The U.S. Supreme Court has said that patent infringement cases must be tried to a jury.[1] A patent owner’s Seventh Amendment right to a jury is a powerful tool against infringers.
Case in point: A jury awarded VirnetX $302 million against Apple in September, finding FaceTime infringes two patents. This was the third jury verdict in favor of the online security firm against Apple in the companies’ long-running dispute. Juries in patent cases also gained strength this June when the U.S. Supreme Court lowered the requirements needed to show willful infringement to give juries a greater role in deciding whether infringement was willful.[2]
Despite constitutional support, efforts to unseat patent juries persist. The greatest current challenge to a patent owner’s right to a jury may be administrative proceedings before the Patent Trial and Appeal Board (PTAB), part of the U.S. Patent Office. Created by the 2011 America Invents Act, the Patent Trial and Appeal Board was intended to strengthen the patent system by giving patent holders and challengers a quick and inexpensive way to resolve disputes as an alternative to the courts.
