Should juries look at a patent's validity?

UCLA law professor Doug Lichtman wrote an op-ed in the New York Times today about a patent case that is soon to be considered by the Supreme Court.

At issue, in both the case and the article, is the question of whether a juries in patent lawsuits should be discouraged from questioning the validity of a patent, as they currently are.  This practice stems from the assumption that patent examiners, who are experts, are more likely to make a correct assessment of an invention's validity than are a group of lay jurors. 

Lichtman argues that allowing juries to consider the validity of a patent would do no harm.  The examiner's opinion will, after all, be submitted as evidence.  And by allowing juries to take into account the possibility that a patent is invalid, we can make up for the inevitable innacuracies that accompany the enormous job of examining the hundreds of thousands of patent applications that are filed each year.

Lichtman does a great job of summing up the task that the USPTO faces.  Check out the excerpt below and then have a look at the whole story here.  (I think since it's a referral it doesn't count towards your monthly quota.)

A patent’s validity is first judged at the United States Patent and Trademark Office, where thousands of experts on everything from business practices to stereo equipment toil to evaluate every submitted application. It’s a herculean task: inventors have filed more than 450,000 applications every year since 2007; last year the number was close to 500,000. To accurately evaluate all of those purported inventions would cost tens of billions of dollars, multiples more than what the Patent Office receives in federal outlays or could plausibly raise on its own with application fees.
As a result, patent examiners give most applications only a quick look, spending on average 16 hours to 17 hours per application — nowhere near the time needed to assess whether an invention is truly new and not obvious. Worse, those hours are typically spread over two to three years, and they are interspersed with work on hundreds of other open files.