Death by a Thousand Cuts: The Slow Erosion of the Right to Trial by Jury in Patent Cases

Juries have decided patent disputes for over two centuries. And yet the right to trial by jury in patent cases is now threatened, as recent developments have diminished the finality of jury verdicts and limited the issues that juries are allowed to decide in patent cases. In particular, commentators and litigants have amplified their concerns that the Federal Circuit is willing to more aggressively reexamine factual determinations made by juries and substitute its judgment on issues of fact for that of the jurors compared to the regional circuit courts of appeals. The inter partes review procedure established by Congress in the America Invents Act has effectively transferred most validity disputes from the jury to administrative law judges in the patent office. And district courts now decide issues of damages for future infringement, as well as fact‐based disputes about whether a patent includes an “inventive concept” or merely claims well‐known, routine, conventional” activities as of the date of the invention. The threat to the right to trial by jury in patent cases is not so much one of outright abolition; rather, the threat is based on recent trends limiting issues that juries decide and lessening the deference traditionally afforded to jury verdicts.

Reprinted with Permission from The Sedona Conference Journal, Volume 17, 2016, Number Two. Copyright 2016, The Sedona Conference. All Rights Reserved.