Writing about tips for trying patent jury trials is, in some ways, like teaching skills for hunting dinosaurs. To start, patent jury trials are challenging, which (presumably, at least) would be true for hunting a T-Rex. But patent jury trials have also trended toward the same fate as dinosaurs over the last several years. Creating the Patent Trial and Appeal Board (PTAB) and Inter Partes Review (IPR) process has shifted patent litigation from district court to the U.S. Patent and Trademark Office (USPTO). The now infamous patent “death squads” at the PTAB have mooted the need for many jury trials. At the same time, the Federal Circuit and district courts have used the Supreme Court’s Alice decision and Section 101 as a tool to dismiss large swaths of cases on the pleadings with no discovery, let alone the opportunity to offer evidence or call witnesses at trial. Finally, changes in the law on venue selection have limited patent holders’ ability to select a venue with an express reverence for the right to trial by jury, like the Eastern District of Texas. Thus, like the overall trend in civil cases in general, patent jury trials today are in decline compared with even the last decade.
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