Benefits of Patent Jury Trials for Commercializing Innovation
The U.S. patent system has long depended on trials before lay judges and lay juries for adjudicating patent disputes. Many think that reliance on lay judges and juries is a principal cost of the system, causing undue uncertainty, delay, expense, and error. This Paper reviews some important, underappreciated benefits of patent jury trials. One key benefit is that decisions in patent jury trials are more likely to turn on facts that are available to all interested parties to a given dispute, including the patentee, potential infringers, and those parties in or contemplating contractual relationships with either side. A second key benefit is that a typical patent jury trial generally keeps together before a single body all three key substantive areas of a typical patent dispute—validity, infringement, and remedy—which imposes important self-discipline on the arguments made by both sides to the dispute. All of this increases predictability and levels the playing field by decreasing the role that fashion and politics can play in a given dispute, which are especially important for a patent system designed to facilitate the commercialization of innovation. The Paper ends with a discussion that takes seriously the concerns raised by critics of patent jury trials as an important benchmark against which to measure an existing alternative to patent jury trials: patent infringement proceedings before the U.S. International Trade Commission (“ITC”). We note that the structure of the ITC yields proceedings that are faster than jury trials and less expensive, before a body with significant technological and legal expertise in the relevant fields, which includes the self-disciplining effect that flows from keeping all three substantive areas of patent law within the same dispute, without the cost of being as susceptible to the fashion and politics that have wielded more impact on the other agencies typically championed by critics of patent jury trials. In so doing, the Paper highlights important reasons why, all things considered, the costs of existing jury trials may be manageable tradeoffs well worth the benefits of those proceedings, and why it may make sense for the system to increase its reliance on patent infringement proceedings before the ITC or an alternative agency modeled on the ITC.