Going for the Blue Ribbon: 

The Legality of Expert Juries in Patent Litigation[*]
 
Michael A. Fisher[**]
 
[*1]
I. Introduction

 
	As patented technologies have become increasingly complex, there
has been growing concern that ordinary jurors lack the ability to
understand the scientific and technical issues in patent litigation.
Although a court may call upon expert witnesses, special masters, and
other means of facilitating comprehension, there are likely to be many
patent-related cases in which the issues are so far beyond the training
and intelligence of the jury that no rational fact-finding is possible.
The legal practice literature reveals that trial attorneys are aware of,
and consciously exploit, this weakness in the jury system.[1]  As one
experienced patent litigator has stated: "[a]lmost[*2] routinely, one party
or the other strikes from the jury the most educated and experienced
persons, so that routinely there is a conscious effort to get an
unsophisticated, uninformed jury, one party hoping that jury will
unwittingly give the party a windfall."[2]
 
	Many observers of complex litigation have proposed the use of
"blue ribbon" — i.e., expert — juries as a way to restore fairness to the
process and reduce the arbitrariness of results.[3]  This technique may
be[*3] particularly beneficial in the patent infringement context.  In fact,
under certain circumstances, a blue ribbon panel is arguably the only
realistic way to achieve a just result.
 
	However, there are constitutional and statutory rules which may
impose limits on the use of expert juries.  This article examines some of
these legal barriers, but also considers whether, in certain situations,
a litigant in a patent case might legitimately claim a fundamental right
to have its case heard by a jury of engineers or scientists.  In
addition, the article explores practical ways of selecting sufficiently
skilled jurors for patent trials.

 
II. Tension Between the Right to Trial by Jury and the Right to Due Process

 
	A. Seventh Amendment Right to Trial by Jury, in General
 
	The Seventh Amendment to the U.S. Constitution preserves the right
of trial by jury "[i]n Suits at common law."[4] When determining the scope
of this amendment, the courts have relied heavily upon English common law
traditions in place at the time of the adoption of the amendment.[5] Of
particular importance is the language "at common law,"[*4] which has been
construed by the courts as limiting the reach of the amendment to suits
involving legal, as opposed to purely equitable, rights.[6] Even after the
procedural merger of law and equity, codified by the Federal Rules of
Civil Procedure,[7] the substantive distinction between legal and
equitable actions has persisted in the Seventh Amendment context.  The
determination of whether a suit is legal or equitable in nature is usually
based upon the type of remedy sought.  For example, injunctive relief is
generally considered to be equitable in nature, and accordingly, if the
plaintiff is seeking nothing but an injunction, the parties have no
constitutional right to a jury.[8] In contrast, if damages are sought,
each party has a right to a jury, since damages are considered an
inherently legal remedy.[9] Even when an action involves both legal and
equitable remedies, there is a right to a jury trial of the legal claims,
except "'under the most imperative circumstances . . . .'"[10]

 
	B. Due Process and Jury Competence[*5]
 
	The Fifth Amendment to the U.S. Constitution guarantees that no
person "shall . . . be deprived of life, liberty, or property, without due
process of law . . . ."[11] The due process requirement has been extended
to the states by the Fourteenth Amendment.[12] Juror competence can be a
factor in determining whether the requirement has been satisfied, because
a party in a legal action has a right to a minimum level of rationality on
the part of the jury.  For example, in Sullivan v. Fogg, a defendant who
had been convicted in a state criminal trial sought a writ of habeas
corpus after it became evident that one of the jurors "had been
experiencing delusions or paranoid sensations during the trial."[13]
Although a psychiatrist appointed by the trial judge had concluded that
the juror "was competent to make a rational judgment on the merits of the
case," the Second Circuit was unsatisfied because the defendant had not
been given an opportunity to challenge the psychiatrist's conclusion.[14]
The federal appellate court, holding that "[d]ue process requires that
jurors be sane and competent during trial," remanded the case to the
district court with instructions to grant the writ unless the state
provided a new trial, or at least reopened the hearing on the sanity of
the juror.[15]
 
	The court's constitutional objection in the above case was
obviously based not on any particular dislike for insane people, but on a
concern that the juror may have been unable to "make a rational judgment
on the merits[*6] of the case."  In other words, the fundamental principle at
stake was that due process requires a jury that is capable of deciding its
case rationally.  Furthermore, although Sullivan was a criminal case, it
is hard to believe that the court would have found the aforementioned
juror improper in a criminal proceeding, yet acceptable in the context of
a civil dispute.  Whenever juries are employed, due process should give
civil litigants, no less than criminal defendants, a right to be heard by
jurors who are capable of rational decision-making.


	C.  Complexity Exception to the Seventh Amendment
 
 	Some civil cases are so complex that it would be completely
unrealistic to think that an ordinary jury could understand the issues
well enough to return a rational verdict.  In such cases, courts have
struggled to find ways of taking the litigation out of the hands of the
jury without ignoring the requirements of the Seventh Amendment.  One
approach has been to hold that extremely complex cases are equitable in
nature, and are therefore outside the scope of the "common law" jury
right.  A different, less formalistic approach has been to directly
confront the tension between meaningful due process and the limits of
jurors' intellectual abilities.
 
	1.  Complexity exception based on the distinction between law and
	    equity
 
	In Kirby v. Lake Shore & Mich. S. R. R. Co., decided before the
merger of law and equity under the Federal Rules of Civil Procedure, the
Supreme Court considered a complicated contract dispute involving
allegations of fraud.[16] The plaintiff had not immediately discovered the
alleged fraud, and was in danger of losing his claim due to the running of
a[*7] statute of limitations.[17] Equity jurisdiction would delay the start of
the statutory period until the discovery of the alleged fraud.[18] The
court exercised equity jurisdiction based upon the complexity of the case:

	The case . . . is clearly one of which a court of equity may
	take cognizance.  The complicated nature of the accounts
	between the parties constitutes itself a sufficient ground
	for going into equity.  It would have been difficult, if not
	impossible, for a jury to unravel the numerous transactions 
	involved . . . and reach a satisfactory conclusion . . . .
  	Justice could not be done except by employing the methods of
	investigation peculiar to courts of equity.[19]
 
	Since the adoption of the Federal Rules, courts have continued to
debate whether otherwise "legal" issues become equitable in nature if the
issues are too complex for a jury to penetrate.  The Supreme Court case of
Ross v. Bernhard[20] has been influential in this area because of a brief
comment in the opinion, arguably made in dictum.  The case was a
stockholders' derivative suit in which the plaintiffs had demanded a jury
trial.[21] Although the court ultimately concluded that the case involved
legal claims, and therefore held that the plaintiffs had a right to a jury
trial, the decision included a footnote which stated: "[a]s our cases
indicate, the[*8] ‘legal' nature of an issue is determined by considering,
first, the pre-merger custom with reference to such questions; second, the
remedy sought; and, third, the practical abilities and limitations of
juries."[22] Lower courts have seized upon the phrase "the practical
abilities and limitations of juries" for rule-making, commentary, and
criticism.
 
	The U.S. District Court for the Southern District of New York
adopted the complexity basis for equity jurisdiction in Bernstein v.
Universal Pictures, Inc., a highly complicated class action involving
antitrust and copyright issues.[23] While recognizing that the third prong
of the "test" of Ross was "devoid of cited authority,"[24] the district
court held that "consideration of the 'practical abilities and limitations
of juries' . . . is actually the restatement of the Court's traditional
equity powers."[25] The Bernstein court based its holding upon English and
U.S.  tradition, including the Kirby case discussed above.[26]
 
	The Ninth Circuit, however, expressly rejected this doctrine in a
complex securities case, In re U.S. Financial Securities Litigation[27].  
In discussing the "Ross Test," the court stated:[*9]

	While it is unclear as to what was meant by the inclusion of
	the third factor, we do not believe that it stated a rule of
	constitutional dimensions.  After employing an historical
	test for almost two hundred years, it is doubtful that the
	Supreme Court would attempt to make such a radical departure
	from its prior interpretation of a constitutional provision
	in a footnote.[28]
 
	The rule of Financial Securities was adopted by the Eastern
District of Michigan, in Kian v. Mirro Aluminum Co.[29] However, Financial
Securities is subject to the criticism that the Ninth Circuit relegated
Kirby to a very brief mention in a footnote[30] and declined to engage in
any meaningful discussion of the Supreme Court case.  The Kian opinion
does not even mention Kirby.[31] In fact, since it is difficult to
reconcile Financial Securities and Kian with this Supreme Court precedent,
one might reasonably argue that the lower court cases were wrongly decided
on the equity jurisdiction issue.
 
	2.  Complexity exception based on Due Process[*10]
 
	As discussed above with respect to the case of the insane
juror,[32] due process is violated by a jury incapable of rendering a
rational verdict.  This general principle was adopted by the Third Circuit
in a complex antitrust case, In re Japanese Electronic Products Antitrust
Litigation.[33] The court first expressly declined to recognize complexity
as a basis of equitable jurisdiction, distinguishing Kirby, among other
cases, on the ground that such cases have involved "relief in the form of
an [equitable] accounting between the parties."[34] However, the court
then held that in a jury trial, due process requires a jury capable of
making rational decisions, a requirement which is unsatisfied when the
jurors are incapable of understanding the evidence and the legal
rules.[35] The court acknowledged a potential conflict between the right
to due process and the right to a jury trial:

	If a particular lawsuit is so complex that a jury cannot
	satisfy this requirement of due process but is nonetheless an
	action at law, we face a conflict between the requirements of
	the fifth and seventh amendments.  In this situation, we must
	balance the constitutionally protected interest[s], as they
	are implicated in this particular context,[*11] and reach the most
	reasonable accommodation between the two constitutional
	provisions.[36]
 
	The court resolved this conflict by recognizing a complexity
exception to the Seventh Amendment, holding that a jury trial should not
be granted when "a jury will not be able to perform its task of rational
decisionmaking with a reasonable understanding of the evidence and the
relevant legal standards."[37] However, the court stressed that a jury
trial should be denied "only in exceptional cases," and only after
consideration of the feasibility of "special trial techniques to increase
[the] jury's capabilities [and] reduc[e] the suit's complexity."[38]
Techniques suggested by the court included "severance of multiple claims"
and "thoughtful use of the procedures suggested in the Manual for Complex
Litigation."[39]
 
	The Ninth Circuit reached the opposite conclusion in the Financial
Securities case discussed above.[40] In support of its holding that due
process requires no complexity exception to the Seventh Amendment, the
court noted various techniques by which complex cases can be rendered more
understandable, and asserted that the due process argument[*12] "unnecessarily
and improperly demeans the intelligence of the citizens of this
Nation."[41] In its conclusion, the court stated: "we do not believe that
any case is so overwhelmingly complex that it is beyond the abilities of a
jury."[42] This reasoning and conclusion were expressly adopted by the
Eastern District of Michigan in Kian.[43]
 
	With respect to the circuit split on this issue, I submit that the
Third Circuit has the better argument.  As noted in the Introduction,
practicing lawyers know that certain issues are beyond the abilities of
ordinary jurors.  The Ninth Circuit's statements to the contrary, while
having political and emotional appeal, seem either naive or disingenuous.  
On the other hand, the Third Circuit, in mentioning "special trial
techniques," failed to specifically consider the important alternative
solution of selecting more knowledgeable jurors, an option which is
discussed in the following section.
 

III.  Special Juries

 
	The above-described tension between the Seventh and Fifth
Amendments[44] might be resolved if courts were to empanel juries
sufficiently knowledgeable and intelligent to comprehend and analyze the
issues in complex litigation.  One means of accomplishing this would be to
require jurors to possess a heightened level of education, perhaps even
specialized expertise in fields of knowledge critical to the understanding
of the case.  Expert juries have had a long history in U.S. and English[*13]
jurisprudence.  However, there may be legal barriers to the use of such
juries in federal cases.

