Dissenting opinion from order denying rehearing in banc filed by Circuit Judge NIES in which Chief Judge ARCHER and Circuit Judge PLAGER joined.
NIES, Circuit Judge.It is rare for patent litigation to present an appellate court with only constitutional issues. This case is that rarity. By a petition for mandamus, a patentee sought an order for a jury trial on a declaratory judgment counterclaim which seeks to have a patent declared invalid. The merits of the patent are not before us. A panel of this court holds that the Seventh Amendment guarantees a jury trial on that issue. The extent to which Seventh Amendment rights apply in a patent infringement suit has not been addressed by the Supreme Court in this century. Bench trials in patent cases became the norm after the Patent Act of 1870, the statute which gave equity courts the power to award common law damages. Act of July 8, 1870, ch. 230, § 55, 16 Stat. 198. In Blonder-Tongue Lab. v. University of Illinois Found., 402 U.S. 313, 336 n. 30, 91 S.Ct. 1434, 1447 n. 30, 28 L.Ed.2d 788 (1971), the Supreme Court noted that in the three year period spanning 1968-1970, only 13 of 382 patent cases going to trial were jury trials. More than half such suits, however, are now tried to juries.1 No more important nor *981contentious an issue arises in patent law jurisprudence than the appropriate role of juries in patent litigation.2
I do not question that a right to a jury trial adheres in a suit for damages for infringement of a patent under the current statute.3 However, saying such an overall right exists tells us nothing about which issues must be decided by a jury upon demand of a litigant and which issues are for the judge to decide. Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970), holds, “The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.”
The panel order pronounces that an invalidity defense is a jury issue in a customary infringement suit and that this “right” remains available in a declaratory judgment action seeking a declaration of invalidity. However, if no “right” exists to begin with, it cannot carry over to the declaratory judgment action.
I disagree with the Lockwood order respecting the right to have a jury decide the issue of invalidity — or underlying facts — for the following reasons:
1. Public rights: The validity of a patent involves public rights not private rights. No Seventh Amendment jury rights adhere to a determination of public rights.
2. Historical test:
A. In 1791, a plaintiff sued in equity to cancel an invalid patent in England.
B. A declaratory judgment action to invalidate a patent is not the flipside of a common law infringement suit for damages.
3.Policy: The issue of validity is a question of law. Further, it is an issue necessitating resolution of underlying fact issues by the judge, not the jury, to ensure a correct legal determination and uniformity of decisions.
I. Patents Involve Public Rights
In Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Supreme Court stated: “The Seventh Amendment protects a litigant’s right to a jury trial only if a cause of action is legal in nature and it involves a matter of ‘private right.’ ” Id. at 42 n. 4, 109 S.Ct. at 2790 n. 4. Originally, the concept of “public rights,” in contrast to “private rights,” was limited to litigation where the government was a party. Northern Pipeline Constr. v. Marathon Pipe Line, 458 U.S. 50, 69, 102 S.Ct. 2858, 2870, 73 L.Ed.2d 598 (1982). The concept was expanded to litigation where the government was not a party in Thomas v. Union Carbide Agric. Prod., 473 U.S. 568, 586, 105 S.Ct. 3325, 3335-36, 87 L.Ed.2d 409 (1985), and in Granfinanciera, 492 U.S. at 54, 109 S.Ct. at 2796-97.
This court has held that the issue of validity of a patent involves public rights, not merely private rights. As stated in Patlex Corp. v. Mossinghoff, 758 F.2d 594, 604 (Fed.Cir.1985), “[T]he grant of a valid patent is primarily a public concern.” See also Joy Technologies, Inc. v. Manbeck, 959 F.2d 226, 228 (Fed.Cir.), cert. denied, — U.S. —, 113 S.Ct. 90, 121 L.Ed.2d 52 (1992). In Patlex, the patentee had brought an infringement suit in which he asked for a jury trial. The defendant pleaded invalidity. A week before the scheduled trial, and with the consent of the trial judge, the defendant success*982fully petitioned the Patent and Trademark Office (PTO) to undertake reexamination of the patent. The district court stayed the suit awaiting reexamination. The patentee sought to enjoin the Commissioner from proceeding with reexamination, challenging the constitutionality of the reexamination procedure, which was added to the patent statute in 1980. 35 U.S.C. §§ 301-307. The patentee asserted, inter alia, that the reexamination procedure deprived him of a Seventh Amendment right to have a jury determine the validity of his issued patent. As correctly noted, the administrative reexamination would allow the PTO to hold the patent invalid and cancel it without affording him a jury trial. 35 U.S.C. § 307(a). While review of such administrative action may be obtained in this court directly or via a district court before such appeal, no jury trial is afforded in any part of these proceedings. 35 U.S.C. § 306.
