Whose Right Is It Anyway?:The Evisceration of an Infringer’s Seventh Amendment Right in Patent Litigation
Devon Curtis Beane   |   2011 U. Ill. L. Rev. 1853
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Legal scholarship on patent law and jury trials generally presents a cautionary tale: patent law is far too complex for the jury, yet parties demand a jury trial in patent cases at their own risk. This Note, in contrast, argues that the Seventh Amendment right to a jury trial has been understood and applied too narrowly in the context of patent litigation, particularly in the case of alleged infringers who request a jury trial. The author first traces the history of the Seventh Amendment right to a jury trial, explaining the impact of the division between law and equity on the interpretation of the Seventh Amendment. The author then discusses the development of Seventh Amendment case law outside of patent litigation to demonstrate the Supreme Court’s recent trend to recognize a right to a jury trial in mixed cases of law and equity. The author argues on the basis of this trend that the Supreme Court has expanded its definition of cases that qualify for jury adjudication.

Then, focusing specifically on patent litigation, the author first analyzes the Seventh Amendment in “traditional” infringement cases, in which a patentee discovers an infringing use and sues for damages or an injunction, and the alleged infringer may counterclaim on the basis of invalidity and noninfringement of the patent. The author argues that although the general consensus among courts is that the defendant-infringer’s right to a jury trial depends on the complaint filed by the plaintiff-patentee, language in “traditional” infringement cases on the importance of the jury trial suggests that invalidity and noninfringement defenses should qualify for jury adjudication, no matter the plaintiff-patentee’s complaint. Second, the author examines the Seventh Amendment in “reverse” infringement cases, in which an alleged infringer files for a declaratory judgment of invalidity or noninfringement of the patentee’s patents. Building on the arguments of important dissents in “reverse” infringement cases, the author reasons that because a declaratory judgment action seeks to determine the legal rights of the patentee and the defendant-infringer, a jury trial should be granted whenever requested in these cases.

Finally, the author recommends first and foremost that what remains of the antiquated distinction between law and equity should be discarded in all cases interpreting the Seventh Amendment. Second, the author argues that, even if the distinction between law and equity persists in the interpretation of the Seventh Amendment, alleged infringers should be able to assert their right to a jury trial, both as defendants in counterclaims and as plaintiffs in declaratory judgments.