 
      A.  History of Special Juries in English and U.S. Federal
	  Jurisprudence
 
	The scope of the right to a jury has generally been interpreted
based upon the history of the jury in England and America up to the time
of adoption of the Seventh Amendment in 1791.[45] It is therefore relevant
that expert juries have had a long history in England.  Trade disputes
represent one type of case which was sometimes heard by a jury of
specialists.  The practice goes back at least to the fourteenth
century,[46] and was in use during the centuries immediately preceding the
American Revolution.  For example, in 1645, the King's Bench used a jury
of merchants to try a mercantile issue, "[b]ecause it was conceived they
might have better knowledge of the matters in difference which was to be
tryed, than others could, who were not of that Profession."[47] Lord
Mansfield is reported to have regularly empaneled a jury of merchants to
try cases in their area of expertise.[48] An English statute of 1730
"authorized and required" courts to empanel a special jury upon the motion
of either party.[49] In addition, at least one federal court in the U.S.  
has used a special jury in[*14] a mercantile case, and such juries were
sometimes empaneled for other cases as well.[50] The early cases therefore
appear to support the constitutionality of blue ribbon juries.
 
	However, one problem with applying very old precedent to highly
exclusive juries in modern cases is that a lot has happened in this
country since 1791, most notably the passage of the Fourteenth Amendment.  
The Equal Protection Clause of the Fourteenth Amendment has been held
applicable to the federal government by incorporation into the Due Process
Clause of the Fifth Amendment.[51] As discussed in further detail below,
the Equal Protection Clause has been held to require that juries be drawn
from a "fair cross section" of the community.[52] If expert juries are
constitutionally infirm under the fair cross section requirement, then the
Fourteenth Amendment must overrule any pre-1868 precedent to the contrary.  
In other words, the range of acceptable jury composition can be no broader
than permitted under Fourteenth Amendment jurisprudence.  Accordingly, the
historical argument in favor of special juries cannot alter the result of
the modern "fair cross section" cases.  As discussed in the[*15] next section,
these cases leave room for lingering uncertainty regarding the
constitutionality of highly educated juries in the federal courts.[53]

 
	B.  The "Fair Cross Section" Requirement
 
 	A jury must be drawn from a "fair cross section" of the
community.[54] Courts have based this requirement on the Equal Protection
Clause of the Fourteenth Amendment,[55] the supervisory power of the
federal courts,[56] and the Sixth Amendment.[57] In addition, the
requirement has been incorporated into the federal jury selection
statutes.[58] If a particular group is improperly excluded from the jury
pool, one need not be a member of the excluded group to have standing to
challenge the jury selection process.[59] However, there is no impropriety
unless the persons[*16] excluded constitute a "cognizable group" for the
purposes of jury selection under the Constitution and the statute.[60]
 
	One might suspect that the test for cognizability would depend
upon whether a fair cross section challenge is based upon the Equal
Protection Clause, the supervisory power, the Sixth Amendment, or the
federal jury statutes.  There appears to be no definitive rule on this
issue.  However, in evaluating suspect groups, the cases have tended not
to distinguish among the various possible bases for a jury composition
challenge.  For example, courts have assessed cognizability simultaneously
under Equal Protection and the Sixth Amendment,[61] and also
simultaneously under the jury statutes and the Sixth Amendment.[62] To
demonstrate that a group is cognizable, the challenger must generally show
that (1) the group is identifiably defined by some common factor, (2) the
group has cohesion, i.e., a basic similarity in attitudes, ideas, or
experience, and (3) exclusion of the group will prevent the group's
interests from being adequately represented.[63][*17]
 
	Selecting a special jury of people with a high level of education
raises the issue of whether such a panel would violate the fair cross
section requirement.  Federal courts in the Ninth Circuit and Florida have
held that less educated persons are not a cognizable group, although the
groups at issue in those cases specifically comprised people with less
than a high-school education.[64] In contrast, the First Circuit has held
the less educated to be a cognizable group, although the case in question
involved discrepancies at both the high school and college level.[65] At
the very least there is a great deal of uncertainty surrounding this
issue.
 
	Furthermore, in order to provide an effective solution to the
problems inherent in complex patent trials, special juries would probably
be required to consist primarily of people with at least four years of
higher education.  In fact, it might even be necessary to limit
participation to those with backgrounds in engineering or science.  Even
if it were undisputedly permissible to establish a minimum education
requirement, it is quite possible that a court would be unwilling to
stretch this principle so broadly as to validate a specialized jury
consisting solely of engineers, or even of college-educated people.  On
the other hand, an excluded group consisting of, for example, all adults
except engineers would surely fail the second and third prongs of the
above-described test for cognizability.  The excluded group would have
almost no cohesion, and it is hard to imagine that a jury of engineers
would be biased against members of all other occupations.[*18]
 
	Requiring a college education in complex cases would automatically
exclude most people under the age of 21, which raises the additional
question of whether exclusion of the young is permissible.  The federal
case law indicates that adults under 21, adults under 30, and even adults
under 34 do not constitute cognizable groups.[66] Therefore, since even
most graduate programs can be completed by the age of 30, the issue of
juror age is unlikely to further complicate the issue of juror education.

 
	C.  Use of Special Juries in State Courts
 
	A number of states have had a tradition of using special juries in
complex or highly publicized cases.  For example, until 1965, New York had
a special jury statute on the books.[67] The statute authorized a trial
court to grant a motion for a special jury in any criminal or civil case
which was sufficiently "important," intricate, or widely publicized to
warrant such a jury.[68] The New York code also contained special
provisions for the selection of grand juries until these provisions were
repealed in 1978.[69] In the mid-1960s, New Jersey employed a grand jury
selection system which[*19] favored highly educated jurors.[70] Delaware
currently has a statute authorizing a court to grant a request for a
special jury in any "complex" civil case.[71] Such juries can be subject
to specific requirements of intelligence, education, or occupation.[72]
The decision of whether to grant a special jury request is left to the
discretion of the trial judge.[73] In Colorado, for certain water drainage
district cases, a statute mandates the use of special juries of landowners
knowledgeable about farm drainage.[74]
  
	Such laws have generally withstood state and federal
constitutional scrutiny.[75] In particular, courts repeatedly declined to
strike down the New York special jury statute, and this law persisted
until it was repealed by the state legislature in 1965.[76] Similarly, the
exclusive grand jury selection[*20] systems of New York and New Jersey, in
which less educated and "blue collar" jurors were under-represented, were
also upheld in court.[77] An older version of the Delaware statute, which
created a right to a special jury on demand, was upheld in the face of
both federal and state constitutional challenges.[78] However, courts
applying Delaware's current statute—which allows judicial discretion—have
tended to require a high level of complexity to justify the granting of
special jury requests.[79] There appear to have been no challenges to the
validity of the Colorado statute.
 
	The long and continuing tradition of special juries in state
courts might be viewed as implying that the legal definition of "jury"
should encompass an expert panel.  However, the cases involving state
special jury statutes may not be directly applicable to federal trials.  
A crucial distinguishing factor is that none of the aforementioned state
cases have[*21] expressly addressed the issue of whether less educated people
constitute a cognizable group under the fair cross section requirement.  
In contrast, as discussed in detail above, the cognizability of the less
educated is of special importance in the federal courts.[80] The state
statutes obviously implicate juror background and education.  Yet, the
jurisprudence surrounding these statutes appears, strangely enough, to
have developed almost independently of the federal case law applying the
fair cross section requirement to educational credentials.
 
	Furthermore, the Seventh Amendment has been held inapplicable to
the states,[81] and as a result, the bounds of the federal jury right may
be subject to constraints which do not affect state juries.  
Consequently, precedent establishing the permissibility of state special
juries is no guarantee that such juries are constitutional in federal
court.

 
	D.  Is There a Constitutional Right to a State Special Jury?
 
 	In two asbestos-related cases, Bradley v. A.C.&S. Co., Inc. (not
officially reported)[82] and In re Asbestos Litigation (Asbestos I)[83],
litigants in Delaware state court attempted to obtain expert juries as a
matter of right.  The defendants in Bradley based their claim on the Due
Process Clause of the Fourteenth Amendment, arguing that in order for the
court to provide a fair trial, the jury "must be able to decide the facts
in an informed[*22] and capable manner and must be a competent and rational
fact finder."[84] The court rejected this argument.  Unlike cases such as
Japanese Electronic Products, which could be "truly considered complex,"
the asbestos tort action raised issues which did not appear too difficult
for an ordinary jury to resolve.[85] Of particular relevance was the
possibility of aiding the jury by means such as additional instructions,
special verdicts, special interrogatories, juror note-taking, transcripts,
summaries and charts, special masters, and court-appointed experts.[86] In
addition, the court expressed concern that a panel of expert jurors might
be slanted toward a single philosophical approach.[87]
 
	Asbestos I involved a special jury motion based on the "trial by
jury" provision of the Delaware Constitution.[88] The defendants contended
that this provision conferred an absolute right to trial by special
jury.[89] Analyzing the provision in light of the history of juries in
England and Delaware, the court concluded that there was no such right
under the state[*23] constitution, and that the choice of whether to create
such a right was within the discretion of the state legislature.[90]
 
	One might interpret the above-described Delaware cases as an
indication that judges will be reluctant to recognize a fundamental right
to an expert jury.  However, the cases include important limitations which
reduce their applicability to extremely complex federal trials.  For
example, as mentioned above, the Bradley opinion expressly distinguishes
that case from more complicated cases such as Japanese Electronic
Products.  This suggests that even if the opinion were officially
reported, any ruling on the broader constitutional issues might not be
applicable to "truly complex" cases.  As for Asbestos I, that case
involved a state constitutional claim, which of course renders it of
limited relevance in the federal context.
 
	Furthermore, the due process issue must be analyzed differently in
federal trials.  This is because state civil cases lack a critical issue
which is present in federal cases: the federal right to a jury trial.  As
mentioned in the preceding section,[91] the Seventh Amendment does not
bind the states, and consequently, cases defining the federal jury right
are not applicable to state trials.[92] The scope of the state jury right
is based upon the traditions of the courts of the particular state, and
since the time of the Revolution, these traditions are likely to have
developed differently from those of the federal courts.[93] For example, a
state jury right in civil trials might be either[*24] much weaker or much
stronger than the corresponding federal right, which would affect how
easily the state right could be trumped by due process considerations.  
Alternatively, certain state constitutions might create an absolute right
to a special jury on demand (although this was unsuccessfully argued in
Delaware court by the Asbestos I defendants).  Finally, the state might
have an extremely strong tradition of using only ordinary juries, in which
case a request for an expert jury would be unusually difficult to defend.  
Accordingly, considering that the state and federal jury rights may differ
substantially, the tension between the federal right to due process and
the federal right to a jury trial is best analyzed under the federal case
law.
 

