Why Do Juries Decide if Patents are Valid?


  • Mark Lemley
Publish Date:
April 12, 2013
Publication Title:
PatentlyO Blog, April 12, 2013.
Blog Postings
  • Mark Lemley, Why Do Juries Decide if Patents are Valid?, PatentlyO Blog, April 12, 2013.

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In other areas of administrative law, we generally don't have juries review agency decisions.  Maybe, if you're a patent lawyer, you say “we've always done it that way.”  But that's not really the case. Going to talk about this today. In the past, validity questions for jury were much more limited; juries involved more advisory opinions.
What about the 7th Amendment?  Turns out that it's unclear whether the 7th Amendment requires patent jury trials. Many factors go into deciding whether there is a jury right in a civil case.  But basic question is whether this is something that was tried before common law juries in England as of 1791.