Prof. Christopher Beauchamp has added further to the historical analysis relevant to the question of whether it the AIA-trials – trial-like administrative patent revocations – are Constitutionally proper. That question juxtaposes contemporary expansive administrative law against the Constitutional notion that “judicial power [rather than administrative power] shall extend to all cases” and the requirement that the 1791 right to a Jury Trial be preserved. Although a law professor, Beachamp is also a legal historian (Ph.D. in History from Cambridge University) and his his legal publications center on questions of legal history.
Beauchamp’s newest essay focuses on the first known patent case in U.S. history. Beauchamp writes:
The first known patent case in the United States courts did not enforce a patent. Instead, it sought to repeal one.
After reviewing a set of previously uncited archived decisions, Beauchamp concludes that
These sources suggest that the early statutory provisions for repealing patents were more widely used and more broadly construed than has hitherto been realized. They also show that some U.S. courts in the early Republic repealed patents in a summary process without a jury, until the Supreme Court halted the practice.
One of Beauchamp’s most interesting conclusions here is that the early (i.e., pre-Bill-of-Rights) revocation proceedings should probably be seen as creating a break from prior English tradition. Thus, for patent revocation, the focus should be on the jury right as contemplated by the repeal process found in Section 5 of the 1790 Patent Act, which allowed for any member of the public to seek cancellation. Unfortunately for clear resolution of the Oil States question, the original Patent Act is ambiguous as to whether the repeal should be tied to a jury trial.
There is much more to learn from this short (34 page) paper. [Download Here]