective at patent plaintiffs outside of the courtroom.
In a 2017 pretrial order in a patent case involving a non-practicing entity, St. Lawrence Communications LLC, and defendants ZTE Corp. and Motorola Mobility LLC, Gilstrap barred lawyers from saying “patent trolls” but also “pirate,” “bounty hunter,” “privateer,” “bandit,” “paper patent,” “submarine patent,” “stick up,” “hold up,” “shakedown,” “playing the lawsuit lottery,” “patent assertion entity,” “a company that doesn’t make anything,” and “a company that doesn’t sell anything.”
Overhead Door and Genie are represented by Carter Arnett PLLC, Latham & Watkins LLP, and Scheef & Stone LLP. Fish & Richardson P.C. and Gillam & Smith LLP represent Chamberlain.
The case is The Chamberlain Group LLC v. Overhead Door Corp., E.D. Tex., 2:21-cv-84, trial commenced 1/23/23.
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