Do Americans have the right to a jury trial? The Constitution says yes, but some of America’s biggest companies say the patent office can override juries.
Consider the conflict brewing over a bill in Congress involving an administrative law court that would shift a particular category of legal disputes, those questioning the validity of patents, back to federal courts.
Many corporate giants, particularly those in the tech industry, are preparing to fight tooth and nail. They essentially argue that juries are not sophisticated enough to adjudicate patent disputes, and that the job should be left to specialized employees of the executive branch.
Regardless of whether one supports the particular bill in question, the notion that juries are not capable of handling complicated intellectual property cases is simply false. We are both former federal judges appointed by presidents from different political parties. And in our experience with jury cases, jurors take their duties seriously and work hard and skillfully to understand and resolve the questions put to them.
Jury trials are an integral part of the US judicial system, so much so that the Founding Fathers enshrined that right in the Constitution. The Seventh Amendment explicitly protects the right of citizens to a trial by jury in civil cases. The Father of the Constitution, James Madison, once said that “trial by jury in civil cases is as essential to secure the liberty of the people as any of the pre-existing rights of nature.”
Obviously, some companies and their supporters find Madison unconvincing. For example, Joseph Matal, a former official at the US Patent and Trademark Office, argued in a recent opinion piece that “jurors are not an effective or reliable check on the validity of patents” and that it is better to leave technical issues in the hands of administrative patent judges. who “all have at least a college degree in science or engineering.” Since patent validity cases often involve complex scientific or technological issues, the argument goes, patent administrative judges are more likely to reach the correct conclusion.
There are some major problems with this argument.
First, some of the most solemn and consequential decisions in our legal system rest with juries, not judges or bureaucrats. For example, a jury and only a jury can hand down the federal death penalty. This is also the case in many states.
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If jurors can be trusted to decide whether to end someone’s life, it’s hard to imagine why they shouldn’t be trusted to determine whether or not a patent is valid: a life and death decision for small companies. companies that defend their intellectual property from the larger ones. companies that have tried to invalidate patents instead of paying license fees.
Second, those who advocate a “complexity exception” to the Seventh Amendment seem to ignore the fact that Americans rely on juries to review highly technical material all the time. Juries are regularly tasked with deciding complex cases involving antitrust, securities fraud, Ponzi schemes, mass torts, and medical, legal, and accounting malpractice.
Juries are already relied on to perform highly technical “infringement analysis” in intellectual property cases, which can involve the same patents as validity cases. These analyzes require jurors to thoroughly learn and understand Company A’s patent in order to compare it to Company B’s product to determine whether B infringed on A’s technology.
Also, so that jurors don’t get confused, the judge is there to provide instructions, guidance, and review. And if litigants feel that both judge and jury made a wrong decision, they can go to an appeals court. Juries are not just a necessary component of the American legal system. They are also a positive asset, as they fill a role that patent administrative judges could never play, no matter how many STEM degrees they hold.
At a time of declining public trust in government, including the judiciary, juries give citizens a direct say in how they and their neighbors are governed.
Juries are among the oldest and most important symbols of civic duty, fairness, and equal access to justice for all in our country. They are the appropriate forum for all types of criminal and civil disputes, including patent cases.
Michel served on the United States Court of Appeals for the Federal Circuit from 1988 until his retirement in 2010, and as a chief judge from 2004 to 2010. O’Malley served on the United States Court of Appeals for the Federal Circuit from 2010 to 2022 and the US District Court for the Northern District of Ohio from 1994 to 2010. Both currently serve as board members of the Council for the Promotion of Innovation.
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