The endless patent battles between Apple and Samsung took an interesting turn this week when Apple claimed that the most recent court ruling violated the Seventh Amendment of the U.S. Constitution: the right to trial by jury.

Back in 2014, Apple was awarded $119.6M when Samsung was found to have violated three of the five patents in dispute. That award was overturned last month when an appeals court ruled that Samsung didn’t infringe one of the three patents, and declared the other two invalid.

The problem, explains Reuters, is that the appellate court didn’t just refer to the trial court record in reaching its conclusions, it also considered new evidence …

In a petition for rehearing en banc filed on Monday with the U.S. Court of Appeals for the Federal Circuit by Apple’s attorney William Lee of Wilmer Cutler Pickering Hale and Dorr, the company said the panel used materials that it researched itself and were not part of the trial court record to overturn the infringement verdict. This undermined Apple’s Seventh Amendment right to have a jury, and not an appellate court, decide the facts of the case, the company said.

In other words, Apple argues that while judges alone are entitled to overturn a case based purely on the law, they cannot consider new facts not introduced as evidence in the original case without putting those facts before a jury.

It looks like this case – like a separate patent battle with Samsung – could be heading towards the Supreme Court.

Photo: Reuters/Chip East