Cite as: 517 U. S. 370 (1996)
Opinion of the Court
A
As to the first issue, going to the character of the cause of action, "[t]he form of our analysis is familiar. 'First we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity.' " Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42 (1989) (citation omitted). Equally familiar is the descent of today's patent infringement action from the infringement actions tried at law in the 18th century, and there is no dispute that infringement cases today must be tried to a jury, as their predecessors were more than two centuries ago. See, e. g., Bramah v. Hardcastle, 1 Carp. P. C. 168 (K. B. 1789).
B
This conclusion raises the second question, whether a particular issue occurring within a jury trial (here the construction of a patent claim) is itself necessarily a jury issue, the guarantee being essential to preserve the right to a jury's resolution of the ultimate dispute. In some instances the answer to this second question may be easy because of clear historical evidence that the very subsidiary question was so regarded under the English practice of leaving the issue for a jury. But when, as here, the old practice provides no clear answer, see infra, at 378-380, we are forced to make a judgment about the scope of the Seventh Amendment guarantee without the benefit of any foolproof test.
The Court has repeatedly said that the answer to the second question "must depend on whether the jury must shoulder this responsibility as necessary to preserve the 'substance of the common-law right of trial by jury.'" Tull v. United States, supra, at 426 (emphasis added) (quoting Col-grove v. Battin, 413 U. S. 149, 157 (1973)); see also Baltimore & Carolina Line, supra, at 657. " ' "Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed be-
377
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