What to Expect if Juries Start Tackling Patent Eligibility

Intellectual Property Partner Anthony Fuga was cited in a Law360 article examining the possibility for an increase in jury involvement in patent eligibility cases. In 2018, the U.S. Court of Appeals for the Federal Circuit ruled that the second step in the two-part Alice eligibility test can involve factual questions that may need to be resolved by juries, such as what was "routine and conventional" in the industry at the time of the invention. Mr. Fuga commented that persuading jurors of this fact would be more manageable than explaining other reasons why a patent may be invalid, adding that as trials start resuming, he expects to see more juries weighing in on the issue.

"This one is ripe for a good expert to stand up and explain where he or she was at that time and what was well understood," he said.

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