The trial, Apple v. Samsung, promises lots of fireworks. The likely entertainment value, however, is far exceeded by its educational value. The harbinger is the publication of US Judge Lucy Koh's instructions to the jury link here.

For non-lawyers like me, it is a revelation. She lays out in detail what determinations each juror will need to make and the connections among them, which she will have to decide, and the background for each where that is important.

She is breathtakingly clear, but that only raises questions about the suitability of patent law. Most of us, including many lawyers, aren't so careful to parse the meaning of legislation or the meaning of precedent in order to come to a wise decision.

It confirms in my mind the weakness of the whole justification for patents. They can be connected to innovation only weakly at best. The legal process is incredibly expensive and uncertain. The side with the most money and the best lawyers is most likely to win. And for the layman, the whole business is a puzzle once you go beneath the obvious and wonder what finally determined the outcome.

If even the best lawyers and judges can't do better than this, why continue to delude ourselves with this nonsense?

Re Apple vs. Samsung:

The jury instructions for the patent portion of the case is about 11 paragraphs. The instructions for some other, simpler crimes can go well beyond that.

So, should we throw in the towel on cases of welfare fraud because the jury instructions are complicated? What about jury instructions for first degree murder, which can run into lengthy explanation of definitions and circumstances? Preliminary jury instructions for the New York State Unified Court System runs into 49 pages. Sure, not all those instructions are used for any one case, but many of them are. The few paragraphs given to the jury for this patent case are simple by comparison.

If it takes 30 or 40 pages of instructions to a jury for a murder trial, it makes me wonder about the suitability of criminal law. How well qualified is a juror to determine credibility of expert witnesses and whether to believe eyewitness accounts. How does a juror decide between three or four shades of variation with respect to types of murder, knowing that the decision they make will determine whether the defendant goes to prison for a few years, for life, or gets the death penalty? Deciding relatively well defined patent issues is easy by comparison.

Of course, patent trials are a teeny tiny fraction of all trials in the United States, so the complex jury instructions for common crimes and court cases are more likely to be encountered by a typical individual than instructions for a patent case.