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!


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3 thoughts on “Specialised IP Courts (Part I): Tilting at the Citadel of Experts?”

  1. 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”.

  2. 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?

    1. 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.
      patent agent

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