Can Juries Decide Patent Eligibility Under 35 U.S.C. § 101?

An article by Partner Greg Lantier and former Senior Associate Richard Crudo, published by the Federal Circuit Bar Journal, Vol. 27, No. 1. This article first outlines the substantive law surrounding § 101 and addresses procedural issues that are relevant for determining whether juries ought to hear § 101 challenges, next engages in a historical analysis and examines whether a Seventh Amendment jury trial right attaches to § 101 challenges, and finally addresses policy considerations that bear on the issue.

Excerpt: No provision of the Patent Act has been more frequently litigated over the last several years than 35 U.S.C. § 101. After not having decided a § 101 case in nearly a decade, the Supreme Court issued four § 101 decisions in as many years, most recently articulating a test for determining whether computer system claims are patent eligible in its 2014 Alice Corp. Pty. v. CLS Bank International decision. Since then, the Federal Circuit has decided more than