The Complexity Exception or Blue Ribbon Jury in Patent Cases

In a recent post on the “Thinking About Juries” blog, Ms. Gonzales discussed the application of the “complexity exception” to the Seventh Amendment adopted by many modern courts in patent lawsuits. Because patent litigation usually involves complex technical concepts, many courts determined that in cases beyond the understanding and comprehension of a jury, a jury trial denies litigants a fair trial. These cases should hence be decided by the Judge. Ms. Gonzales argued that since the pre-trial procedure of patent cases includes the so-called Markman hearing which provides construction of claim elements in dispute, often times, the Court’s construction of these elements are case dispositive. Therefore, many patent infringement suits settle before the cases can get in front of a jury. Moreover, since there is no proof that Judges are more likely to be right than the Juries, Jury trial should be preserved for all patent cases under the Seventh Amendment.   
          I agree with Ms. Gonzales that since the roles of both Judge and Juror are performed by lay persons, nothing can warrant a Judge to make better decision than the Jury even in patent dispute. However, there is indeed something unique about patent litigation which cause the "complexity exception" to be invoked by Courts from time to time. In many patent cases, the focus of dispute is revolved around a few claim terms, and these terms are typically term-of-art inside the technical field of the patent. Often times, the terms in dispute are neither overly cryptic nor simple enough to be understood by person without ordinary skill in the art. In most cases, at least some fundamental engineering background is required to guarantee that a juror can give the invention its rightful interpretation.
          The lack of technical background for the majority of jurors is certainly taken advantage of by many non-practicing entities (or the “patent troll”), who bring a proliferation of baseless lawsuit by manipulating meanings of claim terms using their hired “experts.” Therefore, I believe that a better solution to this problem is to use blue ribbon jury to decide patent cases. To become a patent agent to practice patent prosecution before the United States Patent Office, a person is required to have a college degree in engineering, such that he or she can be assured to understand the inventions. The same rationale should be applied to patent litigation, where jurors with engineering degrees should be much better equipped to decide patent cases? Moreover, finding the jurors that are qualified to sit in patent cases is easy to implement. The same standard of selecting candidate to sit in the Patent Bar Examination can be applied to select the special jury from the general public. Therefore, the legislature should seriously consider making laws that warrant blue ribbon jury for patent lawsuits rather than general jury.