The Patlex panel noted that although validity is normally raised in litigation between two parties, “the threshold question usually is whether the PTO, under the authority assigned to it by Congress, properly granted the patent. At issue is a right that can only be conferred by the government.” Patlex, 758 F.2d at 604. The panel further reasoned:
The reexamination statute’s purpose is to correct errors made by the government, to remedy defective governmental (not private) action, and if need be to remove patents that should never have been granted - A defectively examined and therefore erroneously granted patent must yield to the reasonable Congressional purpose of facilitating the correction of governmental mistakes. This Congressional purpose is presumptively correct, and we find that it carries no insult to the Seventh Amendment and Article III.
Id. (emphasis added).
Underlying the concept of “public rights” is the power of Congress to define a public grant which need not include a jury right to determination of its efficacy.
[Cjongress can [not] withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law.... At the same time there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.
Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 284, 15 L.Ed. 372 (1856); Granfinanciera, 492 U.S. at 52, 109 S.Ct. at 2795-96; Northern Pipeline, 458 U.S. at 67, 69 n. 23, 102 S.Ct. at 2869, 2870 n. 23; Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U.S. 442, 451 n. 8, 97 S.Ct. 1261, 1267 n. 8, 51 L.Ed.2d 464 (1977); see also Thomas, 473 U.S. at 587, 105 S.Ct. at 3336. As stated in Northern Pipeline:
[W]hen Congress creates a statutory right, it clearly has the discretion, in defining that right, to create presumptions, or assign burdens of proof, or prescribe remedies; it may also provide that persons seeking to vindicate that right must do so before particularized tribunals created to perform the specialized adjudicative tasks related to that right. Such provisions do, in a sense, affect the exercise of judicial power, but they are also incidental to Congress’ power to define the right that it has created.
Northern Pipeline, 458 U.S. at 83, 102 S.Ct. at 2878 (footnote omitted).
A patent grant is of this nature. The patent grant and accompanying rights are purely statutory, albeit based on Article I, section 8 of the Constitution which is “both a grant of power and a limitation.” Graham v. John Deere Co., 383 U.S. 1, 5, 86 S.Ct. 684, 687, 15 L.Ed.2d 545 (1966).
Moreover, Congress has placed patent validity determinations within the cognizance of both Article III and Article I trial tribunals. Reexamination by the PTO with review by the Board of Patent Appeals and Interferences of the PTO is only the most recent empowerment outside Article III. By specific amendment of the Tariff Act of 1930, the International Trade Commission also must *983pass on the validity of patents in connection with unfair trade practices in the importation of goods. Trade Act of 1974, P.L. 93-618, tit. III, ch. 4, § 341, 88 Stat. 1978, 2053 (codified at 19 U.S.C. § 1337(c) (1988)).
These legislative provisions are in accord with the concept of public rights.4 They are not in accord with a constitutional right to a jury trial on the issue of validity. A litigant cannot have a constitutional right and not have a constitutional right on the same issue. See Fleming James, Jr., and Geoffrey C. Hazard, Civil Procedure (3rd Ed.1985) § 8.11 at 450. The panel misreads the holding of Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990) (“Teamsters”) in stating that the public rights limitation has no effect on a jury trial analysis because this case is in an Article III court. The panel states that public rights only apply when Congress has “assigned adjudication of the legal claim concerning such public right exclusively to an administrative agency.” Majority op. at p. 972 n. 5 (emphasis added).5 The panel’s reasoning would eliminate any problem respecting the public rights issue once a claim can be brought in an Article III court. That rationale cannot explain the Patlex case which denied the patentee litigant a right to a jury to determine validity. Patlex must be overruled under the panel’s reasoning.
I believe that Patlex is correct and that Granfinanciera controls. A constitutional jury right to determine validity of a patent does not attach to this public grant. Congress could place the issue of validity entirely in the hands of an Article I trial court with particular expertise if it chose to do so. The panel wipes out this option by constitutional-izing jury rights on the issue of validity.
Since Supreme Court precedent holds that the Seventh Amendment does not apply to public rights determinations, and the patent grant involves a public right, the panel’s order is in conflict with both the Supreme Court and our precedent.
II. Historical Test
The declaratory judgment action of this appeal fails to present a situation in which historically a party had a right to a jury trial. If no public rights issue is involved, a Seventh Amendment right to a jury trial on a statutory claim must meet the following test:
Although “the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791,” the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty. Curtis v. Loether, 415 U.S. 189, 193 [94 S.Ct. 1005, 1007-08, 39 L.Ed.2d 260] (1974).
The 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. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.” Tull v. United States, 481 U.S. 412, 417-18 [107 S.Ct. 1831, 1835, 95 L.Ed.2d 365] (1987) (citations omitted). The second stage of this analysis is more important than the first. Id., at 421 [107 S.Ct. at 1837]. If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh Amendment, we must decide whether Congress may assign and has assigned resolution of the relevant *984claim to a non-Article III adjudicative body that does not use a jury as factfinder.
