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.

 

The Complexity Exception

The Seventh Amendment to the United States Constitution states the following:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Though the Seventh Amendment preserves the right to a jury trial, many modern courts invoke a “complexity exception” to deny litigants that right.¹  The “complexity exception” allows a judge to take a civil lawsuit out of a jury’s hands when the issues are purportedly too complicated for jurors to understand.²  Courts have justified this “complexity exception” by weighing the Fifth Amendment right to due process more heavily than the Seventh Amendment right to a jury trial, arguing that in cases beyond the understanding and comprehension of a jury, a jury trial denies litigants a fair trial.³  Courts have also supported the complexity exception by citing a footnote in the Supreme Court case Ross v. Bernhard, which states that "the practical abilities and limitations of juries" should be taken into account in determining whether the right to a jury trial exists.⁴  Still further, courts have used a historical equity argument to argue that remedies at law that were unavailable in 1791 should not be available now, and thus no right to a civil jury trial exists.⁵

It is well known that patent disputes often involve complex scientific principles.  But should the complexity of the dispute give courts the authority to deny litigants their Seventh Amendment right to a jury trial?  In 1995, despite the jury’s previous role of construing patent claim language, the Court of Appeals for the Federal Circuit held in Markman v. Westview Instruments that the district court itself will determine the meaning of patent claims, not the jury.⁶  Judge H. Robert Mayer disagreed with the majority’s determination that claim construction is exclusively a matter of law rather than fact and labeled this ruling an attempt to create a “complexity exception” to the Seventh Amendment for patent cases.⁷  Even so, in 1996, the Supreme Court affirmed the Federal Circuit’s ruling, thus creating what are now known as Markman hearings.⁸  Since patent claims are construed by courts prior to the start of trial in Markman hearings, patent infringement suits now often settle before the cases can get in front of a jury.⁹

                                                                                             

Until it can be shown that judges “are more likely to be right” than juries¹⁰ in cases arising under patent law, due process is not in jeopardy and the right to a jury trial should be preserved under the Seventh Amendment.  As noted by Alexander Hamilton in the Federalist Papers:

The friends and adversaries of the plan of the convention, if they agree on nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; and the latter represent it as the very palladium of free government.¹¹