Tomas Gomez-Arostegui, Lewis & Clark Law School, has posted Patent-infringement Actions in the Eighteenth Century and the Right to a Jury Trial:
This Article offers a wide-ranging reappraisal of patent-infringement litigation in the law courts of England in the 18th century. Infringement actions from this period are vitally important. They are foundational to those who work in patents, intellectual property generally, and constitutional law. Most saliently, 18th-century English law and practice continues to influence critical rights and governance in the United States. Litigants today have a Seventh Amendment right to have juries decide the same types of issues that English juries decided in 1791. They also have a constitutional right to have their disputes heard in Article III courts, rather than Article I administrative tribunals, if those types of disputes were heard in the regular English courts during the same foundational period.
To assess these constitutional issues, this Article presents the procedural context and excavates the vital materials needed to do so. Using a broad array of untapped primary sources, including thousands of manuscript records, it discusses the mechanics of infringement litigation in the King’s Bench and Common Pleas, and focuses on how contested issues were allocated between judges and juries. It demonstrates how and why juries dominated the system of adjudicating infringement cases; corrects many misconceptions; and aims to add to the scholarly corpus on 18th-century litigation and trials more generally. Most broadly, it illustrates the kind of historical work that originalism often requires, but which judges, lawyers, and non-specialist scholars usually find too difficult to perform.
Although the history recovered here supports some prior court decisions on these important constitutional issues, it calls many others into question, including those that permit the International Trade Commission to adjudicate patent infringement, as well as those that assign claim construction entirely to judges, validity issues to judges, and enhanced damages to judges. In short, many litigants appear to have constitutional rights where the courts presently deny them.
--Dan Ernst
