Novartis v. Noven Pharma (Fed. Cir. 2017)
This short opinion by Judge Wallach affirms the PTAB findings that the claims of two Novartis patents are invalid as obvious. See U.S. Patent Nos. 6,316,023 and 6,335,031. Several prior court decisions (including those involving the petitioner here) had upheld the patent’s validity against parallel obviousness challenges.
The most interesting aspects of the decision are found under the surprising heading: Prior Judicial Opinions Did Not Bind the PTAB. When taken out-of-context, we can all agree that the statement is silly and wrong. The PTAB is obviously bound by Supreme Court and other precedent. In my view, the statement is still silly and wrong even when applied in context.
The context: In Novartis Pharm. Corp. v. Noven Pharm., Inc., 125 F. Supp. 3d 474 (D. Del. 2015)), the district court considered Noven’s obviousness argument and fount it lacking merit. Same story in Novartis Pharm. Corp. v. Par Pharm., Inc., 48 F. Supp. 3d 733 (D. Del. June 18, 2014) and Novartis Pharm. Corp. v. Watson Labs., Inc., 611 F. App’x 988 (Fed. Cir. 2015), albeit with different parties.
In the Inter Partes Review, the USPTO concluded that those prior court decisions regarding obviousness need not be considered since the record was different at the PTAB – albeit admittedly ‘substantively the same.’ [edited] On appeal, the Federal Circuit rejected the PTAB’s reasoning as a trivial likely insufficient distinction, but instead found that the different evidentiary standard was what justified the result:
Nevertheless, even if the record were the same, Novartis’s argument would fail as a matter of law. The PTAB determined that a “petitioner in an inter partes review proves unpatentability by a preponderance of the evidence (see 35 U.S.C. § 316(e)) rather than by clear and convincing evidence[] as required in district court litigation,” meaning that the PTAB properly may reach a different conclusion based on the same evidence.
The idea here is that in litigation, invalidity must be proven with clear and convincing evidence while inter partes review requires only a preponderance of the evidence. As explained by the Supreme Court on Cuozzo, this may lead to different outcomes:
A district court may find a patent claim to be valid, and the [USPTO] may later cancel that claim in its own review. . . . This possibility, however, has long been present in our patent system, which provides different tracks—one in the [USPTO] and one in the courts—for the review and adjudication of patent claims. As we have explained . . . , inter partes review imposes a different burden of proof on the challenger. These different evidentiary burdens mean that the possibility of inconsistent results is inherent to Congress’[s] regulatory design.
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2146 (2016) (citation omitted).
My view: As suggested here, we have a failure of system design – a party who challenges a patent’s validity in court and loses should not later be allowed to re-challenge validity. [Cite the 100’s of cases and articles supporting finality of judgments.] In this situation, the PTAB / Federal Circuit should at least be required to distinguish its factual findings from those of the federal courts.
Obviousness Aside: A quirk of this case not addressed by the court is that it is an obviousness case – and obviousness is a question of law. The differences in invalidation standards for courts and the PTAB are evidentiary standards and do not apply to questions of law. Rather, questions of law should be decided identically in both fora.
Dennis’ view seems to argue for a Parity in Powers instead of the Separation of Powers.
Senate Republicans just “k*lled the Senate” (their own words) so they could install their gold-plated puppet into a stolen Supreme Court seat. A guy nominated by the same Republican preznit that many of the same Republican Senators openly loathe.
Oh, this is going to work out wonderfully. It always does, at least if you’re a rich white guy.
For what it’s worth, good riddance to the “old” Senate and the filibuster.
Also, Dennis, you were pretty accurate on the timing of this.
Now we just have to figure out what can be saved as the climate and human rights get flushed down the sewer before our eyes.
That one above was responding to the wrong post.
“For what it’s worth, good riddance to the “old” Senate and the filibuster.”
The filibuster still lives on, it just can’t be used to block certain nominations. Read the news more carefully.
“A guy nominated by the same Republican preznit that many of the same Republican Senators openly loathe.”
True, but most of those R sentators lurve the candidate regardless of the person doing the nominating.
“Oh, this is going to work out wonderfully. It always does, at least if you’re a rich white guy.”
MM laments Merica being made great, simply because it might benefit rich “white” males.
