IP jury trials--trouble ahead?

Abstract

The creation of a Patent Trial and Appeal Board (“PTAB”) to preside over quasi-trials of patent validity after the fact at the Patent and Trademark Office (“PTO”), raises substantial issues of constitutional law that have far-ranging implications for both patent jury trials in the U.S. Federal district courts, as well as IP trial practice in general. Motions are regularly filed to stay district court litigation to await the outcome of PTAB proceedings. The patent owner therefore stands to be deprived of the right to a jury trial—in an actual case or controversy with a specific accused infringer—due to intervening invalidation of the patent-in-suit by an Article I tribunal acting without benefit of a jury. Hence, the jury trial right in patent cases, and by implication in other IP cases involving trademarks or copyrights, now logically seems in jeopardy of diminution. Success of the new PTAB proceedings in reducing the perceived exposure from patent jury trials, could lead to similar pressure from perennial defendants in copyright- and trademark-based industries to seek relief from perceived cost, delay and capriciousness of jury-trial proceedings; with the result being increasing reliance upon administrative determinations on validity by Article I judges acting without juries.