Granfinanciera, 492 U.S. at 41-42, 109 S.Ct. at 2790. “The second stage of this analysis [i.e., remedy] is more important than the first.” Id. Additionally, both steps must be satisfied. Teamsters, 494 U.S. at 565, 110 S.Ct. at 1345 (“we examine both the nature of the issues involved and the remedy sought”); Tull, 481 U.S. at 417, 107 S.Ct. at 1835 (“the Court must examine both the nature of the action and of the remedy sought”); Curtis, 415 U.S. at 195, 94 S.Ct. at 1009 (“a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law”).
The panel recognizes the two part test (18th Century analog AND remedy) announced repeatedly but changes the “and” to “or.” The panel states:
[I]f a particular action entails either the adjudication of legal rights, Tull, 481 U.S. at 425 [107 S.Ct. at 1839], or, alternatively, the implementation of legal remedies, Curtis, 415 U.S. at 195 [94 S.Ct. at 1009], the district court must honor a jury demand to the extent that disputed issues of fact concerning those rights and remedies require a trial.
Majority op. at p. 972. The panel’s holding is unprecedented. The panel’s reliance on a footnote in Tull to support its truncated jury right analysis is wrong. See maj. op. at 972 n. 6. A reading of the entire Tull footnote shows that the Court rejected the panel’s position. In Tull, the Court repudiated the government’s attempt to divide a “Clean Water Act action for civil penalties into a cause of action and a remedy, [ ] analyz[ing] each component as if the other were irrelevant.” Tull 481 U.S. at 421 n. 6, 107 S.Ct. at 1837 n. 6. By completely disregarding any analysis of the remedy sought in this case, the panel is accomplishing what the Court specifically rejected in Tull.6
A. 18th Century English Practice.
The panel asserts that prior to the Declaratory Judgment Act in 1934, “[v]alidity simply was not litigated in isolation from an infringement claim.” In fact it was in England at the time the Seventh Amendment was adopted. A separate nullification action, similar to the present day declaratory judgment action, could be brought before the English equity court. In England, prior to 1791, anyone could challenge a patent’s validity by a scire facias writ in equity. See Mowry v. Whitney, 81 U.S. (14 Wall) 434, 439-40, 20 L.Ed. 858 (1871); United States v. Stone, 69 U.S. (2 Wall) 525, 535, 17 L.Ed. 765 (1864). “The scire facias to repeal a patent was brought in chancery where the patent was of record. And though in this country the writ of scire facias is not in use as a chancery proceeding, the nature of the chancery jurisdiction and its mode of proceeding have established it as the appropriate tribunal for the annulling of a grant of patent from the government.” Mowry, 81 U.S. (14 Wall) at 440.7
*985The panel acknowledges only one of the three situations in which a writ of scire facias was grantable. Majority op. at 974-75 n. 9. Contrary to the panel’s view, a scire facias could issue for the following reasons:
1. A previous patent had issued on the invention [There was no administrative examination before issuance];
2. Fraud [Inequitable conduct];
3. Unlawful grant [Invalid patent],
Mowry, 81 U.S. (14 Wall.) at 439; Stone, 69 U.S. (2 Wall.) at 535; 2 William C. Robinson, The Law of Patents, § 726 (1890).
The panel also declares that, even if a writ of scire facias is the closest 18th Century analog, a party to such a suit could demand a jury trial in a court of equity as a matter of right. Majority op. at 975 n. 9. The “matter of right” in patent cases is an overstatement. Frequently equity courts decided the facts respecting validity themselves or treated juries as advisory, merely to inform the conscience of the court. Cochrane v. Deener, 94 U.S. 780, 783, 24 L.Ed. 139 (1876); see also Johnson v. Harmon, 94 U.S. 371, 372, 24 L.Ed. 271 (1876); Van Iderstine v. National Discount Co., 227 U.S. 575, 580, 33 S.Ct. 343, 344, 57 L.Ed. 652 (1913); 2 Joseph Story, Commentaries on the Constitution, 553 (5th Ed.1891); Fleming James, Jr., Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 655 (1963).8
Since the first part of the test to determine whether the Seventh Amendment requires a jury trial is negated by this English equity action, that should end the inquiry.9
B. No Damages Remain in the Case.
The patentee’s claim of infringement10 has been adjudicated in this case. The trial court held that the accused method did not meet the limitations of the claim and granted summary judgment. Thus, all that remains at this stage are the declaratory judgment counterclaim for invalidity and unenforceability. Neither remaining claim carries any right to damages. The panel decision relies solely on the challenge to validity as the basis for the jury right.11
The remedy sought in this case is not legal and therefore, on this ground alone, no jury trial is required. The Supreme Court has conclusively and repeatedly stated that the remedy part of the two part test enumerated above is the more important inquiry, Teamsters, 494 U.S. at 565 n. 4, 110 S.Ct. at 1345 n. 4; Granfinanciera, 492 U.S. at 42, 109 S.Ct. at 2790; Tull, 481 U.S. at 421, 107 S.Ct. at 1837; Curtis, 415 U.S. at 196, 94 S.Ct. at 1009, yet the panel order finds a right to a jury nonetheless.