IV.  Application of Jury-Selection Jurisprudence to Patent Cases

 
	A.  The Right to Trial by Jury in Patent Litigation
 
        1.  Equitable Versus Legal Actions, in General
 
	One whose patent is infringed can bring an action seeking
injunction, actual damages, and/or enhanced damages of up to three times
the amount of actual harm.[94] As in other types of civil litigation, the
Seventh Amendment right to trial by jury in patent litigation depends upon
whether the nature of the action is legal or equitable.  An action for
damages comes within the scope of the amendment, because damages are
considered to be an inherently legal remedy.[95] In contrast, injunctive
relief[*25] is equitable in nature.[96] Enhanced or treble damages are also
considered equitable relief,[97] although they are, of course, related to
the legal remedy of actual damages.  When the patentee seeks both legal
and equitable relief, the trial court must honor a demand for a jury trial
on factual questions raised by the legal claims.[98]
 
	An alleged infringer may seek a declaratory judgment that its
activities are noninfringing, or that the patent at issue is invalid or
unenforceable.  A declaratory judgment action may not involve a claim for
damages, which raises the question of whether a trial court must honor a
jury demand in such a case.  This issue was resolved by the Federal
Circuit in the case of In re Lockwood.[99] Although the case had started
as a patent infringement action for damages and injunction, the only
remaining claim was the alleged infringer's counterclaim for a declaration
of[*26] invalidity.[100] The issue before the Court of Appeals was whether the
trial court had improperly struck the patentee's jury demand.[101]
 
	To determine whether the action for a declaratory judgment of
invalidity was equitable or legal in nature, the court compared the claim
to other actions historically brought before courts of law and
equity.[102] The Federal Circuit decided that the declaratory judgment
action was most analogous to an ordinary patent infringement action in
which the affirmative defense of invalidity had been pled.[103] Since
infringement actions had traditionally afforded the patentee the choice of
either legal or equitable remedies, the court concluded that validity
itself was not a purely equitable issue, and that the jury demand must
therefore be reinstated.[104]
 
	In light of the foregoing discussion, it is apparent that most
types of patent-related cases, with the notable exception of actions
seeking nothing but injunctive relief, are considered inherently legal in
nature, and therefore implicate the jury right.
 
 	2.  The Seventh Amendment Complexity Exception in Patent Cases
 
	My research has uncovered no Federal Circuit patent cases
expressly ruling on the complexity exception.  However, the court has[*27]
strongly suggested that it would not recognize such an exception.  In the
famous case of Markman v. Westview Instruments, the Federal Circuit heard
an appeal of a J.N.O.V. of noninfringement issued by a district
court.[105] The lower court judge had held construction of the claims of a
patent to be a matter of law for the court.[106] Under the trial judge's
interpretation of the patent claims, the jury's verdict of infringement
could not possibly have been correct, and the district court had therefore
granted the defendant's motion for judgment as a matter of law.[107] The
Federal Circuit affirmed, holding that even in a case tried before a jury,
claim construction is indeed a matter of law reserved exclusively for the
court.[108]
 
	Judge Mayer, in a concurring opinion, criticized the majority's
holding as excluding the jury from the most important fact-finding
decision of most patent cases: "this is not just about claim language, it
is about ejecting juries from infringement cases.  All these pages and all
these words cannot camouflage what the court well knows: to decide what
the claims mean is nearly always to decide the case."[109] Judge Mayer
added: "[t]oday's decision also threatens to do indirectly what we have
declined to do directly, that is, create a ‘complexity exception' to the
Seventh Amendment for patent cases."[110] Judge Mayer's concurrence cited
Judge Markey's "additional views" in SRI Int'l v. Matsushita Electric
Corp.  of America.[111] Judge Markey's views, although not part of the SRI
plurality opinion, had included forceful attacks on both the equity
argument of Bernstein and the due process argument of Japanese Electronic
Products.[112]
 
	Responding to Judge Mayer's criticism, Judge Archer, writing for
the Markman court, expressly denied that the decision was an "effort to
indirectly create a 'complexity exception'" in patent cases.[113] He
stated: "[i]n this opinion we do not deprive parties of their right to a
jury trial in patent infringement cases.  Our opinion merely holds that
part of the infringement inquiry, construing and determining the scope of
the claims in a patent, is strictly a legal question for the court."[114]
Judge Archer noted that the "application of the properly construed claim
to the accused device" would still be left to the jury.[115][*29]
 
	The above exchange between the majority and Judge Mayer
demonstrates both sides' disavowal of any Seventh Amendment "complexity
exception" for patent cases.  Moreover, seven of the nine judges who wrote
or joined the aforementioned opinions are still sitting on the Federal
Circuit,[116] and a search of other Federal Circuit opinions, including
concurrences and dissents, has revealed no explicit endorsement of the
complexity exception.  Accordingly, it seems extremely unlikely that the
Federal Circuit will adopt this exception for patent cases.
 
	3.  Just the Facts
 
	Even in a jury trial, questions of law are decided by the court,
and only questions of fact are reserved for the jury.[117] A basic patent
case has two essential elements: construing the patent and determining
whether it has been infringed.[118] However, patent validity can also be
at issue.[119]
 
	As mentioned in the preceding section,[120] the Federal Circuit
held, in Markman, that the construction of patent claims is an issue of
law, to be decided solely by the judge, whereas the issue of infringement
is one of fact,[*30] to be decided by the jury.[121] This holding has been
affirmed by the Supreme Court.[122]
 
	The ultimate question of validity is one of law, but if the action
is brought before a jury, the jury must find the facts necessary to make
the legal determination.[123] In particular, the question of obviousness
is a question of law, but the trier of fact must determine: "(1) the scope
and content of the prior art; (2) differences between the prior art and
the claims at issue; (3) the level of ordinary skill in the art; and (4)
[any] objective evidence [of] nonobviousness."[124] Anticipation — i.e.,
lack of novelty — is also a question of fact.[125]
 
	Based upon the rules cited above, it can be seen that even after
Markman, there are still important issues of fact which must be decided by
the jury.  However, as a practical matter, one must consider Judge Mayer's
statement, in his Markman concurrence, that "to decide what the claims
mean is nearly always to decide the case."[126] If Judge Mayer was
correct,[*31] Markman should have caused an increase in the number of cases
settled shortly after claim construction.  As noted by one observer, this
effect would presumably be evidenced by a decline in the number of cases
that have gone to trial each year since Markman was decided.[127] If claim
construction is indeed dispositive in most circumstances, one would expect
an especially acute reduction in the number of jury trials.  Yet, the
empirical evidence indicates that there has not been a tremendous decline.  
For example, in the two fiscal years 1991-92 and 1993-94, prior to both
the Federal Circuit and Supreme Court decisions in Markman, 163 patent
cases (an average of 81.5 per year) were tried to juries.[128] In 1998,
subsequent to both Markman decisions, 62 patent cases were tried to
juries.[129] This difference of approximately 24%, even if caused solely
by Markman—and not merely by statistical fluctuations—can hardly be
considered such a huge change as to suggest that the jury trial is no
longer relevant in patent litigation.  In short, despite the removal of
claim construction from the province of the jury, the remaining factual
issues will continue to have an important impact on the outcomes of patent
trials.  Since these issues will often pose insurmountable difficulties
for unskilled jurors, the basic fairness of patent litigation is still at
stake.

 
	B.  Blue Ribbon Juries in Complex Patent Cases
 
 	1.  Legality of Expert Juries in Patent Cases[*32]
 
 		a.  Is an Ordinary Jury Unconstitutional?
 
	As discussed above,[130] the Federal Circuit has shown signs that
it will probably resist any efforts to take undisputedly factual issues
out of the hands of the jury, even in complex patent cases.  Both the
law/equity distinction and the due process rationale are likely to be
rejected, which raises the issue of how a court can justify its refusal to
adopt the complexity exception without solving the very real problems
which form the basis of both the equity and due process arguments.
 
	An exception based on the traditions of equity is perhaps less
compelling, since this theory appears to be primarily a matter of
interpreting the historical patterns of English and American jury use.  
Courts such as those of Bernstein and Financial Securities, which have
examined these patterns, have set forth quite plausible arguments both for
and against recognition of equity jurisdiction over complex cases.  
Therefore, since the history of the equitable exception may be reasonably
interpreted in more than one way, I submit that the choice of
interpretation must be based upon the fundamental fairness of using a jury
to try a difficult case.  We need common sense, not history, to guide us
in this determination.  If the jury is not sufficiently knowledgeable and
intelligent to understand the issues, then it cannot possibly be fair to
subject the parties to the arbitrary decision that must necessarily
result.  Accordingly, equitable jurisdiction should apply if it is not
possible to obtain a sufficiently capable jury.
 
	These considerations take on even greater urgency in the context
of the Constitution's due process requirement.  Due process requires at
least a minimum level of rationality in the adjudication process, as was
strikingly illustrated in Sullivan v. Fogg, the insane juror case.  If a
non-[*33]expert jury is utterly incapable of comprehending the technology in a
patent case, can its decision-making be any more rational than that of an
insane jury? The answer must surely be no.  If discovering the truth is
dependent upon understanding the issues, and the person charged with the
task of discovery cannot achieve this understanding, then the person's
conclusions cannot bear any relationship to the truth, beyond that which
is stumbled upon by sheer luck.
 
	Moreover, as recognized by the Third Circuit in Japanese
Electronic Products, the same logic that demonstrates that an incompetent
jury violates due process also has crucial implications for the Seventh
Amendment analysis.[131] The very features which give the jury its
importance, such as the ability to apply community values to modify harsh
results of law, and the lending of legitimacy to the legal line-drawing
process, simply do not exist when the jury does not understand the
case.[132] Under such circumstances, the Seventh Amendment considerations
are less compelling than the due process considerations, and therefore,
the right to a jury must be subject to an exception in order to
accommodate due process.[133]
 
	The foregoing discussion leads us to two irresistible conclusions
which have been denied by no judge in any of the cases discussed herein.  
First, there can be no Seventh Amendment right to a jury incapable of
understanding the facts and legal issues in the case.  Second, the due
process clause of the Fifth Amendment would, at any rate, be violated by[*34]
such a jury.  This leaves us with the question of whether there are, in
fact, any juries who, despite all efforts to help them grasp the facts and
legal issues in their cases, are simply incapable of understanding enough
of the subject matter to make rational decisions.  The answer is almost
certainly yes.
 
	As discussed earlier, judges who have expressly rejected the
Seventh Amendment complexity exception have, in part, based their
rejections on an assumption that there is no area of knowledge beyond the
capability of a jury, provided that the material is explained well
enough.[134] Of particular interest in the patent context are Judge
Markey's comments in SRI: "[t]here is no peculiar cachet which removes
'technical' subject matter from the competency of a jury when competent
counsel have carefully marshalled and presented the evidence of that
subject matter and a competent judge has supplied carefully prepared
instructions."[135]
 
	There is ample evidence that the enthusiastic judicial confidence
in the abilities of jurors is misplaced.  It is revealing that, as
discussed in the Introduction, this confidence is not echoed by the patent
bar.[136] Judges writing opinions are constrained by considerations of how
their statements will impact the law.  Lawyers writing practice manuals
are not thus burdened, and can therefore afford to be more candid.  
Accordingly, I[*35] propose that the effectiveness of ordinary juries as
fact-finders in patent cases is better judged by the statements of
practicing litigation attorneys.
 
	Furthermore, the organization of educational curricula supports
the conclusion that certain subjects cannot realistically be learned
without the proper background.  For example, undergraduate physics
programs do not teach quantum mechanics in the first semester,[137] and
this is clearly because the students do not possess the basic scientific
and mathematical tools needed to comprehend it.  Patented inventions are
often at the forefront of technology, and the concepts underlying the most
advanced inventions are likely to be far beyond even what is covered in
any undergraduate curriculum.  It seems highly unrealistic to assume that
a typical juror, who probably has very little scientific or mathematical
background, will be able to learn, during the course of a patent
infringement trial, subject matter which otherwise requires years of study
by a highly select set of full-time students.
 
