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 instructions.

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 patent trial.

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 case.

i-Tec Well Solutions, LLC v. Peak Completion Technologies, Inc., Case No. H-13-743 (S.D. Tex. Aug. 19, 2013)