Tomas Gomez-Arostegui, Lewis & Clark Law School, and Sean Bottomley, Northumbria University, have posted Patent-Infringement Suits and the Right to a Jury Trial, which is forthcoming in the American University Law Review:
This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on 18th-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and that therefore litigants today who seek only injunctive relief possess no such right either. But as we demonstrate here, the relevant historical record shows the contrary, and thus many litigants have a constitutional right to a jury where the courts presently deny them. We reach our conclusion after undertaking the most comprehensive treatment of the subject to date, which includes marshaling hundreds of 18th-century records (mostly in manuscript) from the National Archives of the U.K. and elsewhere.--Dan Ernst
