In his recent work-in-progress article, Professor Mark Lemley focuses on the question of whether the Seventh Amendment protects the right to a jury determination of invalidity. His answer (and I paraphrase): Its complicated, but there is probably not a constitutional right to a jury trial on patent invalidity. In particular, Professor Lemley writes that the Supreme Court “is unlikely to find such a right [to a jury trial] to exist in the broad form lawyers and judges currently assume, though how the Court will rule may depend on the lens it uses to think about the Seventh Amendment.” Mark A. Lemley, Why Do Juries Decide if Patents Are Valid?, available at http://ssrn.com/abstract=2306152.
Curiously, while the right to a jury trial on patent validity issues is widely assumed, there is in fact no solid support in modern case law for such a right. The one case to hold that there was such a right, the Federal Circuit panel opinion in In re Lockwood, drew a sharp dissent from three members of the appellate court, was taken on certiorari by the Supreme Court, and was then vacated by that Court after the patentee withdrew its jury trial demand rather than face Supreme Court review. Nonetheless, both courts and lawyers have based two decades of practice on that uncertain foundation. The resulting practice is a hybrid one that is hard to link to any historical practice.
Lemley’s article provides the following chart showing how the rate of jury trials (as compared with bench trials) has changed so dramatically over the past several decades.