*986First, the panel analyzes a declaratory judgment claim here as a reverse infringement suit and attributes the patentee’s original claim to damages to the invalidity counterclaim, citing Beacon Theatres as authority. However, the panel ignores the reality that the patentee’s claim has been dismissed. Alternatively, the panel holds that the presence of a “legal right” issue is sufficient to invoke a right to a jury without a claim for damages.
First, a declaratory judgment action for a declaration of invalidity is not the flip side of an infringement claim nor necessarily the same as an affirmative defense.12 The latter is limited to the particular claims of the patent asserted in the complaint; a counterclaim may challenge all claims. The issue of infringement or non-infringement is irrelevant to such declaratory judgment claim. The “case or controversy” underlying a declaratory judgment action is the patentee’s threat of suit against the declaratory plaintiff on the patent. Infringement vel non simply is not an issue. As the Supreme Court recently stated: “A party seeking a declaratory judgment of invalidity presents a claim independent of the patentee’s charge of infringement.” Cardinal Chem. Co. v. Morton Int’l., Inc., — U.S. —, —, 113 S.Ct. 1967, 1975, 124 L.Ed.2d 1 (1993).
A patentee has no possibility of suing for a declaration of validity, the flip side to the declaratory judgment claim presented here. The closest counterpart for a patentee is reexamination in the Patent and Trademark Office (PTO). If a reexamination request is granted, the PTO will review the cited prior art and, if appropriate, issue a certificate upholding the patent over that art. In ordinary patent litigation the patentee receives, at best, a judgment that the patent was not proved invalid.13
Second, the panel creates a conflict with all other circuits in upholding a Seventh Amendment right without a damage claim remaining to be tried. Filmon Process Corp. v. Sirica, 379 F.2d 449 (D.C.Cir.1967), is dismissed by the panel in a footnote because the ease does not involve a declaratory judgment. The panel’s rationale is difficult to follow. In denying a mandamus petition, the court in Filmon stated: “The record before [the trial judge] does not show that petitioner has any action for damages pending, a prerequisite to a claim that it is being deprived of a right to a jury trial.” Id. at 451. Similarly in other cases cited to the panel, the circuit courts focused on the demand, or lack thereof, for money damages. United Transp. Union, Local 74 v. Consolidated Rail Corp., 881 F.2d 282, 286 (6th Cir.1989), vacated on other grounds, 494 U.S. 1051, 110 S.Ct. 1517, 108 L.Ed.2d 757 (1990), reaffirmed, 902 F.2d 36 (6th Cir.1990) (“We hold that the nature of the remedy requested by Local 74, insofar as it prays for compensatory damages, is legal.”); Francis v. Dietrich, 682 F.2d 485, 487 (4th Cir.1982) (‘Withdrawal of the claim for damages left only equitable issues.”); Hildebrand v. Board of Trustees of Michigan State Univ., 607 F.2d 705, 708 (6th Cir.1979) (“A key dividing line between law and equity has historically been that the former deals with money damages and the latter with injunctive relief.”); Skippy, Inc. v. CPC Int’l, Inc., 674 F.2d 209, 215 (4th Cir.), cert. denied, 459 U.S. 969, 103 S.Ct. 298, 74 L.Ed.2d 280 (1982) (“Since [plaintiff] failed altogether to pursue its claim for damages for the alleged fraudulent inducement, it was not prejudiced by the district court’s failure to give it a jury trial on a claim not contemplated at trial.”).
Shubin v. United States Dist. Court for S. Cal., 313 F.2d 250 (9th Cir.), cert. denied 373 U.S. 936, 83 S.Ct. 1539, 10 L.Ed.2d 690 (1963), a case directly on point and relied upon by the trial judge in this case, accords with Supreme Court precedent. In Shubin, the court stated: “There is no prayer for damages in any amount.... Hence there exists no possibility that damages could be awarded.... There is left only an ‘equitable *987cause’ before the court below.” The lack of damages in Shubin controlled the denial of a jury. Again, the truncated test adopted by the opinion makes that consideration irrelevant.14
Finally, I have found no Supreme Court case upholding the Seventh Amendment right in civil litigation where damages were not requested. Teamsters, 494 U.S. at 563, 110 S.Ct. at 1343 (“they sought, inter alia, compensatory damages for lost wages and health benefits”); Granfinanciera, 492 U.S. at 36, 109 S.Ct. at 2787 (“Respondent sought to avoid what he alleged were constructively and actually fraudulent transfers and to recover damages, costs, expenses, and interest.”); Tull, 481 U.S. at 422, 107 S.Ct. at 1838 (“A civil penalty was a type of remedy at common law that could only be enforced in courts of law.”); Curtis, 415 U.S. at 190 n. 1, 94 S.Ct. at 1006 n. 1 (“petitioner ... sought to recover actual damages as well”); Ross, 396 U.S. at 542, 90 S.Ct. at 740 (“In the instant case we have no doubt that the corporation’s claim is, at least in part, a legal one. The relief sought is money damages.”); Dairy Queen, 369 U.S. at 476, 82 S.Ct. at 899 (“insofar as the complaint requests a money judgment it presents a claim which is unquestionably legal”); Beacon, 359 U.S. at 504, 79 S.Ct. at 953 (“the right to trial by jury applies to treble damage suits under the anti-trust laws”). Without the pendency of a legal remedy request, petitioner in this case is not denied a constitutional right to trial by jury.