They read the word “shall” right out of the Constitution. GOP Senators stole power from citizens who voted in 2012. This isn’t about one judge. This is about the willingness of elected representatives to permanently degrade the quality of the government to acquire power not granted by the Constitution.
Absolutely. This seat was not theirs to fill. Do you think it’s possible to sue over this?
Payback, HofPB.
Obama filibustered Alito just to F Bush.
link to washingtonexaminer.com
While the Repubs did confirm two O-man appointees, they balked at trying to appoint a replacement for Scalia in a presidential election year, a precedent establish in the 1968 presidential election where Johnson was forced to recall his nomination of Justice Fortas as Chief Justice to replace Earl Warren, a Republican.
Also recall that Biden argued in 1992 that the Senate should not confirm any Bush nominee to the Supreme Court.
But the Obama filibuster for political reasons was sufficient, in my view, to give him payback. The O-man was the most partisan president I think we have ever had.
What an embittered old Marxist B@astard you sound like. You are losing old man. Righteousness is gaining. You hear the footsteps of doom.
In other news, the CAFC published ten Rule 36 judgments today and based on the titles it looks like most of them are confirming the ineligibility or non-inventiveness of “do it on a computer” junk. Maybe someone else can confirm? I’ve been too busy the past month manually managing Internet trivia contests to follow the oral arguments.
Keep your eyes out for that pendulum. I think it’s floating down the river somewhere.
The CAFC really has their heads up their __ on this one. They just said that the PTAB doesn’t have to follow their decisions or SCOTUS.’ How much more unchecked power is the CAFC going to give the PTAB? How much more unpredictable is the CAFC going to make the patent system? How much more worthless is the CAFC going to make patents? Why do we need the CAFC when SCOTUS routinely overturns them? Why should patent applicants spend years and tens of thousands of dollars seeking patents in the U.S. if they’re so easily invalidated? At some point these decisions have to be unconstitutional because IP rights are written into the Constitution. The courts are gradually removing those rights from the Constitution with their anti-patent decisions. They should be writing themselves out of a job just like they’re destroying incentives for innovation in the U.S.
Peter: At some point these decisions have to be unconstitutional because IP rights are written into the Constitution.
Indeed. Just like it’s unconstitutional to close any post offices because the Constitution gives Congress the power to create them. Also, it’s unconstitutional to pay off debts because Congress only has power to borrow money, not pay it back.
Or you could read section 8 like any sane person and accept that the power to create something includes the power to take it away. What am I saying, that’s crazy talk…
Fair point, but for the boatload of SCOTUS precedent that says the exact opposite wrt land and IP patents.
(The ostrich approach to advocacy)
Think eminent domain…
And then remember that even for government takings, there are strict requirements and protections in place.
This seems to go in the face of the B&B Hardware case. There should be issue preclusion where the same issue is decided by a court, even where there may be a different burden of proof. This case feels like easy SCOTUS-bait for them to say “what we said about trademarks also applies to patents” and get a unanimous smackdown of the Federal Circuit.
“The filibuster still lives on, it just can’t be used to block certain nominations. Read the news more carefully.” The Restatement mentioned in B&B Hardware says otherwise.
The SCOTUS probably would not say that “what we said about trademarks also applies to patent” since there is usually not a “clear and convincing standard ” for trademark invalidity (excepting, e.g., clear and convincing evidence of an intent to decieve.) Even where there is, in B&B the TTAB decision was first, so there would not be a lower burden of proof in the subsequent district court action.
Here the first of the parallel decisions came in the dictrict court under a clear and convincing standard, then the second in the PTAB under a preponderance of the evidence standard. The Restatement and all of the case law that it is based upon say that this is proper.
Miscopied the quote. “This seems to go in the face of the B&B Hardware case. There should be issue preclusion where the same issue is decided by a court, even where there may be a different burden of proof.”
Isn’t Dennis assuming that the PTO is bound to the district court’s claim construction? Doesn’t the PTO apply a different standard than the court? As far as I am aware, the PTO is not bound by a court’s claim construction.
The petitioner is, however, having been a party to the action.
Apparently, the new filter system locks you out after a single word trips a filter – no matter what else you might be attempting to say – and to whomever else you are attempting to say it to….