	What really goes on in the jury room is perhaps best illustrated
by the widely-cited exchange between a trial judge and the frustrated
foreman of a deadlocked jury in an extremely complex, technology-related
antitrust case:[*36]
 
	Throughout the trial, the court felt that the jury was having
	trouble grasping the concepts that were being discussed by
	the expert witnesses, most of whom had doctorate degrees in
	their specialties . . . .  When asked by the court whether a
	case of this type should be tried to a jury, the foreman of
	the jury said, "If you can find a jury that's both a computer
	technician, a lawyer, an economist, knows all about that
	stuff, yes, I think you could have a qualified jury, but we
	don't know anything about that.[138]
 
	Had the aforementioned jury reached a decision, would this
decision have been sufficiently rational to satisfy due process? I think
not.
 
	         b.  The Constitutional Obligation to Provide a
Sufficiently
		     Skilled Jury
 
	In light of the foregoing discussion, there is compelling evidence
that judicial confidence in the abilities of ordinary jurors is misguided.  
On the other hand, courts which have adopted a complexity exception to the
Seventh Amendment have been equally wrong in assuming that certain cases
are necessarily beyond the competence of a jury.  All that is needed is
the right jury.  As commentators have noted with respect to complex
litigation in general, a panel with sufficient skill and knowledge to make
rational decisions would satisfy the requirements of due process, thereby
resolving any conflict between the Fifth and Seventh Amendments.[139][*37]
Without this conflict, there is no need for a complexity exception.[140]
Moreover, even if the Federal Circuit were to adopt the Third Circuit rule
of Japanese Electronic Products, the complexity exception under this rule
only applies when the jury will not be able to understand the case well
enough to perform its "task of rational decisionmaking."[141] This problem
would not exist for a sufficiently qualified jury.  Furthermore, such a
jury would eliminate any justification for classifying the case as
equitable.  Equity jurisdiction must be based either on fairness or on the
historical treatment of cases too complex for juries, and if a panel of
experts can overcome the complexity and render a fair verdict, the case
necessarily falls into the "common law" category.
 
	Accordingly, since it would violate the Seventh Amendment not to
honor a jury demand if a sufficiently competent jury could be summoned,
and since it would violate the Fifth Amendment to use an ordinary jury to
try a case too complex for the jurors to understand, it seems evident that
in a case beyond the competence of an ordinary jury, a party must have a
constitutional right to a jury with special expertise in the relevant
subject[*38] matter.[142] This, of course, assumes that it is feasible to
empanel such a jury, a topic which is addressed in detail below.[143]
 
	Ironically, a blue ribbon jury would be consistent with the Third
Circuit's holding in Japanese Electronic Products, the Ninth Circuit's
holding in Financial Securities, and the Federal Circuit's reluctance to
recognize a complexity exception to the Seventh[*28] Amendment.  Remember that
the complexity exception rule in Japanese Electronic Products did not
apply until after consideration of "special trial techniques to increase
[the] juries' capabilities."[144] Although the Third Circuit did not
specifically suggest the use of a jury of experts, I submit that this
method would be just such a "special trial technique," and would therefore
render the complexity exception inapplicable, even under the Third Circuit
rule.
 
	With regard to the assertion, in Financial Securities, that "[no]
case is so overwhelmingly complex that it is beyond the abilities of a
jury,"[145] the Ninth Circuit is correct, provided that its definition of
"jury" is not limited to a panel of ordinary citizens.  If no such limit
is imposed, the use of a blue ribbon panel satisfies the Ninth Circuit
rule as well.[*39]
 
	Equally importantly, if an expert jury system were implemented for
patent cases, the Federal Circuit would probably never need to decide
expressly whether to recognize a complexity exception.  Arguing against
this exception, Judge Markey once made an assertion that can hardly be
rebutted: "not all judges are inevitably more competent than all juries .
. . ."[146] This statement will be especially true if patent cases are
heard by jurors with years of education in the technologies of the patents
at issue.  The strongest argument against applying a complexity exception
in any particular case would be to establish that the jury can understand
the case better than the judge can.
 
		c.  But What About the Fair Cross Section Requirement?
 
	A fair cross section requirement based solely upon the supervisory
power of the federal courts[147] or upon a statute[148] clearly must give
way before the above-described,[149] constitutional imperative.[150]
However, if the requirement is based upon the Equal Protection Clause of
the Fourteenth[*40] Amendment,[151] it is not as easily subdued.  Have we
resolved a conflict between the Fifth and Seventh Amendments only to be
thwarted by yet another constitutional amendment? If the less educated
were unquestionably a cognizable group, it would indeed be difficult to
establish a jury selection policy compatible with all three amendments.  
However, as discussed above,[152] there is a circuit split on the
cognizability of the less educated.  Accordingly, in light of the need for
some constitutionally acceptable solution, and considering the existing
uncertainty in the scope of the fair cross section requirement, I think
that the only possible conclusion is that the cognizability issue must be
resolved in favor of allowing selection based upon educational background.
 
	Admittedly, a jury composed solely of members of a single
profession might, on the surface, seem to represent anything but a fair
cross section of the community.  Indeed, it has been suggested that such
jurors might be biased in favor of their own technical theories, and
furthermore, would not be capable of representing "the conscience of the
general community."[153] However, I think that this view undeservedly
ascribes to engineers and scientists a peculiar amount of dogmatism,
closed-mindedness, and provincialism.  For one thing, the scientific
method itself is based upon fair consideration of alternative theories.  
Furthermore, although the demographic characteristics of engineers and
scientists, as a group, do[*41] not perfectly match those of the population as
a whole,[154] the group does at least represent a variety of ethnic
backgrounds[155] and a wide range of income levels.[156] There is no good
reason to assume that a jury of engineers and scientists would be
significantly more biased than a jury selected under the current system.
 
	2.  Deciding When a Case is Too Complex for an Ordinary Jury
 
	In the context of complex litigation in general, it has been
proposed that before granting a motion for trial by special jury, a court
should first[*42] make a finding that the case is beyond the capabilities of an
ordinary jury.[157] This would be a reasonable method, and would in fact
be analogous to the judicial evaluation of complexity in the Seventh
Amendment cases discussed above.[158] An alternative method might be to
create, by statute, a right to an expert jury on demand, as once existed
in the Delaware state courts.[159] To discourage litigants from abusing
this right, the statute could require the party requesting the expert
panel to pay for the additional costs of the panel (as discussed in
further detail below[160]).  If a special jury would make a difference, it
would most likely be for the right reasons: improved understanding and
accuracy.  On the other hand, if such a jury would have little effect,
neither party would have an incentive to incur the expense of demanding
one.
 
	3.  Implementation of a Blue Ribbon Jury System for Patent
	    Litigation
 
		a.  Federal Jury Selection Procedures: Statutory Control,
		    with Broad Areas of Judicial Discretion[*43]
 
	Each federal district court has discretion in the design of its
own specific jury selection procedures, subject to statutory
limitations.[161] Historically, Congress has either prescribed specific
federal rules governing juror qualification and impanelment,[162] or has
directed the federal courts to adopt some or all of the rules of the
respective state courts.[163] Prior to 1957, juror qualifications for each
district court were controlled by the law of the state in which the court
was situated.[164] The 1957 Civil Rights Act helped to resolve the
divergent practices among the states by imposing uniform federal juror
eligibility standards.[165] Detailed procedures for selecting jurors were
added to the federal code by the Jury Selection and Service Act of
1968.[166]
 
	The statutes provide a great deal of specificity as to the proper
methods for choosing people to be summoned for jury duty.  Prospective
jurors are selected from lists of registered or actual voters, or from
other[*44] sources if necessary to promote the policies of the statutes.[167] A
minimum number of names are selected from the above sources and placed in
a "master jury wheel."[168] The master jury wheel, which can be either
mechanical or electronic, is used to randomly select people who, if
"qualified as jurors," will have their names included in a "qualified jury
wheel."[169] Periodically, when required by the court, juror names are
drawn at random from the qualified jury wheel, and those individuals whose
names have been drawn are summoned for jury duty.[170] In order to assess
potential jurors' eligibility for inclusion in drawings from the qualified
jury wheel, each person whose name is drawn from the master jury wheel is
sent a juror qualification form which elicits information such as the
person's age, occupation, education, citizenship, physical or mental
infirmities, English language skills, and criminal record.[171] Unless
otherwise exempt from service,[172] a potential juror must be deemed
qualified to serve on grand and petit juries unless she is not a U.S.
citizen, is less than eighteen years old, has not resided in the district
for at least one year, lacks sufficient English skills, has a mental or
physical infirmity making it impossible to render[*45] satisfactory service, or
has a conviction or pending charge involving a serious crime.[173]
 
	Yet, although the statutes impose many uniform requirements upon
the courts, each individual court retains some discretion as to the
specific procedures it adopts.[174] In particular, 28 U.S.C. § 1863
directs each district court to implement its own written plan for random
selection of grand and petit jurors, subject to approval by a "reviewing
panel."[175] The reviewing panel includes the members of the judicial
council of the circuit, as well as either the chief judge of the district
or another judge designed by the chief judge.[176] The district court may
modify its plan at any time,[177] and if the modifications are approved by
the reviewing panel, they become effective within ninety days of
approval.[178]
 
	Moreover, despite the code's substantial level of detail with
respect to the jury summoning process, the statutes provide minimal
direction regarding the final steps of selecting a particular panel from
among the[*46] summoned jurors.[179] The implementation of these final
procedures, including voir dire, varies among judges.[180] Sections
1866(c)(2), (3), and (4) offer some guidance by providing that a court may
exclude a juror from a particular case based upon lack of impartiality, a
peremptory challenge (each party is entitled to three), or "good
cause."[181] However, beyond these general instructions, the statutes do
not appear to greatly restrict the manner in which a trial judge can
assign jurors to a particular case.
 
		b.  Proposal for Random Selection of Special Jurors
 
	Unlike conventional voir dire, the empaneling of a blue ribbon
jury could not be administered by the judge alone.  In order to select
special jurors at random, as required by 28 U.S.C. § 1861, a court would
need to establish some additional infrastructure to set aside the names of
jurors qualified to serve on particular types of complex patent cases.  
For example, it might be necessary to establish several different
"qualified jury wheels," one for ordinary jurors, and one for each type of
technology likely to arise in patent litigation.  In fact, a separate
qualified jury wheel for special jurors has been proposed for use in
complex litigation generally.[182] The difficulty[*47] with this method,
however, is that it arguably violates the letter of the code, which
mentions only a single qualified jury wheel.[183]
 
	It might be preferable to set up an expert jury wheel as a third
stage of random selection, which would be applied to the general list of
jurors drawn from the qualified jury wheel.  Starting with the general
list, the names of people with relevant educational backgrounds would be
specially selected for the expert jury wheel on a case-by-case basis,
according to the specific type of expertise required for each trial.  The
selection would be based upon the jurors' responses to the occupation and
education questions on their juror qualification forms.  For example, in a
case involving a software patent, the names of all computer scientists and
programmers would be entered into the expert jury wheel, which would then
select the required number of jurors.  The summonses issued to the
selected experts would direct these jurors to appear in court on the day
of the trial for which they were chosen.  Those whose names were not drawn
for a particular case would be assigned either to a different software
case or to an ordinary, non-patent case, depending upon the demands of the
trial docket.
 
	Using an expert jury wheel as a third stage of random selection
would allow the court to retain the statutorily-mandated master jury wheel
and qualified jury wheel, and would add an extra level of selection only
after the court has generated the list of people to be summoned for jury
duty.  Accordingly, such a procedure would reduce the likelihood of
conflict with the federal code.  As discussed above, the statutes impose
few restrictions upon the methods used after the jurors have been chosen
for summoning,[184][*48] and the court is therefore likely to have the most
discretion over the final stages of the process.
 
