72 Am. U. L. Rev. 1293 (2023).

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Abstract

This Article analyzes whether the Seventh Amendment affords a right to a jury trial in suits in which the owner of a patent seeks only equitable relief against an accused infringer. The existence of jury rights carries important consequences for litigants. Like many issues involving application of the Constitution, the availability and scope of the right to a jury depends on eighteenth-century English legal history. Current doctrine holds that litigants in equity had no right to a jury in patent cases in England c.1791 and therefore that litigants today who seek only injunctive relief possess no such right either. But as we demonstrate here, the relevant historical record shows the contrary, and thus many litigants have a constitutional right to a jury where the courts presently deny them. We reach our conclusion after undertaking the most comprehensive treatment of the subject to date, which includes marshaling hundreds of eighteenth-century records (mostly in manuscript) from the National Archives of the United Kingdom and elsewhere.

* Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar and Professor of Law, Lewis & Clark Law School. This Article is dedicated to the memory of Kay Kitagawa and Andy Johnson-Laird, whose generosity has made work like this possible. For feedback, we thank Isabella Alexander, Victoria Bejarano Muirhead, Hamilton Bryson, Joe Miller, John Parry, Ian Williams, and participants at the Annual Meeting of the American Society for Legal History and the Third Conference on the Legal Histories of Empires. Thanks also to Bob Palmer and Susanne Brand for help tracking down sources when we were away from London, and of course for the Anglo-American Legal Tradition project (aalt.law.uh.edu), which facilitated some of the research for this Article. We would also like to thank Dave Lilley and Rodney French at the National Archives of the United Kingdom in Kew, England for their assistance. Source citations that begin with C (Chancery), CP (Common Pleas), E (Exchequer), KB (King’s Bench), or PC (Privy Council) are stored in the National Archives. Other depositories are abbreviated as follows: ACA=Archives of the Duke of Northumberland at Alnwick Castle: Birm=Library of Birmingham; Bodl=Bodleian Library; BL=British Library; CRO=Cornwall Record Office; DRO=Derbyshire Record Office; GT=Georgetown Law Library; HLS=Harvard Law School Library; IT=Inner Temple Library; LI=Lincoln’s Inn Library; LL=Lilly Library; NRS=National Records of Scotland; OUA=Oxford University Archives; and SCA=Stationers’ Company Archive. In manuscript sources, we have left the orthography unchanged and silently expanded abbreviations. Dates occurring on or before September 2, 1752, are not converted to the Gregorian Calendar. Moreover, as is customary, we provide the year between January 1 and March 24, inclusive, prior to 1752, with a slash mark, e.g., Mar. 24, 1711/2, but Mar. 25, 1712. For an explanation of these dating conventions, see A Handbook of Dates for Students of British History 1, 12-14, 17-19 (C.R. Cheney & Michael Jones eds., rev. ed. 2000).

** Ph.D. (Cantab.); Assistant Professor, Northumbria University.