This court’s mandamus order in this case creates the type of conflict with other circuits that warrants Supreme Court review.
III. Jury Rights on an Issue of Law
The issue of validity of a patent is an issue of law. Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 694, 15 L.Ed.2d 545 (1966) (“[T]he ultimate question of patent validity is one of law, [Great] A. & P. Tea Co. v. Supermarket [Equipment] Corp., [340 U.S. 147] at 155 [71 S.Ct. 127 at 131-32, 95 L.Ed. 162 (1950)].”) This interpretation of the current statute is in sharp contrast to interpretations of prior statutes under which patent validity was treated as an issue of fact for the jury. Graver Tank & Mfg. v. Linde Air Prods., 336 U.S. 271, 279, 69 S.Ct. 535, 539, 93 L.Ed. 672 (1949); Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 64 S.Ct. 593, 88 L.Ed. 721 (1944); Tucker v. Spalding, 80 U.S. (13 Wall.) 453, 20 L.Ed. 515 (1871); Bischoff v. Wethered, 76 U.S. (9 Wall.) 812, 19 L.Ed. 829 (1869); Gill v. Wells, 89 U.S. (22 Wall) 1, 22 L.Ed. 699 (1874); Battin v. Taggert, 58 U.S. (17 How.) 74, 15 L.Ed. 37 (1854); 3 William C. Robinson, The Law of Patents, § 1075, (1890). What is the effect of the Supreme Court declaring a particular issue to be an ultimate issue of law? Is it part of the Seventh Amendment right that the underlying factual disputes relevant to the issue of law must be decided by the jury? Or is the entirety of an issue of law including factual disputes, taken from the jury the same as with an equitable issue? Or does the answer depend on the particular issue? No clear answer can be found in Supreme Court precedent, and the circuit court decisions are in conflict respecting the role of a jury in determining patent validity.
The Ninth Circuit held in Sarkisian v. Winn-Proof Corp., 688 F.2d 647 (9th Cir.1982) (in banc), cert. denied, 460 U.S. 1052, 103 S.Ct. 1499, 75 L.Ed.2d 930 (1983), that the issue of validity of a patent is determined as a matter of law by the court, but facts must be found by the jury. If only the legal issue is submitted to the jury, the jury verdict is advisory. The court called for specific factual findings by the jury or by the judge. Id. 688 F.2d at 650. Where a district court judge of that circuit made independent findings of fact and conclusions of law after receipt of an advisory verdict, this court rejected the trial court’s treatment of the verdict as advisory. American Hoist & Derrick *988v. Sowa & Sons, Inc., 725 F.2d 1350, 1361 (Fed.Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 88 L.Ed.2d 41 (1984); see also Perkin-Elmer v. Computervision, 732 F.2d 888, 895 n. 5 (Fed.Cir.), cert. denied, 469 U.S. 857, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984); Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1234 (Fed.Cir.), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989).15
The Seventh Circuit in Roberts v. Sears, Roebuck & Co., 723 F.2d 1324 (7th Cir.1983) (in banc) addressed the issue of nonobviousness, one of the three conditions of patenta-bility (novelty and utility being the other two) and declared that issue to be one of law. However, it further held that the factual issues underlying obviousness go to the jury, but that mandatory alternative instructions must be given delineating the particular factual dispute in the ease that controls the outcome. Thus, under Seventh Circuit law, the trial court announces the ultimate result in its instructions, dependent upon the jury finding of a particular fact.16 While this case was cited with approval in one Federal Circuit case, Structural Rubber Prods. v. Park Rubber Co., 749 F.2d 707 (Fed.Cir.1984), unlike the Seventh Circuit this court has not imposed the use of mandatory alternate instructions, and the procedure has not been used, to my knowledge, in any appeal to come to this court. One of the difficulties with mandatory alternative instructions is that a validity decision is likely to require a number of underlying fact findings which would have to be covered by cumbersome instructions setting out various possible combinations of subsidiary facts. While the mandatory alternative instructions procedure separates the law/fact roles of judge and jury, the question remains: Is the fact finding role of a jury a constitutional right with respect to the conditions of patentability?