	Furthermore, there are already existing jury-selection procedures
which would help to determine who possesses the specialized knowledge
necessary for inclusion in expert jury drawings.  For example, the federal
district courts currently employ a juror qualification questionnaire
containing a standardized set of questions.[185] In accordance with the
statute, the form inquires into the potential juror's age, possible
physical and mental disabilities, literacy, and occupation.[186] With
regard to educational background, the questionnaire is relatively
specific.  The respondent must indicate the number of years of education
she has undergone in high school, above high school, and in any trade or
vocational school.[187] In addition, judges have the ability to collect
supplemental information prior to voir dire.  For example, Judge Vaughn R.
Walker of the Northern District of California uses a questionnaire which
asks jurors to list their undergraduate and graduate degrees, areas of
study, and work experience.[188] It is clearly possible to obtain enough
information about individual jurors to select not only college-educated
people, but people with training in areas of science or technology
relevant to a particular patent suit.[*49]
 
	Of course, there will be some lawsuits which involve more than one
area of knowledge.  In such cases, the court could require each juror to
have a background in at least one discipline related to the patents in
dispute.  In fact, in the context of Alternative Dispute Resolution (ADR),
one commentator has suggested the use of a hybrid panel of
decision-makers, each member skilled in one area relevant to the
case.[189] I submit that a similar technique could be used in the
courtroom.
 
		c.  Authority to Implement Changes
 
	As discussed above, where the code is silent, each district court
has broad discretion over how it empanels its juries.[190] Therefore, if
the trial judge were the only person needed to conduct the procedure, it
would be within her authority to select an expert panel from among the
summoned jurors.  However, since the expert jury wheel method would
necessitate significant additional administration, it would be subject to
scrutiny by a reviewing panel.  For comparison, consider the conventional
master jury wheel and qualified jury wheel.  Under the code, these devices
are to be maintained and operated by the court's jury commission or clerk,
according to procedures set forth in the jury selection plan.[191]
Similarly, an expert jury wheel would most appropriately be administered
by the jury commission or clerk, and the jury selection plan would need to
include detailed rules governing the expert selection process.  Since the
ultimate authority over[*50] the content of a jury selection plan resides with
the reviewing panel,[192] an individual court cannot single-handedly
provide for a blue ribbon jury system.  Barring an amendment to the
statutes, it appears that the only way for a district court to create such
a system would be seek the approval of the reviewing panel.
 
	The requirements of additional infrastructure and approval by a
reviewing panel raise the issue of exactly what would happen the first
time an expert jury request were made in a particular court.  Suppose, for
example, that a party in a complex electrical patent case were to file a
motion for an expert jury of electrical engineers.  To obtain the expert
jury (without appealing the case), the requesting party would be required
to persuade not only the trial judge, but the reviewing panel, that such a
jury would be appropriate.  Even assuming that the trial judge and the
panel could be convinced, there would probably be a substantial delay,
because it would take time for the court to draft the proposed amendments
to the jury plan, for the panel to approve the changes, and for the expert
jury wheel to be created and tested.  Consequently, a litigant interested
in rapid resolution of its case might be discouraged from requesting an
expert jury.
 
	However, patent cases can last for years,[193] and it therefore
seems unlikely that the changes to the jury plan and the practical
implementation of the additional jury wheel would cause an unacceptable
bottleneck in every case.  Provided that the trial judge and reviewing
panel would not take excessively long to make their decisions, the
prospect of obtaining a better jury would likely be worth the potential
delay in a trial which is already expected to be lengthy.[*51]
 
		d.  Practical Issues: Finding Enough People, and Paying
		    Them
 
	One potential concern associated with such an exclusive jury
selection process is whether it would be possible to obtain enough
qualified jurors to satisfy the demands of the courts without requiring
highly educated people to serve more time in court than the general
populace.  Some commentators have suggested that it might not be feasible
to gather the necessary jurors.[194] However, to address this issue
properly, it is important to consider the demographics of the federal
district court jury pool.  Assuming that jurors can be drawn primarily
from among working people, the jury pool should roughly reflect the
demographics of the U.S.  workforce.  The U.S.  Bureau of Labor Statistics
(BLS) has compiled data on approximately 98 million U.S.  workers aged 16
years and over.[195] Of these workers, 2% (1.9 million) were classified as
engineers (including aerospace, chemical, civil, electrical/electronic,
industrial, and mechanical), 1.7% (1.6 million) were mathematical and
computer scientists, 0.6% (564,000) were computer programmers, 0.5%
(514,000) were natural scientists (including chemists, physical
scientists, biological and life scientists, and medical scientists), and
0.5% (460,000) were physicians.[196] Adding these numbers gives the result
that approximately 5% of working people (5.1 million in total) belong to
one of the aforementioned highly trained groups.  Among those eligible for
jury duty, the percentage of[*52] college-educated engineers and scientists can
be considered even higher, since the BLS data includes workers as young as
16 years of age.
 
	Is 5% of the working population sufficient to support a blue
ribbon jury system for patent cases? This depends not only upon how much
of the district courts' trial docket is occupied by patent litigation, but
upon how often trial by expert jury would be granted.  With regard to the
court docket, it has been estimated the average federal trial judge spends
no more than 2% of his time hearing patent disputes.[197] Even under the
most pessimistic assumptions, it appears that the workforce could probably
support this burden.  Specifically, I will assume that an expert jury
would be empaneled in every patent case.  In addition, although my
research has uncovered no study breaking down the courts' total patent
trial time by technical specialty, I will choose several exemplary
specialties and, in each example, make the worst-case assumption that
every trial would involve that particular technical discipline.  This
second assumption, of course, imposes the maximum possible burden upon
members of that discipline.
 
	Suppose, for example, that every patent case (2% of the federal
trial docket) were to involve an electrical, electronic, or computer
hardware-related invention.  Since 2% of the[*53] workforce (2 million people)
consists of electrical engineers, electronic engineers, computer systems
analysts, and computer scientists,[198] and the federal court jury pool
should reflect this percentage, it should be feasible to earmark this 2%
of jurors for the aforementioned patent cases.  As another example,
suppose that every patent case were to involve a software invention.  
Since 2% of the workforce (1.9 million people) consists of computer
scientists and computer programmers,[199] it appears that an all-software
patent docket could also be accommodated by the jury pool.  As a final
example, suppose that every allegedly infringed patent were in the
pharmaceutical or biochemical arts.  This would pose somewhat greater
difficulty, because only 1% (944,000) of the workforce is classified under
the categories most likely to be helpful in such cases: chemists,
biological and life scientists, medical scientists, physicians, and
pharmacists.[200] However, one should remember the very pessimistic
assumptions have been made for the purposes of simplifying these
calculations.  The aforementioned 1% of the population would at least be
able to provide expert jurors for half of all patent trials, and this may
very well be sufficient, considering that: (1) not all patent trials
involve pharmaceutical or biochemical inventions, and (2) it is unlikely
that an expert jury trial would be granted in every case.
 
	An additional concern raised by the proposed blue ribbon jury
system is the potential difficulty of finding highly educated specialists
who would not suffer undue hardship from being compelled to sit through a
lengthy patent litigation.  Patent trials usually range in duration from
one week to one month,[201] and it is likely that the relatively
highly-paid professionals called for expert jury duty would find it
extremely objectionable to be forced away from their jobs for such long
trials.  Furthermore, even assuming that jurors working for salary would
continue to get paid, some employers might pressure their employees to
find excuses[*54] to avoid jury duty, despite the fact that such pressure is
illegal.202 Moreover, self-employed engineers and scientists would have an
even stronger incentive to claim hardship; they might lose a great deal of
income for which they would have no meaningful source of reimbursement.
 
	The blow would be softened significantly, and expert participation
would be more enthusiastic, if the party demanding an expert panel were
required to pay the jurors fair compensation for their participation in
the trial.[203] Such a requirement would not unreasonably increase trial
costs.  The median weekly earnings of physicians, the highest paid workers
who might be called for expert jury duty, amounted to $1,266 in 1999.[204]
If a full-sized panel of 12 physicians were paid a fee equal to this
median salary to hear five weeks of testimony, the cost would be about
$76,000, and this number could be reduced by using a smaller number of
jurors.  Patent cases typically cost at least $500,000 to litigate,[205]
and even a 15% cost increase[*55] does not seem outrageous, considering the
enormous amount of money at stake and the potentially vast improvement in
the accuracy and predictability of the process.  A litigant with a strong,
but complex case, and many millions of dollars riding on the outcome,
would be ill-advised to simply roll the dice rather than spending a
comparatively small sum of money to dramatically increase his chances of
achieving his rightful victory.

 
V.  Conclusion

 
	The Seventh Amendment right to have a jury is meaningless if the
jury lacks the ability to make a non-arbitrary decision.  In addition, due
process cannot be satisfied unless jurors have the intellectual ability
and background to understand the issues.  In extremely complex patent
disputes tried before a jury, only a panel of experts can do the job
properly.  Although there is no way to guarantee that every patent case
will be understood by its fact-finders, in complex trials the courts
arguably have a constitutional duty to summon, on request, a panel of
jurors educated in the relevant science and technology.
 
	Under the current jury-selection statutes, the courts, through
their reviewing panels, already have the authority to implement a special
jury system.  Although there may be some practical difficulties to this
approach, the difficulties seem far from insurmountable.  In particular,
the labor data suggest that the U.S.  workforce contains enough highly
educated specialists to supply the federal courts with as many blue ribbon
juries as are likely to be necessary.
 

Footnotes

[*] Cite as "Michael A. Fisher, Going for the Blue Ribbon: The Legality of
Expert Juries in Patent Litigation, 2 COLUM. SCI. & TECH. L. REV. 2
(August 19, 2001) <http://www.stlr.org/cite.cgi?volume=2&article=2>."

[**] J.D. 2000, Columbia University School of Law; Ph.D. (Electrical
Engineering) 1993, University of Rochester. Associate with the firm of
Baker Botts L.L.P., New York, NY. The helpful comments and suggestions of
Professor Harold S. H. Edgar were greatly appreciated. I would also like
to acknowledge the staff of the Columbia Science & Technology Law Review
for their diligent and thorough editorial work. In addition, special
thanks to Talia Yellin for her support and encouragement.

[1] See, e.g., Stephen C. Shear & William S. Galliani, Post Allowance and
Post Issuance Practice Before the United States Patent and Trademark
Office as it Relates to Newly Discovered Prior Art, in ELECTRONIC AND
COMPUTER PATENT LAW, at 627, 670 (PLI Patents, Copyrights, Trademarks, &
Literary Property Course Handbook Series No. 292, 1990) ("A party which
holds a patent on an invention which is deceptively simple may find it
advisable to reinforce it through a [reexamination or reissue proceeding
at the Patent and Trademark Office]. The Patent Office is more likely to
objectively asses [sic] the merits of the invention, as opposed to a jury
which is likely to render a knee jerk reaction that ‘anyone could do
that.' On the other hand, a complex invention is likely to fare much
better before a jury which will be inclined to view something as
patentable if it cannot understand it."); William F. Lee & Wayne L.
Stoner, The Role of Expert Witnesses on Liability Issues in Patent
Litigation in Light of Markman v. Westview Instruments, in WINNING
STRATEGIES IN PATENT LITIGATION, at 647, 675-76 (PLI Patents, Copyrights,
Trademarks, & Literary Property Course Handbook Series No. 432, 1995)
(discussing effect of Federal Circuit decision in Markman v. Westview
Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995), and attorneys' abuse of
pre-Markman rule which arguably "allowed counsel to legitimately
‘hoodwink' the jury into finding that a patent covered the accused
products, even where the patent claims, when ‘properly interpreted,'
clearly did not."); Jeffrey G. Sheldon & Otto Lee, Impact of Federal
Circuit on Patent Litigation, in PATENT LITIGATION 1993, at 879, 904-05
(PLI Patents, Copyrights, Trademarks, & Literary Property Course Handbook
Series No. 376, 1993) (discussing the relative benefits of trying the
issue of infringement before a judge, as opposed to a jury: "it is
believed that a jury is more likely to be impressed by arguments about an
invention being stolen, whereas a judge will understand the importance of
the Federal Circuit's admonition that the doctrine of equivalents is the
exception rather than the rule.").

