Doubting juries is a mistake

Do Americans have a right to trial by jury? The Constitution says yes — but some of America’s biggest companies say juries can be overridden by the patent office. Consider the brewing conflict over a bill in Congress involving an administrative law tribunal that would shift a particular category of legal disputes — ones questioning the validity of patents — back to the federal courts.

Many corporate behemoths, particularly those in the tech industry, are preparing to fight the bill tooth-and-nail. They essentially argue that jurors are not sophisticated enough to adjudicate patent disputes — and that the job ought to be left to specialized executive-branch employees instead.

Regardless of whether one supports the particular bill in question, the notion that jurors are not capable of dealing with complicated intellectual property cases is simply false. We are both former federal judges appointed by presidents of different political parties. And in our experience with jury cases, jurors take their obligations seriously and work hard and capably to understand and resolve the questions put to them.

Jury trials are an integral part of America’s judicial system — so much so that the Founding Fathers enshrined that right in the Constitution. The Seventh Amendment explicitly protects citizens’ right to a trial by jury in civil cases. The Father of the Constitution, James Madison, once said that “trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Some companies, and their sympathizers, evidently find Madison unconvincing. For instance, Joseph Matal, a former official at the U.S. Patent and Trademark Office, argued in a recent op-ed that “juries are not an effective or reliable check on patent validity” and that technical matters are better left to administrative patent judges, who “all have at least an undergraduate degree in science or engineering.” Since patent validity cases often involve complex scientific or technological questions, the argument goes, administrative patent judges are more likely to come to the correct conclusion.

There are a few big problems with this argument.

First, some of our legal system’s most solemn and consequential decisions rest with juries — not judges or bureaucrats. For instance, a jury and only a jury can hand down the federal death penalty. This is also the case in many states.

If jurors can be trusted to decide whether to end someone’s life, it is hard to imagine why they should not be trusted to determine whether or not a patent is valid — a life-or-death decision for small companies defending their intellectual property from larger firms that have sought to invalidate the patents rather than pay licensing fees.

Second, those who argue for a “complexity exception” to the Seventh Amendment seem to ignore the fact that Americans trust jurors to analyze highly technical material all the time. Juries are regularly tasked with deciding complex cases involving antitrust, securities fraud, Ponzi schemes, mass torts and medical, legal and accounting malpractice.

Juries are already trusted to conduct highly technical “infringement analyses” in intellectual property cases, which may involve the very same patents as validity cases. These analyses require juries to thoroughly learn and understand Company A’s patent in order to compare it to Company B’s product to determine whether B infringed on A’s technology.

Plus, so jurors do not get confused, the judge is there to provide instructions, guidance, and review. And if litigants feel that both a judge and jury have made the wrong call, they can turn to a court of appeals. Juries are not just a necessary component of the U.S. legal system. They are also a positive good, playing a role that could never be filled by administrative patent judges, no matter how many STEM degrees they hold.

At a time of waning public confidence in government, including the judicial branch, juries give citizens a direct say in how they and their neighbors are governed.

Juries are among our country’s oldest and most important symbols of civic duty, fairness, and equal access to justice for all. They are the proper forum for all manner of criminal and civil disputes — including patent cases.

Michel served on the United States Court of Appeals for the Federal Circuit from 1988 to his retirement in 2010, and as its chief judge from 2004 to 2010. O’Malley served on the United States Court of Appeals for the Federal Circuit from 2010 to 2022 and the U.S. District Court for the Northern District of Ohio from 1994 to 2010. Both currently serve as board members of the Council for Innovation Promotion.