Patent

Specialised IP Courts (Part I): Tilting at the Citadel of Experts?


expert-einsteinThe debates on the merits or otherwise of specialised IP courts is a raging one. Imagine my delightful surprise when I chanced upon a piece penned more than 50 years ago! One of the most cutting critiques of specialist courts ever; penned in prose that is at once powerful and poetic! Old is certainly gold and it’s a pity that we don’t turn to history more often! Sample this:

“Against the citadel of the expert, I tilt no quixotic lance.”

What a delightful turn of phrase by Judge Rifkind (and one that I liberally adapted for the title of this piece). Anyway here goes the passage in full:

“Periodically one hears the suggestion that patent cases should be tried before patent judges. The proposal takes a variety of forms, but they revolve about the proposition that the judicial product of patent litigation would be improved, if the trials were conducted by judges specializing in patent cases.

I deny this pivotal proposition; consequently I am opposed to patent courts or patent judges.

The highly industrialised society in which we live has a great appetite for “know-how”. Such a society elevates and aggrandizes the position of the expert. His is the voice with the ready answer. His opinions become the facts upon which lesser mortals risk life and fortune.

Against the citadel of the expert, I tilt no quixotic lance. My contention is that the judicial process requires a different kind of expertise – the unique capacity to see things in their context. Great judges embrace within their vision a remarkably ample context. But even lesser men, presiding in courts of wide jurisdiction, are constantly exposed to pressures that expand the ambit of their ken. Patent law does not live in the seclusion and silence of a Trappist monastery. It is part and parcel of the whole body of our law. It ministers to a system of monopolies within a larger competitive system.

This monopoly system is separated from the rest of the law not by a steel barrier, but by a permeable membrane constantly bathed in the general substantive and procedural law. “

For a more recent critique of specialist courts, see this piece by Justice Diane Wood, where she takes on the exclusive patent jurisdiction (albeit appellate) of the US CAFC (Court of Appeals for the Federal Circuit) and notes… I extract just one biting bit from her blistering critique:

“The “central purpose” of the Act [creating the CAFC]….. was “to reduce the widespread lack of uniformity and uncertainty of legal doctrine that exist[ed] in the administration of patent law”……Of course, uniformity says nothing about quality or accuracy. A broken clock tells the time with impeccable uniformity: the only problem is that it is right only twice a day.”

The point of this post is not merely to throw a few delightful IP nuggets your way, without more. Rather it is to set the stage for a delectable debate around the recently enacted Commercial Courts Act….and to ask to what extent it might help (or hinder) the “efficient” and (dare I say) “fair” dispensation of IP justice? So watch this space for more!

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

3 comments.

  1. Avatarr k jain

    hello, Mr Basheer. it is three years after that I am responding on Spicy Ip. Interesting article. But also note that beauty lies in the eyes of beholder. It is your intellect which highlighted the loveliness in this pieces you brought out. This must have been seen my multiple mortals like me who just did not have the ability to appreciate it. So all credit to you.
    but the conflating views you have drawn between the specialized courts and traditional methods of justice dispensation is incorrect. Why is the presumption that the people who are specialized in a specific field will judge between the narrow realms of the subject and will not look into the context in which the facts is being presented. Sir, the prognosis of a judicial work is such that it perforce any presiding officer over a matter to look beyond what is being said and interpret it contextually. A pilot specialized in flying a specialized plane will act in totally unpredictable weather conditions with more knowledge and expertise than any driver. As for a prose, i borrow from your article and say”against the citadel of all novices, i tilt every quixotic lance”.

    Reply
  2. AvatarAshwij

    Mr.Basheer,
    Dont you think a similar line of argumentation can be used to oppose the creation of every specialized tribunal in the country? I understand that tribunals and courts perform slightly different functions but wont the applicable principle in thsi regard still be the same?

    Reply
    1. Avatarr k jain

      It is a good question -the answer is mentioned in my first comment. Though the question is directed to Mr. Basheer, I take the liberty to comment. The question itself challenges the correctness of Mr. Basheer presumptions. The important thing is to understand why are the tribunals created. The prime purpose is creation of tribunals is to provide a form of judicial reach wherein the cases of a particular kind are brought together for adjudication . The fact the presiding officer is usually chosen with some knowledge of the subject matter of the cases is primarily the the judicial process could focus on the important facets of the case by saving time of the tribunal to gather elementary knowledge of the subject matter. Imagine a court which has been dealing matrimonial disputes being asked to adjudicate between novelty and non obviousness of a patent matter. The tribunal by being a judicial forum because of its raison de tere will be forced to examine the evidences and other proceeding in light of context in which they are presented as in a regular court. This is what judicial evaluation is all about. The premise that court/tribunals could function is any way different is flawed and incorrect.
      R.k.Jain
      patent agent

      Reply

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