[2] Tom Arnold, Why ADR?, in PATENT LITIGATION 1999, at 1013, 1039 (PLI
Patents, Copyrights, Trademarks, & Literary Property Course Handbook
Series No. 572, 1999).

[3] See, e.g., ALF K. BERLE & L. SPRAGUE DE DAMP, INVENTIONS AND THEIR
MANAGEMENT 659 (1947); David B. Pieper, The Appropriate Judicial Actor for
Patent Interpretation: A Commentary on the Supreme Court's Decision in
Markman v. Westview Instruments, Inc., 51 ARK. L. REV. 159, 180 (1998)
(proposing, in the patent context, a "jury of scientists skilled in the
relevant art"); Gregory D. Leibold, In Juries We Do Not Trust: Appellate
Review of Patent-Infringement Litigation, 67 U. COLO. L. REV. 623, 648-49
(1996) (proposing special juries in patent cases); Rita Sutton, A More
Rational Approach to Complex Civil Litigation in the Federal Courts: The
Special Jury, 1990 U. CHI LEGAL F. 575 (1990); Franklin Strier, The
Educated Jury: A Proposal for Complex Litigation, 47 DEPAUL L. REV. 49
(1997); Kristy Lee Bertelsen, From Specialized Courts to Specialized
Juries: Calling for Professional Juries in Complex Civil Litigation, 3
SUFFOLK J. TRIAL & APP. ADVOC. 1 (1998).

[4] U.S. CONST. amend. VII.

[5] See, e.g., Ross v. Bernhard, 396 U.S. 531, 533-34 (1970); In re U.S.
Financial Securities Litigation, 609 F.2d 411, 421-22 (9th Cir. 1979); ILC
Peripherals Leasing Corp. v. International Business Machines Corp., 458
F.Supp. 423, 444 (N.D. Ca. 1978); Bernstein v. Universal Pictures, Inc.,
79 F.R.D. 59, 65 (S.D.N.Y. 1978) ("In the rare case in which a doubt might
arise as to the right to a trial by jury, the traditional test has always
been to make an historical analogy to the nearest common law remedy
existing in 1791.").

[6] See, e.g., Ross, 396 U.S. at 533; Financial Securities, 609 F.2d at
421-22; ILC Peripherals, 458 F.Supp. at 444-45; Bernstein, 79 F.R.D. at
65-66.

[7] See Fed. R. Civ. P. 1 ("These rules govern the procedure in the United
States district courts in all suits of a civil nature whether cognizable
as cases at law or in equity . . . ."); Fed. R. Civ. P. 2 ("There shall be
one form of action to be known as 'civil action'.").

[8] See Railex Corp. v. Joseph Guss & Sons, Inc., 40 F.R.D. 119, 123
(D.D.C. 1966).

[9] See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 471-72, 476
(1962).

[10] Id. at 472-73 (quoting Beacon Theatres, Inc. v. Westover, 359 U.S.
500, 510-11 (1959)).

[11] U.S. CONST. amend. V.

[12] U.S. CONST. amend. XIV, § 1.

[13] Sullivan v. Fogg, 613 F.2d 465, 466 (2d Cir. 1980).

[14] Id.

[15] Id. at 467-68.

[16] Kirby v. Lake Shore & Mich. S. R. R. Co., 120 U.S. 130 (1887).

[17] Id. at 134-35.

[18] Id. at 136.

[19] Id. at 134.

[20] Ross v. Bernhard, 396 U.S. 531 (1970).

[21] Id. at 532.

[22] Id. at 538 n.10.

[23] Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59 (S.D.N.Y. 1978).

[24] Id. at 66.

[25] Id. at 67.

[26] Id. at 67-70 (citing Kirby v. Lake Shore & Mich. S. R. R. Co., 120
U.S. 130, 134 (1887)).

[27] In re U.S. Financial Securities Litigation, 609 F.2d 411 (9th Cir.
1979).

[28] Id. at 425 (citing Ross v. Bernhard, 396 U.S. 531, 538 n.10 (1970)).

[29] Kian v. Mirro Aluminum Co., 88 F.R.D. 351, 352, 355 (E.D. Mich.
1980).

[30] Financial Securities, 609 F.2d at 417 n.14 (citing Kirby v. Lake
Shore & Mich. S. R. R. Co., 120 U.S. 130, 134 (1887)).

[31] Kian, 88 F.R.D. at 351.

[32] See supra text accompanying notes 13-15.

[33] In re Japanese Electronic Products Antitrust Litigation, 631 F.2d
1069 (3d Cir. 1980).

[34] Id. at 1080 (citing Kirby v. Lake Shore & Mich. S. R. R. Co., 120
U.S. 130 (1887)).

[35] Id. at 1084.

[36] Id. (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979);
Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976)).

[37] Id. at 1086.

[38] Id. at 1088-89.

[39] Id. at 1088 (citing MANUAL FOR COMPLEX LITIGATION (West Pub. Co. ed.,
1977)).

[40] In re U.S. Financial Securities Litigation, 609 F.2d 411 (9th Cir.
1979). See also supra text accompanying notes 27-28.

[41] Financial Securities, 609 F.2d at 427-30, 432.

[42] Id. at 432.

[43] Kian v. Mirro Aluminum Co., 88 F.R.D. 351, 355 (E.D. Mich. 1980).

[44] See discussion supra Part II.

[45] See, e.g., Markman v. Westview Instruments, Inc., 517 U.S. 370, 376
(1996).

[46] See Learned Hand, Historical and Practical Considerations Regarding
Expert Testimony, 15 HARV. L. REV. 40, 41-42 (1902).

[47] WILLIAM STYLE, STYLES'S PRACTICAL REGISTER 335 (1707).

[48] See J. H. Beuscher, Use of Experts by the Courts, 54 HARV. L. REV.
1105, 1109 (1941).

[49] 3 Geo. 2, ch. 25, § 15 (1730) (Eng.).

[50] See, e.g., Peisch v. Dickson, 19 F.Cas. 123, 125 (C.C.D. Mass. 1815)
(noting that the case had been tried before a special jury, with the
consent of the parties, and also noting the prevalence of special juries
in pre-Revolutionary Massachusetts); Harvey v. Richards, 11 F.Cas. 746,
746 n.2 (C.C.D. Mass. 1815) (special jury used, by consent of the parties,
in an estate case, in which the court noted that "[t]he practice of
summoning special juries appears, from the records of our courts, to have
been early prevalent in Massachusetts . . . but it has been long disused .
. . .").

[51] See, e.g., Crawford v. U.S. Trustee, 194 F.3d 954, 960-61 (9th Cir.
1999) (citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).

[52] See infra text accompanying notes 54-66.

[53] See infra text accompanying notes 54-65.

[54] U.S. v. Butera, 420 F.2d 564, 567 (1st Cir. 1970).

[55] See, e.g., Barber v. Ponte, 772 F.2d 982, 984 (1st Cir. 1985).

[56] See, e.g., Butera, 420 F.2d at 568; Barber, 772 F.2d at 984.

[57] See, e.g., Duren v. Missouri, 439 U.S. 357, 364 (1979) (citing Taylor
v. Louisiana, 419 U.S. 522, 531 (1975)).

[58] See 28 U.S.C.A. § 1861 (West 1999) ("[A]ll litigants in Federal
courts entitled to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the community in
the district or division wherein the court convenes."); see also U.S. v.
Kleifgen, 557 F.2d 1293, 1295-97 (9th Cir. 1977) (applying § 1861 to
selection of a grand jury).

[59] See, e.g., U.S. v. Cabrera-Sarmiento, 533 F.Supp. 799, 804 (S.D. Fla.
1982); U.S. v. Guzman, 337 F.Supp. 140, 142 (S.D.N.Y. 1972).

[60] See, e.g., U.S. v. Potter, 552 F.2d 901, 903-05 (9th Cir. 1977);
Kleifgen, 557 F.2d at 1296; Cabrera-Sarmiento, 533 F.Supp. at 804; Guzman,
337 F.Supp. at 143-45.

[61] See, e.g., Cabrera-Sarmiento, 533 F.Supp. at 807 ("[T]he first two
prongs of the sixth amendment test [((1) distinctiveness/cognizability and
(2) underrepresentation)] . . . are the same as the equal protection test
. . . .").

[62] See, e.g., U.S. v. Test, 550 F.2d 577, 584 (10th Cir. 1976) (holding
the statutory "fair cross section" standard to be the "functional
equivalent" of the constitutional "reasonably representative" standard);
id. at 585-86, 591 (considering cognizability without distinguishing among
statutory challenge and constitutional challenges).

[63] See, e.g., Guzman, 337 F.Supp. at 143-44; Potter, 552 F.2d at 904
(citing Guzman, 337 F.Supp. at 143-44); Willis v. Zant, 720 F.2d 1212,
1216 (11th Cir. 1983); Test, 550 F.2d at 591; Barber v. Ponte, 772 F.2d
982, 986 (1st Cir. 1985); see also Kleifgen, 557 F.2d at 1296 (requiring
cognizable groups to be identifiable and classifiable, and to have
"internal cohesion").

[64] See, e.g., Kleifgen, 557 F.2d at 1296 ("[L]ess educated people
[(specifically non-high school graduates) do not] comprise a cognizable
group."); Potter, 552 F.2d at 905 (less educated people (high school or
less) not a cognizable group); Cabrera-Sarmiento, 533 F.Supp. at 804
("persons with less than a high school education" not a cognizable group).

[65] U.S. v. Butera, 420 F.2d 564, 571 (1st Cir. 1970) (finding the less
educated to be a cognizable group in the context of a jury pool containing
much higher percentages of high school and college graduates than the
general population).

[66] See Guzman, 337 F.Supp. at 145 (persons 18 to 21 years of age not a
cognizable group); Cabrera-Sarmiento, 533 F.Supp. at 804 (adults under 30
years of age not a cognizable group); Barber v. Ponte, 772 F.2d 982, 996,
998, 1000 (1st Cir. 1985) (deciding, on rehearing, that "young adults,"
defined as persons 18 to 34 years of age, are not a cognizable group).

[67] N.Y. JUD. LAW. § 749-aa (repealed 1965) (McKinney 1999).

[68] See generally People v. Blanchfield, 45 Misc.2d 536, 538 (N.Y. Sup.
Ct. 1965) (applying, but criticizing, the special jury statute).

[69] N.Y. JUD. LAW. § 609 (repealed 1978) (McKinney 1999).

[70] See, e.g., State v. Rochester, 105 N.J.Super. 529, 553-54 (N.J.
Super. Ct. Law Div. 1967).

[71] DEL. CODE. ANN. tit. 10, § 4506 (1999) ("The Court may order a
special jury upon the application of any party in a complex civil case.
The party applying for a special jury shall pay the expense incurred by
having a special jury, which may be allowed as part of the costs of the
case.").

[72] See Haas v. United Technologies Corp., 450 A.2d 1173, 1185 (Del.
1982) (suggesting, to a lower court, that special juries be composed of
people meeting specified requirements of age, intelligence, education
(e.g., a bachelor's degree), and occupation).

