Markman v. Westview Instruments, Inc. - Oral Argument - January 08, 1996

Markman v. Westview Instruments, Inc.

Media for Markman v. Westview Instruments, Inc.

Audio Transcription for Opinion Announcement - April 23, 1996 in Markman v. Westview Instruments, Inc.

Audio Transcription for Oral Argument - January 08, 1996 in Markman v. Westview Instruments, Inc.

William H. Rehnquist:

We'll hear argument next in No. 95-26, Herbert Markman and Positek v. Westview Instruments, Inc.--

Mr. Mallin, you may proceed whenever you're ready.

William B. Mallin:

Mr. Chief Justice, may it please the Court:

This is a constitutional case.

It concerns the Seventh Amendment guarantee of the right to jury trial on infringement issues in patent infringement actions for damages.

It is established that the Seventh Amendment guarantees the constitutional right to jury trial in civil cases as it existed in 1791 in England.

Accordingly, we submit that it is decisive here that in England in 1791 the meaning of the terms of patents, the meaning of patent specifications were submitted to the jury.

Consistent with that common law practice, that became the early understanding in the United States and that early understanding was confirmed as the years passed by outstanding judges noted for their efforts in the patent area, such as Justice Thurey in the mid-19th century and Judge Learned Hand in the mid-20th century.

Stephen G. Breyer:

I had a little trouble finding that confirmation that you seem to have found.

I mean, Judge Hand's opinion seemed ambiguous and it also certainly says that in the part that favors you, that it's a question of fact.

William B. Mallin:

Yes.

Stephen G. Breyer:

All right.

So, where does that get us?

William B. Mallin:

It... Judge Hand indicates that the issue is a question of fact.

Stephen G. Breyer:

I have no doubt about that, but where does... the question of how people in a particular industry see a particular word and interpret it is a linguistic question.

It is a factual question as to how they interpret it.

William B. Mallin:

Yes.

Stephen G. Breyer:

That's true, but where does that get us?

William B. Mallin:

That gets us under the Seventh Amendment.

Stephen G. Breyer:

Why?

There are dozens and dozens of things... we just heard a case where there were all kinds of facts which judges decide.

There are many, many facts that judges decide.

We write about segregation.

We write about integration.

We write about gerrymandering.

We write about dozens and dozens of things.

We write about antitrust laws which have to do with theories of economics.

There are thousands and thousands of facts that judges decide in interpreting statutes and rules of evidence in preliminary matters.

Why is this the kind of question of fact that the Seventh Amendment requires to go to a jury?

William B. Mallin:

For two reasons.