I’m reporting this comment because it’s too crabby.
That was always the case.
Invalidation by a 1,000 IPRs. I recently looked at case and the patent family had been IPR’ed twelve times. And, one set of claims had not had one success for 103, and yet the CAFC invalidated all the claims under 101 saying there was nothing more.
Think about that. The PTAB said twelve times that it was not more likely than not that the claims were invalid under 103, and yet the CAFC said (with no evidence) that the claims offered nothing more than the phantom claim (directed to) the CAFC conjured up.
“Think about that. The PTAB said twelve times that it was not more likely than not that the claims were invalid under 103 [OVER TWELVE DIFFERENT COMBINATIONS OF ART].”
You missed a few words. If I’m counsel for a thirteenth party and I’ve got a better thirteenth combination of art, I don’t give a hoot about the first twelve IPRs.
Res judicata, collateral estoppel, issue preclusion and the like can’t touch me. “Invalidation by 1,000 IPRs” suggests that there’s some threshold at which a patent owner should be able to be bulletproof. Wasn’t true before, isn’t true now, and has no reason to be true in the future.
DRJlaw: “Wasn’t true before.”
Wrong. Before you had to have standing. Now you don’t. You can file and file. Moreover, I didn’t leave anything off of my original post. The CAFC held the claims invalid because there was nothing more over their phantom claim (directed to) with NO evidence.
So, appellants at the CAFC spent a fortune at the USPTO trying to get the claims invalidated over and over again with 103, and with NO evidence the CAFC invalidated them, in effect, saying they were obvious (103).
“Before you had to have standing.”
Before 1981? Nobody can stop you from arguing that the last 45 years have been a giant mistake, but the rest of us have moved on.
There was never a standing requirement in EPR and IPR. “Any person” means literally any person and “any third-party requester” meant literally any third party.
Hey, DRJLaw, speaking of moving on, can Congress confer standing by statute?
As of now yes. Ask a silly question, get a silly answer.
Which case?
I don’t see how invalidity under 103 precludes invalidity under 101. Moreover, “nothing more” seems like an issue of claim construction–not a fact issue. Were there underlying fact issues that required evidence to resolve?
NS II: You see no relation then between the “something more” test and 103. OK. Just every fair thinking person in the world that works on patents does see a relation.
Not a fact issue? Seriously? Determining whether there is “something more” over what is known is not a fact issue. So, you think that a fact finder determining what is known in the prior art is not a fact issue. OK. Again, no other fair thinking person that knows patents would say that. But, OK. I know we live in the world of the anti-patent judicial activists who just deny reality. Welcome back to medieval times.
I’m not denying that there is a relationship between 103 and the current understanding of 101. I just don’t see why these rulings are inconsistent. I can see no reason why a claim couldn’t be obvious AND ineligible.
As for “something more,” your original comment was regarding the CAFC holding as to what the claims offered–not what was known in the prior art. In many cases, the relevant scope of the prior art will not be in dispute, so the lack of evidence is meaningless. For example, if the something more is “a computer,” it is unlikely that someone will challenge its prior art status. Of course, it is hard to evaluate this in the abstract, which is why I asked for information about the particular case.
You do know that the Act of 1952 broke apart 101 and 103 on purpose, right?
Having read the piece and then skimmed the comments thread, I am surprised to find that stuff which for the rest of the world is uncontroversial can be so contentious in the USA.
A patent is a restraint of trade and free competition. Allowing a bad one to be enforced is a public mischief. There must be effective means by which bad patents can be struck down.
Filing and prosecuting is a matter between Applicant and Office. Especially where matters of scientific fact are involved (evidence coming from experiments) the finder of fact has to do it with only one side of the story to hand. It is beyond obvious that sound decisions can come only after having heard both sides of the story.
That said, of course there has to be strict control of those who would otherwise waste the precious time of the finder of fact. It is beyond obvious that effective controls must be in place, to stop a party re-litigating an issue where it has already been given its day in court.
MM has a thankless task, calling out in these columns the patent maximalist crowd. But I thank him. Patents are an exception to the general rule of free competition to promote the progress of society. Never forget that. But a properly functioning patent system is nevertheless worth it. And so I want patents to receive ever more respect, not ever-diminished respect from the public and its delegates in DC.
