Why Do Juries Decide If Patents are Valid?

Abstract

For the last two decades, patent lawyers and courts have assumed that the Constitution requires that juries decide whether patents are valid. But that assumption rests on an uncertain foundation. Juries did not decide patent validity during most of American history, and as recently as 30 years ago jury trials in patent cases were quite rare. There is, surprisingly, no precedential decision resolving the Seventh Amendment question. And English practice before 1791 -- the basis for Seventh Amendment jurisprudence -- is ambiguous at best on whether juries must decide patent validity. I argue that if and when the issue is presented to the Supreme Court, the Court is unlikely to find a constitutional right to jury trial on issues of patent validity, and certainly not the broad right of the sort that is now common practice. Removing the jury from most patent validity determinations would change patent litigation in important ways.