Judges, Juries, and Patent Cases – An Emprical Peek Inside the Black Box

The frequency with which juries participate in patent litigation has skyrocketed recently. At the same time, there is a popular perception that the increasing complexity of technology being patented (especially in the electronic, computer software, biological and chemical fields) has made patent trials extremely difficult for lay juries to understand. These developments have sparked extensive scholarly debate and increasing skepticism regarding the role of juries in patent cases. Juries have participated in some aspects of patent litigation since the enactment of the first patent statute in 1790, which provided for “such damages as shall be assessed by a jury.” The enactment of the Patent Act of 1870, however, which gave equity courts the power to award common law damages, spawned an era in which patent cases were almost exclusively decided by the bench. This pattern has changed only recently – and the change has been dramatic. In 1940, 2.5 % of all patent cases tried in district court were heard by juries. From 1968 to 1970, the figure was almost unchanged at 2.8%. By contrast, from 1997 to 1999, 59% of all patent trials were tried to juries. This surge in jury requests has prompted a flurry of recent litigation over the right to a jury trial in patent litigation.