The way to do that is steadfastly and speedily to enforce the good patents, while finding and using effective ways tirelessly and robustly to stamp out any bad ones whose owners have the gall to assert.
Except reality Max. The reality of what has happened in US patent law is that judicial activists (anti-patent) have so twisted the law that it is difficult for anyone to what our laws are now. All of this flows from Benson where the DOJ was attempting to limit patentability of software programs (mainly for big corporations who made their money with hardware at the time.)
So, rather than having concise laws that are in accordance with reality what we have is twisted logic right out of the medieval times that is perpetuated by anti-patent judicial activists. Most of them are highly unethical, e.g., Mark Lemley, and think nothing of misrepresenting the law, science, and historical facts. For example, Mark Lemley recently was at a seminar where he used the number of patent filings to support his hypothesis that the weakening of the patent enforcement has not slowed applications. But, this is simply a 1ie. Had he normalized the numbers (i.e., removing foreign filing and adjusting for the growth in the economy) he would have a graph that illustrates that patent filings are falling. Highly, highly, unethical conduct.
That is reality Max. I have no problem with people that advocate for changing the laws on eligibility. But, the unethical anti-patent judicial activists have so twisted our laws that it impossible for anyone to know what our laws are (and predict what they may be in the next year or two) with the latest judicial activisms at the SCOTUS and CAFC.
Reality Max. Try it.
Night I wholeheartedly agree with you, that:
“…. it is difficult for anyone to what our laws are now…..”
We differ though, on who or what should take the blame.
If nobody knows when a claim is patentable, invalid, or infringed, well then that is a vexatious mischief, exploitable by greedy lawyers and their unscrupulous clients, against the interest that society has in a strong and well-functioning patent system. Can we agree on that, perhaps?
“a strong and well-functioning patent system.”
Methinks that your “understanding” of what that means is clearly deficient.
We can agree on that Max. Now please go re-read Benson and Chisum’s analysis of Benson and analyze what Lemley did at the recent seminar. Then report back to me as to who is to blame.
If I understand you aright, Night, the US patent system is dysfunctional because Lemley has influence, and you don’t.
I remain to be convinced.
I think it’s because (inter alia) 35USC101 is badly drafted and SCOTUS is derelict in its duty to tell us what it means (what is encompassed in today’s world by the “useful arts”).
Although I do admire your ability to transfigure yourself.
“MM has a thankless task, calling out in these columns the patent maximalist crowd. But I thank him”
No real surprise there.
Another “friend” with whom, who needs enemies?
You have to believe these people are getting paid to push this nonsense.
Nah bro, you have to believe that they are literally mind controlled into a different view of the universe than you have. It’s literally a neoliberal view, that is sympathetic to leftism (for fairness, social justice etc. against liberty, property etc.).
Max, There must be effective means by which bad patents can be struck down.
What is a “bad” patent?
Second, regarding “struck down,” by whom?
Do you understand legal rights, the rule of law and due process?
The less of these we have the more “effective” are means of striking down, not so?
A bad patent is one that should not have been granted. When the PTO does not know all the relevant facts, but only a selection of them, it can happen that there are bad patents amongst the issuing stream.
By strike down, I mean revoke. The petitioner for revocation should carry the burden of proof. The burden should be the ordinary civil law “more likely than not” standard. So it is, everywhere in the world except the USA.
What do you mean, Ned, by “less” and “effective”? That’s the bit I don’t understand.
Maybe MaxDrei you might want to focus first on answering the question of:
“Do you understand legal rights, the rule of law and due process?”
For all of your “the rest of the world” spiel, the answer to that question is pretty important.
And then, please, remember to respect the sovereignty as this nation has long treated certain aspects of patent law differently (and to the betterment of innovation here, mind you).
Okay Max, a bad patent is one that should not have been granted. But only a patent that covers existing products and services or processes withdraws from the public things already in the public domain. A patent that covers an invention, but too broadly, may be bad in a sense, but the inventor still contributed.
