Reconsidering in Re Technology Licensing Corporation and the Right to Jury Trial in Patent Invalidity Suits

“The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen . . . should be jealously guarded by the courts.”1 The rights of individuals in patent cases are no less deserving of the stubborn protections of the Seventh Amendment. Although some commentators argue that practical concerns should dictate a greatly reduced—or even nonexistent—jury role in patent cases,2 the Seventh Amendment reflects a concern with principles well beyond mere “efficient judicial administration.”3 “The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.”4 Nevertheless, over the past decade, the Supreme Court and the Federal Circuit have steadily eroded the jury’s role in patent cases by shifting the weight of decision making to the judge. In Markman v. Westview Instruments, the Federal Circuit held (in “Markman I”) that, although infringement claims generally preserve the right to trial by jury, claim construction5