The Tenth Circuit recognized the ultimate issue of validity to be one of law but held the conditions of patentability, e.g., novelty, utility, nonobviousness, are issues of fact for the jury. See, e.g., Norfin Inc. v. International Business Machine Corp., 625 F.2d 357 (10th Cir.1980), and Celebrity, Inc. v. A & B Instrument Co., 573 F.2d 11 (10th Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978). Under this analysis, there is no separate judgmental decision for the judge to make. If the jury holds that an invention would have been obvious, the judge is not permitted to review that verdict except for the substantiality of the evidence.
In Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1547 (Fed.Cir.1983), this court declared that it was not error to give the issue of validity to the jury over a litigant’s objection and that the judge maintained control over the issue of law by the court’s instructions on the applicable law and by ruling on directed verdict, JNOV (now JMOL) and new trial motions. Id. at 1547-48. It was not entirely clear from Connell (even in a suit for damages) whether our precedent actually required the validity issue to go to the jury or merely held that it was not reversible error per se to ask the jury for a validity/invalidity verdict. However, because of the strong language of Connell, and later precedent endorsing jury rights, the right to a jury on validity issues has simply become ingrained without analysis.17 In banc efforts to clarify the issue have been unsuccessful, as this case itself illustrates.18 This court has tacitly approved instructions and special interrogatories (purportedly under Fed.R.Civ.P. 49(a)) directing juries to decide the ultimate legal issue of validity and subsidiary issues of law (most frequently obviousness). Perkin-Elmer Corp., 732 F.2d at 894-95; DMI, Inc. v. Deere & Co., 802 F.2d 421, 424 (Fed.Cir.1986). Only if the verdict *989does not withstand the stringent standard of Fed.R.Civ.P. 50 may the verdict be overturned.19 Thus, this court invokes the standard of review applicable to an ultimate issue of fact or an ultimate issue of fact mixed with law and applies it to an ultimate issue of law. Further, a JMOL motion is required to review the judgment, absent plain error. Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 854 (Fed.Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 2957, 119 L.Ed.2d 579 (1992). However, if a verdict loser does not challenge the sufficiency of the evidence, i.e., the presumed facts, but simply the ultimate conclusion of law, is a JMOL required for review of the judgment? Is it not enough to object to giving the legal issue to the jury, contrary to the holding in Connell?
The panel order holding that petitioner is entitled to a jury trial on the factual issues underlying the issue of validity must be read in light of our precedent. Petitioner asked, that the jury be given the issue of validity to decide. Our precedent supports this request. Railroad Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506 (Fed.Cir.1984); Richardson, 868 F.2d at 1235. Once the verdict is rendered on the ultimate legal issue, the court will presume the jury resolved all facts in favor of the verdict winner. Perkin-Elmer, 732 F.2d at 893; Jurgens v. McKasy, 927 F.2d 1552, 1557 (Fed.Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 281, 116 L.Ed.2d 232 (1991); DMI, 802 F.2d at 425; But see, Newell, 864 F.2d 757 (not function of jury to pick and choose among established facts relating to obviousness). The instructions need not delineate factual disputes in the case. General instructions, for example, outlining the broad legal standard of Graham v. John Deere, 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545 (1966), for determining obviousness, bear our imprimatur. DMI, 802 F.2d at 425; Shearing v. Iolab Corp., 975 F.2d 1541, 1544 n. 2 (Fed.Cir.1992); Sjolund v. Musland, 847 F.2d 1573, 1575-76 (Fed.Cir.1988). The trial court’s ruling on a JMOL motion may be no more than “Denied.” Sjolund, 847 F.2d at 1576. We do not require a reasoned analysis from the trial judge. Some panel opinions speak of de novo review of the legal conclusion after accepting the presumed findings of fact. Jurgens, 927 F.2d at 1557. Others reject the de novo standard. Bio-Rad Lab. v. Nicolet Instrument Corp., 739 F.2d 604, 607 (Fed.Cir.), cert. denied, 469 U.S. 1038, 105 S.Ct. 516, 83 L.Ed.2d 405 (1984). Still others conflate the standard to whether a “reasonable” jury could reach the verdict it rendered. Sun Studs, 872 F.2d at 982; Shearing, 975 F.2d at 1545; Richardson, 868 F.2d at 1235.
The validity/invahdity of a patent is a matter which affects the public, not merely the litigants. Yet, under the confusing jury jurisprudence of this court, the matter can be treated as if only the rights of the litigants were involved. That a reasonable jury could have reached the contrary verdict on the record before us and that verdict would have been accepted under the reasonableness standard is of no consequence. I do not agree with this treatment of an issue of law. In my view, an issue of law has only one possible answer on a given record. At a minimum, the decision on the issue must be reviewed to determine if it is “right” or “wrong,” not “reasonable.” See Newell Co., 864 F.2d at 762; Structural Rubber, 749 F.2d at 718-19.20
I can point to no definitive Supreme Court pronouncement respecting a Seventh Amendment right or no right to have a jury decide factual issues underlying an issue of law. However, clearly the touchstone of jury rights is not that a fact dispute underlies the issue to be decided. “[T]he Seventh Amendment was never intended to establish the jury as the exclusive mechanism for factfinding in civil cases.” Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 451 n. 8, 97 S.Ct. *9901261, 1267 n. 8, 51 L.Ed.2d 464 (1977). I glean from City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion), and Kungys v. United States, 485 U.S. 759, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988), that the entirety of an ultimate issue of law is taken from the jury. Others read those cases differently.
