Ip Jury Trials—trouble Ahead?
| DOI | 10.1093/jiplp/jpu072 |
| Date | 30 April 2014 |
| Pages | 639-643 |
| Year | 2014 |
| Published By | Oxford University Press |
IP jury trials—trouble ahead?
Robert M. Kunstadt*
For many years, jury trials in IP cases in the United
States were rare. The IP bar was small and specialized—
mainly patent attorneys with little jury-trial experience.
More recently, jury trials expanded on to the IP scene
until the demand for a jury trial in an IP case, in particu-
lar a patent case, regularly became a matter of course.
Certain jurisdictions perceived to have a jury pool fa-
vourable to patent owners, such as the Eastern District
of Texas,became magnets for patent litigation.
What if these developments were based on an errone-
ous view of the jury trial right? IP litigation would look
very different. Strike suits by ‘trolls’ might find less fa-
vourable reception before judges than juries.
One of the measures instituted in reaction to the per-
ceived plague of patent trolls might be pointing the way
to a sea change not only in patent litigation but in all
kinds of IP litigation including trade marks and copy-
rights. The creation of a Patent Trial and Appeal Board
(PTAB) to preside over quasi-trials of patent validity
after the fact at the United States Patent and Trademark
Office (USPTO) raises substantial issues of constitution-
al law that, properly understood, have far-ranging impli-
cations for IP trial practice in general.
Historical recognition of IP
jury-trial rights
The right to jury trial is preserved by the US Constitu-
tion, as a safeguard for the populace against governmen-
tal abuse of the type that led to the American Revolution
against the British Crown. Ironically, the yardstick for
the jury trial right is (to this day) the scope of the right
as it existed under British common law. Thus a case that
would have been tried to a jury in England during pre-
revolutionary times is also entitled to be tried to a US
jury today. Conversely, the scope of the constitutional
right today is no wider than at that early time.
The Constitution also provided for so-called ‘Article
III courts’, in which the judges serve for life. This is in
contrast to ‘Article Icour ts’, which are administrative tri-
bunals with judges or magistrates appointed for limited
terms. Lifetime service is considered to promote judicial
independence from political influence, thereby insuring
a greater degree of impartiality. The gold standard for
quality of the US Federal justice system is therefore a
jury trial before an Article III court.
* Email: mail@rkunstadtpc.com.
Journal of Intellectual Property Law & Practice, 2014, Vol. 9, No. 8 ARTICLE 639
#The Author(s) (2014). Published by Oxford UniversityPress. All rights reserved. doi:10.1093/jiplp/jpu072
Advance Access publication on 30 April 2014
The author
†Robert M Kunstadt is an IP Attorney with R Kun-
stadt, PC, New York. The author thanks Ilaria
Maggioni, Esq, for comments provided upon
review of a draft.
This article
†The creation of a Patent Trial and Appeal Board
(PTAB) to preside over quasi-trials of patent val-
idity after the fact at the US Patent and Trademark
Office (USPTO), raises substantial issues of con-
stitutional law that have far-ranging implications
for both patent jury trials in the US Federal dis-
trict courts as well as IP trial practice in general.
†Motions are regularly filed to stay district court
litigation to await the outcome of PTAB proceed-
ings. The patent owner therefore stands to be
deprived of the right to a jury trial—in an
actual case or controversy with a specific accused
infringer—due to intervening invalidation of the
patent-in-suit by an Article I tribunal acting
without benefit of a jury.
†Hence, the jury trial right in patent cases, and by
implication in other IP cases involving trade
marks or copyrights, now logically seems in jeop-
ardy of diminution. Success of the new PTAB pro-
ceedings in reducing the perceived exposure from
patent jury trials, could lead to similar pressure
from perennial defendants in copyright- and
trade mark-based industries to seek relief from
perceived cost, delay and capriciousness of jury-
trial proceedings; with the result being increasing
reliance upon administrative determinations on
validity by Article I judges acting without juries.
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