In this patent infringement action between i-Tec Well Soultions,
LLC ("i-Tec") and Peak Completion Technologies, Inc.
("Peak"), the district court issued an unusual order as
the case approached trial. With the case expected to be a jury
trial, both sides were ordered to submit tailored jury
The district court, most likely frustrated by the unintelligible
jury instructions that are frequently submitted in patent cases,
issued an "Order on Confusion." In the "Order on
Confusion," the district court stated that "the parties
must give the court tailored jury instructions written in plain
language if they want a jury trial in October." Thus, the
district court made it clear that it wanted jury instructions that
could be understood by a jury of lay people even in a complex
But the district court also gave its order some significant
teeth. The district court warned that "[a] party that
downloads form instructions will waive its jury." Given the
district court's warning, it is likely that neither of the
parties will look to form jury instructions to satisfy the district
court's directive on creating jury instructions in "plain
language," so we are unlikely to learn whether such an order,
if enforced, would violate a party's Seventh Amendment right to
a jury trial.
What the "Order on Confusion" does demonstrate is that
the form or model jury instructions in patent cases, particularly
those on obviousness, are complex and difficult to understand,
particularly for a lay jury. Creating better more easy to
understand jury instructions would be a benefit to jurors in patent
cases who are already grappling with complex technology and should
be aided--not hindered--by overly technical, legalistic jury
instructions. We will wait and see what the parties submit and
whether there are any follow up orders on confusion in the
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The second prong of the Alice test is commonly abbreviated as requiring an "inventive concept." Of course, that same nomenclature is used by many international patent laws as a synonym for nonobviousness.
The PTO launched the Post Prosecution Pilot Program, which affords patent applicants an attractive alternative to the procedures currently available for responding to "finally" rejected patent applications.
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