A few years back I wrote about what I saw as a developing  “War on Juries” in patent cases.  A couple of recent incidents suggest that the war continues.

Last week we lost a hard-fought case on summary judgment.  That happens, it’s part of the game, and the lawyer who never loses most likely never accepts a real challenge either.  But what’s humorous about it is that the decision came four days after trial was originally scheduled to have begun.  Given that the whole idea of summary judgment is to increase efficiency and resolve one-sided cases early on, the fact that the case could have been tried to a verdict in less time than needed for summary judgment leaves me scratching my head.

This week, the Federal Circuit (surprise, surprise) overturned yet another lower court decision in favor of a patentee.  In that case, the judges concluded that the invention was “obvious” based on some sort of “common sense” inventive standard.  (Guess that’s kind of up there with the “we know it when we see it” standard.)

What strikes me about both developments is all the judicial lip service paid about what “the trier of fact” could and could not reasonably conclude.  Rather than simply present the evidence to the actual trier of fact, i.e., a jury, the courts prefer to spend more time, effort and money guessing about what a jury could find rather than simply presenting the evidence and finding out for real.

The elephant in the room is that juries play little, if any, real role in patent litigation today.  Courts still seat them (if you get that far) as some sort of quaint hold-over from the past, but as far as their decisions actually carrying any weight,  well, given that virtually every important question is now an issue of law, and hence reviewable de novo by the CAFC, the sad truth is that you will win only if the handful of judges there decide to let you win.

Hope I’m wrong about this, but the handwriting is on the wall.  And it doesn’t look encouraging.