Patent-Infringement Suits and the Right to a Jury Trial

72 Pages Posted: 10 Jul 2023 Last revised: 7 Sep 2023

Date Written: February 9, 2023


This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on 18th-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and that therefore litigants today who seek only injunctive relief possess no such right either. But as we demonstrate here, the relevant historical record shows the contrary, and thus many litigants have a constitutional right to a jury where the courts presently deny them. We reach our conclusion after undertaking the most comprehensive treatment of the subject to date, which includes marshaling hundreds of 18th-century records (mostly in manuscript) from the National Archives of the U.K. and elsewhere.

Keywords: patents, history, injunctions, equity, juries, seventh amendment, nominal damages, 18th century

JEL Classification: K41

Suggested Citation

Gomez-Arostegui, Tomas and Bottomley, Sean, Patent-Infringement Suits and the Right to a Jury Trial (February 9, 2023). 72 American University Law Review 1293 (2023), Available at SSRN: or

Tomas Gomez-Arostegui (Contact Author)

Lewis & Clark Law School ( email )

10101 S. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6600 (Phone)
503-768-6671 (Fax)


Sean Bottomley

Northumbria University ( email )

Newcastle Upon Tyne
Newcastle Upon Tyne, NE1 8ST
United Kingdom

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