Equity and Juries in Patent Law

A cert petition to watch at the Supreme Court

For those who are interested in equitable remedies or the Seventh Amendment, there's an interesting cert petition by Seth Waxman et al. in TCL Communication Technology v. Ericsson, Inc. (Hat tip to Andrew Hamm at SCOTUSBlog.) I've only glanced at it, and haven't read the opinion below. But it seems to call attention to a basic but unfortunately common mistake about remedies: thinking that monetary awards, or even backward-looking monetary awards, are necessarily legal. There's a rich history of monetary awards in equity, and one use of them is to complete a decree of specific performance. Failing to recognize that equity can "top off" its other remedies and award equitable compensation leads to errors about the Seventh Amendment, including the injection of juries into equitable decisionmaking. This one is worth keeping an eye on.

(Some leads for readers: The leading source on equitable compensation is Meagher, Gummow, and Lehane's treatise on equity. This equitable remedy is also discussed in my Oxford Handbook chapter on fiduciary remedies and in the "Equitable Compensation" chapter in the latest edition of Ames, Chafee, and Re on Remedies.)