Similarly, Bose Corp. v. Consumers Union, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), speaks of close scrutiny of the evidence by the courts to protect constitutional rights and can be read as so limited. I do not argue that patent rights equate with First Amendment rights. But the determination of patent validity also does not equate with a decision which benefits from the communal wisdom of the jury. It is my understanding that the denomination of an issue as one of law represents a policy decision that a judge is more appropriate than a jury to make the decision. As a matter of policy for reasoned and uniform decisions, this is true of patent validity. The identification and resolution of underlying facts in the case is as important as the judgmental decision. If one presumes, for example, that a jury verdict on the issue means all the Graham factors were answered in favor of the verdict winner, the judgmental call is likely to be skewed.
As jury cases are now tried, in accordance with our precedent, the evidence respecting validity of a patent is thrown into the black box of the jury room, and the verdict is returned either valid or invalid. If both parties agree to that procedure, so be it. But where a party objects, I believe that a litigant has a right to a trial court’s decision with findings of fact and conclusions of law on the issue of validity. The judge has an essential role to play in a constitutional jury trial. As stated in Herron v. Southern Pacific Co.:
In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. This discharge of the judicial function as at common law is an essential factor in the process for which the Federal Constitution provides.
283 U.S. 91, 95, 51 S.Ct. 383, 384, 75 L.Ed. 857 (1931). See also Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14, 19 S.Ct. 580, 585, 43 L.Ed. 873 (1899). Moreover, only a reasoned decision lays the foundation for meaningful review.
Because our precedent has been read to require jury resolution, litigants no longer challenge the propriety of giving the issue of validity to the jury to decide if there is conflicting evidence on underlying facts. By not raising the issue, they must be deemed to have consented even if there is no jury right. This case, which is in the posture of a declaratory judgment for invalidity, presents a sufficiently different setting from prior cases that a litigant could raise the issue without fear of chastisement. We are provided with an opportunity to at least speak definitively on jury rights and procedures. We have thrown away that opportunity once again. I respectfully dissent.
. In the fiscal years 1992-1994, 163 of 274 patent trials were tried to a jury. In fiscal year 1994, 70% of patent trials were tried to juries. 1994 Preliminary Annual Report of the Director of Administrative Office of the United States Courts, Table C-4 (available from the Administrative Office's Statistics Division); Annual Report of the Director of the Administrative Office *981of the United States Courts (temp. ed. 1993), Table C-4; Annual Report of the Director of the Administrative Office of the United States Courts, Table C-4 (1992).
. See e.g. Second Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit, 104 F.R.D. 207, 370-88 (1984) (Panel Discussion: “Should There Be Limitations on Use of Juries in Patent Cases?”); See also First Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit, 100 F.R.D. 499, 653-62 (1983); Eleventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit, 153 F.R.D. 177, 236-52 (1993) (Panel Discussion: "To What Extent Must Juries be Used in Patent Cases?”); The Advisory Commission on Patent Law Reform, A Report to the Secretary of Commerce, pp. 107-110 (August 1992).
. 35 U.S.C. § 281 states in part:
A patentee shall have remedy by civil action for infringement of his patent.
35 U.S.C. § 284 states in part:
When the damages are not found by a jury, the court shall assess them.
. The United States Court of Federal Claims, an Article I court, has long ruled on patent invalidity in suits by a patentee for compensation from the United States for use of a patented invention by a government supplier. This cannot be explained solely on the ground that it involves waiver of sovereign immunity. Congress has taken away a patentee’s right to sue the supplier which otherwise entails a right to a jury trial under the panel analysis. 28 U.S.C. § 1498 (1988).
State courts also routinely decide issues of validity in suits by a patentee/licensor for royalties against a licensee. See Lear, Inc. v. Atkins, 395 U.S. 653, 675-76, 89 S.Ct. 1902, 1913-14, 23 L.Ed.2d 610 (1960); Pratt v. Paris Gas Light & Coke, 168 U.S. 255, 259, 18 S.Ct. 62, 64, 42 L.Ed. 458 (1897).
. The Supreme Court has never limited the public rights doctrine to such "exclusive" assignment.
. Neither Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) nor Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) is instructive on what constitutes a common law claim or on what issues in such claim are for the jury. Those cases hold:
1. A common law claim cannot be treated as subservient to or merely incidental to an equitable claim; and,
2. An equitable claim cannot be tried prior to a common law claim where there are common overlapping issues of fact.
If the facts were tried first to the court on the equitable issue, the court's resolution would preempt the jury decision on the overlapping factual issues, contrary to the jury right of the Seventh Amendment. These two Supreme Court cases merely direct the order of trial, they do not change equitable claims to legal claims. Neither Supreme Court case helps in deciding whether the issue of invalidity is or is not, in whole or in part, for the juiy.