Regarding revocation, what we have seen in the United States in the case of in the case of IPRs is gang tackling, unfair procedures in an administrative agency, and other denials of due process that are virtually wrecking the United States patent system. Prior to this “patent death squad” procedure, every accused infringer had a right to his day in court where he could defend on the basis that the patent was invalid. Even if the patent owner prevailed in one action, validity could be raised in every other action. Thus, and in point of fact, truly bad patents could not be enforced in United States prior to IPRs. What has changed with IPRs is that small fry inventors and startup firms are being stripped of their patents simply because of IPRs.
Regarding your point about “efficient,” the point I was making is that the less due process you give a patent owner the more efficient the process comes from the viewpoint of stripping an owner of his patent. One can imagine the procedure that would allow a patent owner exactly 5 hours to come to Washington to provide a defense on the filing of a petition. Now that would be efficient from the point of view of a revocation procedure. But it would not be fair whatsoever. This imagined procedure kind of reminds one of the due process that a certain person of interest had to endure two thousand years ago when he was detained at midnight, tried at three, convicted at six, scourged at nine, crucified at noon, and died at three. Now is that the kind of efficiency you advocate when we want to get rid of a “bad” patent.
The curious thing, Ned, is that at the EPO filing an opposition is a sign that the patent is important. Losing the opposition leaves the patent owner in a position stronger than it was before. In Europe, oppose at your peril. You might very well live to regret it.
I put it to you that it’s not the concept of a post-grant review of validity that is so wrong but, rather, the way the USA has implemented that concept and adapted to it in infringement proceedings. In a well-functioning patent system, there is a correct balance between the legitimate needs of the patent owner (for speedy injunctive relief) and the competitor (for the bad patent to be struck down quickly).
Max, your Euro-Uber-Allis system does recognize that after the opposition period is over, there is an extremely strong presumption of validity such that the courts do not even address validity before they issue the injunction.
I would not be opposed to getting rid of reexaminations and all forms of PGR in favor such an opposition system, but with the caveat that the period of time an opposition is pending be added to term. Long ago, when Hal Wegner an I were on the AIPLA’s opposition committee together, this essentially was his position as well. Once the opposition period was over, the presumption of validity should be extremely strong such that preliminary injunctions should routinely be granted.
Something about “quiet title” comes to mind…
Ned your comments remind me of the way pharma patent owners assert their patents against the generics folk, as the patent nears the end of its term.
Recently, the court in England found an innovative way to control abuse, do justice, and find a balance between the legitimate assertions of generics and those of patent-owning pharma. I wonder if this balance meets the requirements of due process.
The court gave Mr Generic the declaration it sought, namely that the act accused of infringement was an act obvious at the priority date of the asserted patent.
The consequence was to render ineffective not only the patent asserted but also all of the divisionals in the pipeline at the EPO, regardless what claims might be in them when they go to issue.
Ned I don’t understand your notion of adding to patent term all the years of pending opposition. If ever a law were open to abuse, that would be it, no?
In Europe one routinely asserts the patent the day it issues. The court could enjoin the accused infringer straightaway, long before any validity issues still live reach the court of appeal for judgement.
Here a Link.
link to ipkitten.blogspot.de
Ned, you will find that the [rare] IPR “gang tackling” you and others refer to due to patent owners that have “gang tackled” numerous different companies with infringement suits on the same patents.
If you were representing a patent suit defendant for a change would you want them denied any IPR defense opportunity because a different defendant had filed one, even if they did a bad job of it?
Also, IPRs can be and have been denied by the PTAB where the prior art assertions are duplicative of prior filed IPRs.
Paul, not sure of your definition of rare, but if you were a patent holder would you want an efficient infringer to challenge your patents even though the one year time bar set by statute was long gone? Then have a newly created LLC owned by a newly created LLC file IPRs against your patents? Then have RPX, which had a relationship with the efficient infringer, file IPRs? Then, after the evidence was so clear cut even a death squad couldn’t ignore it and dismissed RPX’s IPRs have a hedge fund with a relationship to RPX file IPRs that were granted and are now set to go before the CAFC. All the while the efficient infringer files IPRs against 15 of your patents that are not involved in the suit. Did I mention the patents in suit have been through three different invalidation attempts at the district court level by three major multinational infringers and none could invalidate them. It may be “rare” but it sure doesn’t make things any better when it happens.
