380
Opinion of the Court
of patent cases that we have from this period 4 shows no established jury practice sufficient to support an argument by analogy that today's construction of a claim should be a guaranteed jury issue. Few of the case reports even touch upon the proper interpretation of disputed terms in the spec-ifications at issue, see, e. g., Bramah v. Hardcastle, 1 Carp. P. C. 168 (K. B. 1789); King v. Else, 1 Carp. P. C. 103, Dav. Pat. Cas. 144 (K. B. 1785); Dollond's Case, 1 Carp. P. C. 28 (C. P. 1758); Administrators of Calthorp v. Waymans, 3 Keb. 710, 84 Eng. Rep. 966 (K. B. 1676), and none demonstrates that the definition of such a term was determined by the jury.5 This absence of an established practice should not surprise us, given the primitive state of jury patent practice at the end of the 18th century, when juries were still new to the field. Although by 1791 more than a century had passed since the enactment of the Statute of Monopolies, which pro-4 Before the turn of the century, "no more than twenty-two [reported] cases came before the superior courts of London." H. Dutton, The Patent System and Inventive Activity During the Industrial Revolution, 1750- 1852, p. 71 (1984).
5 Markman relies heavily upon Justice Buller's notes of Lord Mansfield's instructions in Liardet v. Johnson (K. B. 1778), in 1 J. Oldham, The Mans-field Manuscripts and the Growth of English Law in the Eighteenth Century 748 (1992). Liardet was an enablement case about the invention of stucco, in which a defendant asserted that the patent was invalid because it did not fully describe the appropriate method for producing the substance. Even setting aside concerns about the accuracy of the summary of the jury instructions provided for this case from outside the established reports, see 1 Oldham, supra, at 752, n. 11, it does not show that juries construed disputed terms in a patent. From its ambiguous references, e. g., 1 Oldham, supra, at 756 ("[Lord Mansfield] left to the jury 1st, on all objections made to exactness, certainty and propriety of the Specification, & whether any workman could make it by [the Specification]"), we cannot infer the existence of an established practice, cf. Galloway v. United States, 319 U. S. 372, 392 (1943) (expressing concern regarding the "uncertainty and the variety of conclusions which follows from an effort at purely historical accuracy"), especially when, as here, the inference is undermined by evidence that judges, rather than jurors, ordinarily construed written documents at the time. See infra, at 381-383.
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: October 4, 2007