[73] See In re Asbestos Litigation, 551 A.2d 1296, 1297 (Del. Super. Ct.
1988) [hereinafter Asbestos I].

[74] COLO REV. STAT. ANN. § 37-23-104(1) (West 1999).

[75] See, e.g., Haas, 450 A.2d at 1183.

[76] See, e.g., U.S. ex rel. Torres, 427 F.2d 168, 169 (2d Cir. 1970)
(upholding validity of former statute, without substantive comment on
defendant's allegations of excessively educated and wealthy special jury);
People v. Jackson, 20 N.Y.2d 440, 456 (N.Y. 1967) ("[W]e have consistently
refused to find [N.Y. JUD. LAW. § 749-aa] unconstitutional . . . ."); U.S.
ex rel. Fein v. Deegan, 298 F.Supp. 359, 366 (S.D.N.Y. 1967). But see
Schuster v. City of New York, 25 Misc.2d 670, 677-84 (N.Y. Sup. Ct. 1960)
(citing widespread criticism of statute, in denying motion for special
jury under the circumstances of the case).

[77] See, e.g., U.S. ex rel. Chestnut v. Criminal Court of New York, 442
F.2d 611, 614-19 (2d Cir. 1971) (under-representation of "blue collar"
workers on New York grand juries does not violate the Due Process or Equal
Protection Clauses of the Fourteenth Amendment); State v. Rochester, 105
N.J. Super. 529, 554 (N.J. Super. Ct. Law Div. 1967) ("I think that
legally in the discretion of the jury commissioners a higher education
standard can be used for the selection of persons to serve on the grand
jury.").

[78] See, e.g., Haas, 450 A.2d at 1180-84 (reviewing special jury trial
and finding no state or federal constitutional violation where statistical
evidence of exclusion of "women and young people" was insufficient to show
"intentional and systematic exclusion").

[79] See, e.g., Bradley v. A.C.&S. Co., Inc., 1989 WL 70834, at *4 (Del.
Super. Ct. May 23, 1989) (denying motion for special jury, because of
insufficient complexity); Noramco (Delaware), Inc. v. Carew Assoc., Inc.,
1990 WL 199509, at *1-2 (Del. Super. Ct. Nov. 29, 1990) (insufficient
complexity); Amoroso v. Joy Manufacturing Co., 1987 WL 26911, at *3 (Del.
Super. Ct. Aug. 31, 1987) (insufficient complexity); In re Asbestos
Litigation, 1988 WL 77737, at *2 (Del. Super. Ct. Sep. 9, 1988)
[hereinafter Asbestos II] (insufficient complexity).

[80] See supra text accompanying notes 54-66.

[81] See Haas v. United Technologies Corp., 450 A.2d 1173, 1183 (Del.
1982).

[82] Bradley v. A.C.&S. Co., Inc., 1989 WL 70834 (Del. Super. Ct. May 23,
1989).

[83] Asbestos I, 551 A.2d 1296 (Del. Super. Ct. 1988).

[84] Bradley, 1989 WL 70834, at *1.

[85] Id. at *2-3 (distinguishing case at bar from In re Japanese
Electronic Products Antitrust Litigation, 631 F.2d 1069 (3d Cir. 1980)).

[86] Id. at *2.

[87] Id. at *3.

[88] Asbestos I, 551 A.2d at 1296.

[89] Id.

[90] Id. at 1296-1299.

[91] See supra text accompanying note 81.

[92] See Haas v. United Technologies Corp., 450 A.2d 1173, 1183 (Del.
1982).

[93] See, e.g., Haas, 450 A.2d at 1182-83 (citing Nance v. Rees, 161 A.2d
795 (Del. 1960), and discussing the history of special juries in England
before 1776, and in Delaware after the Revolution); Asbestos I, 551 A.2d
at 1296-1300 (similar discussion).

[94] See 35 U.S.C.A. §§ 283, 284 (West 2000).

[95] See In re Lockwood, 50 F.3d 966, 972, 976 (Fed. Cir. 1995).

[96] See, e.g., Lockwood, 50 F.3d at 976; Choat v. Rome Industries, Inc.,
467 F.Supp. 378, 381 (N.D. Ga. 1979); Railex Corp. v. Joseph Guss & Sons,
Inc., 40 F.R.D. 119, 123 (D.D.C. 1966).

[97] See, e.g., S.C. Johnson & Son, Inc. v. Carter-Wallace, Inc., 781 F.2d
198, 201 (Fed. Cir. 1986) ("The measure of [enhanced] damages . . .
provides an opportunity for the trial court to balance equitable concerns
. . . ."); Beatrice Foods Co. v. New England Printing and Lithographing
Co., 899 F.2d 1171, 1176 (Fed. Cir. 1990) ("[On remand, the district
court] may give consideration to [the plaintiff's] request that its actual
damages be multiplied, as authorized by 35 U.S.C. § 284, and may in its
equitable discretion grant said request . . . .").

[98] See, e.g., Choat v. Rome Industries, Inc., 467 F.Supp. 378, 381 (N.D.
Ga. 1979); Radial Lip Machine, Inc. v. International Carbide Corp., 76
F.R.D. 224, 226 (N.D. Ill. 1977); see also Lockwood, 50 F.3d at 972
("[T]he district court must honor a jury demand to the extent that
disputed issues of fact concerning [legal] rights and remedies require a
trial.").

[99] Lockwood, 50 F.3d at 966.

[100] Id. at 968-69.

[101] Id. at 971.

[102] Id. at 971-80.

[103] Id. at 974.

[104] Id. at 980.

[105] Markman v. Westview Instruments, Inc., 52 F.3d 967, 970 (Fed. Cir.
1995) [hereinafter Markman I].

[106] Id. at 973.

[107] Id.

[108] Id. at 970-71, 979.

[109] Id. at 989 (Mayer, J., concurring in the judgment).

[110] Id. at 993 (citing SRI Int'l v. Matsushita Electric Corp. of
America, 775 F.2d 1107, 1130 (Fed. Cir. 1985) (Markey, C.J., additional
views)).

[111] Id.

[112] SRI Int'l v. Matsushita Electric Corp. of America, 775 F.2d 1107,
1127-31 (Fed. Cir. 1985) (Markey, C.J., additional views) (citing In re
Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069 (3d Cir.
1980); Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59 (S.D.N.Y.
1978)).

[113] Markman I, 52 F.3d at 984.

[114] Id.

[115] Id.

[116] Id. at 970 (Judge Archer's opinion joined by Judges Rich, Nies,
Michel, Plager, Lourie, Clevenger, and Schall). Judges Archer, Michel,
Plager, Lourie, Clevenger, Schall, and Mayer are still on the court. See
U.S. Court of Appeals for the Federal Circuit; Judicial Biographies
(visited Dec. 3, 2000) <http://www.fedcir.gov/judgbios.html>.

[117] See Markman v. Westview Instruments, Inc., 517 U.S. 370, 384 (1996)
[hereinafter Markman II].

[118] See id.

[119] See, e.g., In re Lockwood, 50 F.3d 966 (Fed. Cir. 1995).

[120] See supra text accompanying notes 104-114.

[121] Markman I, 52 F.3d at 984.

[122] Markman II, 517 U.S. at 384, 391.

[123] See, e.g., Lockwood, 50 F.3d at 970-71, n.4 (citing Graham v. John
Deere Co., 383 U.S. 1, 17 (1966)).

[124] Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1547 (Fed. Cir.
1983).

[125] See, e.g., General Electric Co. v. Nintendo Co., Ltd., 179 F.3d
1350, 1353 (Fed. Cir. 1999) (citing Hoover Group, Inc. v. Custom
Metalcraft, Inc., 66 F.3d 299, 302 (Fed. Cir. 1995) (citing Glaverbel
Societe Anonyme v. Northlake Marketing & Supply, Inc., 54 F.3d 1550, 1554
(Fed. Cir. 1995); Lindemann Maschinenfabrik GMBH v. American Hoist &
Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir. 1984))).

[126] Markman I, 52 F.3d at 989 (Mayer, J., concurring in the judgment).

[127] Laurence H. Pretty, The Judicial Attack on Infringement, in PATENT
LITIGATION 1999, at 245, 257 (PLI Patents, Copyrights, Trademarks, &
Literary Property Course Handbook Series No. 572, 1999).

[128] See Ted D. Lee & Michelle Evans, The Charade: Trying a Patent Case
to All "Three" Juries, 8 TEX. INTELL. PROP. L.J. 1, 8 (1999).

[129] Id.

[130] See discussion supra Part IV.A.2.

[131] In re Japanese Electronic Products Antitrust Litigation, 631 F.2d
1069, 1084 (3d Cir. 1980).

[132] Id. at 1085.

[133] Id. at 1086.

[134] See supra text accompanying notes 40-43; see also In re U.S.
Financial Securities Litigation, 609 F.2d 411, 432 (9th Cir. 1979) ("[W]e
do not believe that any case is so overwhelmingly complex that it is
beyond the abilities of a jury."); Kian v. Mirro Aluminum Co., 88 F.R.D.
351, 355 (E.D. Mich. 1980) (quoting the above statement from Financial
Securities).

[135] SRI Int'l v. Matsushita Electric Corp. of America, 775 F.2d 1107,
1130 (Fed. Cir. 1985) (Markey, C.J., additional views).

[136] See discussion supra Part I.

[137] See, e.g., University of Rochester, General Information for a
Preconcentration in Physics or in Physics & Astronomy (visited Apr. 3,
2000)
<http://www.pas.rochester.edu/mainFrame/education/undergrad/preconGen.html>
(Introductory mechanics class should be taken before "Modern Physics"
class, which provides introduction to quantum mechanics) (linking to
University of Rochester, PHY 123 Modern Physics (visited Apr. 3, 2000)
<http://www.pas.rochester.edu/mainFrame/education/pages/PHY_123.html>
("Modern Physics" class includes introduction to quantum mechanics)); The
Pennsylvania State University, Physics Options for Undergraduates at Penn
State (visited Apr. 3, 2000)
<http://www.phys.psu.edu/undergraduate/options/> (linking to exemplary
curricula, e.g., The Pennsylvania State University, General Physics
Option; Suggested Schedule by Semester, (visited Apr. 3, 2000)
<http://www.phys.psu.edu/undergraduate/options/generaloption.html>
(listing introductory mechanics and electricity and magnetism courses
before "General Physics" course including modern physics)).

[138] ILC Peripherals Leasing Corp. v. International Business Machines
Corp., 458 F.Supp. 423, 447 (N.D. Ca. 1978).

[139] See, e.g., Rita Sutton, A More Rational Approach to Complex Civil
Litigation in the Federal Courts: the Special Jury, 1990 U. CHI LEGAL F.
575, 584 (1990); Lisa Meyer, Taking the "Complexity" Out of Complex
Litigation: Preserving the Constitutional Right to a Civil Jury Trial, 28
VAL U. L. REV. 337, 367-68, 370-73 (1993).

[140] See, e.g., Sutton, supra note 138, at 584; Meyer, supra note 138, at
359.

[141] In re Japanese Electronic Products Antitrust Litigation, 631 F.2d
1069, 1086. (3d Cir. 1980).

[142] Cf. Kristy Lee Bertelsen, From Specialized Courts to Specialized
Juries: Calling for Professional Juries in Complex Civil Litigation, 3
SUFFOLK J. TRIAL & APP. ADVOC. 1, 34 (1998) (suggesting that, in complex
trials, the use of a special jury or statutorily heightened jury
qualifications are the only ways to ensure that a party obtains the
capable jury needed to satisfy the due process right).

[143] See discussion infra Part IV.B.3.b.

