The conditioning of a jury question on an affirmative answer to a prior question is called a “stop instruction” because it explicitly tells the jury to “STOP” if it found “no” to the prior question.
A common example is an instruction to the jury not to answer a question asking if the patent claim is invalid if it just answered that the claim is not infringed. That isn’t the case in all trials – if it were then a no claims infringed / no claims valid verdict wouldn’t be possible, and most years that is either the most or the second most common single verdict locally. And it’s the most common defense verdict, certainly – for example in 2017 of the five noninfringement verdicts where invalidity was also submitted, the jury found the claims invalid in four. (It also found the claims invalid in a fifth case where the claims were infringed).
Last week the Federal Circuit addressed this issue in a case from Judge Gilstrap’s court and affirmed the court’s use of – and later enforcement of – the “stop instruction” under the interesting facts of that case.
