Tuesday, 6 May 2014

Jury trials in the US: will the creation of a PTAB cause constitutional headaches?

A short and quite provocative article, "IP jury trials—trouble ahead?" by Robert M. Kunstadt (R. Kunstadt, PC), has just been published online in the Journal of Intellectual Property Law & Practice (2014), a.k.a. JIPLP. According to the abstract:
"The creation of a Patent Trial and Appeal Board (PTAB) to preside over quasi-trials of patent validity after the fact at the US Patent and Trademark Office (USPTO) raises substantial issues of constitutional law that have far-ranging implications for both patent jury trials in the US Federal district courts as well as IP trial practice in general.

Motions are regularly filed to stay district court litigation to await the outcome of PTAB proceedings. The patent owner therefore stands to be deprived of the right to a jury trial—in an actual case or controversy with a specific accused infringer—due to intervening invalidation of the patent-in-suit by an Article I tribunal acting without benefit of a jury.

Hence the jury trial right in patent cases, and by implication in other IP cases involving trade marks or copyrights, now logically seems in jeopardy of diminution. Success of the new PTAB proceedings in reducing the perceived exposure from patent jury trials could lead to similar pressure from perennial defendants in copyright- and trade mark-based industries to seek relief from perceived cost, delay and capriciousness of jury-trial proceedings; with the result being increasing reliance upon administrative determinations on validity by Article I judges acting without juries".
There's more on the PTAB here.

Do readers agree with Rob's hypothesis? Do let us know.

1 comment:

Suleman Ali said...

The formation of the PTAB was driven, in part, by the feeling of there being too many invalid patents on software inventions, and so a new speedy route was needed to get rid of them. The PTAB is probably more technically proficient than a District Court, but this clearly undermines the role of juries in patent trials. Clearly there should be a debate about this, but at the moment the US is in an anti-troll backlash which is causing patent issues to be discussed too emotively.