[144] In re Japanese Electronic Products Antitrust Litigation, 631 F.2d
1069, 1089 (3d Cir. 1980).

[145] In re U.S. Financial Securities Litigation, 609 F.2d 411, 432 (9th
Cir. 1979).

[146] SRI Int'l v. Matsushita Electric Corp. of America, 775 F.2d 1107,
1128 (Fed. Cir. 1985) (Markey, C.J., additional views).

[147] See, e.g., U.S. v. Butera, 420 F.2d 564, 568 (1st Cir. 1970); Barber
v. Ponte, 772 F.2d 982, 984 (1st Cir. 1985).

[148] See 28 U.S.C.A. § 1861 (West 1999) ("[A]ll litigants in Federal
courts entitled to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the community in
the district or division wherein the court convenes."); see also U.S. v.
Kleifgen, 557 F.2d 1293, 1295-97 (9th Cir. 1977) (applying § 1861 to
selection of a grand jury).

[149] See supra text accompanying notes 138-45.

[150] Cf. Douglas G. Smith, The Historical and Constitutional Contexts of
Jury Reform, 25 HOFSTRA L. REV. 377, 469 (1996) ("[A]bandonment of the
goal of accuracy in favor of a blind adherence to the principle of
representativeness arguably tramples on the litigants' due process rights
. . . .").

[151] See, e.g., Barber v. Ponte, 772 F.2d 982, 984 (1st Cir. 1985).

[152] See supra text accompanying notes 64-65.

[153] Jason Scully, Markman and Hilton Davis, the Federal Circuit Strikes
an Awkward Balance: the Roles of the Judge and Jury in Patent Infringement
Suits, 18 HASTINGS COMM. & ENT. L.J. 631, 653-54 (1996) (citing John W.
Wesley, Note, Scientific Evidence and the Question of Judicial Capacity,
25 WM. & MARY L. REV. 675, 681-82 (1984)).

[154] See, e.g., Kathy Kowalenko, Increasing Diversity in America's
Science, Engineering and Technology Fields, THE INSTITUTE, Dec. 2000, at 1
(citing National Science Foundation studies which indicated that in 1997,
the U.S. science, engineering, and technology (SET) workforce was 67.9%
white male, 15.4% white female, 3.2% black, 3% Hispanic, 10.2% Asian, and
0.3% American Indian, and consisted of 6 percent persons with
disabilities, compared to the 1997 U.S. workforce as a whole, which was
41.7% white male, 34.7% white female, 10.3% black, 9.2% Hispanic, and 4%
Asian and other, and consisted of 14 percent persons with disabilities);
Michael Heylin, ChemCensus 2000, CHEMICAL & ENGINEERING NEWS, Aug. 14,
2000, at 46 (citing results of 2000 survey of members of the American
Chemical Society, indicating that racial makeup of the organization's
members is 85.6% white, 11.0% Asian, 1.9% black, 0.2% American Indian, and
1.4% other, with 2.6% of respondents identifying themselves as Hispanic in
a separate question, compared to overall U.S. population, which is 82.3%
white, 12.8% black, 4.0% Asian, and 0.9% American Indian, with 11.7%
identified as having Hispanic origin, independent of race).

[155] See, e.g., Kowalenko, supra note 153; Heylin, supra note 153.

[156] See, e.g., Engineering Workforce Commission: Survey Shows Decrease
in Base Salaries, THE INSTITUTE, Nov. 1995, at 16 (listing median, yearly,
engineers' salaries in 1995, ranging from $31,700 to $75,100, depending on
specialty and number of years of experience); Heylin, supra note 153
(listing median, yearly, chemists' salaries in 2000, ranging from $38,500
to $93,400, depending on level of education and number of years of
experience, with 10th percentile level of $28,900 for bachelor's degree
chemists, and 90th percentile level of $147,300 for Ph.D. degree
chemists).

[157] See, e.g., William V. Luneburg & Mark A. Nordenberg, Specially
Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping
with the Complexities of Modern Civil Litigation, 67 VA. L. REV. 887, 943
(1981); Charles W. Fournier, Note, The Case for Special Juries in Complex
Civil Litigation, 89 YALE L. J. 1155, 1172-73 (1980).

[158] See supra text accompanying notes 16-26, 32-39; see also In re
Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069, 1089-90
(3d Cir. 1980) (holding that the trial court must rule on whether a
particular lawsuit is "too complex for a jury to understand and decide
rationally."); Kirby v. Lake Shore & Mich. S. R. R. Co., 120 U.S. 130, 134
(1887); Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59 (S.D.N.Y.
1978).

[159] See, e.g., Haas v. United Technologies Corp., 450 A.2d 1173, 1180-85
(Del. 1982) (applying a state statute directing the court to order a
special jury upon the application of either party).

[160] See infra text accompanying notes 201-205.

[161] See, e.g., Pointer v. U.S., 151 U.S. 396, 407-08 (1894); Thiel v.
Southern Pac. Co., 328 U.S. 217, 220-21 (1946).

[162] See 28 U.S.C.A. §§ 1861-78 (West 2000).

[163] See, e.g., Pointer, 151 U.S. at 407-08; Thiel, 328 U.S. at 221
(citing 28 U.S.C. § 411 (1946) (current version at 28 U.S.C.A. §§ 1861-78
(2000))); U.S. v. Shackleford, 59 U.S. 588, 589-90 (1855); U.S. v.
Richardson, 28 F. 61, 68-69 (1886).

[164] See, e.g., Sanders v. U.S., 357 F.Supp. 1055, 1055-56 (D. Md. 1973);
U.S. v. Zirpolo, 450 F.2d 424, 429-30 (3d Cir. 1971).

[165] Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634 (1957)
(current version at 28 U.S.C.A. §§ 1861-78 (2000)); see also Zirpolo, 450
F.2d at 429-30 (citing 103 Cong. Rec. 13154); Rabinowitz v. U.S., 366 F.2d
34, 53-54 (5th Cir. 1966).

[166] Jury Selection and Service Act of 1968, Pub. L. 90-274, 82 Stat. 54
(1968) (current version at 28 U.S.C.A. §§ 1861-78 (2000)).

[167] 28 U.S.C.A. § 1863(b)(2) (West 2000).

[168] Id. § 1863(b)(3), (4).

[169] Id. §§ 1866(a), 1869(g).

[170] Id. § 1866(a), (b).

[171] Id. §§ 1865(a), 1869(h).

[172] Id. § 1863(b)(5)(B), (b)(6)(exempting volunteer safety personnel
(upon individual request), members of the Armed Forces, members of fire or
police departments, and public officials).

[173] Id. § 1865(b).

[174] See, e.g., U.S. v. Kouri-Perez, 992 F.Supp. 502, 503 (D.P.R. 1998)
(citing 28 U.S.C. § 1863).

[175] 28 U.S.C.A. § 1863(a) (West 2000).

[176] Id.

[177] Id.

[178] Id. § 1863(c).

[179] See JODY GEORGE ET AL., HANDBOOK ON JURY USE IN THE FEDERAL DISTRICT
COURTS 43-44 (1989).

[180] See id. at 44-56.

[181] 28 U.S.C.A. §§ 1866(c)(2), (3), (4), 1870 (West 2000).

[182] See, e.g., William V. Luneburg & Mark A. Nordenberg, Specially
Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping
with the Complexities of Modern Civil Litigation, 67 VA. L. REV. 887, 946
(1981); Lisa S. Meyer, Note, Taking the "Complexity" Out of Complex
Litigation: Preserving the Constitutional Right to a Civil Jury Trial, 28
VAL. U. L. REV. 337, 368 (1993).

[183] 28 U.S.C.A. § 1866(a) (West 2000).

[184] See supra text accompanying notes 178-80.

[185] Telephone Interview with Jury Administrator of the U.S. District
Court for the Northern District of California (Mar. 28, 2000).

[186] Juror Qualification Questionnaire, United States District Courts, in
use as of March 28, 2000.

[187] Id.

[188] Juror Questionnaire completed by jurors called to the courtroom of
Judge Vaughn R. Walker, U.S. District Court for the Northern District of
California.

[189] Tom Arnold, Why ADR?, in PATENT LITIGATION 1999, at 1040 (PLI
Patents, Copyrights, Trademarks, & Literary Property Course Handbook
Series No. 572, 1999) (suggesting a three-member ADR panel of "one patent
lawyer, one technologist and one business man").

[190] See supra text accompanying note 160.

[191] 28 U.S.C.A. §§ 1863(b)(3), (4), 1866(a) (West 2000).

[192] Id. § 1863(a), (c).

[193] See Arnold, supra note 189, at 1016-17.

[194] See, e.g., Gregory D. Leibold, In Juries We Do Not Trust: Appellate
Review of Patent-Infringement Litigation, 67 U. COLO L. REV. 623, 650
(1996); Jason Scully, Markman and Hilton Davis, the Federal Circuit
Strikes an Awkward Balance: the Roles of the Judge and Jury in Patent
Infringement Suits, 18 HASTINGS COMM. & ENT. L.J. 631, 654 (1996).

[195] U.S. Bureau of Labor Statistics, Median Usual Weekly Earnings of
Full-Time Wage and Salary Workers by Detailed Occupation and Sex (visited
March 30, 2000) <ftp://ftp.bls.gov/pub/special.requests/lf/aat39.txt>.

[196] Id.

[197] See TOM ARNOLD, PATENT ALTERNATIVE DISPUTE RESOLUTION HANDBOOK, §
5.02 (1991).

[198] See U.S. Bureau of Labor Statistics, Median Usual Weekly Earnings of
Full-Time Wage and Salary Workers by Detailed Occupation and Sex (visited
March 30, 2000) <ftp://ftp.bls.gov/pub/special.requests/lf/aat39.txt>.

[199] Id.

[200] Id.

[201] See Kevin R. Casey, Alternative Dispute Resolution and Patent Law, 3
FED. CIR. B.J. 1, 4 n.12 (1993).

[202] See 28 U.S.C.A. § 1875(a) (West 2000) ("No employer shall discharge,
threaten to discharge, intimidate, or coerce any permanent employee by
reason of such employee's jury service . . . in any court of the United
States.").

[203] See Franklin Strier, The Educated Jury: A Proposal for Complex
Litigation, 47 DEPAUL L. REV. 49, 73-74 (1997) (proposing a substantial
increase in juror compensation, which could be paid by the state, the
juror's employer, or the litigants).

[204] See U.S. Bureau of Labor Statistics, Median Usual Weekly Earnings of
Full-Time Wage and Salary Workers by Detailed Occupation and Sex (visited
March 30, 2000) <ftp://ftp.bls.gov/pub/special.requests/lf/aat39.txt>.

[205] See, e.g., Kevin R. Casey, Alternate Dispute Resolution and Patent
Law, 3 FED. CIR. B.J. 1, 4 (1993); Tom Arnold, Why ADR?, in PATENT
LITIGATION 1999, at 1038 (PLI Patents, Copyrights, Trademarks, & Literary
Property Course Handbook Series No. 572, 1999) ("[I]n the courthouse it is
almost hard to find the patent or other computer case where you can truly
assure the client of a budget under a million dollars, inclusive of the
cost of inside personnel support."); Tom Arnold, Fundamentals of
Alternative Dispute Resolution: Why Prefer ADR?, in PATENT LITIGATION
1993, at 655, 661 (PLI Patents, Copyrights, Trademarks, & Literary
Property Course Handbook Series No. 376, 1993) ("One million dollars per
party for a patent trial and appeal, or almost any other two-week trial
plus appeal, is now almost routine-two to five million and more, not
uncommon. Over $200 million, total for both sides, estimated in the
Polaroid v. Kodak case of 1991.").