The February 2007 jury verdict against Microsoft totaling $1.52 billion marked the largest in a patent case ever, following the prevailing trend of juries awarding extraordinarily high damages. Because patent law deals with complex technology and complicated issues of fact and law, and because empirical evidence concludes that juries have significant biases in favor of patentees and against alleged infringers, this comment calls into question whether or not twelve lay persons are sufficiently equipped to handle patent trials. In lieu of juries rendering verdicts in patent trials – and even in lieu of U.S. District Court judges adjudicating patent trials – this comment advocates the creation of an Article I Patent Tribunal which has original jurisdiction over select post-grant patent disputes.
Daniel P. Sullivan, Must the Jury Reach a Verdict? The Constitutionality of Eliminating Juries in Patent Trials by Creating an Article I Tribunal, 7 J. Marshall Rev. Intell. Prop. L. 754 (2008)