The rise in the number of patent infringement trials heard by juries has brought criticisms of the jury's expansive role to the forefront of patent law commentary. Under current Federal Circuit practice, the jury is permitted to deliver a verdict on patent obviousness. Especially in light of the 2007 Supreme Court decision KSR International Co. v. Teleflex, Inc., the role of the jury in obviousness determinations has come under particular scrutiny. This Note examines the effect of the jury's expansive role in obviousness determinations on appellate review of these verdicts. It begins by examining the two conflicting views of the jury in patent cases; the traditional view limits the jury to deciding the factual considerations underlying the test for obviousness, while the modern view allows the jury to decide the ultimate issue of obviousness. The Note then analyzes the issues that arise under the two theories of the jury's appropriate role in obviousness determinations. Finally, this Note suggests that the Federal Circuit should require either special verdicts or special interrogatories addressing the underlying facts of the obviousness inquiry in order to preserve de novo review of the legal conclusion of obviousness injury trials.
An "Absence of Meaningful Appellate Review": Juries and Patent Obviousness,
12 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol12/iss3/6