>>>Also, IPRs can be and have been denied by the PTAB where the prior art assertions are duplicative of prior filed IPRs<<<
Yes, but there are still filing fees for your defense, attorney fees, and expert opinions as well, not going to break the bank individually, but when you have more than 70 IPRs filed against 19 total patents (when only four are asserted against the efficient infringer) everything gets expensive by repetition.
PI, this is solely in response to your “would you want an efficient infringer to challenge your patents even though the one year time bar set by statute was long gone?”
Responses: What I would want is irrelevant. But what should logically be the right answers are: no if it is the same infringer, but yes if it is a different infringer sued later so that the one year time bar does not apply to that infringer. If a patent owner sues different infringers at different times they created that situation. It also makes it more difficult for the PTAB to treat them together.
“If a patent owner sues different infringers at different times they created that situation”
What about the fact that the AIA forces this type of non-joinder? (in certain situations)
Is there anything in the USA comparable to a “Certificate of Contested Validity” which the English courts will issue to a patent owner if it asks nicely, after it has seen off the validity attacks.
Subsequently, any party choosing to put validity in issue faces a very serious financial risk, if it fails to get the patent found invalid.
Paul, the question started with, “if you were a patent holder would you want…”, so what you would want is the only relevant thing. Feel free to decline to answer if it doesn’t fit your narrative. And, honestly, I would think that a man of your intellect would follow that I provided all that information as a backdrop to the question for you to know it was only one well known, oft infringing, efficient infringer.
Also, how would YOU feel if you were that patent holder and the same three PTAB judges who had to toss out RPX’s petitions for not disclosing RPIs wouldn’t even allow you discovery on RPIs for two IPRs when YOU were alleging that the petitioner was a beard for RPX who was a beard for the major efficient infringer????
Dennis, bingo. You have very nearly identified the elephant in the room. The Oil States petition for writ of certiorari will get you the rest of the way.
Or, for those less concerned with all that Constitution stuff, Blonder-Tongue offers a comprehensive approach. Collateral estoppel must be applied on a case by case basis.
Blonder-Tongue is plenty Constitutional.
Why not wait to see if this latest Hail Mary Constitutional cert pass actually finds a receiver, since the four or five such prior attempts have not, instead of Trumpeting it [pun intended] on every blog here as some kind of certitude?
So does this mean that if there is a jury verdict holding a patent valid, that the PTO can, post-verdict, invalidate claims in an IPR?
anony, Depends on who decides this issue, a legitimate court or the Federal Circuit.
Juries do not hold patents valid, they (or judges in a bench trial) hold that a patent has not been proven invalid under a particular burden of proof. The issue can be relitigated (assuming that statutory time limits are satisfied) under a significantly lesser burden of proof.
Read Senator Whitehouse’s legislative comments linked to below in 9.2.2.1.1.1.
Okay, let’s say you are correct. In the situation where there is a jury verdict (but no final judgment entered by a district court) holding the patent is NOT invalid, and then later the PTO invalidates claims in an IPR, that PTO action should not disrupt the jury verdict. Going forward you may not have a patent or an unenforceable patent with actions filed after the IPR decision, but the Judge in the jury case should not be able to come back say that the post-verdict IPR now disrupts the pre-IPR decision jury verdict.
Even if the issue can be relitigated under a lesser burden of proof in an admin law proceeding, that shouldn’t have any effect on a jury verdict that came well before the IPR decision.
“the Judge in the jury case should not be able to come back say that the post-verdict IPR now disrupts the pre-IPR decision jury verdict.”
Federal Rule of Civil Procedure 60(b) says otherwise. Again, read Senator Whitehouse’s legislative comments linked to below in 9.2.2.1.1.1. The judge is able to, but not required to. It is an exercise in judicial discretion.
FRCP 60(b)
“[T]he court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.”
LOL, I do mean the Federal Circuit. I think there’s a case that had oral argument in the Fed Cir in August that had just that situation–jury verdict holding the patent valid, then months later, IPR decision invalidating claims–but no ruling yet.
Today’s ruling would suggest that said case is not going to get any special treatment as a result of the prior jury verdict.
No, a bench trial in this case.
link to ded.uscourts.gov
I got that, I was asking if people thought this would extended to jury verdicts.
If the parties are entitled to a jury trial in court, I think you have a problem.