EcoFactor: Did the Federal Circuit Unconstitutionally Displace the Jury?
Patent – Patently-O 2025-09-29
Summary:
by Dennis Crouch
Over the past couple of years, I have noticed increased willingness of the Federal Circuit to reject jury verdicts, especially in situations involving potentially inadequate expert testimony. This past summer, the Federal Circuit's en banc EcoFactor decision followed this pattern by overturning a $20 million jury verdict based upon flaws in the patentee's damages expert testimony. EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025) (en banc). In my view, the decision did not alter any law associated with expert testimony, but rather served as a pointed reminder to district to rigorously scrutinize whether the expert's opinions are actually tied to sufficient facts in the record and whether the methodology is reliably applied to the specific circumstances of the case. But, this rigor has some potential of improperly overstepping into the jury's role as fact finder.
The key Constitutional issue is the Seventh Amendment, which guarantees a trial in patent cases where the patentees are seeking legal damages. The Seventh Amendment also prohibits "re-examin[ing]" any fact tried by the jury, other "than according to the rules of the common law." The "common law" language cues the court to look back to 1791 and consider what was available at the time.