Why Do Juries Decide If Patents are Valid?

Stanford Public Law Working Paper No. 2306152

99 Virginia Law Review 1673 (2013)

75 Pages Posted: 7 Aug 2013 Last revised: 24 Apr 2020

Date Written: August 5, 2013


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.

Suggested Citation

Lemley, Mark A., Why Do Juries Decide If Patents are Valid? (August 5, 2013). Stanford Public Law Working Paper No. 2306152, 99 Virginia Law Review 1673 (2013), Available at SSRN: https://ssrn.com/abstract=2306152 or http://dx.doi.org/10.2139/ssrn.2306152

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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