Toward a More Reliable Fact-Finder In Patent Litigation

INTRODUCTION I. HISTORICAL DEVELOPMENT OF SEVENTH AMENDMENT JURISPRUDENCE II. THE SEVENTH AMENDMENT IN THE CONTEXT OF PATENT TRIALS III. JUDGING JUDGES AND JURIES: WHAT THE STATISTICS SUGGEST IV. WHERE DO WE GO FROM HERE? FROM PEER-TO-PATENT TO PEER-REVIEWED LITIGATION CONCLUSION INTRODUCTION Commentators describe the institution of the American jury as both a blessing and a curse. On the positive side, scholars hail the jury as a stalwart protector of defendants from an overly oppressive government. (1) Judges praise juries for providing an additional measure of perceived fairness and credibility to the United States legal system. (2) The presence of a jury tends to encourage simplification of complex issues. (3) Further, service on a jury provides a practical education in civics to the American public. (4) These praises, however, are sung more loudly in some corners of the legal world than in others. For example, many practitioners in patent law view jury fact-finding in their cases as a curse. At best, patent litigators may perceive juries as simply unequipped to understand complex technical, scientific, and legal standards involved in patent cases. (5) Tangential issues are thus viewed as more likely to sway a patent jury that does not understand more challenging issues central to a case. (6) At worst, patent juries are thought to be just plain biased in favor of patentees who have the benefit of approval from the experts at the Patent and Trademark Office (PTO). (7) In accordance with these critiques of juries in patent trials, the Court of Appeals for the Federal Circuit (Federal Circuit) has narrowed the role of the jury in patent trials. (8) Moreover, the Supreme Court has for the most part affirmed these Federal Circuit's decisions. (9) The reasoning of these opinions that limit the jury's role in patent litigation stands in a shadow cast by the Seventh Amendment's codification of the right to a jury trial in certain civil trials. (10) The combination of developing patent law and varying interpretations of how to apply the Seventh Amendment to patent cases has created the current inconsistent approach to the division of labor between judges and juries in patent litigation. Despite limits placed on jury decision-making in patent cases and practitioner complaints about jury outcomes, the number of patent cases involving juries is increasing. (11) Statistical analyses of recent patent cases confirm that whether a judge or jury serves as the fact-finder has a significant impact on outcomes (12) even though neither fact-finder traditionally has technical or scientific training. (13) The Federal Circuit's juggling of factual matters, legal matters, precedent, and the Seventh Amendment in patent cases demonstrates that perhaps the round peg of patent law does not fit into the proverbial rectangular jury box. In an attempt to fit these incongruous pieces together, this paper will trace the development of Seventh Amendment precedent in the context of patent litigation to its current status. Further, this paper proposes a system akin to peer review to replace the traditional jury in patent trials. Such a system would be analogous to the current "Peer-to-Patent" experiment at the PTO, wherein scientific and technical experts have the opportunity to aid PTO examiners in determining the validity of patents. (14) The patent system is a unique system in American law because it boasts its own bar and its own governmental agency; in turn, its own court demands its own jury tailored to fill in the adjudicatory gap. (15) Adjudication of such public rights as those involved in patent validity (16) would find increased efficiency and credibility with public expert input. Moreover, given that there are few constitutional constraints on adjudication of public rights, such a process likely would survive constitutional scrutiny. (17) The area of patent law provides the American legal system with a unique opportunity to develop flexibility in the context of an otherwise cumbersome division of fact and law. …