Is It Fair to Ask Juries to Rule on Patent Cases?

Patent cases have long been some of the most challenging cases to litigate. Cases often involve multiple parties, teams of attorneys, and stakes in the millions. Additionally, by their very nature, patents are often on highly technical and complex inventions. Under 35 U.S. Code § 101, a patent can only be issued on a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. Under 35 U.S. Code § 102, the invention must be novel in that the inventor must be the first to file the claimed invention, and it cannot have been known or available to the public more than one year before the patent was filed. Further, under 35 U.S. Code § 103, the invention as a whole cannot have been obvious to a person having ordinary skill in the art of the claimed invention before the invention was filed.

            Under 35 U.S. Code § 154, a patent grants the holder the right to exclude others from making and using the claimed invention in the United States for twenty years after the patent’s filing date. Thus, if another makes or uses the claimed invention without authorization during the life of the patent, the patent holder is entitled to sue for patent infringement. Every patent infringement suit has two primary components: validity and infringement. Although the Supreme Court has long held that courts must presume that an issued patent is valid, a patent’s validity is at issue is nearly every patent case. Courts are required to construe the language of a patent’s claims against everything that was invented before the claimed invention (prior art) before they can determine whether a patent was infringed. Additionally, a standard defense to infringement is that the patent at issue is invalid in that its components were known or were obvious to one of ordinary skill in the art before the patent was filed.

            If you struggled to reach this point, just imagine what jurors must think at a trial. Patent law itself is so complex that the Supreme Court has found it necessary to hear on average more than two patent cases a year for the last ten years. Yet juries are asked to apply these standards to complex inventions in fields such as medical devices, mechanical engineering, and computer science. Patents are often on complex, cutting-edge technologies which few, but a few times of highly specialized people understand. Take for example, a hypothetical medical device case on a patent that improves an MRI machine. For a jury to determine whether the invention was obvious, they must first determine what was known to one of skill in the art at the time of the invention. This determination requires that the jury determine what a person skilled in the knowledge of creating MRI machines would know at the time of the invention. And a person skilled in creating MRI machines may be a doctor, a researcher, a programmer, or some other highly specialized field depending on the scope of the invention’s improvement to the MRI machine.

            Our system of justice makes no attempts to create a jury of technical experts to evaluate an individual patent case. Thus, the only way that a lay juror can even begin to understand the task of determining what was known to one of ordinary skill in the art at the time of the invention is to listen to a series of experts discuss what was known in the art. And is it even fair to ask jurors to decide cases about this highly technical and complex subject matter? In 2013, congress created a specialized board at the US Patent and Trademark Office called the Patent Trial, and Appeal Board tasked with evaluating the validity of challenged issued patents. The board is composed of specialized experts with technical backgrounds often in the field at issue. From 2012 to January 31, 2020, this board has issued a final written decision for over three thousand cases. Of these cases, the board has found all patent claims invalid 63% of the cases, some claims invalid 18% of the cases, and have only upheld patents in their entirety in 19% of cases. And if these specialized experts struggle to determine a patent’s validity, how can lay jurors be asked to do the same?