Jury trials have long been a feature of the common law, and a right at criminal law enshrined by Magna Carta in 1215. We had juries in England for patent trials right into the 19th century, and of course they remain an active feature of US patent and design litigation (though this is not uncontroversial: see this discussion on Prof. Crouch's excellent Patently-O site).

But does a patentee get "the judgment of his peers"? A standard jury is selected from the general public at random, after exclusion of lawyers and others in the legal trade, and in many cases consists of those who lack the intellect to escape jury duty. Is it fair to expect a decision on a patent or design issue from the man in the street?

It was not ever thus. When jury trials were the norm for civil matters in the UK, "special juries" were often empanelled, consisting of people from the trade concerned. The system seems to have died out (at least for City of London financial cases) as late as the 1970s according to Vidmar.

Professor Mario Franzosi's excellent JIPLP article Design Protection Italian Style discusses the institution of the Italian Design Jury, which provides opinions on design subsistence and validity, and we note that in the recent Swedish Maglite case (discussed on Class 99 last month) the Supreme Court followed an opinion on copyright subsistence of the Copyright Panel of Svensk Form, the Swedish Society of Crafts and Design. Juries, such as for example Red Dot's jury, are common enough in judging excellence in design. Could something like this work for design cases in common law countries? Or would a jury of designers be too harsh a tribunal for an essentially consumer-focussed intellectual property right?