A petition for certiorari (pdf) filed last week at the U.S. Supreme Court ought to get the IP bar buzzing. It challenges an aspect of patent litigation that’s become almost automatic: trial before a lay jury. Here’s how Fried, Frank, Harris, Shriver & Jacobson partner James Dabney, who represents the petitioner, puts the question to the high court: “Whether a person accused of patent infringement has a right to [an] independent judicial, as distinct from lay jury, determination of whether an asserted patent claim satisfies the ‘non-obvious subject matter’ condition of patentability.”

Trial by jury, the petition notes, wasn’t always the near-certainty it is now in patent infringement cases. A chart on page 26 of Dabney’s filing shows that in the early 1980s, when the U.S. Court of Appeals for the Federal Circuit was created, less than 20 percent of patent cases were tried to a jury. By 2000, the share of jury trials had skyrocketed to over 70 percent.

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