Additionally, the panel's indiscriminate use of these two Supreme Court cases leaves a wide path strewn with the carnage of cases declared overruled or obsolete. Neither Dairy Queen nor Beacon Theatres supports the panel.
In Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139 (1876), the Court stated that equity courts had independent jurisdiction to adjudicate all patent issues by statute, not that some of the issues were incidental to equitable issues. In re Don Hamilton Oil Co., 783 F.2d 151 (8th Cir.1986), had nothing to do with the order of trial involving both legal and equitable claims.
. Under the American patent statute in effect in 1791 (Act of April 10, 1790, ch. 7, § 5, 1 Stat. 109, 111), Congress provided private parties with a right to sue for repeal of a patent by proceedings similar to a writ of scire facias. See, Ex *985parte Wood, 22 U.S. (9 Wheat.) 603, 6 L.Ed. 171 (1824) (discussing comparable provision in Patent Act of 1793); See also United States v. Bell Telephone Co., 128 U.S. 315, 9 S.Ct. 90, 32 L.Ed. 450 (1888) (extended discussion of scire facias and similar proceedings); Mowry, 81 U.S. (14 Wall) at 440; United States v. Glaxo Group, Ltd., 410 U.S. 52, 65, 93 S.Ct. 861, 869, 35 L.Ed.2d 104 (1973) (Rehnquist, J., dissenting). Although writs of scire facias issued out of law courts in early American courts, English courts issued such writs in courts of equity. The historical test requires courts to look to English practice in 1791, not American practice. Granfinanciera, 492 U.S. at 41-42, 109 S.Ct. at 2790; Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636 (1935) ("The right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted.”); Dimick v. Schiedt, 293 U.S. 474, 476, 55 S.Ct. 296, 296, 79 L.Ed. 603 (1935).
.Story reports that "Lord Coke supposes that the title Cancellarius [Chancellor] arose from his cancelling (a cancellando) the king's letters-patent, when granted contrary to law, which is the highest point of jurisdiction." 1 Joseph Story, Commentaries on Equity Jurisprudence, § 40 (12th Ed.1877).
. The search for an historical analog is, in any event, complicated by the statutory nature of patent grants. There is no common law patent. Moreover, validity under the Statute of Monopolies (1623) was litigated as a fact question in 1791. Should our search entail looking at the broader question of how an issue of law was litigated?
. "Infringement" must be understood to mean only that an accused product or method falls within the scope of the claim. Infringement is not a determination of liability. A finding of infringement may be overcome by an affirmative defense.
. The unenforceability claim is equitable. Gardco Mfg. v. Herst Lighting Co., 820 F.2d 1209 (Fed.Cir.1987).
. A declaratory judgment for a declaration of noninfringement would mirror an infringement suit. Patents are presumed valid. Therefore, proof of validity forms no part of the patentee’s case, unless the defendant raises the issue of invalidity.
. Occasionally a judgment will declare a patent "valid”. A patent is bom valid and remains so until proven otherwise. The correct ruling is that the alleged infringer did not prove the patent invalid.
. The panel order likewise dismisses two district court opinions cited by respondents. Majority op. at 978. In those two cases, neither patentee sought damages. Both courts held that the trial would proceed without a jury. A subsequent district court opinion declined to follow Minnesota Automotive, Inc. v. Stromberg Hydrau-lie Brake & Coupling Co., 167 USPQ 165 (D.Minn.1970), which the panel embraces. Criticizing that opinion, another district court stated that it was “unclear exactly what aspect of the case gave rise to [a jury] right." General Tire & Rubber v. Watson-Bowman Assocs., 74 F.R.D. 139, 141 (D.Del.1977).
. The creation of this court shifted all patent appeals from the regional circuits to this court.
. Resolution of the factual inquiries outlined in Graham does not dictate the answer to the question of obviousness. It merely brings one face to face with a judgmental decision. Does the invention, in light of those facts, satisfy the requirement of nonobviousness within the meaning of 35 U.S.C. § 103?
. Connell fails to cite even a single Supreme Court case concerning jury trials.
. See also Sun Studs, Inc. v. ATA Equip. Leasing, Inc., 872 F.2d 978, 984, reh’g granted in banc, 882 F.2d 1583; original opinion reinstated and rehearing in banc declined, 892 F.2d 73 (Fed.Cir.1989).
. Newell Co. v. Kenney Mfg., 864 F.2d 757 (Fed.Cir.1988), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 30 (1989).
. In the Graham trilogy of cases, I see no reference to Rule 52(a) nor deference to factual findings by the trial court. Moreover, although fact-intensive inquiries, the Court identified the secondary considerations of long felt need, failure of others, and commercial success as "legal inferences or subtests.” Graham, 383 U.S. at 35-36, 86 S.Ct. at 702-03.